LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 
 Received 
 
 -88<>, 
 
 Accessions A^o. 
 
 l / 
 
 Shelf No. 
 
A MEMOIR 
 
 OF 
 
 BENJAMIN ROBBINS CURTIS, LL.D. 
 
MEMOIR 
 
 OF 
 
 BENJAMIN BOBBINS CURTIS, LL.D. 
 
 WITH SOME OF 
 
 HIS PROFESSIONAL AND MISCELLANEOUS 
 WRITINGS. 
 
 EDITED BY HIS SON, 
 
 BENJAMIN R. CURTIS. 
 
 
 BOSTON: 
 LITTLE, BROWN, AND COMPANY. 
 
 1879. 
 
. 
 
 Entered according to Act of Congress, in the year 1879, by 
 
 BENJAMIN R. CUKTIS, 
 
 In the Office of the Librarian of Congress at Washington. 
 
 -2-71.70 
 
 UNIVERSITY PRESS : 
 JOHN WILSON AND SON, CAMBRIDGE. 
 
PREFACE. 
 
 MANY friends and acquaintances of my late father, in 
 various parts of the country, have expressed a strong desire 
 for the publication of an authentic account of his life, and 
 of a collection of such of his principal productions as are 
 not contained in the Reports of the courts in which he 
 practised as a lawyer or sat as a judge. In consequence 
 of these suggestions this work has been prepared. My 
 endeavor has been to provide a full account of his life 
 in the first volume, and to collect in the second such of 
 his literary efforts as may illustrate his character, and are 
 worthy of preservation in a permanent form. An index is 
 added to each volume. 
 
 It seemed to be proper to commit to my uncle, Mr. 
 George Ticknor Curtis, the preparation of the biographical 
 part of this work. He was my father s only brother, and 
 as there was a difference of but three years in their ages, 
 and as their relations were always so intimate, he was best 
 able to give a full account of the life of the elder. It 
 was said soon after my father s death, by a distinguished 
 member of the Boston Bar, who had known him for forty 
 years, that all that part of his life which preceded his 
 removal to Boston, in 1884, was known only by tradition. 
 This portion of his history is now for the first time fully 
 related in the following Memoir. 
 
VI PREFACE. 
 
 My thanks are due to many friends of Judge Curtis, 
 for their aid in furnishing materials of great value to his 
 biographer. Among them, I am under special obligations 
 to my father s college classmates, George William Phillips, 
 Esq., Dr. Oliver Wendell Holmes, the Rev. Samuel May, 
 and the Rev. Dr. Chandler Robbins. To President Eliot, 
 and other gentlemen connected with Harvard University, 
 I am also indebted for the obliging manner in which in 
 quiries concerning my father s college life have been met. 
 From the stores of the late Mr. George Ticknor, who col 
 lected and preserved many things relating to his nephew, 
 through a period of more than forty years, I have been 
 supplied by Mrs. Ticknor with very valuable materials, 
 of which the author of the Memoir has made full use. 
 My father s letters to his uncle, from the time when he 
 first began the study of the law, show the free, confidential, 
 and affectionate intercourse that always existed between 
 them. 
 
 From the Department of State and the Department of 
 Justice, through the kindness of Secretary Evarts and 
 Attorney-General Devens, I have received important in 
 formation. To the Hon. Henry Stanbery, of Ohio, for 
 merly Attorney-General of the United States, the author 
 of the biography is also peculiarly indebted, as he likewise 
 is to his and my father s friend, D. W. Middleton, Esq., the 
 venerable and urbane Clerk of the Supreme Court of the 
 United States. 
 
 The purpose which has guided me in the selection of 
 such of my father s productions as are included in the 
 second volume, has been to give only those which exhibit 
 the growth of his mind and character ; which illustrate 
 the influence which he exerted, or endeavored to exert, 
 upon the times in which he lived ; or which show the 
 
PREFACE. Vll 
 
 manner in which he discharged his public duties on very 
 important occasions. While some of these, and others of 
 his writings that are included in the Memoir, touch upon 
 public questions or events or persons that have been or 
 still are subjects of controversy, it should be remembered 
 that the sole object of this work, in reference to all such 
 matters, is to show how my father felt or acted respecting 
 them. 
 
 BENJAMIN R. CURTIS. 
 BOSTON, September, 1879. 
 
 NEW YORK, June 1, 1879. 
 BENJAMIN R. CURTIS, ESQ., BOSTON. 
 
 MY DEAR NEPHEW, I now send you the Memoir of 
 your father, which I promised to write as a companion vol 
 ume to precede your proposed collection of his most im 
 portant literary remains. If it affords to you or others, 
 in the reading, one half of the pleasure that it has afforded 
 to me in the writing of it, my labor of love will be amply 
 rewarded. 
 
 I am sensible, however, of the dangers of biographical 
 writing ; among which is the tendency to praise and exalt 
 beyond what the general opinion will confirm. But the 
 judgment of friends and acquaintances concerning your 
 father has been made up. All that we need be anxious 
 for is, that strangers and other generations shall under 
 stand him as well as he was understood by those who 
 knew him, or who knew much of him. I desire only to 
 have it remembered, that the whole of his life, from his 
 boyhood, was known to me as it could be known to no 
 
Vlll PREFACE. 
 
 one else now living. Tracing, as I have done, the entire 
 course of his life, from the days when we were both cared 
 for by a parent whose energies made her one of the most 
 efficient, and whose tenderness and self-devotion made her 
 one of the loveliest of her sex, I am reminded of the beau 
 tiful allegory of two of Milton s lines : 
 
 " For we were nurst upon the selfsame hill, 
 Fed the same flock, by fountain, shade, and rill." 
 
 Whatever deductions, therefore, should be made from what 
 I have here recorded or said of your father, on account of 
 fraternal partiality, I ought to be ready to accept, as T am 
 ready to bear my just responsibility for any thing that this 
 Memoir contains. From the time when I began it to this 
 moment when I commit it to your care, I have heard a 
 voice which seemed to say to me, " Make no imperfect 
 exhibition of what I was ; and as I courted no man s favor, 
 and feared no man s frown, so do you take care that noth 
 ing I ever did shall be allowed to be misunderstood." 
 
 I cannot transmit this biography to you without saying 
 that your filial desire to have full justice done to your 
 father s memory, and your diligence in collecting the 
 materials needful to illustrate his character, are most 
 gratifying to all who feel an interest in you. That you 
 will use every effort to be worthy of the honored name 
 you bear is both the hope and the belief of 
 
 Yours most affectionately, 
 
 GEORGE TICKNOR CURTIS. 
 
CONTENTS OF VOLUME I. 
 
 CHAPTER I. 
 
 PAGE 
 
 Birth and Parentage. Early Opportunities for Reading. Schools at 
 tended. A Mother s Self-Devotion. Boyhood. Religious Impres 
 sions. First Written Production that is Extant. Enters Harvard 
 College 1 
 
 CHAPTER II. 
 
 Harvard College. Trials of the Freshman Year. A Mother s Anxiety 
 quickly relieved. College Friendships. ABowdoin Prize. Rank 
 as a Scholar. Evident Capacity for the Legal Profession. An 
 Oration at Commencement not delivered 28 
 
 CHAPTER III. 
 
 Enters the Law School at Cambridge. Steady Progress. Quits the 
 School for a Country Residence. Finishes his Studies at Xorthfield. 
 Admitted to the Bar. Marriage. Country Practice. Invita 
 tion to remove to Boston. Acquisitions and Reputation. Char 
 acter and Professional Standing of Mr. Charles Pelham Curtis. 
 Letters to G. W. Phillips and Mr. Ticknor 41 
 
 CHAPTER IY. 
 
 1834-1844. 
 
 Removal to Boston. Letters to Mr. Ticknor in Europe. Rapid Rise 
 at the Boston Bar. Character as an Advocate. The Case of the 
 Slave-child Med. Death of James C. Alvord, and Tribute to his 
 Memory. Extensive Practice. Statesmanlike Qualities, but not 
 a Politician. Rule in regard to Participation in Public Affairs. 
 
CONTENTS OF VOLUME I. 
 
 PAGE 
 
 Article on Repudiation in the "North American Review." Letter 
 from Judge Story. Death of his Wife. Letters to Mr. Ticknor on 
 that Event . . 71 
 
 CHAPTER V. 
 
 1845-1851. 
 
 Death of Judge Story. Mr. Curtis appointed to succeed him in the 
 Corporation of Harvard College. Letters to Mr. Ticknor. The 
 Fugitive-Slave Excitement in Boston. Address of Welcome to Mr. 
 Webster. Speech in Faneuil Hall on the Duty of obeying the Con 
 stitution. Address to the People of Massachusetts, occasioned by 
 the " Coalition " . . 106 
 
 CHAPTER VI. 
 
 1851-1856. 
 
 Appointed an Associate Justice of the Supreme Court of the United 
 States. Letter to President Fillmore and Mr. Webster. The " Fu 
 gitive Slave Trials" in Boston. Judicial Life at Washington. 
 Letters to Mr. Ticknor . 153 
 
 CHAPTER VII. 
 
 1851-1856. 
 
 Purchase of an Estate at Pittsfield. Country Life. Interest in Farm 
 ing. Letters to Mr. Ticknor. Projects and executes his Edition 
 of the Supreme Court Decisions 182 
 
 CHAPTER VIII. 
 
 1857. 
 
 Last Attendance as a Member of the Supreme Court. Foreshadowing 
 of Sectional Conflicts. The Case of Dred Scott. Fatal Errors of 
 the Majority of the Bench. Dissenting Opinion. Correspondence 
 with Chief Justice Taney 192 
 
 CHAPTER IX. 
 
 1857. 
 
 Resignation of Office. Reasons for the Step. Correspondence occa 
 sioned bj it 243 
 
CONTENTS OF VOLUME I. XI 
 
 CHAPTER X. 
 
 1857-1874. 
 
 PAGE 
 
 Return to the Bar. Death of Mrs. Anna W. Curtis. A National 
 Reputation. A great Practice of Seventeen Years. Its aggregate 
 Pecuniary Results. Some Opinions on Constitutional and other 
 Questions. Address to Judge Sprague on his Retirement from the 
 Bench , ... 264 
 
 CHAPTER XI. 
 
 1860. 
 Change of Religious Sentiments. No Change in Religious Character . 322 
 
 CHAPTER XII. 
 
 1860-1866. 
 
 Threatenings of Secession. Efforts to produce a Conciliatory Spirit in 
 Massachusetts. Civil War. President Lincoln s Proclamations of 
 September, 1862. Pamphlet on Executive Power. Curious Inter 
 view with Mr. Stanton. Death of his Mother. Appointed Umpire 
 under a Treaty between Great Britain and the United States. Opin 
 ions given at the Bar 327 
 
 CHAPTER XIII. 
 
 1865-1868. 
 
 Accession of Andrew Johnson to the Presidency. Letter to the Phil 
 adelphia Convention of August, 1866. Impeachment of President 
 Johnson. Judge Curtis requested to defend the President. His 
 Opening Argument. Letters to Mr. Ticknor during the Trial. 
 Acquittal of the President. Declines the Office of Attorney-Gen 
 eral 383 
 
 CHAPTER XIV. 
 
 1869-1874. 
 
 Professional Duties. Letters to Mr. Ticknor and William E. Curtis. 
 
 Death of Mr. Ticknor. Deaths of Young Children. A Short 
 Tour in Europe. Letter from London to G. T. Curtis. Declines 
 an Appointment as Counsel for the United States at the Geneva 
 Arbitration. Letter to the Hon. Reverdy Johnson concerning the 
 Office of Chief Justice of the United States. Lectures at the 
 Cambridge Law School. Death of his eldest Daughter. Letter to 
 G. T. Curtis. Continued Professional Labor. Declining Health. 
 
 Death at Newport. Independence of Character 420 
 
Xll CONTENTS OF VOLUME I. 
 
 APPENDIX. 
 
 PAGE 
 
 Walter Curtis 457 
 
 Note on President Lincoln s Proclamation suspending the Writ of 
 
 Habeas Corpus, etc 459 
 
 Death of Mr. Webster 463 
 
 Cases argued before the Supreme Judicial Court of Massachusetts, 
 
 from 1836 to 1851 467 
 
 Opinions of the Supreme Court of the United States delivered by 
 
 Judge Curtis, from 1851 to 1857 472 
 
 Cases argued before the Supreme Judicial Court of Massachusetts, 
 
 from 1857 to 1874 474 
 
 Cases argued before the Supreme Court of the United States, from 
 
 1857 to 1874 . . 478 
 
 IXDEX TO VOLUME I. , . . . 481 
 
 
, 
 
 MEMOIR OF BENJAMIN ROBBIN 
 
 S. 
 
 CHAPTER I. 
 
 Birth and Parentage. Early Opportunities for Reading"."; 
 
 A Mother s Self-Devotion. Boyhood. Religious Impressions. First 
 Written Production that is Extant. Enters Harvard College. 
 
 MOST persons in Massachusetts who bear the name of 
 Curtis are descended from William and Sarah Curtis, who 
 emigrated from England in the ship " Lyon," and landed 
 at Boston, Sept. 16, 1632. 
 
 William Curtis was born in the village of Nazeing, or 
 Naseing, in the county of Essex, in 1592. On the 6th of 
 August, 1618, he married Sarah Eliot, of the same village, 
 a sister of John Eliot, the "Apostle to the Indians." 
 Whether William emigrated from Essex or from Warwick 
 shire is not certain ; but, in regard to his family name, we 
 have the authority of Shakspeare for the mode of spelling 
 
 VOL. I. 1 
 
2 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1639. 
 
 it in use at the present day among most of his descendants. 1 
 He settled in Roxbury, and in 1639 he built a house on 
 Stony Brook, under the shadow of a large elm. The house 
 and the tree are still standing; and the house was until 
 quite recently occupied by one of his lineal descendants of 
 the sixth generation, the late Mr. Isaac Curtis. The place 
 is near the Boylston Station, on the west side of the Boston 
 and Providence Railroad ; and on it there is a spring of 
 water which has been used by the family for more than two 
 hundred years. The family tradition is that this house was 
 built from timber cut on the ground. 
 
 The name of Curtis has been variously spelled, both in 
 England and America, as it is here printed, and as Cur- 
 
 1 In the " Taming of the Shrew/ one of the inferior characters is named 
 Curtis. In this play, the scene of which is laid in Padua, Shakspeare, with 
 his usual disregard of congruities, mixes up English names and localities 
 with Italian names and scenes. Thus he makes Sly declare that he is 
 " Christopher Sly, old Sly s son of Burton-heath," or Burton-on-the-heath, 
 a village in his own Warwickshire ; and he introduces the name of "Marian 
 Hacket, the fat alewife of Wineot," who is supposed to have been a real 
 personage at Wineot, four miles from Stratford-on-Avon, at the time the 
 play was written. In the same way, he picked up the name of Curtis, 
 either at his own town of Stratford-on-Avon, or elsewhere in Warwickshire, 
 and bestowed it upon a servant of Petruchio, calling the other servant 
 Grumio. In the Connecticut Stratford there is a family of Curtises, who are 
 supposed to be descended from a brother of our William, of Roxbury ; but 
 this is not certain. The tradition, however, is, that the two brothers came 
 over together, but that the progenitor of the Connecticut family came from 
 the Warwickshire Stratford. But whether William, of Roxbury, came from 
 that county, or, as is more probable, from Essex, where he and his wife 
 were born, the name appears to have been a common one in the northern 
 and middle counties of England two centuries and a half ago. In the 
 parish register of Brington in Northamptonshire, there is a record that, in 
 1020, Philip Curtis married Amy Washington. She was a sister of John 
 Washington, the grandfather of our first President. The "Apostle " Eliot, 
 who was brother of my ancestress Sarah Curtis, the wife of William, of 
 Roxbury, was born in 1603, was educated at Jesus College, Cambridge, and 
 came out to Boston in 1631. In 1632, he married in Boston Ann Mount- 
 ford, who came out with Mr. and Mrs. Curtis in Winthrop s fleet. He was 
 minister of Roxbury for fifty years. He was the third son and fourth child 
 of Bennet Eliot, of Nazeing, " yeoman and freeholder." 
 
 There lies before me a copy of a record, made in 1632, in the Herald s 
 College, by Richard St. George, Knt, Clarencieux King of Arms in the 
 reign of Charles I., from which it appears that there had long been a family 
 
1639.] THE CURTIS FAMILY. 3 
 
 teis, Curties, Courtis, and Cortis. But of the identity of 
 the name and family there can be no doubt. The Nazeing 
 branch of the family were substantial yeomen, possessing 
 property ; and in the records of their parish, in 1637-38, 
 their name is found as customary tenants attending the old 
 court leet. Of the families in England now, above the 
 rank of yeomen, those in Sussex write the name Curteis, 
 while those in Devon and other counties write it Curtis, as 
 it is usually, but not universally, written in America. 
 
 Thus it appears that William Curtis, the progenitor of 
 the family in Massachusetts, belonged to that middle class 
 of Englishmen who constituted the great bulk of the first 
 emigrations. It is not known that he was connected by 
 blood with the Warwickshire family of the same name, who 
 claimed the rank of gentry. Nor is it known that any of 
 
 of Curtises in Warwickshire, of the rank of "gentlemen." It recites that 
 "John Curtis of London, Gent.," had applied for a search and certificate of 
 his coat-of-arms; that he was the " sonne of William Curtis in the County of 
 Warwick, Gent, the sonne of Eustace Curtis of Malstock in the said County 
 of Warwick, Gent., the son of William Curtis, son and heir of John Curtis of 
 Malstock aforesaid, Gent., who bears for his armes, &c., . . . which William 
 Curtis (sonne and heir of John) married Ann, the sole daughter and heir 
 of John Cawley of Rygate in the County of Sussex, Gent., who bears his 
 armes, c., ... as did appear to mee by sundry ould scales and other good 
 testimonies and proofs now in my owne custody and keeping." The 
 herald then proceeds to certify and grant, by elaborate description, accord 
 ing to the terms of heraldry, to John Curtis and his issue and posterity for 
 ever, and to the issue and posterity of John Curtis of Malstock, the coat- 
 of-arms which he finds them entitled to bear. From this it appears that, 
 reckoning back from the reign of Charles I., the ancestors of John Curtis 
 of London were in Warwickshire for four generations, of the rank styled 
 in heraldry as " gentlemen ; " that they wrote their name Curtis, as their 
 neighbor, Shakspeare, wrote it when he borrowed it for some of his rollick 
 ing purposes in one of his plays, and as the yeomanry family of Nazeing, in 
 Essex, also wrote it. 
 
 There are two families in England of this name, of the rank of baronets, 
 whose connection with the Nazeing or the Warwickshire family has not been 
 traced. Sir Arthur Curtis, of Gatcombe, county Hants, is descended from 
 Robert Curtis, of Downton, Wilts, whose son, Sir Roger, was a distinguished 
 naval officer, and was created a baronet in 179-4. His son, Sir Lucius, 
 Admiral of the Fleet, was the father of the present baronet. Sir William 
 Michael Curtis, Bart., of Cullard s Grove, Middlesex, is descended from 
 William Curtis, Esq., Lord Mayor of London in 1795. 
 
4 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1791. 
 
 his ancestors were of either of the learned professions, or 
 that any of them received a university education. They 
 were probably farmers. That his wife was the sister of 
 such a man as John Eliot, who became their pastor in Rox 
 bury, indicates that William Curtis was a man of good 
 social position in his rank of life. Of his descendants, from 
 the Rev. Philip Curtis down to the present generations, 
 more than twenty-five are borne on the catalogue of Harvard 
 College, between the years 1T38 and 1872. 1 
 
 Fourth in direct descent from William of Roxbury was 
 Benjamin Curtis, the second of that baptismal name after 
 the emigration. He was a great-great-grandson of William, 
 and was born in Roxbury in 1750. He graduated from 
 Harvard College in 1771, in the same class with the first 
 Dr. John Warren, of Boston. He studied medicine, and 
 served for some time as a surgeon in the Revolutionary 
 army. He afterwards settled in Boston, became a Fellow 
 of the Massachusetts Medical Society, and acquired a good 
 practice. He had married Elizabeth Billings, of Sharon, 
 before he entered the army. He died in Boston, greatly 
 lamented, at the early age of thirty-four, Nov. 26, 1784, 
 leaving four children. In 1791, his widow married Mr. 
 Elisha Ticknor, of Boston ; and of this marriage the late 
 Mr. George Ticknor was the only child. 2 
 
 1 Judge Curtis, probably from some data that I have not seen, considered 
 that there was a family connection bet ween the Curtises of Connecticut and 
 the family in Massachusetts. See his letter of March 23, 1870, to the Hon. 
 Wm. E. Curtis, now one of the Judges of the Superior Court of the City of 
 New York, who is one of the Connecticut family, post, chap. xiv. This 
 letter gives a somewhat humorous, but in the main correct, description of 
 some of the characteristics of the descendants of William Curtis of Roxbury. 
 
 2 A more particular account of my grandmother, Mrs. Elizabeth Ticknor, 
 may be found in the recently published memoirs of her son, Mr. George 
 Ticknor, vol. i. pp. 3, 4. Her children by her first marriage with Dr. Curtis 
 were Eliza, Harriet, Benjamin, and Gustavus Curtis. In the " Boston Maga 
 zine " for December, 1784, there is an obituary notice of Dr. Benjamin Curtis 
 written in verse, and another in prose. Both of them speak with great 
 feeling of his virtues and usefulness, and mourn him as a man of uncommon 
 character. His father was Benjamin, the first of that name. One of his 
 
1809.] PARENTAGE. 5 
 
 Benjamin Curtis (3d), the eldest son of Dr. Curtis, was 
 bred in the merchant marine. He made several voyages 
 as supercargo, and afterwards as master. On the 18th of 
 January, 1807, he married Lois Robbins, of Watertown ; a 
 town of large territorial extent and early settlement, adjoin 
 ing Cambridge, the principal village of which, commonly 
 called " Watertown Square," on the northerly side of the 
 Charles River, was about seven miles distant from Boston. 
 Of this marriage there were two children ; Benjamin Rob- 
 bins, born Nov. 4, 1809, and the writer of this Memoir, 
 born Nov. 28, 1812. 
 
 My mother was a daughter of Mr. James Robbins, a 
 prominent and much respected citizen of Watertown, who 
 carried on various branches of manufacturing, and was 
 also interested in a country store. He was not a very 
 prosperous man in the later years of his life ; and when 
 he died, in 1810, he left a widow and a numerous family 
 of children, with but a small estate. He had owned 
 and lived in a large old-fashioned house, which stood on the 
 bank of the river, near the " Square," and just at the en 
 trance of " Watertown Bridge," an ancient bridge that 
 
 uncles was the Rev. Philip Curtis, who was minister of Sharon for fifty-five 
 years, and died in 1797, at the age of eighty-one. He married my grandfather 
 and grandmother, when they were both quite young. (Memoirs of George 
 Ticknor, vol. i. p. 3.) For the greater part of the earlier facts here stated 
 in reference to my family I am indebted to a compilation of the descendants 
 of William Curtis, originally gathered by Miss Catharine P. Curtis, of 
 Roxbury, and edited and published, in 1869, from her MSS. and other 
 sources, by Samuel C. Clarke, Esq., of Jamaica Plain, whose grandmother 
 was a daughter of Obadiah Curtis, a great-grandson of William of Roxbury. 
 In Potter s " American Magazine," for March, 1876 (Philadelphia), there is an 
 accurate cut of the house of William Curtis in Roxbury (now Jamaica 
 Plain), from a sketch made by Miss Sarah Clarke, a sister of the gentleman 
 just named, and a description of the house by Benson J. Lossing, LL.D., 
 who includes it among " The Historic Buildings of America." Mr. Lossing 
 observes that our history furnishes " no parallel case of continuous habita 
 tion of a dwelling by the same family for almost two hundred and forty 
 years," and that this "is probably the oldest inhabited dwelling within the 
 domain of our republic." The cut at the head of this chapter is copied from 
 Potter s Magazine. 
 
6 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1810. 
 
 led toward Newton. My mother, after her marriage, re 
 mained in this house with her parents, on account of my 
 father s seafaring occupation ; and there both of her children 
 were born, and lived until they were respectively of the 
 ages of fourteen and eleven. My father died abroad, at so 
 early a period in his life that I have no recollection of him. 
 He was said to have strongly resembled my brother, as the 
 latter became when he was grown up, in mind, person, and 
 demeanor. My mother, a young and beautiful woman, of 
 delicate constitution and great tenderness of feeling, left a 
 widow with very little property and with two children to 
 provide for, might naturally have become dependent upon 
 friends, or have sunk under sorrows that had darkened 
 her early days. But she was a person of great energy. I 
 often look back with wonder at wliat she could do, not only 
 for herself and her children, but for others. She was never 
 what could be called a strong woman physically; and, 
 morally, she was always as far removed as possible from 
 the class of the " strong-minded." A part of her acknowl 
 edged power was due to her sweetness of disposition, her 
 quick sympathy with every form of suffering, her practical 
 intelligence and capacity, and her complete unselfishness. 
 These qualities, added to her personal attractions, gave her 
 an extraordinary power of being useful to others ; and this 
 is a character which generally wins for its possessor a large 
 return. In all trouble of every kind, through a wide circle of 
 relatives, friends, and neighbors, not omitting the poorest 
 of the latter, she became the one person whose help and 
 sympathy and efficiency were always sought for, expected 
 as a right, and never withheld when they could be given. 
 She, who might well have been absorbed by her own cares 
 and troubles, had energy enough for her personal duties, 
 and for many things which to her were no duties at all. 
 The consequence was that everybody regarded her with great 
 respect ; everybody appreciated the resolution with which 
 she met the demands of her widowed condition ; and all in 
 
1818.] EARLY BEADING. 7 
 
 her circle who could aid her were ready to afford her all 
 the aid that a woman of so much character, and so much 
 independence of spirit, could receive. 
 
 She and a younger sister had been educated, as day pupils, 
 at a boarding-school for young ladies, kept by a Mrs. Rowson 
 in Newton, about half a mile from their father s house. 
 The education was such as young women at that time, in 
 New England, obtained at such schools. It did not com 
 prehend the ancient languages, or any modern language 
 excepting English ; but in plain and ornamental needle 
 work, in arithmetic and geography, in a little astronomy 
 and some history, and especially in English literature, it 
 was a good education. My mother, after her marriage, in 
 consequence of her maternal and other cares, did not con 
 tinue to seek literary cultivation so much as her younger 
 sister did, who was never married, and whom some persons 
 still living remember as a very brilliant woman, of uncom 
 mon conversational powers. 1 This lady lived with my 
 mother a good deal, and helped her to inspire her children 
 with a love of books and knowledge. She had, at different 
 times in her life, seen something of the world out of New 
 England, in visits to New York and Philadelphia, and was 
 a rather sharp critic in manners and grammar. Any sole 
 cism in either was sure to encounter her reproof. 
 
 Among the occupations to which my mother resorted, in 
 order to support herself and her children, she established a 
 circulating library, at a time when my brother was about 
 nine years old. This collection of books comprehended 
 the current literature of the day, and some of the standard 
 English authors. It was kept in a room on the ground 
 floor, appropriated to my mother as a " shop," in my grand 
 mother s part of the old house. The circulation of the 
 
 1 Martha Robbing. She died in Boston, in the year 1846. In the later 
 years of her life she became very intimate in the family of Judge Story, at 
 Cambridge. She had a peculiar enjoyment in the Judge s conversation, and 
 he liked hers. When they met, there were no "flashes of silence." 
 
MEMOIR OF BENJAMIN ROBBINS CURTIS. [1820. 
 
 books, on the loan of which there was a small charge, 
 brought in a little revenue ; and as many of the books were 
 the gifts of friends, who had purchased them for their own 
 use, and after they had read them gave them to my mother, 
 the expense for her of keeping up the collection with the 
 new works of the time was inconsiderable. 1 It was chiefly a 
 collection of novels and poetry ; and when I name the period 
 during which my mother kept this library, as from about 
 1818 to about 1825, the reader will see that Scott s novels 
 from " Waverley " to " Redgauntlet," and all his principal 
 poems; Byron s works; Southey s "Thalaba" and "Rod 
 erick ; " living s " Sketch Book," " Bracebridge Hall," and 
 " Tales of a Traveller ; " Cooper s " Spy," " Pioneers," and 
 " Pilot ; " and many other books, new at that period, might 
 have been, as in fact they were, included in this collec 
 tion. The books Avere much sought for by the surrounding 
 families. 
 
 My aunt s books were not embraced in the circulating 
 
 library ; but she possessed, among others, an excellent edition 
 
 of Shakspeare, of whose works she was a constant reader, 
 
 - Milton s u Paradise Lost," Young s "Night Thoughts," 
 
 1 Among the friends who thus contributed to my mother s collection of 
 books, I should mention Mr. Ticknor and Mr. Marshall Binney Spring, the 
 father of Mrs. Edward Perkins and Mrs. W. C. Wharton, of Boston. Mr. 
 Spring was the only son and only child of Dr. Spring, a very eminent 
 physician in Watertown, whose grounds, it used to be said, were often seen 
 of an afternoon filled with the carriages of patients who had driven out 
 from Boston to consult him. After his death, it was rumored that a con 
 siderable sum in bank-notes was found in his study, stuffed in the cushions 
 of his chairs and sofas, and other odd places ; being, it was supposed, some of 
 the fees paid by his town patients. He died Jan. 11, 1818, at the age of seventy- 
 six. He left a good fortune to his son, who had married Miss Eliza Willing, 
 of Philadelphia, a ward of the late Hon. Horace Binney. She died young, in 
 1825. Her husband, who was inconsolable for her loss, did not long survive 
 her. Mrs. Spring was a very elegant woman, and her husband was a young 
 man of most amiable and accomplished manners. Both were kind friends 
 of my mother. I saw Mr. Binney at the funeral of Mrs. Spring, when I was 
 twelve years old, and I distinctly remember his personal appearance. When 
 I next saw him, he was between eighty and ninety. He and Mr. Marshall 
 B. Spring were half-brothers. The latter graduated at Harvard in 1812. 
 
1822.] EARLY BEADING. 
 
 Thomson s " Seasons," Cowper s Poems, Johnson s "Ras- 
 selas," Jeremy Taylor s " Holy Living and Dying," and the 
 " Spectator." I am quite sure that my brothers first knowl 
 edge of these authors was derived from her books. In a home 
 so furnished with the lighter and some of the more solid mate 
 rials of intellectual development, my brother became a great 
 reader, at an age when most boys care for nothing but their 
 sports. At first, he read novels incessantly ; and I can 
 well remember the sorrowful resignation with which he 
 would surrender a volume of Scott, or Cooper, or Irving, 
 when a call for it came into my mother s little parlor 
 from the u shop." Of course a book s chance of earning a 
 " fourpence-ha penny " was not to be pretermitted ; and as 
 the chances came frequently, in the case of the popular 
 authors, he had to read by snatches. He devoured a book, 
 but he mastered every thing in it ; and he would expound 
 the story, or the allusions, or the historical connection, to my 
 younger and feebler apprehensions, with much boyish gravity 
 and wisdom. He had a faculty, remarkable in one so young, 
 for distinguishing fact from fiction, superstition from well- 
 grounded belief, theory from experience, and the natural 
 from the unnatural. 1 From novel-reading he passed to 
 
 1 One of the books in my mother s circulating library which I heard 
 talked about a great deal, and which I read as much of as I dared, was a 
 strange, weird, metaphysical novel, called " Melmoth, the Wanderer," by 
 Charles Kobert Maturin. The principal character was a man of genius, who 
 had made some kind of compact with the powers of darkness, by which he 
 was permitted to live for centuries, and to have supernatural powers of 
 locomotion and other pernicious advantages ; but at the end of the stipulated 
 period, when the awful hand on the great dial of the ages pointed to the 
 fatal hour, he had to sink into everlasting perdition. As a matter of course, 
 he committed, while he was on earth, all kinds of wickedness. Such at least 
 is my recollection of the story, but I have not seen the book since I was a 
 child, and may not be entirely accurate about it. But I remember very dis 
 tinctly how my brother used gravely to argue that there could not possibly 
 be any truth in such adventures. No doubt such a book should not have 
 been within the reach of very young persons ; but as we revelled in " Robin 
 son Crusoe " and " Gulliver s Travels " Avhen mere children, and later on in the 
 Waverley Novels, it will be allowed that we had more wholesome reading. 
 How* wisely and with what a master s hand did Sir Walter, in all his dealings 
 
10 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1822. 
 
 some of the historical plays of Shakspeare, and afterwards 
 to the " Paradise Lost." 
 
 The " shop " to which I have alluded was a retail dry- 
 goods business, which my mother carried oil for several 
 years, chiefly in articles of millinery and such small gear 
 as ladies most affect or need. She had all the credit she 
 wanted with the leading importers and " jobbers " in Bos 
 ton, who had entire confidence in her business capacity; 
 but I do not suppose that this little trade was ever very 
 profitable to her. It gave her, however, a pleasant occupa 
 tion, because it brought around her the principal ladies of 
 the neighborhood, who were glad to do their shopping with 
 out the trouble of going to Boston for it, and who, besides 
 doing her a good turn, were quite willing to have a chat 
 with an interesting woman about the last new book, or to 
 look over her catalogue and find something to read when 
 there was no new book that was " the rage," The country 
 ladies of the less wealthy or cultivated sort came to drive 
 good bargains, get what they wanted, and talk about their 
 troubles. A single maid-servant some country girl of 
 the native New England race was all the help in domes 
 tic affairs that my mother could afford. 1 
 
 Thus the earlier years of her widowhood passed on, with 
 many struggles and trials ; but she gained a comfortable 
 subsistence, although nothing more, and she had no trials 
 in her children. 2 When my brother was about ten years 
 old, she began to think that a boy of such talent and such 
 
 with the marvellous or the supernatural, enable even his youngest readers 
 to see that the phenomena were capable of a natural explanation, that the 
 superstition was not a reality, and that the imagination can fill the uni 
 verse with agencies of which human experience knows nothing, and which 
 it can contemplate only as a part of the materials of poetry and romance ! 
 Yet how skilfully did he weave these materials into the web of human life ! 
 
 1 In my native town, during my boyhood, I can remember only a single 
 foreigner of either sex. 
 
 2 The shocking death of her mother, who was accidentally drowned in 
 the year 1819, was a terrible affliction to her. She was absent from home 
 on the day of this occurrence, and had to be sent for. 
 
1822.] FIKST SCHOOLS. 11 
 
 a studious temperament ought to have a college education. 
 But how this was to be obtained was a serious difficulty, in 
 her circumstances. 
 
 In the first place, there was the question of a school. 
 The nearest classical school supported at public expense 
 was the Boston Latin School, at which many of my broth 
 er s contemporaries and college classmates were fitted for 
 Harvard. But only boys who were residents of Boston 
 could attend that institution. 1 The town of Watertown 
 was very ill furnished with schools. Its public schools were 
 then but poorly provided, and there were no private schools 
 at which boys could be trained for a college education 
 within the limits of the town. My brother s first school 
 was a dame s school, kept by a little old lady named Ger- 
 rish. 2 Next, he attended for a short time a school kept by 
 Mr. Samuel Worcester, in Newton, along with my mother s 
 youngest brother. 3 At this school, nothing was taught but 
 reading, writing, arithmetic, and geography. , From Mr. 
 Worcester s, my brother went for a little while, as a day 
 pupil, to the Rev. Samuel Ripley, the clergyman of Wal- 
 tham. This gentleman, who had a learned and accom 
 plished wife, took a few pupils into his family as boarders, 
 
 1 The late Hon. George Tyler Bigelow, one of my brother s classmates, 
 who became Chief Justice of Massachusetts, was born in Watertown, where 
 his parents always resided. He was fitted for college at the Boston Latin 
 School ; a privilege that was allowed because of his residence in Boston with 
 one of his kindred. 
 
 2 This ancient spinster, always called " Ma am Gerrish," had kept a pri 
 vate infant school in Watertown, time out of mind. She had taught my 
 mother to read, and afterwards taught both of her children. She was a 
 rather strict old body, but she took excellent care of the children intrusted 
 to her. Her literary instruction did not go beyond the " New England 
 Primer ; " but she taught both boys and girls to knit, and the girls to sew. 
 I have known the author of the celebrated dissenting opinion in the Dred 
 Scott case to knit a pair of woollen mittens, and to cover with leather any 
 number of "bat-balls." 
 
 8 Mr. Isaac Eobbins, still living in a hale and happy old age. He was 
 but a little more than six years older than my brother, and they were com 
 panions in many a hunting and fishing expedition. He was born April 21, 
 1803. 
 
12 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1822. 
 
 and also had some day scholars. 1 "With. Mr. and Mrs. 
 Ripley my brother began the Latin, and I think the Greek 
 grammar. But the distance of their house from ours was 
 more than two miles ; and my mother did not feel that she 
 could afford to make her son a boarder in their family. At 
 last there seemed to be an opening for classical tuition 
 nearer home. 
 
 In the early part of the year 1822, a number of the fami 
 lies in Watertown who wanted a higher education for their 
 children than the public schools afforded, established a pri 
 vate school for pupils of both sexes, which they called an 
 "Academy." I forget whether they procured for it an incor 
 poration, but they built a school-house and engaged a master. 
 The property was held in shares ; the right to send pupils 
 to the school being limited to the share-holders. My 
 mother subscribed for one share, which secured a seat in 
 the school for my brother ; for me, she used a share belong 
 ing to one of her relatives. It was intended that this 
 school should be able to fit boys for college ; and, so far as 
 the association could do what was needful, it was an excel 
 lent plan. But the course of studies was left altogether to 
 the master; and none of the masters remained long. 
 
 The first one who opened the " Academy " was a divinity 
 student from the Cambridge Theological School, Warren 
 Burton, afterwards a Unitarian clergyman and an author of 
 some little repute. 2 Whatever his attainments may have 
 been, he was a very unsuccessful school-master. He was 
 perpetually varying his methods of teaching and discipline, 
 never adhering to any one for more than two weeks, and 
 constantly plaguing our parents with changes of the school- 
 books, and with demands for new blank-books in which to 
 keep the record of our " marks." The parents could not 
 
 1 It used to be said of this lady that she could, and often did, rock her 
 baby s cradle, darn a stocking, and hear a boy s Greek lesson, at one and 
 the same time. 
 
 2 " The Village Choir " and " The District School as it was " were among 
 his productions. 
 
1823.] WATERTOWN ACADEMY. 13 
 
 respect him as a teacher, and even the youngest pupils in 
 the school understood and laughed at his eccentric fickle 
 ness. He went away at the end of a year, with great 
 dissatisfaction on all sides. Yet I believe he was a thor 
 oughly good man, and meant to do his duty. His misfor 
 tune was that he did not know how to manage children. 
 I never had any acquaintance with him in after life. 
 
 Mr. Burton was succeeded by a Mr. Kendall, a graduate 
 of Bowdoin College, of whom I remember only that he 
 seemed to be a fair Latin scholar, that his favorite classic 
 was Ovid s " Metamorphoses," and that he chewed tobacco 
 inordinately. He was our teacher for a very short time. 
 After him came a third master, Joseph H. Abbot, also a 
 graduate of Bowdoin, of whom I remember nothing except 
 ing that he was a mild and gentleman-like person, and had 
 no offensive ways. 1 The last master, John Appleton, I 
 remember with great distinctness and pleasure, and have 
 since known him, although we have met but rarely in this 
 long interval of more than fifty years. He became an emi 
 nent lawyer in Maine, and is now the Chief Justice of that 
 State. I think my brother gained more from Mr. Apple- 
 ton than he did from all the previous masters whom he had 
 attended. He was a good teacher, and a person of superior 
 mind. 2 
 
 1 Mr. Abbot was a teacher all his life. For many years he kept a school 
 for young ladies in Boston. He was a member of the American Academy 
 of Arts and Sciences, and wrote various papers published in its " Memoirs." 
 He died about a year since. 
 
 2 Judge Appleton has recently written to me as follows : 
 
 " I recollect your brother perfectly as a student and as a young man. 
 He was a fine scholar, very punctual and attentive to his duties, and never 
 failing in his recitations. I remember him for his manly bearing above his 
 years. He then gave abundant promise of that high distinction to which 
 he subsequently attained. He was the best scholar I had during my school- 
 keeping days. 
 
 " I am very glad you propose publishing his miscellaneous writings, to 
 gether with a Memoir. His judgments while on the bench are monuments 
 of unanswerable logic and thorough learning, which will endure as long as 
 the Constitution which he so ably expounded. It is due to him that his 
 
14 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1824. 
 
 But, after Mr. Appleton s departure, my mother be 
 came very anxious about my brother s progress in his 
 studies. The late Rev. Convers Francis, D.D., had then 
 lately been settled as the clergyman of our parish; the con 
 gregation having become Unitarian, in the course of the 
 change which took place in so many of the old congrega 
 tional parishes of Eastern Massachusetts. 1 Mr. Francis 
 was a scholar, as scholarship Avas attainable in his time. 
 He was, moreover, a kind and faithful parish clergyman, and 
 he had become a warm friend of my mother. He offered 
 to have my brother come to him of evenings for instruction, 
 without being willing to receive any remuneration. 2 This 
 arrangement continued until my brother was sent, in the 
 year 1824, to a boarding-school kept by the late Mr. John 
 Angier, in Medford, where his preparation for college was 
 finished. 
 
 For a good while, however, after my mother first resolved 
 that rny brother should be sent to Harvard, it was exceed- 
 
 memory should be preserved in a permanent form. I have no recollection 
 of any particular fact relating to your brother, but only the recollection of 
 his remarkable promise. 
 
 " Of your mother I have the most agreeable recollections, as one of the 
 pleasantest and best women I ever had the pleasure of knowing." 
 
 1 Mr. Francis was settled as minister of the territorial parish of Water- 
 town in June, 1819. He succeeded the Rev. Richard R. Elliott, whose 
 funeral I remember. The pulpit of the " meeting-house " was draped in 
 black cloth, which was taken down afterwards and given as a melancholy 
 kind of perquisite to his widow. 
 
 2 Lydia Maria Francis, sister of our clergyman, more widely known after 
 her marriage as Mrs. Lydia Maria Child, resided with her brother at this 
 time, and was very intimate in my mother s family when, at the age of two- 
 and-twenty, she published anonymously her first book, " Hobomok, a Tale." 
 The mention of this little novel recalls to me the just and at the same time 
 amusing criticism with which its story was received, while its general merits 
 were freely acknowledged. The heroine was a Puritan girl, in one of the 
 early settlements of Massachusetts. The lover to whom she was betrothed 
 was reported and believed to have been lost at sea. After a long mourning, 
 she consents to marry Hobomok, a young Indian chieftain, who had fol 
 lowed her with romantic devotion for several years. There is a son born. 
 The English lover returns. Hobomok, coming home one evening from a 
 hunting expedition, laden with game, sees his rival, and is frightened by the 
 idea that he has risen from the dead. The Great Spirit has decreed that 
 
1824.1 ME. ELISHA TICKNOR. 15 
 
 ingly doubtf id how the expense of such an education was to 
 be defrayed. It never could have been, or at least my 
 mother never could have had the courage to undertake it 
 herself, if it had not been for a kind and considerate act of 
 Mr. Elisha Ticknor. I have mentioned that this gentle 
 man married my grandmother, the widow of Dr. Benja 
 min Curtis, in 1791. He always felt towards his wife s 
 children by her former marriage, and her grandchildren, as 
 if they had been his own. At his death, in 1821, he of 
 course gave the bulk of his fortune to his only son and only 
 child, the late Mr. George Ticknor. But he did not forget 
 the two widows, one of whom was the daughter and the 
 other the daughter-in-law of his deceased wife. 1 The pro 
 visions of his will, in regard to my mother, require a little 
 detailed explanation. 
 
 She was entitled to a small share of her father s estate in 
 Watertown, for which a part of his house was set off to her 
 when her mother s dower was assigned in another part of it. 
 The year following her father s death, she joined with her 
 husband in a deed of this property to Mr. Elisha Ticknor. 
 
 Hobomok must give up his wife. He contrives, unseen, to embrace his boy, 
 then lays the game. at the door of his wife s cottage, and sorrowfully departs 
 into the wilderness for ever. The two original lovers meet, and after a time 
 are united in wedlock. The story was told with much beauty and pathos ; 
 but all the talent in the world could not reconcile readers to the glaring 
 unnaturalness of the character of Hobomok, whose tomahawk, some said, 
 would have been the most likely mode of settling the difficulty ; and all 
 New England was moved to something like anger at the thought of such 
 a mesalliance as the Indian marriage being tolerated by our " Pilgrim Fathers." 
 I do not remember how the dissolution of the first marriage was managed. 
 In her next work, " The Rebels, a Tale of the Revolution," the fair author 
 ess did much better. 
 
 I have not seen Mrs. Child for fifty years. Had we met at some periods 
 in this interval, differences of opinion on public topics on which she was an 
 enthusiast might have alloyed the pleasure of our intercourse. But grati 
 tude for her brother s kindness to my family, and a lively recollection of 
 the brilliancy of her youth, lead me to express the sincere hope that the 
 evening of her days is happy, and that it may so continue to the end. 
 
 1 My grandmother died in 1819. Her eldest daughter, Eliza Curtis, had 
 married Mr. William H. Woodward, of Hanover, N. H., and was now a 
 widow. 
 
16 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1824. 
 
 It was not a conveyance in trust for her, but it was an 
 absolute deed to Mr. Ticknor, given for money advanced by 
 him to my father ; and no doubt the sum named in the deed 
 was the full value of the interest, if not more than the 
 value. Mr. Ticknor was under no obligation to restore 
 this little property to my mother. But she continued to 
 occupy it down to the time of Mr. Ticknor s death, in 
 1821. It was then found that he had devised it to a 
 trustee, in trust, to apply it to my mother s use, but with 
 power to sell it, on her request, and to apply the proceeds 
 to the maintenance and education of her children, in such 
 manner as she might desire. He also directed his trustee 
 to pay to her, for the period of ten years, the sum of one 
 hundred dollars per annum for the same purpose. In 
 addition to this, by a codicil to his will, he devised to the 
 same trustee a small farm in the town of Dunstable, on the 
 border of New Hampshire, on the same trusts and with 
 the same power of sale in case of my mother s request. 
 The little capital of these two estates could not have 
 exceeded the sum of three thousand dollars. My mother 
 needed her share in the Watertown house as a home. The 
 rent of the Dunstable farm must have been very small. It 
 w r as all the income she had, besides the one hundred dol 
 lars, and what she could derive from the small business 
 which she had carried on for some years. 
 
 But her decision was soon made. Money was taken up 
 on this property from time to time, until its value was 
 exhausted ; and it then passed into the hands of a relative 
 w r ho had made the advances on it. My mother thought 
 that to devote it as far it would go to the education of her 
 sons was the best use that could be made of it, and that 
 this would fulfil the implied though they were only the 
 implied intentions of the kind testator, who had ever- 
 treated her as a daughter. 
 
 It may be suggested that many a boy has worked his 
 own way through college and into a life of usefulness and 
 
1824.] A MOTHER S DEVOTION. 17 
 
 distinction. Such efforts are not to be undervalued. But, 
 in giving an account of my brother s early life, I owe a 
 duty to the memory of a parent whose exertions and 
 sacrifices gave both of us our educations, and who did not 
 deem it well that the years which ought to be devoted to 
 study should be harassed with earning bread and clothes, 
 and the means of paying tuition fees. She preferred to 
 spend the little all that she had, taking upon herself the 
 risk of destitution when her plan had been accomplished. 
 She had once sacrificed all that she could give up to her 
 husband. She now sacrificed it again for her children. 
 But she lived for many, many years, saw the honors and 
 distinctions that were bestowed unsought upon her eldest 
 son, and felt that her mission had been fulfilled. 1 
 
 I have paid this tribute to the revered memory of the 
 excellent man who put it in my mother s power to obtain 
 what had become the great object of her life, not forgetting 
 what is also due to the memory of his accomplished son. 
 When Mr. George Ticknor learned my mother s purpose to 
 send her eldest son to Harvard, he feared at first that it was 
 too great an undertaking for her, and that it would involve 
 sacrifices which she ought not to make. But when he ap 
 preciated the strength of her resolution, he gave her his 
 unfailing sympathy and encouragement, and his ever wise 
 and affectionate counsels. 2 
 
 1 In 1866, when she was nearly eighty, she one day sent to my brother s 
 wife a lock of hair, with the following words, written in the trembling 
 hand of age, on the paper which enclosed it: " This silky lock of hair was 
 cut from the head of my son, B. K. Curtis, in the second year of his age, 
 1811. Is it not in as good preservation as the lovely little child s frock 1 ? 
 Do take pains to preserve it, for I always have kept it with my jewels, 
 and I can say he has never given me a pain in my heart. MOTHER. 1866." 
 
 2 In their connection with him, there were blessings which his young 
 kinsfolk had reason to remember throughout their lives. Of a numerous cir 
 cle of his half nephews and nieces, I am the only survivor but one. In this 
 commemoration of his domestic virtues, his kindness, his strong and active 
 interest in the welfare of all who were near to him, I may speak not only 
 for myself, but for those who are no longer here to bear testimony to his 
 worth, or to record what they owed to his love. 
 
 VOL. i. 2 
 
18 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1824. 
 
 The first religious impressions of any man of distinction 
 are an important item in an account of his life and charac 
 ter. In the present case they are peculiarly so. My brother 
 was through life a man of very strong religious feelings and 
 principles. They were derived partly from his mother, and 
 partly from the Unitarian influences which surrounded his 
 youth. 
 
 The early " Unitarianism " of Boston and its vicinity 
 was no exotic transplanted from abroad. It sprung, so to 
 speak, from the soil. It was a revolt and protest against 
 the old Calvinism of New England, spontaneously arising 
 in the midst of a system of faith to which a more culti 
 vated and reasoning generation could not continue to sub 
 mit without peril to their religious convictions. The men 
 of powerful and liberal minds able preachers and learned 
 controversialists who led this movement, might have 
 found in the beautiful liturgy and more comprehensive 
 spirit of the Episcopal Church what would have satisfied 
 their aspirations for a faith different from that of their 
 fathers, and so they might have taken refuge in that Church 
 from the gloomy and oppressive creed that had come down 
 from the Puritans, had it not been for certain obstacles 
 and preventions which were both negative and positive in 
 their operation. In the first place, the Episcopal Church 
 had never been a strong and active force in the religious 
 world of New England. A few sleepy old churches of that 
 denomination, a few " bishops and other clergy," who 
 were not men of any energy, constituted, in the latter part 
 of the last and the early part of the present century, all of a 
 " church militant " that the Episcopal body presented to the 
 people of that region. The Episcopal Church, therefore, 
 was not in a condition to win large accessions from the 
 traditionary faith and form of Congregationalism ; although, 
 Puritan antagonism being left out of the case, that Church 
 had a great deal that might have suited the tastes of men 
 and women of cultivation. But the eminent preachers and 
 
1824.] EARLY UNITARIANS. 19 
 
 theologians who became the great leaders of Unitarianism 
 were all born and educated as Congregationalists. They 
 could not adopt episcopal ordination, nor could they lead 
 their congregations to adopt it. They did not try to be 
 lieve that " apostolic succession " was any the less likely to 
 exist when a man is inducted into the sacred office of a 
 clergyman by his brethren in the ministry, and with the 
 assent and approbation of a Christian laity, than when he is 
 consecrated to that office by the " laying on of hands " of a 
 bishop. They could not have so believed, if they had tried ; 
 for their early convictions, associations, and habits were all 
 opposed to such a belief. Situated as they were, they could 
 not seek to change the frame-work of the Congregational 
 order. While they were iconoclasts in their attitude to 
 wards many of the doctrines of the popular faith, they were, 
 both by temperament and by the force of circumstances, 
 strictly conservative in every thing else. They sought to 
 reform the creeds, but not to change the structure of their 
 church organization. 
 
 In this reformation of the popular religious belief, they 
 assailed the doctrine of the Trinity, because they found it 
 associated with other doctrines which were exerting, as they 
 believed, a pernicious influence upon the religious feelings 
 and the lives of men, and because their studies had con 
 vinced them that the Trinity is not taught in the Scrip 
 tures as an article of belief ; while it is, as they viewed it, a 
 conception utterly repugnant to reason, and therefore one 
 that places the human mind in an attitude unfavorable to 
 the reception of Christianity. They might perhaps have 
 considered that there are as many texts of Scripture which 
 appear to assert, as there are of those which appear to mili 
 tate against, this doctrine ; and that, if a belief in revelation 
 and in what is embraced in the Christian scheme of re 
 demption is to be received at all, the conception of a triune 
 God is no more a mystery, and no more above the reach 
 of the human faculties, than is the conception of an infinite 
 
20 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1824. 
 
 Deity, who is self-existent , eternal, who never had a be 
 ginning, and can have no end. Whenever the human mind 
 penetrates beyond the bounds of the material universe, and, 
 exploring the realms of spiritual existence, tries to reach 
 the idea of God, as that idea is presented by Christianity, 
 it must find mysteries which it cannot understand, and 
 which it may be perfectly consistent with the Divine 
 purposes to suppose are to be received by faith, and not by 
 that kind ot demonstrative proof which human faculties can 
 grasp. 
 
 But whether these men erred or did not err in their con 
 ception of the Godhead and the nature of Christ, it is cer 
 tain that they did not weaken, in their own minds or the 
 minds of others, the attributes of the eternal and infinite 
 Creator, as those attributes are regarded in all Christendom, 
 by asserting that his existence is one, unshared, undivided, 
 and supreme. Nor, if I am capable of comparing the effects 
 of their theological teachings with what I have seen of 
 other systems of Christian belief, did they aim to displace 
 the Saviour of mankind from the office of a Mediator and a 
 Redeemer ; for they believed and taught that he was the 
 Son of God. specially designated, in infinite mercy and 
 wisdom, to the reconcilement of man with his Creator. 
 Nor yet did they less accept or teach the influence of the 
 Holy Spirit, although they denied to it a personality at 
 once separate from and a part of the " very God." 
 
 In all things else that should mark a Christian ministry, 
 in piety, in learning, in devout and useful lives, in the 
 rebuke of sin, in the inculcation of all Christian duties, in 
 exposition of all the Christian morality, adapting it to 
 the conditions of modern society without impairing its 
 authority, and in bringing the consolations of religion to the 
 afflicted and the dying, these early Unitarian preachers 
 of New England were, as a body, the equals of any clergy 
 of whom I have ever had knowledge. 
 
 Such was the spirit of " Unitarianism " from which my 
 
1824.] BOYISH TRAITS. 2] 
 
 brother received the religious impressions of his youth, so 
 far as they were to be derived from public teaching, from the 
 public services of religion, and from the Sunday school. His 
 mother s religious character was very simple, but her relig 
 ious influence was not therefore the less strong. She read 
 her Bible, and she did her duty. She was a constant 
 attendant on the public religious services, and a communi 
 cant in the church. She taught her children to repeat the 
 Lord s Prayer, and those simple hymns which, clothed in 
 homeliest words of our English tongue, best accustom the 
 mind of childhood to the primary religious truths. She 
 did not much concern herself with the religious controver 
 sies that were then so rife in the world around her. Ac 
 cording to her feelings, the great idea that is to predominate 
 over all others is the idea of God and our responsibility to 
 him. I think that she made a sense of this responsibility 
 the one chief trait in my brother s religious character ; and 
 it will be seen hereafter that the fear of God was the only 
 fear under which he ever acted. 
 
 As I have now reached the period of his first absence 
 from home, when the boy begins to develop rapidly into the 
 man, I must say something of the kind of boy he was before 
 this time, in other respects than in learning or religious 
 training. He was, in fact, a rather universal boy ; that is 
 to say, whatever a boy of sound moral organization may 
 do, he could and did do with energy and success. He was 
 always a leader in all boyish games, strong, plucky, active, 
 and skilful. He was never quarrelsome. I never knew 
 him to be in a fight ; but he had that about him, in what 
 ever collisions he had with his fellows, that would make 
 " the opposer beware of " him, and that rendered blows un 
 necessary. He had a great deal of mechanical skill, and 
 generally made his own playthings and implements of 
 sport, as well as mine. He was an unrivalled builder and 
 flyer of kites, often sending one far towards the clouds and 
 keeping it there for hours. We had three maternal uncles, 
 
22 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1824. 
 
 who were all more or less sportsmen. 1 They furnished him 
 with a gun, and with such fishing-tackle as he did not make 
 for himself. He shot the feathered game of the neigh 
 borhood, before he was thirteen, with great success ; and 
 as to the fish with which our beloved old river abounded, 
 he knew all their haunts and habits, times and seasons, 
 and pursued them with remarkable skill. He took to 
 trout-fishing, however, much later. 
 
 Years afterwards, when he came to the bar, it was observed 
 that he had a remarkable aptitude for all that class of liti 
 gations which relate to water-powers, flowage of lands, and 
 the like ; and some of his contemporaries speculated a good 
 deal about the origin of his familiarity with the practical 
 details of these subjects. One account of the matter is, as 
 I have recently learned, that, when a boy, he resided for 
 a time Avith a distant relative, who had a woollen mill on 
 the Concord River. We had such a relative in the town 
 of Billerica, but my brother never resided there. The 
 truth is that, having been born on the banks of the Charles 
 River, in the near neighborhood of the " Watertown dam," 
 the oldest water-power in America, and one of considerable 
 importance in its time, he did not need to go away from 
 home to learn whatever an intelligent boy could observe 
 of such things. Our boyhood was spent, when not at our 
 books, in roaming up and down the dear old Charles, either 
 on its banks, or on its bosom in canoes. Every foot of its 
 course for several miles, every stone of its bed, every pool 
 and every shallow, its freshets and its droughts, the lawful 
 height of the " flash-boards " on its dam, and the distribu- 
 
 1 James, George, and Isaac Bobbins. They were all engaged in a manu 
 facturing business. But the eldest, Mr. James Robbins, was very fond of 
 farming, and was a good amateur farmer. Through him, my brother saw a 
 great deal of agricultural operations in his early days ; and his agricultural 
 tastes in which, as will be seen hereafter, he indulged largely in middle life 
 were imbibed I think in his boyhood, in the rural scenes of his native place 
 and on his uncle s lands. This uncle died in 1830, at the early age of 
 thirty-eight. 
 
1824.] GOLN T G TO HARVARD. 23 
 
 tion of its " power " to the different uses to which it was 
 appropriated, were as familiar to us as our alphabet. Its 
 glancing waters, glistening in the sunrise, presented the 
 first object in nature that saluted our waking eyes, and the 
 gentle and unbroken music of their fall was our evening 
 lullaby. In process of time, we learned how the proprietors 
 of water-rights higher up the stream could complain of 
 " back-water ; " and I remember one litigation of this sort 
 that was carried on before referees sitting at our village 
 tavern, in which eminent counsel from Boston took part, 
 and at which we boys were among the audience. 
 
 But when my brother went to the school in Medford, it 
 seemed as if he had suddenly turned his back upon boyhood 
 and most of its interests. After he had been there about 
 a fortnight, he came home on a Saturday morning, to 
 remain until the following Monday. I had looked forward 
 to his visit with a childish anticipation of some of the old 
 fun. But he was very grave and dignified. A slight 
 change of dress to a more manly style, a sense that he was 
 now near the gates of Harvard, and contact with older boys 
 from different places, had outwardly transformed him. He 
 was very kind and gentle ; but as to flying a kite, or wading 
 with me in the river to catch minnows as bait for pickerel, 
 such things were out of the question. His talk was now 
 of the ^Eneid, and algebraic equations ; whether So-and-so, 
 who was studying for a Sophomore examination, was likely 
 to " get in ; " and what was going on at Cambridge, whence 
 some of the former pupils of the school, now become great 
 men in the undergraduate world, came over sometimes to 
 Medford, to display their " crow s-feet" 1 and enlarge the 
 minds of their probable successors. I listened to all this 
 with wonder akin to awe. 
 
 1 The undergraduates of Harvard, at that time, were required to wear a 
 uniform, consisting entirely of black cloth, and a black or white cravat. 
 The coat had an ornament worked on the cuff of the sleeve in black silk 
 braid, which was called, I know not by what token or derivation, a " crow s- 
 
24 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1825 
 
 Before he went to the school in Medford, lie had not 
 been exercised in written composition at any of the schools 
 he had attended ; and, as he had never been absent from 
 home before for any length of time, he had not had 
 much occasion for writing letters. There is extant, how 
 ever, among his mother s papers, in his boyish hand, a 
 " theme," or composition, which he wrote at the school in 
 Medford, after he had been there for some months. He 
 sent it to her, with these words written on the back of the 
 paper : " You must not show this to any one ; if you do, I 
 shall not let you see any more." No doubt she faithfully 
 observed the injunction, but death has dissolved its obliga 
 tion. I give the essay here, as the earliest known writing 
 of Benjamin R. Curtis : 
 
 ON THE ORIGIN OF EVIL. 
 
 Perhaps there is no moral subject that could be proposed, about 
 which there always has been, and is at present, so great -a diversity 
 of opinion as on this. Many have thought that there are two 
 powers acting in creation, the one evil, the other good. This 
 idea is common to many savage nations. The nations of North 
 America, for instance, worship both a good and evil spirit ; and 
 
 foot." A Sophomore wore one of these badges, a Junior two, and a Senior 
 three. A Freshman was not allowed to wear any. Perhaps the customary 
 law of our present Harvard, enforced by the Sophomore classes as part of 
 the unwritten code, which prohibits a Freshman from wearing that species of 
 high-crowned hat known as a "beaver," is derived from that earlier law 
 which did not allow the Freshman a " crow s-foot." I suggest this as a 
 curious subject in the origin and history of such codes. In my brother s 
 time and mine, the college laws enforced this uniformity of dress with some 
 rigor. It was therefore, with the " swells," the daring thing to appear at 
 chapel with a party-colored cravat ; and I have known the audacity of a 
 claret coat with a velvet collar to be sported in the " college yard " by some 
 Senior near the beginning of the long vacation, to the great wonder of 
 admiring fellow-students. At one period, a monstrosity was introduced, in 
 the shape of a high imitation of the Oxford cap ; but the imitation was a 
 bad one, and it did not last a great while. The University has long since 
 given up such puerilities, and allows its students the freedom of any dress 
 for every day that they choose to wear. An academical costume, for days 
 of public ceremony, no one would wish to see laid aside. 
 
EARLIEST WRITING. 2o 
 
 when any evil befalls them, they attribute it to the evil spirit, and 
 when they receive any good, they thank the good spirit. But this 
 opinion is not confined to savages, but exists, though perhaps in a 
 different form, in our own times, and in our own country. Many 
 believe that there is an evil spirit, who, though less powerful than 
 the good one, has power enough to counteract and oppose many of 
 the designs of God ; and when He would make happiness and good 
 ness, he by his power often converts them into sin and misery. 
 They do not think that this spirit is independent, but that he holds 
 his power from God, who permits him to exercise it upon man. 
 But I think it is an insult upon the wisdom of God to suppose that 
 He would give power to an evil spirit to oppose and counteract His 
 designs and purposes, when He could have withheld it ; and that He 
 could withhold it there is no doubt. Besides, I conceive man to be 
 an accountable creature ; but this would take away all his respon 
 sibility, to attribute all his sins to the instigation of an evil spirit, 
 and it would make him like a block of marble in the hands of two 
 statuaries, one of whom was continually endeavoring to make it 
 a handsome and well-proportioned statue, and the other a deformed 
 and ugly one. But there is another class of people who attribute 
 the origin of moral evil to a different source, which is the depravity 
 of human nature : they say that man is naturally corrupt and in 
 clined to sin ; that he inherits this corrupt inclination from the 
 father of his race, who fell by eating the forbidden fruit, and if he 
 had not eaten it there would have been no death or sin in the world ; 
 and to this cause they attribute the origin of evil. But I do not 
 believe in the depravity of man ; I do not believe that God would 
 implant in the breast of man a passion the first impulse of which 
 would be to teach him to break His laws. Neither do I believe 
 that the first man differed in any respect from others of his race, but 
 that he had the same passions and inclinations, and was placed here 
 in a state of probation for a better world, and that the sin of Adam, 
 who was the father of all mankind, was any more the origin of evil 
 than the sin of a father of the present day is the origin of the 
 wickedness of his children. But I think that the true cause of 
 moral evil in the world is that men conceive that there is some 
 pleasure in sin independent of the crime itself ; for I think no one 
 would do wrong merely for the sake of doing wrong, but for the 
 sake of some pleasure or advantage that he imagined to be con 
 tained in it, and he would a thousand times rather have obtained 
 
26 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1825. 
 
 the advantage without the sin if he could ; but as he could not, the 
 imagined pleasure or advantage outweighed his abhorrence of sin, 
 or in other words the temptation was greater than he could bear. 
 From what has been said I think that we may conclude that the 
 origin of evil is to be attributed neither to the agency of an evil 
 spirit nor the natural depravity of man, but to some pleasure or ad 
 vantage which outweighs a man s abhorrence of sin ; and then and 
 then only he will commit it. 
 
 BENJAMIN R. CURTIS. 
 April 17, 1825. 
 
 This little essay, written by a lad who was under the age 
 of sixteen, affords a striking proof of the theological emanci 
 pation effected in New England by the kind of preaching 
 introduced by the Unitarian clergy in the early part of this 
 century. The boy who wrote thus on the origin of evil 
 could not have thought and written as he did at that age, 
 if he had been born ten years earlier, and had been trained 
 only in the prevalent popular creeds. The paper shows that, 
 while he had been taught to disbelieve in a " personal 
 devil " as a being commissioned by the Almighty to intro 
 duce sin into the world, and not to believe that sin is a 
 necessary result of man s natural depravity, it is apparent 
 that he had a conception of God and his attributes, and a 
 sense of the accountability of man, with which he might 
 safely walk through life, from youth to age. We get here, 
 too, the first traces of that logical power which was one of 
 the strongest of his intellectual gifts, applied to one of the 
 most important subjects of human contemplation. 
 
 Mr. Angier was a good enough teacher to get his bright 
 and studious boys into Harvard, as he did my brother, with 
 out " conditions ; " but he certainly never imparted to any 
 of his pupils a great amount of scholarship, as he did not 
 have it himself, and he employed no teachers. The require 
 ments at Harvard in those clays were pretty low, compared 
 with what they have since been made. My brother entered 
 as a Freshman in the autumn of 1825, as well qualified, by 
 
1825.J 
 
 ENTERS HARVARD. 
 
 27 
 
 his talent and his studious habits, to take a high rank as 
 any of his classmates. 1 
 
 1 John James Gilchrist, who became Chief Justice of the Superior Court 
 of New Hampshire, and who was Chief Justice of the United States Court 
 of Claims at the time of his death, in 1858, was a contemporary of my 
 brother at the school of Mr. Angier in Medford. He entered Harvard College 
 in the same year with my brother, but in the Sophomore class. He was 
 graduated in 1828, in the same class with the Hon. Robert C. Winthrop and 
 the late Hon. George S. Hillard. 
 
28 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1825. 
 
 CHAPTER II. 
 
 Harvard College. Trials of the Freshman Year. A Mother s Anxiety 
 quickly relieved. College Friendships. A Bowdoin Prize. Rank as 
 a Scholar. Evident Capacity for the Legal Profession. An Oration at 
 Commencement not delivered. 
 
 THE "Class of 1829 " -to follow the Harvard custom of 
 designating men collectively by the year of their graduation 
 numbered, when they entered, seventy-one. It pleased 
 these young gentlemen, before they had got far into their 
 Freshman year, to manifest their decided opposition to a 
 new rule made by " the Faculty," they being the first class 
 to which it was applied. This rule undertook to divide the 
 members of the class into sections, not according to the 
 alphabetical order of their names, as had been the custom 
 from time immemorial, but according to their proficiency ; 
 and to allow those who could and did make more rapid 
 progress than their less gifted or industrious companions to 
 go on in a section by themselves in certain studies. This 
 rule the Freshmen of that year (1825) considered as estab 
 lishing invidious distinctions, which are always odious in a 
 college democracy when they are new ; and even the best 
 scholars, like my brother, who could have availed them 
 selves of it, did not like it, it was unpopular. The oppo 
 sition to the rule was a very serious affair, especially as a 
 minority of the professors were supposed to disapprove of 
 it. It was understood, in the neighborhood of the College, 
 that the Freshmen were on the eve of breaking out into a 
 " rebellion." That any of the overt acts usually held to 
 constitute that insurrectionary resistance to lawful author- 
 
1825.] A MOTHER S ANXIETY. 29 
 
 ity were actually committed, so as to amount technically to 
 a rebellion, I do not affirm. But, however this may have 
 been, the Freshmen found means to manifest their dis 
 pleasure at the new rule so decidedly that the peace and 
 good order of the College were in some peril. 
 
 My mother, who, with all her energy of character, was 
 of an anxious temperament, became disturbed. She was 
 afraid that my brother, from sympathy with those of his 
 classmates who were the most excited, might be drawn into 
 some act that he would regret, or at least that between the 
 Faculty and the class he would be placed in a trying situa 
 tion. 1 As rumors of serious disturbances came thick and 
 fast to our village only three and a half miles from the 
 College she could not restrain her solicitude. She pro 
 cured a " horse and chaise," 2 and, taking me with her, drove 
 to Cambridge. My brother s room was on the ground-floor 
 of Hollis Hall. We reached it just as the college bell 
 began to ring for a " recitation," and some of the class, one 
 or two of whom my mother knew and greeted, were passing 
 by his door in a rather tumultuary frame of mind. As 
 soon as she saw him, she begged him to apply to the Presi 
 dent and obtain leave to go home, with his books, and 
 remain for a while until the trouble had subsided. It was 
 a woman s weakness, to wish to withdraw her son from 
 temptation or trial. He had but a moment to make his 
 answer. He turned round at the door of his room, and 
 said to her with great firmness, but with perfect tenderness, 
 " Mother, you had best go home and make yourself easy 
 about me. I shall take no side in this affair. The Faculty, 
 
 1 It must be remembered that he was but sixteen years old. His situa 
 tion was perhaps a little trying, as he was an applicant for what was called 
 "exhibition money," to help pay a part of his tuition fees. There were, I 
 think, but very few scholarships in those days. 
 
 2 A New England " chaise " was a very comfortable covered vehicle, on 
 two wheels, drawn by a single horse. They are nearly gone out of use, but 
 one can be occasionally seen. A chaise driven "tandem" realized the 
 poetry of motion. 
 
30 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1825-29. 
 
 who liave got us into this scrape, must get us out of it as 
 they can : I shall not help them. As for the class, they 
 want nothing of me ; and if they do, they will get nothing 
 of me that is wrong." He then returned to where she sat 
 and kissed her. With this, he went off to his recitation 
 at a very measured pace. This judicial attitude might 
 or might not have foretold the future magistrate, but it 
 was quite characteristic of the lad as he then was. My 
 mother was satisfied. I think that she never, after that 
 morning, felt any concern about him in any emergency of 
 life. 
 
 The college lives of even our most distinguished men can 
 present very little of importance as an indication of their 
 future eminence. The honors that are to be gained in the 
 English universities, if they do not insure success in the 
 professions or in public life, seem to help a man of talent 
 and industry to make for himself a career, because they are 
 regarded as high certificates that he has talent and industry, 
 and because they are generally known to the great body of 
 those who, for the time being, command the avenues to all 
 employments. What our young men gain, or ought to 
 gain, at our colleges and universities, is intellectual disci 
 pline, or the power to use their own faculties ; a knowledge 
 of how to employ books as their intellectual tools ; the 
 habit of written or oral expression ; and the learning that 
 is comprehended in the education given at the particular 
 institution. These my brother acquired at Harvard, as 
 abundantly as they could be acquired at that time. His 
 college exercises, in every department of the curriculum, 
 were all performed with that sustained, even, and easy 
 excellence for which he was distinguished through life. I 
 have not sought to ascertain from the record in what par 
 ticular study he was foremost, because I am quite sure that 
 in all branches there was a uniform proficiency, far above 
 mediocrity, but not rising to brilliancy of scholarship, or 
 the exhibition of other powers than the power of steady 
 
1825-29.] COLLEGE LIFE. 31 
 
 industry applied by a mind singularly endowed with, the 
 faculty of doing well whatever was to be done. 
 
 Judging by what I afterwards knew of his attainments, 
 I should say that in college he acquired but a moderate 
 knowledge of Greek, which he did not continue to read, 
 excepting in the New Testament ; and that he was pretty 
 strong in Latin, which he did continue to read through life 
 in some of the great classic authors. But his scholarship 
 in the ancient languages was not, at any period, of that 
 kind which is displayed in frequent quotation, apt or inapt ; 
 nor was it the habit of his mind to parade whatever learn 
 ing he had. His mind was enriched by learning, but not 
 overlaid by it ; and to aim to appear learned was as foreign 
 to his nature as any other form of pretence. In the modern 
 languages, which were voluntary studies at the time he was 
 at Harvard, he learned to read French, German, and Span 
 ish quite well, though he never spoke either. 1 In Italian, 
 he went through a course which terminated in Dante, 
 whose " Divina Commedia " was taught by a very accom 
 plished native of Italy. 2 . 
 
 The department of the modern languages and their litera 
 tures was then under the general charge of Mr. Ticknor. 
 It was the department in which there was the greatest 
 amount of activity and of positive instruction. My brother 
 
 1 While my brother was in college, Francis Lieber and Edward Wiggles- 
 worth were editing the "Encyclopaedia Americana," in which a part of the 
 articles were translated from the German " Conversations-Lexicon." My 
 brother made some of these translations, for the sake of the money that 
 was paid for them. So far as I know, this, with the exception of what he 
 received as a Bowdoin prize, was the only money that he earned by his pen 
 during his college life. 
 
 2 Pietro Bachi, Ph. D., instructor in Italian in Harvard University for 
 twenty years. He was born in Sicily, in 1787. He was implicated, in 1815, 
 in Murat s attempt to reascend the throne of Naples, and was banished. 
 After remaining in England for ten years, he came to this country, and 
 obtained an appointment at Harvard. He was a most accomplished person 
 in many ways. He died in Boston, Aug. 22, 1853, at the age of sixty-six. 
 (See Blake s Biographical Dictionary.) 
 
32 MEMOIR OF BENJAMIN ROBBINS CURTIS. [1825-29. 
 
 had the advantage of hearing Mr. Ticknor s courses of 
 lectures on the French and Spanish literatures; and I think 
 that a very ample and instructive course of lectures on 
 Shaktpeare was also delivered by that gentleman to the 
 same class. 1 
 
 In the mathematics and such of the exact sciences as 
 were then taught at Harvard, I do not suppose that he 
 made any considerable acquisitions. Indeed, for the higher 
 mathematics he had very little taste, In the moral sci 
 ences, it might be expected that he would obtain all that 
 the state of instruction at that time could give him. In 
 logic, moral philosophy, and political economy, the text 
 books and the teachings were perhaps up to, but certainly 
 
 1 I can myself remember nothing, in the whole of the instruction at Har 
 vard, from which I derived more than from Mr. Ticknor s lectures on 
 French literature. It was a most thorough, comprehensive, and methodical 
 history and criticism of the entire body of French literature, from the 
 origin of the language down to the year 1830, arranged with all the accu 
 racy of detail for which he was noted, and interspersed with interesting 
 biographical accounts of the authors. No one who heard that course of 
 lectures, and really attended to them, could ever afterwards be at a loss 
 where to place any of the great writers, or forget their productions and the 
 merits of each of them, or be ignorant of the history of the language, or of 
 the distinction between the classic and the romantic drama, or the charac 
 teristics of French prose and poetry. I do not, of course, presume to inti 
 mate that Mr. Ticknor did not, in his great work on Spanish Literature, 
 surpass all that he ever did in the belles-lettres. I have the same vivid im 
 pressions of his lectures on the Spanish as of those on the French litera 
 ture ; but having taken full notes of both courses as they were delivered 
 at Cambridge, I venture to express the belief that the publication of the 
 French lectures, from his manuscripts, would in no degree diminish his 
 fame. It may perhaps be thought that, as a great deal has since been done 
 in the same field, the literary world would not gain as much from his 
 French lectures as it has gained from his work on Spanish Literature, 
 and that as the author himself did not prepare them specially for the press, 
 it is not worth while for any one else to undertake it. But there must be, 
 and I am confident that there is, a great deal in these French lectures that 
 would be highly interesting as exhibitions, not only of his peculiar scholar 
 ship, but of his characteristic methods of criticism, his views of the growth 
 of a literature and of its influence upon and its subjection to the national 
 character. Others may have written as well on these subjects, or better ; 
 but would the world therefore be careless of any thing that came from the 
 pen of George Ticknor 
 
1825-29.] COLLEGE LIFE. 33 
 
 not in advance of, the times. In history, whatever of 
 importance an undergraduate could gain was gained by his 
 own voluntary studies. The sum of my estimate, in regard 
 to his positive acquirements in college, is, that while, as his 
 " college rank " shows, he neglected no part of the curricu 
 lum, and was punctilious and exact in all .his prescribed 
 duties, he did about as much for himself as was done for 
 him by the institution. But of course he could not have 
 well dispensed with a college education; and, indeed, I 
 ought to mention, as of special importance, one of the 
 advantages that were afforded at Harvard in his time. 
 Whatever power of correct writing he or any man obtained 
 who was educated there while Edward T. Channing was 
 Professor of Rhetoric, he must have largely owed to that 
 accomplished critic and teacher. 1 
 
 1 Mr. Channing was a brother of the celebrated divine, Dr. William 
 Ellery Channing. His nicety of taste, his knowledge of the capacities of 
 our English tongue, and his large acquaintance with English literature, 
 made him a most useful Professor. I am ignorant of the mode in which 
 rhetoric is now taught at Harvard or our other colleges ; but I can con 
 ceive of nothing better than Mr. Channing s method, and of nothing more 
 valuable than his criticism. It was his habit to give out a subject every 
 fortnight, on which each member of a class was required to write an essay, 
 called in the college parlance a " theme." These he read carefully in his 
 study, correcting them with his pencil by a peculiar system of marks, 
 which were well understood by the students. The papers were then re 
 turned to the writers. After a short interval, the class attended him in his 
 lecture-room, and each student in his turn was called up to the table and 
 seated by the Professor s side. Speaking in a clear tone, so that the others 
 might profit by his observations, he placed the point of his pencil under the 
 word or passage that he meant to object to, and then, with a slight suspicion 
 of a sneer, kindly but pointed, he in a few words gave you a criticism that 
 went through you like a rapier. Whatever other faults you might there 
 after commit, you were not likely to repeat that one during the remainder 
 of your life. Mr. Channing was not fond of work, but he performed his 
 stated duties with great fidelity, and he sometimes went beyond them. He 
 received during one winter, at his study, on one evening in each week, eight 
 or ten of the members of my class, of whom I was lucky enough to be one, 
 and read with us choice passages of the English poets, from Chaucer to 
 Wordsworth, and of the principal prose-writers from Bishop Latimer to 
 Burke. I have known no man who had a more extensive knowledge of the 
 whole body of English literature, and no one whose methods of teaching 
 VOL. i. 3 
 
34 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1825-29. 
 
 I have now to quote from a recent letter, written to me 
 by the distinguished poet Dr. Oliver Wendell Holmes, 
 one of my brother s classmates, in answer to some inquiries 
 which I had addressed to him : 
 
 " The only college society in which I remember meeting 
 your brother was a small and temporary association, called the 
 dtaytjiuZoroi. 1 I do not remember any of the members except 
 your brother and William Henry Channing. I should perhaps 
 not remember the society at all, but for the fact of . Ben CurtisV 
 having taken part in a discussion, and shown in that first effort such 
 extraordinary clearness of statement that we all saw at once that 
 he must be distinguished in the legal profession if he adopted it. 
 His was the first horoscope that we cast, and from that hour his 
 record was but the fulfilment of our unquestioning prophecy. 
 
 " I was not intimate with him in college, nor do I think that he 
 was intimate with many, if with any, members of the class. Keeping 
 himself rather apart from the multitude, he never gained that cheap 
 popularity which is often awarded to men for their social habits, 
 rather than their deserts. Consequently, although he was one of 
 the candidates for the place of Class Orator, it was awarded to 
 
 good English writing were more successful. As a reader, he was positively 
 charming. 
 
 Since the foregoing part of this note was written, I have received from 
 Mr. George William Phillips the following account of the strong testimony 
 once borne by Judge Curtis to the merits of Mr. Channing. " At one of 
 the annual meetings of the Class of 1829, Curtis remarked that for the 
 freedom from the florid style so common among boys, and which he did not 
 suppose had ever prevailed at Cambridge as much as at other colleges, we 
 were mainly indebted to Channing s influence. I can cite a strong case/ 
 he said, here in our own circle. Bigelow is not here to-night, and so I may 
 speak of him as I should not if he were here. You know much of my life 
 has been so spent as to give me a large acquaintance with the judicial style ; 
 and I here express the opinion, which is not a new one, that for simplicity, 
 clearness, and purity of style, so well suited to his purpose, I know of no 
 living judge who is the superior of our classmate Bigelow. " The gentle 
 man here referred to was Chief Justice of Massachusetts from 1860 to 1867. 
 He died in April. 1878. 
 
 1 The term may be rendered " notabilities," or notables, " famous per 
 sons." College students are never too modest in adopting the names of such 
 associations. My brother was a member of the Hasty Pudding Club ; an 
 honorary member of the Porcellian Club ; a member of the Harvard Institute, 
 and of some other college societies. At the end of his Junior year, he was 
 entitled by his rank to be, and was, elected a member of the Phi Beta Kappa 
 Society. 
 
1825-29.] COLLEGE LIFE. 35 
 
 another. 1 We do not often think of your brother as a student of 
 belles-lettres, or as particularly given to the reading of poetry ; yet 
 I remember very vividly that, on going into his room one day, he 
 burst into what was almost a rhapsody of delight over some of the 
 poems of Coleridge, a volume of which he had before him. Two 
 passages I remember he recited, or read from the book, with glow 
 ing enthusiasm. One was, 
 
 All thoughts, all passions, all delights, c. 2 
 
 The other I cannot give textually, but it is the one in which the 
 question is asked, 
 
 What if all nature is an ^Eolian harp ? 
 
 the same thought, by the way, which you may find in one of 
 Burns s poems or letters, and perhaps in older writers." 3 
 
 1 The appointment of " Class Orator " was determined by a vote of the 
 class. It fell upon George H. Devereux, of Salem. 
 
 2 It is the first line of the first stanza in Coleridge s poem entitled " Love." 
 
 3 " Are we a piece of machinery, which, like the JEolian harp, passive, 
 takes the impression of the passing accident 1 " (Burns s Letter to Mrs. Dun- 
 lop, New-Year s-Day, 1789.) 
 
 Dr. Holmes, in a postscript to his letter to me, adds : " I cannot forget 
 that you were the first reviewer who ever spoke a good word for me. You 
 may have forgotten that you wrote a notice of a Phi Beta Kappa poem which I 
 delivered in 1836. I wish I could repay you better than by these scanty 
 pages." I had certainly forgotten that I was entitled to the distinguished 
 honor which Dr. Holmes assigns to me ; nor can I now recall what led me 
 to try my "prentice hand" in a notice of his poem. But the poem itself I 
 remember with as much distinctness as if I had heard it within a week. 
 The beautiful lines relating to the two churches in Cambridge have run 
 in my head ever since, and I never revisit that classic ground without recall 
 ing them. I quote entirely from memory : 
 
 " Like Sentinel and Nun they keep 
 
 Their vigil on the green ; 
 One seems to guard, and one to weep, 
 The dead that lie between." 
 
 Dr. Holmes had then just returned from Europe. Extremely youthful in 
 his appearance, bubbling over with the mingled humor and pathos that 
 have always marked his poetry, and sparkling with coruscations of his 
 peculiar genius, his Phi Beta Kappa poem of 1830, delivered with a clear, ring 
 ing enunciation, which imparted to the hearers his own enjoyment of his 
 thoughts and expressions, delighted a cultivated audience to a very uncom 
 mon degree. I suppose my little " notice " could have been only an attempt 
 to express the general admiration. But in these memories of two and forty 
 years, what one has done one s self may fade, while what was done by 
 others is more enduring. 
 
36 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1825-29 
 
 There is one slight qualification to be made of Dr. 
 Holmes s remark concerning my brother s intimacies. In 
 college, as in later life, he chose his friends very much 
 according to the principle of the advice given by old 
 Polonius to his son ; and perhaps this is what Dr. Holmes 
 meant to imply. It is certain that in college he had inti 
 mates. One of his closest friends was Mr. George William 
 Phillips, who has been for six and forty years a much re 
 spected member of the Boston bar. They made together 
 a journey to Niagara, on horseback, in the long summer 
 vacation of their Senior year. Another of his college 
 friends was Mr. Edward D. Sohier, also still an active and 
 prominent member of the same bar. They were drawn 
 together by their common tastes for field-sports; and through 
 many a " bushy dell and bosky bourne " they followed, with 
 dog and gun, where the wary woodcock, swiftest of birds, 
 rushed away on the wing, and was often dropped by their 
 quicker shot. Still it is true, in a general way, that my 
 brother s friendships were not many. " He had," says Dr. 
 Bobbins, " even at that early age, the air of stateliness and 
 reserve which has often given the impression of a cold and 
 haughty nature. But those who knew him best ever found, 
 beneath, a warm and generous heart, habitually kind in its 
 judgments and considerate of the feelings of others." l In 
 regard to the " stateliness and reserve," the same mistake was 
 made concerning Mr. Webster, as it has been in the cases 
 of many other men of superior intellect, whose manners 
 have not been what is often called " popular." I am not 
 aware that, either in his youth or at any other period of 
 his life, my brother was ever regarded as a haughty man, 
 
 1 Memoir by Dr. Robbins, read before the Massachusetts Historical 
 Society, and lately published. As an instance of his consideration 
 for the feelings of others, I recollect one proud and sensitive youth making 
 a complaint, in a formal note, that he did not have so much of my brother s 
 society as he thought himself entitled to. He was answered gently and 
 kindly, and always remained strongly attached to my brother. The gentle 
 man has been deceased for many years. 
 
1825-29.] COLLEGE LIFE. 37 
 
 even by those who did not know him well. He certainly 
 did have at an early age an air of sedateness, which was 
 the natural expression of his maturity of character, and his 
 balanced and thoughtful nature. Dr. Robbins observes that 
 he had " nothing of what is termed self-consciousness ; " 
 and his testimony, which is of itself valuable as that of 
 one who had the earliest means of observation, and who 
 knew the man of whom he speaks, through all the remain 
 der of his life, would doubtless be confirmed by the gen 
 eral verdict. 
 
 But I must return to the journey to Niagara, in order to 
 quote from a recent letter addressed to me by Mr. Phillips, 
 concerning that and an earlier trip of the same sort. 
 
 BOSTON, Sept. 27, 1878. 
 
 MY DEAR CURTIS, . . . There were two of these horseback 
 journeys. I shall never forget them. I have known nothing in 
 that line like them. The first was in our Junior year, the summer 
 of 1828, half a century ago. Ben, 1 Weston (we always called him 
 Harry Weston 2 ), and I made the party. We went to Portland, up 
 the Saco Valley, to the White Hills ; then over to the head-waters 
 of the Connecticut, down the river road to Springfield, and thence 
 home. We were gone three weeks. Each had $50, and each 
 brought home some balance. The next year, just preceding Com 
 mencement, Ben and I rode to Niagara through Northampton, 
 Albany, and Central New York, and back by much the same route. 
 ... It was on these journeys especially that Ben impressed me 
 with his singular maturity of character. He managed and decided 
 like a father of forty. 
 
 1 At home, and among his friends and intimates, until he became a judge, 
 my brother was always called by this diminutive. In the Life of Air. Ticknor, 
 it is related how he gravely counselled, after his nephew had been elevated 
 to the bench, that in the family circle this habit should be dropped, and 
 that he should be called " the Judge." Every one conformed to this except 
 ing my mother. With her, all the honors and dignities in the world could 
 not displace the endeared name by which she had always called and spoken 
 of her eldest child. And as these surviving companions of his youth, now 
 verging on the threescore and ten, go back in their memories to his and their 
 early days, how else should they speak of him but by the fond, affectionate 
 appellation by which they first knew and loved him ? 
 
 2 His name was Ezra. He was of a family in the Old Colony of Plymouth. 
 
38 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1825-29. 
 
 These journeys were glorious. We sometimes spoke of them in 
 after years, and it was always agreed that there had been nothing 
 like them. We had our horses in training a fortnight before we 
 started ; carried nothing but the round military valise at the back 
 of the saddle ; and all dressed alike, in short jackets and pantaloons 
 of brown linen. 
 
 I have been living for more than twenty-five years on a small 
 farm to the north of Boston, which happens to bound, on one entire 
 side, on the old Xewburyport turnpike, the very road by which 
 we three boys started on our first day s ride to the White Moun 
 tains. I ride now a good deal, and twice out of three times I turn 
 my horse s head in that direction. It is still, as then, a wild, 
 wooded road, scarcely any houses ; and it is easy to imagine my 
 companions by my side. Ben always rode on the left, I in the 
 middle, and Weston on the right. The companionship is at times 
 very real. There are no tolls or ferries there ; but if there were, 
 it would be straining nothing to say, 
 
 " Take, boatman, thrice thy fee, 
 Take ! I give it willingly ; 
 For, invisible to thee, 
 Spirits twain have crossed with me." 
 
 You must never refer to these rides, or say " horse," if you can t 
 bear a good deal of this. . . . 
 
 Very truly yours, 
 
 GEO. W. PHILLIPS. 
 GEO. T. CURTIS, Esq., New York. 
 
 In his Junior year, he wrote a dissertation for one of the 
 Bowdoin prizes, and received for it a first prize of fifty dol 
 lars. The subject, prescribed by the college, was the 
 question, " How far may political ignorance in the people 
 be relied on for the security of absolute government in 
 Europe ? " The editor of this work has selected this essay 
 for the first place among his father s productions that are 
 to be included in this collection. It will give the reader 
 the means of judging how far he had attained, at the age of 
 nineteen, the style of his maturer years. It was written in 
 1828, four years after Mr. Webster s celebrated speech in 
 Congress on the Greek Revolution, which was delivered 
 
1825-29.] COLLEGE LIFE. 39 
 
 Jan. 19, 1824. I suggest these dates because it is quite 
 probable that the Professor of Rhetoric, in assigning this 
 question to the competitors for the prize, was led to choose 
 the topic itself by some of the passages in that speech. 
 But a comparison between a college essay written by a 
 youth of nineteen, and a careful and finished speech by a 
 distinguished statesman of forty-two, is of course not to be 
 made for any other purpose than to ascertain if the young 
 collegian borrowed any of his ideas or his expressions. So 
 little does this seem to have been the case, that the treat 
 ment of the subject would hardly lead one to suppose that 
 the writer of the essay had read the speech, although he 
 doubtless had. 1 Mr. Webster s striking and eloquent de 
 scription of the power of public opinion will recur to the 
 reader. But the remark of the young essayist, that that 
 power can be exercised only by an enlightened and judicious 
 people, that public opinion cannot be formidable without 
 freedom of thought and cultivation of mind, was a just 
 discrimination, which certainly was not borrowed, however 
 obviously true it may be. 
 
 The precise rank in which my brother graduated, as 
 measured by the rules then prevalent and by the public 
 performances assigned at the graduating " Commencement," 
 was that of second scholar of his class. 2 His "part" at the 
 Commencement (August, 1829) was what was academically 
 denominated an " Oration." The subject was, u The Char 
 acter of Lord Bacon." 
 
 I am not sure whether the subject was assigned to him 
 by the Faculty, or was chosen by himself ; but my impres 
 sion is that the two graduates who received the highest of 
 the Commencement honors were at liberty to choose their 
 subjects. If this one was assigned by the college authority, 
 
 1 The famous passage in Mr. Webster -s speech, " Sir, this reasoning mis 
 takes the age," was then declaimed in half the colleges and high-schools 
 throughout the country. 
 
 2 The first rank was taken by Mr. Charles S. Storrow, who became an 
 eminent civil engineer. 
 
40 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1825-29. 
 
 the professor who had the direction of the matter made a 
 happy adaptation of the topic to the reading and tastes of 
 the young man who was to treat it. 
 
 I can bear testimony that Bacon s " Advancement of 
 Learning," his " Essays," and some of his other works, were 
 constantly on my brother s table during his Senior year. 
 But how he handled this subject cannot be known. In con 
 sequence of an illness which followed the journey to Ni 
 agara already spoken of, the oration was not delivered at 
 the Commencement. It was, therefore, not placed in the 
 college archives, and no copy of it has been found. 1 
 
 After he had graduated, he received an appointment to 
 the office of Proctor in the University. 2 This gave him a 
 right to reside in one of the college halls, rent free. But 
 the duties of the office were not very onerous, at least in 
 quiet times, and it involved no duty of giving instruction. 
 In the month of September in that year (1829), he entered 
 the Law School of the University. 
 
 1 I am under the impression that my mother once had it, and that I at 
 one time read it. But I cannot trust my memory sufficiently to describe it. 
 
 2 Soon after he became a Proctor, I (being a Sophomore) met Mr. Quincy, 
 the President, one day, in the college grounds. lie had not been President 
 long, and was probably not familiar with my brother s person. He began 
 abruptly to speak to me about some matter which apparently involved 
 " government secrets." As soon as I perceived his mistake, I undeceived 
 him. He looked at me shrewdly for an instant, and then said, "All! I 
 see, sir ; there is some difference, after all, between Alexander the Great and 
 Alexander the Coppersmith." The President of course had the laugh on his 
 side : an undergraduate could not return his joke ; but I, in my sophomorical 
 dignity, thought it an odd way of offering an apology, when I had been so 
 prompt in making him aware of his mistake. 
 
1829.] HARVARD LAW SCHOOL. 41 
 
 CHAPTER III. 
 
 Enters the Law School at Cambridge. Steady Progress. Quits the 
 School for a Country Residence. Finishes his Studies at Northfield. 
 Admitted to the Bar. Marriage. Country Practice. Invitation to 
 remove to Boston. Acquisitions and Reputation. Character and Pro 
 fessional Standing of Mr. Charles Pelham Curtis. Letters to G. W. 
 Phillips and Mr. Ticknor. 
 
 IT would be quite an unnecessary refinement to speculate 
 about the causes or reasons that made my brother choose 
 the law as his profession. He was not led to it by any acci 
 dent, whether of association or employment. He was not 
 apprenticed in his youth as a lawyer s clerk or office-boy, 
 and he had no relative or acquaintance whose example or 
 influence might have affected him. 1 Nor was he advised by 
 any one to choose this profession. Nature made him for a 
 lawyer, and a great one ; and when, as we have seen, 
 some of his college classmates cast his "horoscope," the ele 
 ments of their calculation were all patent to their percep 
 tions of his natural gifts. In resorting to the study of the 
 law, he simply followed what was as much a dictate of his 
 moral and intellectual, as the appetite for food was a dictate 
 of his physical constitution. I do not think that there was 
 ever any question in his mind about a profession from the 
 time when he was eighteen years old. Some of his volun 
 tary studies, during his last two years in college, show what 
 he expected to become. He devoted much time during 
 
 1 In Lord Campbell s "Lives of the Chancellors," we read that the great 
 Lord Somers was clerk to his father, who was a country solicitor, and that 
 Lord Hardwicke was an articled clerk to Mr. Salkeld, a London attorney. 
 
42 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1829 
 
 those years to English history, reading systematically Hume, 
 Lingard, and Hallam ; thus making the best preparation 
 for Blackstone, Coke s u Institutes," and the Reports. 
 
 It has been finely said that " Justice is the great interest 
 of man on earth ; " l and if there ever was one who, by an 
 instinctive propensity to that noble science which regulates 
 the social rights of men, was qualified to use to the utmost 
 advantage every available means for its study, it was he 
 who is the subject of this Memoir. 
 
 In the same autumn in which he graduated from the 
 academic department of Harvard, the Law School of that 
 University became what it had never been before, a living 
 and working institution. Judge Story had come there with 
 his affluence of learning, his power of satisfying young men 
 who had a real thirst for knowledge, and his magnetic ac 
 tivity. His inaugural discourse as Dane Professor of Law 
 delivered Aug. 25, 1829 gave a new and stimulating ex 
 position of the objects and methods for and by which the 
 study of the law should be pursued. 
 
 There, too, had come, as Royall Professor of Law, John 
 Hooker Ashmun, of Northampton, then, perhaps, the first 
 lawyer of his age in Massachusetts; at all events, one who 
 was a thorough master of the common law and its system 
 of pleading, and who was as winning in his intercourse with 
 young men as he was capable of instructing them in his 
 particular department. Judge Story brought with him his 
 ample library, and gave the use of it to the students. 
 There had not been such an opportunity for legal education 
 in America. The first class that availed themselves of it 
 was composed of graduates of other colleges, as well as of 
 Harvard, and from various States of the Union ; some from 
 States as far as Virginia and South Carolina. 
 
 I am not disposed to say that my brother was then recog 
 nized as the foremost man of this eager band. But among 
 
 1 Daniel Webster, Remarks at a Meeting of the Suffolk Bar, on Occa 
 sion of the Decease of Mr. Justice Story. Works, vol. ii. p. 300. 
 
1829.] HARVARD LAW SCHOOL. 43 
 
 the studious young men of talent who first gathered about 
 Judge Story and his associate Professor in the Cambridge 
 Law School, Curtis was regarded as one of whose future the 
 most confident hopes might be entertained, because he had 
 given, and was constantly giving, proofs of his peculiar 
 adaptation to the profession of the law. He entered upon 
 its study with zeal, rapidly acquiring what is so essential to 
 a beginner, a knowledge of the books of the law, and of 
 how to use them. His Common-place Book, kept at this 
 time and long afterwards continued, shows with what dili 
 gence he read, and with what system he digested his read 
 ing. 1 Its titles and references exhibit a remarkable sagacity 
 in selecting and preserving the learning that would be use 
 ful in practice. Some men have read law by going over a 
 great field of books, and acquiring a habit of heaping up 
 citations, without seeming to have cultivated the faculty of 
 judging nicely of their bearing upon the point or question 
 with which they may have to deal. The power of being 
 learned with discrimination of making a pertinent use of 
 what one knows is very necessary to a lawyer who ex 
 pects to instruct and influence a court. This power my 
 brother possessed in an eminent degree from his earliest 
 professional years. He was always, and justly, considered 
 as a learned lawyer : no one ever regarded him as a 
 pedant. 
 
 Judge Story introduced into the Cambridge Law School 
 the custom since followed in most of the law schools in 
 the country of holding " moot courts." A case was given 
 out; the parts of junior and senior counsel were regularly 
 assigned to two students on each side from among those 
 who chose to enjoy the privilege ; and the case was pub 
 licly argued before one of the professors sitting as a judge, 
 by whom the decision was pronounced in an oral opinion at 
 the close of the discussion. My brother always availed 
 
 1 The Common-place Book lies before me, and I can distinguish the read 
 ing of his law-school days. 
 
44 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1830. 
 
 himself of every opportunity for this kind of exercise ; and 
 his immediate success as an advocate, from the first moment 
 when he began to appear in the real tribunals of his native 
 State, proves how well he had profited by those fictitious 
 trials. 1 
 
 I am not aware that any production of his while he was 
 in the Law School has been preserved, excepting another 
 Bowdoin prize dissertation which he wrote in 1830, when 
 he had been graduated just one year. A copy of it has been 
 obtained, as the previous one has, from the college archives, 
 for publication in this work. The subject was, " The pres 
 ent character of the inhabitants of New England, as result 
 ing from the civil, literary, and religious institutions of the 
 first settlers." It is not surprising that this dissertation 
 should have taken a first prize. In historical research, 
 accuracy, and grasp of the subject, it would have done honor 
 to any writer of twice his years. It shows that his style 
 was even then fully formed, although there is here and 
 there an expression that might be improved. It is printed 
 in the present work just as it has been received from the 
 college files. 
 
 The following letter to his friend Phillips, which shows 
 how he passed the summer vacation of the year 1830, is the 
 only part of his correspondence during his connection with 
 the Law School that has come within my reach. What were 
 the "attractions " of Hanover will be presently explained. 
 
 1 The " moot courts " were almost always held as sittings in bane. But 
 I remember that, on one occasion, Judge Story organized and presided at a 
 nisi prius trial. The case was an action upon a policy of marine insurance, 
 and it turned upon the question of a total loss. The jury was composed of 
 twelve students, drawn from the Divinity School. I forget how the evidence 
 showing the loss was introduced, but I presume it must have been presented 
 in depositions, borrowed probably from some actual case. My distinguished 
 and beloved friend, the late Hon. George S. Hillard, is the only one of the 
 " counsel " whom I remember as taking part in the trial. He " led " on one 
 side or the other. He closed an impassioned peroration by exclaiming, 
 " Gentlemen of the jury, the verdict is mine ! I will have it ! " Yet I am 
 quite unable to say how it went. But I know that a great deal was taught 
 in those " moots," in which all the forms were punctiliously observed. 
 
1830.] VISIT AT HANOVER. 45 
 
 To MR. G. W. PHILLIPS, BOSTON. 
 
 HANOVER, Aug. 11, 1830. 
 
 MY DEAR FRIEND, Your pleasant letter, which I received 
 two days since, found me in Hanover, where I have been quietly 
 located for the last four weeks, and where I expect to remain one 
 week longer, until after the Commencement here, when I shall leave 
 for Burlington, Vt., where I shall stay a week or so, and return to 
 Cambridge on Saturday after our Commencement. Now don t ask 
 me what I am staying in this dull place for so long, and how I 
 contrive to pass away the time, and don t look wise when I see 
 you and say that, ahem ! doubtless there are attractions which may 
 make the most stupid places very pleasant ; for indeed this is an ex 
 cellent place to study, and a vast deal of law have I read since I 
 have been here ; and positively that is the only reason why I have 
 stayed so long. Then, as you say, what fine rides there are on the 
 river, and in the back country, and what a fine moon we have had ! 
 and indeed, altogether, it has been a very pleasant four weeks. I 
 shall not be present at Commencement or the class supper. I be 
 lieve you are on the committee. The best wish I can entertain for 
 you in that respect is, that you may not be compelled to pay for 
 more of your supper than you can eat. 
 
 I am sorry to learn that it is probable that Davis, of Worcester, 
 will be placed on the bench : I hoped it might be one of the Boston 
 Bar. The appointment of Mr. Hubbard or Mr. Shaw would leave 
 a fine practice to be distributed among the remaining lawyers ; and 
 would be a good example to teach young men that, though the num 
 ber of lawyers does increase, still from time to time an old gray- 
 head makes way, and leaves room for others. 
 
 I am greatly interested in the Salem trials. 1 We get little news 
 of them, or of any thing else going on in your quarter. Sohier is 
 kind enough to forward me a paper, so that I am not more than a 
 week behind the rest of the world in news. 
 
 We have had terrible freshets here and in Vermont, whole vil 
 lages swept away, and numbers of lives lost, crops destroyed, and a 
 vast deal of damage done. All the north-west part of the State of 
 Vermont has been under water. I am not able to go from here to 
 Burlington directly, but am obliged to cross the State to the foot 
 of Lake Champlain, and go up the lake in the steamboat. 
 
 1 The trials of Knapp and others for the murder of Capt. Joseph White. 
 
46 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1831. 
 
 Your generous apology for conduct which, though I had not for 
 gotten, I had certainly and truly forgiven, was unnecessary ; but it 
 has confirmed my high opinion of your good sense and candor. 
 We both of us behaved less like men than we might have done, and 
 if my part in the affair renders it allowable for me to make any re 
 quest concerning it, it is that you will not t"ouble yourself any more 
 about it, but will forgive and forget it all, as I have done. 
 
 Since I last saw you, I went to Nahant, and spent a day in com 
 pany with . He has all his old peculiarities, though they are 
 
 somewhat diminished in degree ; and, on the whole, I think he has 
 greatly improved, as much so as any of our class whom I have 
 seen. By the way, speaking of classmates, I saw Conant in 
 Greenfield, Mass. He had been to the White Mountains, had 
 come down to Bath, purchased a boat, and floated down the river 
 as far as Greenfield, where I saw him. He had a companion 
 and intended to go as far down as Springfield, and then walk to 
 Worcester, where he is studying law. 
 
 Yours truly, B. R. CURTIS. 
 
 Mr. Curtis left the Law School in the early part of the 
 rear 1831, some eighteen months before the completion of 
 the regular course. How he came to do so requires expla 
 nation. 
 
 Between forty and fifty years ago, there resided and 
 practised in the town of Nortlifield, in Franklin County, 
 Massachusetts, an old-fashioned lawyer, John Nevers, 
 Esquire. He was universally called General Nevers, be 
 cause he held, or had held, a commission as Major or Briga 
 dier-General in the militia. When I first knew him, which 
 was in 1833, he was a quaint, tall, and spare man, with 
 silvery hair, a parchment complexion, manners that were 
 both rustic and formal, a dry humor, and an expression 
 about his eyes and mouth that indicated shrewdness and 
 a habit of suspicion. He was, however, a man of strict in 
 tegrity, and of great firmness and resolution ; qualities that 
 made him respected by his neighbors, and up and down the 
 valley of the Connecticut River as far as he was known. 
 As a lawyer, he was not distinguished. He knew some- 
 
1831.] GENERAL NEVERS. 47 
 
 thing of the statute law of Massachusetts and a little of 
 what was contained in the earlier volumes of the Massachu 
 setts Reports. But, altogether, he was not a member of the 
 profession with whom such a young man as Curtis would 
 have been likely to place himself as a pupil under ordinary 
 circumstances, in preference to remaining in the society of 
 Judge Story and Mr. Ashmun, and the students who sur 
 rounded them. He did a considerable business as a col 
 lecting lawyer, and made a good many " entries " at every 
 term of the Common Pleas. But he always employed other 
 lawyers to conduct his cases in court, when there was to be 
 a contest. At the time of which I am writing, he had 
 amassed a fair property, and was disposed to accept the 
 office of Sheriff of his county. The sheriffs in Massachu 
 setts were always appointed by the Governor and Council ; 
 they were almost always lawyers ; and, from the dignity and 
 importance of their office and their official relations with the 
 judges, it was fit that they should be gentlemen. General 
 Nevers was in all respects a suitable person to bear the 
 sword of justice, and to represent the executive authority 
 of the Commonwealth. 
 
 Having made up his mind to retire into the office of 
 sheriff, this cautious gentleman looked about for a young 
 man on whom to devolve his law business, and on whose 
 assistance he could rely in matters arising in his new posi 
 tion. He had the sagacity to see that what he wanted was 
 a young man who knew more than he did in the law ; 
 although few men, old or young, could know more than he 
 did in the common affairs of life that had fallen within his 
 limited range. It happened that James C. Alvord, of 
 Greenfield, a young lawyer of the most eminent abilities, 
 but who had not been long at the bar, came to attend the 
 law lectures at Cambridge, attracted thither by the accession 
 of Judge Story to the principal chair. A strong and inti 
 mate friendship grew up between Alvord and Curtis. Gen 
 eral Nevers could not offer to Alvord a position in his office ; 
 
48 MEMOIR OF BENJAMIN ROBBINS CURTIS. 
 
 for Alvord s future was already secured in his native town 
 of Greenfield, the shire town of the county. But Alvord 
 put General Nevers and my brother in communication with 
 each other; and the result was that, early in the year 1831, 
 the latter left the Law School, and took up his abode in 
 Northfield, with a prospect of succeeding to the business of 
 General Nevers. He still wanted eighteen months of the 
 time when he would be entitled to be admitted as an Attor 
 ney of the Common Pleas. 
 
 It was, in one aspect, a great and perhaps an unwise 
 sacrifice for him to leave the Law School. Possibly it might 
 have been better for him to have completed the course of 
 preparatory studies at the school, as it had been arranged 
 by the Professors, and then to have sought a knowledge of 
 practice in some office in Boston. But the real motive 
 must be told. A mutual attachment had for some time 
 existed between him and his cousin, Miss Eliza Maria 
 Woodward. 1 The prospect of an assured income, however 
 small, coming sooner than could be expected if he sub 
 mitted to the usual waiting that is the lot of most young 
 lawyers, decided him to bury himself in a country village, 
 where he could have very little congenial society, scarcely 
 any books but such as he could take with him, and where 
 he must encounter the risks of an association with a gentle- 
 
 1 She was the youngest daughter of my father s eldest sister, by her 
 marriage with Mr. William H. Woodward, a highly respectable lawyer of 
 Hanover, New Hampshire, long the Treasurer of Dartmouth College. Mr. 
 Woodward was the defendant-in-error in the celebrated case of Dartmouth 
 College v. Woodward, decided by the Supreme Court of the United States in 
 1819. He died before the final decision of the case, but his family continued 
 to reside at Hanover for many years. He was descended from the cele 
 brated Captain Miles Standish, the Puritan leader and warrior. Josiah 
 Standish, third son of the great captain, settled in Preston, Connecticut, in 
 1687. His daughter, Mary Standish, was the mother of the Rev. Eleazar 
 Wheelock, the founder of Dartmouth College. Mary Wheelock, daughter 
 of the founder, married Bezaleel Woodward, a Professor in the College. 
 Their son, W. H. Woodward, was Chief Justice of the Court of Common 
 Pleas of New Hampshire ; and his son was W. H. Woodward, the Treasurer 
 of the College, who became the defendant-in-error in the celebrated liti 
 gation. 
 
1831.] LETTER TO MR. TICKNOR. 49 
 
 man who, with all his good qualities, was something of an 
 oddity. Cambridge was at that time filled with a new 
 intellectual activity. My brother s position in the Law 
 School was every thing that he could desire. His mother 
 was residing there ; 1 and in Boston the house and library 
 of Mr. Ticknor were always open to him, and always 
 afforded many attractions. But the hope of an early frui 
 tion of his matrimonial plans carried him through all these 
 sacrifices and all the hard work that he had to encounter, 
 and tinged the enterprise, to his feelings, with a romance 
 which was understood by few persons but himself and the 
 young lady of his choice. 
 
 He had not been long; settled at Northfield when his 
 
 O 
 
 uncle had occasion to write to him in regard to a feeling of 
 hostility towards Harvard which had at that time grown up 
 in the western part of the State. The answer was given in 
 the following letter : 
 
 To MR. TICKNOR. 
 
 NORTHFIELD, March 29, 1831. 
 
 MY DEAR UNCLE, I received your letter on Friday last, and, 
 not having seen any of the publications of which you speak, I went 
 over to Greenfield to see if I could find them there. I was not able 
 to do so, nor did I see any one who had seen such communications in 
 any of the Western papers. But though I was so far unsuccessful, I 
 found in all the most intelligent and influential men here enough 
 of the spirit and feelings likely to produce such effusions. I have 
 talked with some of all parties ; and, as near as I can ascertain, there 
 is among all who think or care at all about the college either decided 
 hostility or dissatisfaction with what they call " the illiberal policy 
 towards this part of the State." The hostility is confined to the 
 
 1 She removed to Cambridge in 1826. For many years she received at 
 her table eight or ten of the resident graduates or undergraduates who 
 desired a more liberal diet than the college " commons " afforded. At her 
 house, therefore, there was always a choice collection of young men of 
 good manners and agreeable conversation, some of whom, while my brother 
 remained in Cambridge, were his personal friends, and all of whom were 
 persons whose society he was sorry to lose. 
 VOL. i. 4 
 
50 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1831. 
 
 " Orthodox party," and I have reason to think that an effort has 
 been made here to elect such Senators as would do their utmost 
 to effect a change in the present state of things at Cambridge. 
 The effort must fail, owing to political, which is here too strong for 
 religious excitement. 
 
 But, passing over this party and all those who are enemies to the 
 college, all the most respectable men in this part of the State are 
 dissatisfied. 
 
 The causes of this dissatisfaction are, that the expenses of an edu 
 cation at Cambridge are greater than are necessary ; that the Col 
 lege is sectarian ; and last, but far from least, that it is the College 
 of Boston and Salem, and not of the Commonwealth. These 
 three things they believe most firmly, and they act accordingly, and 
 send their sons to Yale or Dartmouth, or even to Amherst, rather 
 than to Cambridge. 
 
 These are not the views of narrow-minded men, or of those who 
 feel little interest in the subject. I have obtained them from such 
 men as Daniel Wells and Samuel C. Allen, and they are certainly 
 easily accounted for even if they are not well founded. 
 
 " There has not been a single person in the old county of Hamp 
 shire," said the Hon. S. C. Allen, the other day, " since my recol 
 lection, in any way connected with the College, or likely to exert 
 his influence in its favor, and how should it be otherwise than that 
 the people should either care nothing about it, or be led by its ene 
 mies to suspect or dislike it." 
 
 On the other hand, the oth er colleges have persons here, and 
 those the most influential men, among their trustees ; and these men 
 are of course interested to do all they can in support of the institu 
 tions with which they are connected. 
 
 I am told that this dissatisfaction is increasing ; that the circle in 
 which Cambridge is respected, and in which its influence is felt, is 
 constantly contracting ; and that the number of students from this 
 part of the State will continue to diminish. How far this is true 
 you yourself can judge far better than myself ; but if the influence 
 of the College would be materially increased, as I have no doubt it 
 would be, by the appointment of some few members of the Board 
 of Overseers from this part of the country, it may certainly be 
 worth considering whether it should not be done, rather than 
 lose the students from so large and respectable a portion of the 
 State. 
 
1831.] LETTERS TO G. W. PHILLIPS. 51 
 
 I write in great hurry, for next week is court week, and business 
 is just now pressing. Remember me to aunt, and say that I shall 
 soon answer her kind letter. 
 
 Your affectionate nephew, 
 
 j B. R. CURTIS. 
 
 GEORGE TICKNOR, Esq. 
 
 The following letters to his friend Phillips disclose his 
 feelings in regard to the sacrifices he had made, and the 
 motives which led to them. I am inclined to believe 
 that his sober renunciation of Boston and Cambridge had, 
 after all, a little of the delusion under which the fox in the 
 fable, whose situation he disclaims, labored, when he recom 
 mended a new fashion to his brethren. But the letters are 
 full of his thoughtful and reflecting character, and of the 
 spirit with which he disciplined himself to a situation 
 which was solitary enough, until his marriage gave him an 
 other home than his office. 
 
 To MR. GEORGE W. PHILLIPS, BOSTON. 
 
 NORTHFIELD, April 16, 1831. 
 
 MY DEAR GEORGE, I have never answered your letter, 
 which I received a long time ago, because I had nothing to say 
 to you which I supposed you would care to hear or know ; and, 
 indeed, the same reason would prevent me from writing now, did I 
 not wish to hear from you, and I suppose I shall not have that 
 pleasure without answering your last. 
 
 The reasons which you gave for not coming here are unanswer 
 able ; and I am sometimes glad that you did not come, so total is 
 the want of any thing to please or interest me out of the walls of 
 the office, in which I spend all my time, if I except the scenery, 
 which is now putting on a spring-like look, and is, even thus early, 
 very pleasant. But still I do think that this is in many respects a 
 more eligible residence than Boston. 
 
 There may be those who can hold an onward course in the midst 
 of all the interruptions and obstacles with which a city must sur 
 round them, who can preserve a clear and quiet and happy spirit, 
 an active and obedient mind, amidst temptations to habits which are 
 inconsistent with each and all of these ; but I am not one of these, 
 
52 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1831. 
 
 and I am better, morally, intellectually, and physically, where 
 I am. 
 
 Do not smile at me and say my taste for the country is like that of 
 the fox who approved of short tails / for it is not so. I do truly feel 
 and believe that the effect of the quiet and almost solitary life 
 which I lead will be far more beneficial to me than all the advan 
 tages presented by Cambridge or Boston. It is true there are 
 some weary hours in a week, when law books are hardly sufficient 
 to banish all thoughts of other days ; but they are few, and time 
 and habit will continue to diminish them. I spent the last week at 
 Greenfield, where the Supreme Court has been sitting, and where 
 I sa\v much of Mr. Bates. 1 He was in fine spirits, and very suc 
 cessful as an advocate. He is certainly a graceful speaker ; and, 
 though uncertain and very unequal in his arguments, I should 
 think he would be considered an able advocate in any court in the 
 Commonwealth. He inquired particularly after you, and said his 
 family were all well, &c. 
 
 If you see Sohier, please to ask him why he does not answer my 
 letter which I wrote him long since, and do not make it necessary 
 for me to send the same inquiry after you. 
 
 Yours truly, B. R. CURTIS. 
 
 To MR. GEORGE W. PHILLIPS, BOSTON. 
 
 NORTHFIELD, NOV. 2, 1831. 
 
 DEAR GEORGE, It gave me great pleasure to receive your 
 last letter ; for I had feared, either that my request that you would 
 not write to me more on a subject on which I will hardly yield to 
 yourself in high estimation of its interest and importance, but which 
 I nevertheless thought, and still think, we had better not write 
 about, I say, I had feared that this request, or that forgetfulness 
 which the noise and bustle and the many changes of a city are so 
 apt to produce towards one s country friends, had put a final stop to 
 our correspondence. But I should have been truly sorry to have 
 had it so. Now that I have left Boston and its vicinity, and all 
 the things and people with whom I have been connected since 
 infancy, and have come among strangers, to fight my way by my 
 own unaided strength, I do assure you that I look back with strong 
 
 1 Hon. Isaac C. Bates, of Northampton. 
 
1831] LETTERS TO G. W. PHILLIPS. 53 
 
 feelings to those who have been my companions and friends at what 
 will probably prove to have been the happiest part of my life. I 
 have here a good field for professional exertion, as well as an 
 opportunity to do much good in other ways ; but there is little, 
 very little, in the manners, the habits, or the character of the peo 
 ple to which I can look for sympathy. I am thrown entirely upon 
 my own resources for happiness, and you may be sure that many 
 of these are drawn from the past. It would be a sad thing for me, 
 therefore, if I should find my old friends forgetting me, now that I 
 have come away from them, arid now that I so much need their 
 friendship. 
 
 I presume I should tell you no news if I were to say to you that 
 I am engaged to my cousin, Miss E. M. Woodward ; for I suppose 
 you have known it before. There is no keeping such a thing 
 secret, even it one were disposed. You have seen her, I think, but 
 do not know her much. I am not about to say any pretty things 
 about her. J have trusted her with my happiness for this world, 
 and I know of no greater compliment I could pay her ; but I hope 
 you will one day know her well. 
 
 I was at Burlington with my sick friend, Deming, when Taylor 
 was there. But I did not know he was in town until just before 
 he left. He looked well. He said I did not ; and you caution me 
 to take care of my health. I received your caution at a time when 
 I was nearer giving up and allowing myself to be sick than I have 
 been since the summer I graduated, when I had a fever, as you 
 may remember. The truth is, I have not been as careful of my 
 health as I ought ; but I hope better things hereafter. Poor Dem- 
 ing I shall never see again, I fear. It is too probable that the 
 grasp of a disease which no care, no change of climate, can relax, is 
 firmly fixed upon him. There are some hopes entertained of the 
 effects of the voyage and a mild climate : I have very few. 
 
 I am glad you continue to be more and more interested in our 
 profession. It is indeed a noble science, and there are parts of its 
 practice, also, which yield to no human occupation for dignity and 
 interest. As for myself, I love it unaffectedly and I study it closely. 
 My progress, like that of every student who has been but a short 
 time engaged in it, is slow. Sometimes I do not appear to go 
 along at all, and all my efforts do but render the task of advance 
 ment apparently more hopeless ; but still I persevere, and do not 
 doubt that light will shine in upon me at last, and clear away many 
 
54 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1832 
 
 of the shadows which are now broad and deep over nearly all the 
 field. 
 
 s father has died poor, you say. It will doubtless be a 
 benefit to his son. There is a strange fatality attending large for 
 tunes in New England. Where will old - s fortune be when 
 this generation are dead ? Nature, education, chance, every thing, 
 seems to unite with the institutions of our country in making those 
 first who were last, those last who were first. 
 
 Do, my dear George, write me again when you have leisure, and 
 be sure it will ever give me great pleasure to hear from you. 
 
 Ever yours, B. R. CURTIS. 
 
 To MR. GEORGE W. PHILLIPS, BOSTON. 
 
 NORTHFIELD, Feb. 11, 1832. 
 
 I was very glad to receive your last letter, my dear George, arid 
 I assure you that I laughed heartily over some parts of it which 
 related to myself as well as others. When am I going to be mar 
 ried, say you. Why, truly, you might have learned, even from 
 your own letter, that it takes two to make a bargain of that kind, 
 and that therefore I could not answer the question. So much as 
 this I will say, that the promise, quoad your being groomsman, 
 was made in 1827, if I recollect right; and as I certainly shall 
 not be married till 1833, why, I can plead non assump. infra sex 
 annos to it ; i. e. I could if I were disposed, but I assure you I am 
 not, and I here take upon myself to renew the promise, if you will 
 accept of it. 
 
 I had heard that was engaged to Miss , with whom 
 
 I am not acquainted ; but be she who and what she may, I 
 sincerely pity her. It is not merely that he is dissipated, though 
 this is bad enough ; but he is thoroughly and entirely heartless and 
 corrupt. . . . 
 
 You ask me about my business. It is as good as I expected. 
 It will probably be worth to Wells and Alvord, in whose names and 
 for whose benefit it is transacted, about $800 during the year that 
 it is in my hands, though I do not think it will be as good as that 
 to me during the first two years. It may be so, however ; and if I 
 am pretty successful at the outset, it probably will. I believe you 
 never rightly understood my motives for coming here. The first, 
 certainly, was to get a living by my profession immediately. But 
 
1832.] PRACTICE AT NOETHFIELD. 55 
 
 1 had others which weighed not a little with me. I did not like the 
 influence of Boston and its society upon young men. I believed 
 then, and I believe now, that at the end of six or eight years I 
 should be a better man and a better lawyer, and should have been 
 of far more use to the community, if I came here, than I could if I 
 went into your city. I have as yet seen no reason to doubt the 
 justice of my conclusion. At the same time, 1 do not mean to 
 make a general rule of it. My situation and character were both 
 considered in arriving at it ; and they whose situations and charac 
 ters are different must come to a different result. 
 
 You speak of coming up here when pleasant weather arrives. I 
 hope to have the pleasure of seeing you before that time ; for it is 
 my intention to come to Cambridge in April, and spend four 
 months there. 
 
 There are some branches of the law which I can study to 
 peculiar advantage there, at the close of my last year ; and I still 
 think that there is no place in this country for getting the theory of 
 the law like the Cambridge Law School. If you see Sohier or 
 Taylor, please remember me to them. 
 
 Your friend, B. R. CURTIS. 
 
 Fortunately, young Curtis and the old Northfield lawyer, 
 who had become sheriff, suited each other well. General 
 Nevers at once appreciated the acquisition he had made, and 
 ever afterwards had an unbounded respect and admiration 
 for his young iriend. Whatever he could do to promote 
 my brother s interests was done. My brother, on his part, 
 adapted himself to the sheriff s peculiarities, and aided him 
 in his affairs with untiring industry. The law business 
 which General Nevers had surrendered was devolved upon 
 the student immediately ; although it continued to be done 
 in the name of Messrs. Wells and Alvord, of Greenfield, 
 until my brother was qualified legally to take charge of it in 
 his own right. 
 
 During his residence at Northfield, he was invited by the 
 citizens of the ancient town of Deerfield to deliver an ad 
 dress on the centennial anniversary of Washington s birth, 
 Feb. 22, 1832. At this time he was in his twenty-third 
 
56 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1832 
 
 year. As it is the purpose of this collection of his writings 
 to put within the reach of readers whatever illustrates both 
 his early maturity and the subsequent growth of his mind, 
 this address will find its appropriate place next after the 
 second Bowdoin prize dissertation. Like that production, 
 it is remarkable chiefly for the knowledge which it exhibits 
 of the period when the foundations of the political institu 
 tions of New England were laid. 
 
 In the spring of this year (1832), he determined to con 
 nect himself again with the Law School in Cambridge, in 
 pursuit of the objects described in the following letter: 
 
 To MR. TICKNOR. 
 
 XORTHFIELD, Jan. 22, 1832. 
 
 MY DEAR UNCLE, I write to ask your advice relative to a plan 
 I have been for some time deliberating on, of coming to Cam 
 bridge in the spring, and spending the summer term there in the 
 Law School. There is one branch of the law, viz. the doctrines 
 and practice of courts of equity, which I have no means of studying 
 here. Both books and instruction are wanting ; the former being 
 of course indispensable, and the latter even more necessary in this 
 department than any other of my profession, on account of the 
 want of elementary treatises, and, indeed, of any means of gaining 
 an entrance to its most simple and often-recurring principles. 1 The 
 jurisdiction of our Supreme Judicial Court is now such that this 
 knowledge is important, and there is every reason to believe that 
 that jurisdiction will be extended to meet the increasing wants of 
 the community. In the mean time, there is almost an entire igno 
 rance on the subject in the bar of Massachusetts out of Boston ; 
 and the younger part of the profession do not seem to be making 
 more progress in it than their fathers have done. I have also 
 thought that it was well to get an early start in this branch of 
 learning ; for it must be difficult for one bred up in the ri<> id rules 
 of the Common Law to imbibe the more liberal principles of Equity. 
 If I can get this start, and make some little progress under an in 
 structor, I can then go on by myself. 
 
 In addition to this, I have heard that it was proposed by the 
 
 1 Judge Story s " Commentaries on Equity Jurisprudence " had not then 
 been published. 
 
1832.] A TERM AT THE LAW SCHOOL. 57 
 
 students to get a course of lectures on the Civil Law from Dr. Follen 
 in the summer term, either at the expense of the institution or at 
 their own expense ; and this would of course he an additional in 
 ducement, for though I may find little opportunity to commence 
 chancery suits, or apply the doctrines of the Civil Law in the remote 
 town of Northfield, I know you would not have me form my plan 
 of studies in reference to the narrow arena in which I now stand, 
 or limit my acquirements to the humble demands which are made 
 upon me here. It is now somewhat more than a year since I came 
 here, and I have had a good opportunity to test the wisdom of my 
 decision to come. The result is, I have not been disappointed, 
 the place and the business are much as I had supposed. I can ob 
 tain a comfortable living here till I can find a better place ; or, if 
 that time shall ever come, till my acquirements shall enable me to 
 seek a wider field where more is to be gained, though the competi 
 tors are more numerous. 
 
 If I do go to Cambridge, Mr. Alvord will spend nearly all his 
 time here ; but the nature of his business is such that he cannot 
 [spend] quite all. I do not think the business will suffer seriously, 
 and perhaps not at all. The only remaining consideration is the 
 expense ; but that will be small, and is not in itself important to 
 me in comparison with the advantages which I expect it will pur 
 chase for me. I will thank you if you will have the kindness to 
 communicate your opinion to me on this subject. 
 
 I returned last week from a short visit to Hanover. I left Mrs. 
 Woodward and Eliza both well, Mrs. W. looking, I think, better 
 and younger than I have seen her for many years. 
 
 Will you give my love to Aunt Anna, and say to her that I 
 should have written to her ere this time to ask for another letter 
 from her, had I not been incessantly occupied, what with study and 
 business, which last has taken me about from one place to another 
 a good deal, and broken up my time ; but I shall do so soon. 
 Please to remember me to Nanny, and give my love to her ; I hear 
 that she has entirely recovered her flesh and strength. 1 
 I remain yours affectionately, 
 
 B. R. CURTIS. 
 
 GEORGE TICKNOR, Esq. 
 
 Having spent the spring and summer term of 1882 at the 
 Law School, in pursuance of the plan described in his 
 
 1 Miss Anna E. Ticknor, the eldest daughter of Mr. Ticknor. 
 
58 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1833. 
 
 letter, lie returned to Northfield, and was admitted as an 
 Attorney of the Court of Common Pleas, at Greenfield, in 
 August of that year. The succeeding winter was passed 
 in the somewhat dreary round of a country practice, unre 
 lieved by any social enjoyments ; but his marriage took 
 place in the following May. 1 Miss Woodward had a little 
 fortune of her own, just sufficient to furnish tastefully a 
 small house in Northfield, in which the young couple im 
 mediately commenced housekeeping. 
 
 Besides General Nevers, there had for many years been 
 no other lawyer in the town of Northfield excepting a 
 pettifogger of the worst character. This person was a 
 regular member of the bar, at least he had been admitted 
 as an attorney of the Common Pleas ; but he was as igno 
 rant of law as he was knavish. He preyed upon the 
 farmers and poor people of the " hill towns" in his 
 neighborhood, with a rapacity almost unheard of. He 
 possessed a large fund of audacity and cunning, and no man 
 who fell into his clutches was safe. Antedating writs, 
 making false affidavits, procuring snap judgments, obtain 
 ing people s signatures to papers falsely read to them, and 
 such like performances, were his common avocations. Alto 
 gether, he was a very great scoundrel, of considerable nat 
 ural ability, such as might be portrayed in fiction, as an 
 extravaganza, but not often to be found in our profession in 
 real life, as it may be hoped. Against this man, my brother 
 was pitted in trials before justices of the peace, soon after 
 he went to Northfield; and many a pitched battle they had, 
 in which my brother was victorious, from his superior 
 knowledge, whenever the justice was intelligent enough to 
 appreciate what the younger lawyer told him was the law, 
 and honest and fearless enough to encounter the hatred of 
 the older one. 
 
 1 On account of the relationship of both parties to Mr. Ticknor, he 
 thought proper to have the marriage solemnized at his house in Boston. It 
 occurred on the 8th of May, 1833. 
 
1834.] AN ATTORNEY DISBARRED. 59 
 
 At length this man s rascalities became intolerable. The 
 whole community rose up, and demanded of the bar of the 
 county that this nuisance be abated. The culprit was pre 
 sented to the Court of Common Pleas, held at Greenfield, 
 on charges which were most vigorously and unsparingly 
 prosecuted by Mr. James C. Alvord, who had been deputed 
 to that duty by the bar. He was defended by the late 
 Hon. Pliny Merrick, of Worcester, then in the prime of 
 life and at the height of his brilliant reputation as an 
 advocate. Mr. Merrick made a powerful and ingenious 
 argument on all the charges ; but at the close, conscious of 
 the weakness of his case, in a most touching and pathetic 
 appeal he threw his client upon the mercy of the court. 
 But it was a case in which the mercy had to be extended to 
 the community. At the next term, the Chief Justice of the 
 court, the late Hon. John M. Williams, reviewed the evi 
 dence with stern severity, and ordered the respondent to be 
 stricken from the rolls. 1 
 
 I have related this occurrence, because my brother was a 
 good deal embarrassed as to the part he ought to take in it. 
 The man had been for years a bitter enemy of General 
 Nevers ; he had become a bitter enemy of my brother ; 
 and many of his victims were their clients, or were per 
 sons who had resorted to them for advice. He was their 
 regular antagonist in half the small suits and controversies 
 springing up in their section of the county. At length, 
 after a good deal of hesitation, my brother decided not 
 to take any active part in the prosecution, but to fur 
 nish the committee of the bar with such facts as had 
 come within his knowledge, and with the names of the 
 witnesses. 
 
 The poor culprit, smarting under his disgrace, brought an 
 action for libel against Mr. Daniel Wells, who had signed 
 
 1 I was present at the hearing, and also at the decision, in 1834. The 
 whole proceeding was one of painful interest, but of very salutary 
 example. 
 
60 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1834. 
 
 the charges on which he was presented to the court. 
 There is extant, in manuscript, an elaborate and learned 
 brief, which my brother prepared for the defence of this ac 
 tion when it was expected to be argued before the Supreme 
 Court, at its law term held at Northampton, in September, 
 1834. The case is not reported, and it was probably never 
 argued. The defence was, that the paper which Mr. Wells 
 had signed was a privileged communication ; and as the 
 intended argument embraced much curious learning and 
 skilful reasoning, to establish the right of the bar to 
 inquire into the official misconduct of its members, the 
 brief is placed in the second volume of this work. 1 
 
 In regard to my brother s forensic powers at this period 
 of his life, I am able to speak from some personal observa 
 tion, as I was a student at law in the office of Messrs. 
 Wells and Alvord, in Greenfield, during a part of the time 
 of his practice in that county. A description of his manner 
 and his accomplishments can be best given by selecting a 
 particular case, one which he had nursed with great care 
 through all the intricacies of special pleading, until certain 
 complicated issues had been developed. As the " conclu 
 sions " of the pleadings w^ere " to the country," the issues 
 were to be put to the jury under the directions of the 
 court upon the law. The jury was composed of respectable 
 farmers, men of plain, ordinary intelligence. The contro 
 versy related to a quantity of shingles; and the plaintiff 
 (my brother s client), who was immensely interested to 
 beat his adversary in a matter worth possibly fifty dollars, 
 probably expected to pay his lawyer a fee of ten or fifteen. 
 But the interest with which the spectators watched the pro 
 ceedings in this little case did not depend upon the amount 
 in controversy, or the fee. The issues had been evolved 
 with such beautiful nicety the defendant s counsel being 
 also a good pleader that the attention of the bar was 
 
 1 It will be found by consulting the Index, verb. " Wells." 
 
1833.1 A NURSERY TALE. 61 
 
 uncommonly attracted by the contest. It fell, of course, to 
 my brother, representing the plaintiff, to open the issues 
 and explain them to the jury. He did it with all that 
 admirable clearness of statement, precision, and lucid 
 arrangement, which characterized him afterward; leading 
 the jury through a maze of technical distinctions, until he 
 made them comprehend precisely what they were to find, 
 and the logical order in which they were to deal with the 
 questions. The presiding judge was at the same time 
 instructed how he ought to present the issues to the jury 
 in his charge, and he followed in the line which the young 
 advocate had given him. My brother gained his case. It 
 was long remembered in the locality as a striking exhibi 
 tion of his peculiar powers. 1 
 
 An anecdote which belongs to a little later period may 
 be related here, because it refers to his residence at North- 
 field. After he had been for a short time practising in 
 Boston, he had occasion to use his knowledge of special 
 pleading against a very astute opponent, and used it in 
 such a manner that some one asked him how he came to 
 know so much about that science. He replied that he had 
 studied it a great deal while he was at Northfield, and 
 knew by heart the whole series of declarations, pleas, rep 
 lications, rebutters, sur-rebutters, &c., as given by Chitty ; 
 that he had sometimes walked the floor of his nursery for 
 hours in the night, with a sick child in his arms, repeating 
 to it these forms ; and that he found them as good a lullaby 
 as any thing in Mother Goose, and much more of a relief 
 to his own mind. 
 
 1 It generally happens in nisi prins courts held in rural regions, that the 
 intelligent men of the county are largely represented at the shire town 
 during " court week ; " and the whole of the county bar is also commonly 
 present. A man s abilities are thus gauged on the spot by a body of per 
 sons who, in a very few days, diffuse their estimate of him through the 
 entire county. In the large cities, a reputation is of comparatively slower 
 growth, because the proportion of persons who attend the courts is, rela 
 tively to the whole community, much smaller than in the country. 
 
62 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1833 
 
 His residence in Northfield, reckoning from the time when 
 he went there in 1881, covered a period of three years. 
 During all this time he may be said to have been in prac 
 tice, although his practice after he had been admitted in 
 the Common Pleas extended only from August, 1832, to 
 September, 1834. He came forward at once, on his first 
 entrance into the active duties of his profession, as a well- 
 equipped lawyer, able to cope with any antagonist whom he 
 was likely to meet in that part of the State. Besides yield 
 ing him an income sufficient for his immediate wants, his 
 country practice was of great value to him as a field in 
 which to try his powers and to make a reputation. I 
 should say, however, that the chief benefit which he 
 derived from his residence at Northfield was in the oppor 
 tunity it afforded him for study in connection with business, 
 and for acquiring the habit of thorough preparation of his 
 cases. His time could not be fully occupied by his prac 
 tice ; and, in the long winter nights and summer days, there 
 was much room for serious reading. It was then that he 
 acquired his extensive knowledge of the Common Law, which 
 he explored in the pages of Coke, in the Year Books, and in 
 the later Reports. He had carried with him to Northfield 
 all the books that he could afford to buy, and some that 
 were loaned to him. It was not a large collection, but it 
 was chosen with sound judgment from the books out of 
 which the earlier law could be most profitably learned. 
 The statutory and customary law of Massachusetts, the law 
 of real property and real actions, the law of contracts, and 
 the system of common-law pleading, were the branches 
 most involved in his practice during this period. Plis 
 knowledge of equity did not come into use until later, w r hen 
 he began to practise in the courts of the United States. 
 Indeed, the equity jurisdiction of the courts of Massa 
 chusetts was at that time somewhat narrow and frag 
 mentary. 
 
 His studies in Constitutional Law at this period were con- 
 
1833.] LOOKING FOE A WIDER FIELD. 63 
 
 siderable. He had the benefit of Judge Story s lectures on 
 Constitutional Law, at Cambridge, by his short attendance 
 there in the spring of 1832 ; and he now followed out the 
 principal topics in the decisions of the Supreme Court of 
 the United States. 1 
 
 But the Northfield sphere could not last long, for a man 
 who was made for a much greater one. We begin to get 
 traces of a yearning for a wider and more varied field in 
 the autumn of 1833. 
 
 To MR. TICKNOR. 
 
 NORTHFIELD, Sept. 22, 1833. 
 
 MY DEAR UNCLE, I wish to communicate to you a plan which 
 I have under consideration relative to my removal from Northfield 
 to Boston, with a view to attempting to establish myself in business 
 in the latter place as a lawyer. I wish to speak of it, not as a thing 
 settled or resolved upon, but merely as a project which is in my 
 mind ; and to lay before you, as one of my best and earliest and 
 wisest friends, my own views in regard to this important step, and 
 to ask of you yours in return. 
 
 And, first, you will naturally ask, Why leave Northfield at all? 
 You are doing well there at present, and may hope to do better in 
 future : why, then, you may say, do you not content yourself there ? 
 This is undoubtedly the first point to be settled, and I have settled 
 it with myself after no little reflection. I know you will not 
 accuse me of vanity or self-conceit, if I tell you that one great rea 
 son which has determined me not to consider Northfield my perma 
 nent home is, because I deem myself worthy of a wider field than 
 can ever be open to me here. I do not mean that it is not sufficient 
 for me now, or that it would not continue to be for some years to 
 come, but that I do look forward to the time when it would no 
 longer be so. If I am in an error in regard to this, it is an error 
 into which I have been led, not by any over-estimate of myself, but 
 by the repeated and urgent advice of such men as Judge Story and 
 Mr. Ashmun and Mr. Wells, who from my first coming here have 
 uniformly told me that it was a good present arrangement, but that 
 
 1 Judge Story s " Commentaries on the Constitution" were not published 
 until January, 1833. 
 
64 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1833. 
 
 I must not think of settling permanently here, and must be careful 
 not to remain too long. I repeat, therefore, what I have said 
 above, that I am satisfied that both on account of the character 
 of the people, and the comparative narrowness of the Held for ex 
 ertion here, I should not be contented permanently to make 
 Northfield my home. The next thing to be determined is, when 
 and how to leave here and establish myself elsewhere ; and, also, 
 where shall I go when I do leave here? As to this latter point, I 
 have always proposed to myself to go to Boston as my ultimate 
 destination. There is the home of all my dearest and most prized 
 associations, and of most of my friends ; and success and respecta 
 bility and usefulness there have always formed the grand objects of 
 professional exertion in my mind. So far, therefore, all is clear 
 enough. But when to go there, and how to go through the slow 
 and discouraging process of getting professional business and ob 
 taining a support in the mean time, these have been the difficulties 
 with me ; and it is only because a plan is now offered which seems 
 calculated to relieve me from some of these difficulties, that I have 
 been led to think of leaving here at this time. The plan is as fol 
 lows : Mr. J. C. Alvord offers to form a partnership with me, he 
 remaining at Greenfield with Mr. Wells, and I going to Boston 
 and opening an office there ; the profits of his business at Green 
 field to be united to the profits of my business at Boston, and the 
 whole sum to be equally divided between us. This arrangement to 
 continue for three years ; at the end of that time, he to have the 
 option either to remain at Greenfield for a definite time longer on 
 the same terms, or to come to Boston and go into business with me 
 there on the same terms. I suppose we could calculate with great 
 certainty upon $1,000 per annum from the office at Greenfield, and 
 with much probability upon $1.200 per annum. The time when I 
 am to leave here is some time between this and the 1st of May next. 
 The question is, Shall I close with this offer? Most of the reasons 
 in favor of and against it will naturally suggest themselves to you. 
 Of some I would say a few words. It may seem at first view, per 
 haps, surprising that I should consider my chance of success, both 
 immediate and remote, better, if I should come to Boston now, than 
 it would be if I should wait a few years. Yet I do so consider 
 it. In the first place, unless a lawyer brings with him to a city a 
 great reputation as an advocate or as a scientific lawyer, he must 
 be content to begin with small business, he must acquire the con- 
 
1833.] LOOKS TOWARDS BOSTON. 65 
 
 fidence of people one by one. Now, a young man, who has no 
 other reputation than that of being glad to get work, and careful in 
 performing it, is much more likely to get this kind of business than 
 one who has already acquired some reputation as an advocate or law 
 yer. People do not like to go to a counsellor of the Supreme Court 
 who has come into Boston because he has gained an extended reputa 
 tion in the country, and ask him to collect a five-dollar note. They 
 think, that is not what he has come here for, arid we will give it 
 to some young man who will feel obliged to us for it. It seems to 
 me, therefore, that I should go through these steps more readily 
 and easily now, than I should after waiting a few years. But this is 
 riot the only reason. The desire of improvement of strength 
 ening and advancing myself in the science of the law, as well as in 
 all intellectual improvement within my means is a powerful 
 reason to prevail upon me to leave Northfield at this time. I have 
 been here now nearly three years. Two years of that time have 
 been passed in a pretty extensive and very diversified practice. 
 From a bill in chancery down to a suit on a five-dollar note, nearly 
 all varieties of practice have passed through my hands ; and that, 
 too, when I was far from aid or counsel, and obliged to rely upon 
 my own investigations often upon my own inventions to help 
 me through difficulties and novelties. The result is such as would 
 naturally follow. While I have acquired considerable knowledge 
 of practice, and some facility and dexterity in the art, I have not 
 been gaining ground as I wished in the science of the law. The 
 course of study which Mr. Ashmun was so kind as to lay out for me 
 when I left his care has been broken in upon and irregularly pur 
 sued ; and I feel every day as if I were losing my hold upon the 
 roots and groundwork of the science which I had so painfully and 
 laboriously laid. I feel the force of a remark which I once heard 
 Mr. Ashmun make ; when asked if some person " was a good law 
 yer," he answered, " No, he has always had too much business to 
 be a good lawyer." At the same time I feel that I was never so 
 well prepared for the study of the law as I am now ; and that, if I 
 could have leisure and books and advice, I could go on with an 
 ease and freedom to which I was a stranger before my mind had 
 become habituated to think upon and decide questions of law, and 
 when I was almost at every step checked and embarrassed by forms 
 and modes of proceeding of which I was ignorant. Now, all these 
 three things leisure, books, advice I should have if I came 
 VOL. i. 5 
 
66 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1833 
 
 to Boston, and I look upon the kind offers which Judge Story has 
 made me in regard to the latter as no small inducement to come 
 there. After all, however, I do feel that I must run some risks by 
 taking this step, and it is therefore that I wish for the advice of my 
 friends upon it. Will it be too much to ask of you to show this 
 letter to Mr. Charles Curtis, whose great and uniform kindness to 
 me emboldens me to trouble him also with my plan, and whose 
 knowledge of the subject of it would render his opinion of great 
 value to me. We are well and happy here ; and Eliza joins me in 
 love to aunt and the children. 
 
 Truly your affectionate nephew, 
 
 B. R. CURTIS 
 
 To MR. TICKNOR. 
 
 NORTHFIELD, Oct. 10, 1833. 
 
 Mr DEAR UNCLE, Although I am unable at this time fully 
 to answer your kind letters, yet I can thank you for the interest 
 you have shown in regard to my plan, and I do so most truly. I 
 shall be in Boston about the middle of November, and then I shall 
 decide whether or not to come there to live. Until that time, I 
 shall remain, as at present, entirely undecided. I am not able to 
 be there before the 15th of November, as the court sits at Green 
 field on the second Monday, and will detain me a week. Before 
 that time and I believe about the last of October the pre 
 mium on my policy of insurance becomes due. Will you have the 
 goodness to pay it to the company, and I will repay you when I 
 come. 
 
 Mrs. Woodward arrived here on Wednesday evening, well, and 
 after a comfortable journey. Eliza and I are well, and send love 
 to aunt and yourself. 
 
 Yours affectionately, 
 
 B. R. CURTIS. 
 
 The result of his visit to Boston was, that, in the winter 
 of 1833-34, he received an invitation from Mr. Charles Pel- 
 ham Curtis, of that city, to become his associate in business ; 
 a plan which of course superseded the proposed arrangement 
 with Mr. Alvord. Mr. C. P. Curtis, who was only a quite 
 distant relative, had at this time been a member of the Bos- 
 
1834.] CHARLES PELHAM CURTIS. 67 
 
 ton bar for a period of twenty years. He had an excel 
 lent commercial business, and was greatly distinguished for 
 his accuracy, method, and systematic habits as a lawyer. 
 His clients were numerous, and among them were many 
 of the most substantial merchants of his native city, who 
 had known and trusted him in their affairs from his en 
 trance into his profession. He had by the most industri 
 ous devotion to it, aided by singularly practical abilities, 
 worked his way up, from his youth, to an eminent position 
 at a bar that was always furnished with learned and ac 
 complished rivals, against whom, any successful competitor 
 must needs have had more than common powers. As an 
 advocate, he was able to hold a good rank, from his clear 
 ness and precision, and from competent although not exten 
 sive learning. As a man of affairs, he was wise, sagacious, 
 of perfect integrity, fail and upright in his practice, firm 
 and resolute in pursuit of legitimate and just ends, always 
 courteous, and of a singularly cool and rarely disturbed 
 temper. No man was more respected, or enjoyed more of 
 the confidence of the community of his native city, than 
 did this distant kinsman, who, in the winter of 1833-34, at 
 tracted by my brother s reputation, offered to share with 
 him his business. 1 It was a tempting offer ; for not only 
 
 1 The descent of these two gentlemen from their common ancestor was 
 as follows : 
 
 WILLIAM CURTIS, of Roxbury, b. 1592, emigrated 
 
 | 1632, d. 1672. 
 
 ISAAC, b. 1642. 
 
 SAMUEL, 6. 1688, d. 1722. 
 
 BENJAMIN, b. 1722, d. 1773. OBADIAH, b. 1724, d. 1811. 
 
 BENJAMIN (2d), Physician, b. 1752, d. 1784. THOMAS, b. 1750, d. 1812. 
 
 BENJAMIN (3d), Shipmaster.* CHARLES PELHAM, b. 1792, 
 
 | d. 1864. 
 
 BENJAMIN BOBBINS, 6. 1809, d. 1874. 
 
 * Benjamin (3d), my father, in a deed executed In 1811, described himself as 
 u mariner." 
 
68 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1834. 
 
 did it at once insure a professional opening in a new sphere 
 attended by great advantages, but the social position and 
 personal qualities of Mr. C. P. Curtis rendered such a 
 connection with him all that could be desired. For a 
 period of thirty years, their friendship was never dis 
 turbed by a single difference, a single jealousy, or over 
 clouded by a single shadow. Although the younger jf 
 these two associates far outstripped the elder in distinc 
 tions and honors, and indeed rose rapidly to a much higher 
 position at the bar than the senior ever attained, the lib 
 erality of the elder partner in their pecuniary relations 
 always kept pace with the younger s increasing power to 
 augment their joint earnings while they remained to 
 gether ; and his pride in that younger s success and fame 
 was like that of a father. The terms of their first connec 
 tion can be learned from the following letter : 
 
 To MR. TICKNOR. 
 
 NORTHFIELD, April 24, 1834. 
 
 MY DEAR UNCLE, . . . I have settled definitely my arrange 
 ments with Mr. C. P. Curtis, and am to become his partner in Sep 
 tember next. I am to have one-half the profits of all business in the 
 Court of Common Pleas, collection of debts, making common convey 
 ances, opinions on titles, and some few other small items ; he pays 
 all expenses of the office ; these terms to last one year. At the end 
 of that time I am to have better terms, provided I deserve them. 
 He thinks the profits of the first year will be $1,000. I shall be 
 well content with this for one year, with better things in prospect. 
 We shall break up here in August, and Eliza and the boy (whom 
 we call Charles Deming, from my friend who is dead) will go to 
 Cambridge then. I shall remain till after the autumn courts and 
 come some time in September. William has concluded to succeed 
 me at Northfield. 1 I do not think he can do so well anywhere else 
 at present. He can step into the most of my business here with 
 out difficulty ; enough, I think, to give him $800 a year. He would 
 not make so much money at Greenfield in his present partnership 
 
 1 His brother-in-law, Mr. William G. Woodward. 
 
1834.] CHIEF JUSTICE SHAW. 69 
 
 We are all very well. Charlie flourishes finely, and they tell me 
 is a fine child ; never having looked at a baby before, I do not pro 
 fess to be able to form an opinion for myself. 
 
 Give my love to aunt, and believe me, 
 
 Your affectionate nephew, B. R. CURTIS. 
 
 My brother was admitted as an attorney of the Supreme 
 Judicial Court of Massachusetts, at Northampton, in Sep 
 tember, 1834. 1 This made him known personally to Chief 
 Justice Shaw and his associates on that very eminent 
 bench ; and it was partly through them that his reputation 
 reached a few of the members of the profession in Boston, 
 before he had actually removed to thai city. 2 
 
 1 The Supreme Court sat in bane at Northampton, for the three counties 
 of Hampshire, Hampden, and Franklin. 
 
 2 It has been my fortune, in the course of a professional life of more 
 than forty years, to practise before some very distinguished judges. But 
 I cannot mention the name of Chief Justice Shaw without saying that, in 
 all the qualities which make a great judicial magistrate, in strength of 
 intellect, in depth of mental vision, in comprehensive grasp of every ques 
 tion, however difficult, that came before him, in application to it of the 
 appropriate learning, and in the unquestioned and unquestionable poise in 
 which he held the scales of Justice, until one or the other ought to pre 
 dominate, I have known no man who was his superior. Chief Justice 
 Marshall I never saw ; Chancellor Kent I never saw upon the bench, al 
 though I once met him in private life. But when I name Taney, Story, 
 Nelson, and Curtis, as among the judges before whom it has been more or 
 less my lot to appear, and recall many others of deserved distinction in 
 different States, of whom I have had personal observation, it will perhaps 
 be allowed that my estimate of Shaw as a judge, unimportant as it is to his 
 fame, has not been formed without sufficient opportunities of comparison 
 with men of note and mark. There have doubtless been judges who would 
 be called more learned, or who possessed more learning in special depart 
 ments of the law ; but no one ever knew Chief Justice Shaw to fail in 
 the knowledge and application of whatever law was necessary to the de 
 cision of the cause on which he had to act. It is true that he was aided by 
 a learned bar, whose presentation of their cases was habitually thorough. 
 But, after all has been done that learned advocates can do, it is the office 
 of the judge to select, to weigh, to compare, and not unfrequently, before 
 the law can be declared, to make researches which counsel have not made, 
 or to draw distinctions which they have not drawn. The opinions of this 
 eminent person have always been received in the courts of other States of 
 this Union, and in the Federal Courts, with a respect that has not been less 
 than has been accorded to those of any other judge who has held a place in 
 the judicial history of any part of the country. 
 
70 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1834. 
 
 When he had at length effected the change, he and his 
 wife and child resided for some time with my mother in 
 Cambridge. For a while, he rode daily on horseback into 
 and out of Boston to his business, for the sake of the exer 
 cise ; his health at that time not being very good. 1 
 
 1 This seems to be the appropriate place to correct an error which ap 
 pears in the recently published Memoirs of the late Hon. Charles Sumner. 
 In a letter written by Mr. Sumner, Oct. 24, 1832, from Cambridge, to his 
 classmate Charlemagne Tower, he says of the Harvard class of 1829: 
 " There was a general rising against the Master s degree. Curtis, by far 
 the first man of his class, with the highest [sic] legal prospects before him* 
 refused it, and stirred many of Ins class to the same conclusion." (Memoirs, 
 &c. of Charles Sumner, vol. i. p. 116. ) This was entirely a mistake on the part 
 of Mr. Sumner. At that time, the members of any class who had been regu 
 larly graduated for three years were entitled, as of course, to receive the 
 degree of Master of Arts, on payment of a certain fee. The class of 1829 
 were so entitled at Commencement in the year 1832. The members resident 
 in Boston and the neighborhood held a meeting, on the 27th of August, 
 to make a respectful protest against the exaction of a fee. The gentlemen 
 who were active in that proceeding were the late Hon. George T. Davis, 
 the Rev. Samuel May, George W. Phillips, Esq., Charles L. Hancock, Esq., 
 and some others. None of the survivors remember or believe that my 
 brother was present. Mr. Hancock, who now resides in Chicago, is positive 
 that he was not. The record of the meeting, kept by the class secretary, 
 Mr. May, makes no mention of his name. To this I can add my strong 
 conviction that my brother was at his home, in Northfield, in August, 1832, 
 and was much occupied with his business and his admission to the bar, 
 which took place during that month. He would not have been likely to 
 make a journey to Boston, for the sake of stirring up his classmates about 
 any thing. This matter is of no great importance, to be sure, but accuracy 
 is always desirable even in trifles. 
 
1835.] LETTERS TO MR. TICKNOK. 71 
 
 CHAPTER IV. 
 
 1834-1844. 
 
 Removal to Boston. Letters to Mr. Ticknor in Europe. Rapid Rise at 
 the Boston Bar. Character as an Advocate. The Case of the Slave- 
 child Med. Death of James C. Alvord, and Tribute to his Memory. 
 Extensive Practice. Statesmanlike Qualities, but not a Politician. 
 Rule in regard to Participation in Public Affairs. Article on Repudia 
 tion in the "North American Review." Letter from Judge Story. 
 Death of his Wife. Letters to Mr. Ticknor on that Event. 
 
 MY brother s removal to Boston, in the autumn of 1834, 
 was soon followed by the absence in Europe of friends 
 whose interest in him began in his boyhood. Mr. Ticknor 
 went abroad with his family in June, 1835, and remained 
 absent for three years. 1 Before I enter upon the profes 
 sional life which is to be described in this and the next fol 
 lowing chapter, it may be well to give the letters which my 
 brother wrote to his uncle during this separation, the 
 longest that ever happened while they both lived, after the 
 younger of them had grown to manhood. 
 
 To MR. TICKNOR. 
 
 CAMBRIDGE, Aug. 23, 1835. 
 
 MY DEAR UNCLE AND AUNT, We were truly glad to learn 
 from Mrs. Guild, who kindly called at our house to give us the 
 news, that you had been safely landed in Liverpool ; and before 
 this letter reaches you, I suppose even the recollection of the 
 discomforts of your voyage will have faded away before the bright 
 ness of your present agreeable life. 
 
 Many things have occurred here to interest you, and some to 
 afflict you, since you left us ; but of all these you have heard from 
 
 1 Life and Letters of George Ticknor, vol. i. p. 402, vol. ii. p. 183. 
 
72 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1836. 
 
 others more fully than I can tell you. I can, however, and I do, 
 offer you my sincere sympathy for the loss of the two young friends 
 of yours who have died, in whom you felt so strong an interest. 
 
 In my own small circle at home, we are all pretty well. . . . 
 
 The topic which engrosses the public attention, to the exclusion 
 of almost every other, is the " Antislavery Society." You will see 
 by the newspapers, which I suppose you receive, that a great meet 
 ing has been held at Faneuil Hall on this subject. It was caused 
 by the excitement which exists through all the slave-holding States, 
 in consequence of the efforts of that Society to excite the slaves to 
 insurrection. Dreadful scenes have already occurred in Mississippi. 
 The mob have hung numerous persons, suspected of being emissa 
 ries of the Society, without legal trial ; and so great have been the 
 commotions excited in many parts of the South, and so excited is 
 the public mind there, that there are strong fears felt here by the 
 friends of the Union that, unless something is done here to check 
 the Abolitionists, and convince the South that the opinions of the 
 great body of the people of the Northern States are unfavorable 
 to the Society, the Union will not continue for a single year. All 
 those persons in the Southern States who are enemies to the Union 
 have seized the present occasion, and are endeavoring to do their 
 utmost to increase the excitement. Some idea may be formed of 
 the interest felt in the subject, from the fact that numerous South 
 ern gentlemen came from all parts of the country to be present at 
 the meeting. You will see the result of the meeting in the news 
 papers ; and we are all glad it is so well over. Would that the 
 whole subject could be as easily and as safely disposed of! Mr. 
 Sales desired me to tell Mr. Ticknor that he had several sections 
 reading Don Quixote, for he said he knew Mr. Ticknor would be 
 glad to hear it. ... I am affectionately yours, 
 
 B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 BOSTON, June 10, 1836. 
 
 MY DEAR SIR, I do not make any apology for not writing to 
 you more frequently, because I believe you know, and will make 
 just allowances for the fact, that my occupations are so constant and 
 pressing as to leave me exceeding little opportunity to write letters. 
 Of late this has been more than commonly the case ; for Mr. C. P. 
 Curtis, with his wife, sister, brother Tom, daughters, and Miss 
 
1836.] LETTERS TO MR. TICKNOR. 73 
 
 Mary Ann Mason, went to Niagara Falls the first of June, and 
 will not return till some time in July. The " shop," therefore, is 
 on my shoulders for the present, and I have not a great deal of 
 time to spare. I cannot, however, suffer your last kind and pleas 
 ant letter to go longer unanswered, both because it was kind and 
 pleasant, and because I have some agreeable news to give you in 
 return, which I imagine will be unexpected. It is that we have 
 another daughter, now three days old, and a good stout little lady 
 she is, both in body and lungs, and Eliza is marvellously well. 
 She sends her love to you, but is not quite able to write. The 
 other children are extremely well, grow finely, and are intelligent 
 and bright. For some days past we have had a house full. . . . 
 
 Your friends, I believe, are all well. I dined with Mr. Guild 
 a few days since at Brookline ; and their place looked delightfully 
 green and cool and quiet, though the wind was east and the sky 
 lowering. I do not think there is any news in the political world 
 to interest you, unless it be that the Senate by a very large vote, and 
 the House of Representatives by one equally decided, have passed 
 the bill to distribute the surplus revenue among the States, and the 
 country is all expectation as to the action of the President. This 
 is Mr., Webster s bill, and the passage of the law is considered a 
 great triumph by all the friends of stability and good order. We 
 have wars in abundance ; an Indian war in Florida, in which the 
 Indians have been uniformly victorious throughout the campaign, 
 which closed absolutely without effecting any thing ; another Indian 
 war in Georgia, excited by the frauds and rapacity of the whites, 
 and in this, too, terrible vengeance has already been taken by the 
 Indians for the cruel and faithless treatment which they have expe 
 rienced at the hands of the people of Georgia. Many towns have 
 been burnt : men, women, and children murdered, negroes and 
 plantations destroyed and robbed, and large districts wholly de 
 serted by their inhabitants, are matters which now daily fill the 
 newspapers. 
 
 Pray give my love to Aunt, and tell her how much pleasure it 
 gives me to learn that her health and strength are increasing. My 
 love to Cousin Anna, and desire her not to forget me or any of the 
 little cousins whom we shall have to show her when she returns. 
 Yours truly, 
 
 B. R. CURTIS. 
 
74 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1836. 
 
 To MR. TICKNOR. 
 
 BOSTON, February, 21, 1836. 
 
 MY DEAR UNCLE AND AUNT, Your pleasant letter of the 
 22d of December reached us two days since, and gave us great 
 pleasure. We were glad to know that you had lost none of your 
 kind interest in us ; we were glad to know that you were so 
 pleasantly fixed for the winter, and that you were all well, and 
 likely to find much enjoyment in the pleasant things with which 
 you are surrounded. We are all extremely well, arid like our new 
 home very much ; and while I arn obliged to walk four times eacli 
 day from my house to my office, you need entertain no fears for my 
 wanting exercise, since it amounts to about three miles ; for we live 
 in West Cedar Street, a great way off from almost any other part 
 of the town. We removed from Cambridge in October, partly be 
 cause I found that it would be a great loss of time and strength to 
 have my house three miles from my office this winter, and partly 
 because I thought we were a great deal of trouble to mother, and 
 her family would go on more comfortably to herself without us. 
 
 We see her frequently, though we do not tempt her here so often 
 as I could wish. Charlie, whom I believe she loves better than 
 anybody else in the world, is delighted to go out and see her, which 
 he does quite often. I shall leave his praises entirely to his mother, 
 only premising that his cheeks look like a red apple, and that he is 
 nearly as round, and rolls about very much like one. 
 
 I saw Mr. Stackpole the other day, and he told me that he met you 
 in Dublin. 1 He has come to Boston with the avowed intention of 
 becoming a lawyer, although he says everybody is determined that 
 he shall not be content to apply himself to the practice of that pro 
 fession, because he has been so long abroad. Judging from the 
 specimen we have in our office (Lothrop Motley 2 ), I should not think 
 that a foreign University was a good place to acquire a love of the 
 Common Law. Perhaps, however, there will be no Common Law 
 when you come back ; for among other wild theories with which 
 the Legislature now in session are bitten is an idea of codifying 
 the Common Law. You remember that the Statute Law of the 
 Commonwealth was undergoing revision when you left Massa- 
 
 1 The late Lewis Stackpole. 
 
 2 The late John Lothrop Motley, the historian, was at this time a student 
 at law in the office of Messrs. C. P. and B. B. Curtis. 
 
1837.] LETTERS TO MR. TICKNOR. 75 
 
 chusetts. Having got well through with that, the Legislature 
 are so much encouraged that many of them imagine that the 
 whole body of the law may now be reduced to a pocket volume, so 
 that any man may carry about with him his own lawyer. It does 
 not occur to them that a good system of law must be at the same 
 time so extensive as to apply to and govern all the existing rela 
 tions between men in society ; so stable and fixed, in all important 
 principles, as to furnish a certain guide ; and so flexible as to be 
 capable of adaptation to the ever-changing forms into which property 
 is thrown by the unwearied enterprise and all-absorbing love of 
 gain which distinguish our people. With the exception of this 
 scheme, I think matters are going on well in Massachusetts. Her 
 people hold fast to their integrity. They will vote for Mr. Webster 
 for President : not because there is the least hope of his being 
 elected, but because it is respectable and right. The great body 
 of the people in the central and western parts of the State are en 
 tirely sound on this subject. To use the language of one who was 
 urged to give his vote and influence to Mr. Van Buren because he 
 was a better man than Judge White, arid one of them would be 
 elected, " Between two evils, I will choose n ary one : I shall vote 
 for Mr. Webster." 
 
 Mr. Everett has lost, and I think is daily losing ground. Peo 
 ple say that radicalism has got into the Governor s chair, and the 
 popular branch of the Legislature have become conservatives. . . . 
 
 Yours truly, 
 
 B. R. CURTIS. 
 
 P. S. Mr. T. B. Curtis desires me to say that, if Mr. Ticknor 
 can without inconvenience procure and send him a copy of Cor- 
 reggio s Magdalene from the Dresden Gallery, he should be much 
 obliged. 
 
 To MR. TICKNOR. 
 
 BOSTON, May 14, 1837. 
 
 MY DEAR UNCLE, I wrote to you about six weeks since, 
 giving you an account of the res angustce which pertain to me. 
 Since that time, we have changed our location, and are now board 
 ing in the country for the health of the children, who had become 
 quite too delicate from confinement to the house, and want of fresh 
 air and plenty of dirt, both which they are now enjoying and 
 
76 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1837. 
 
 thriving by. My own health, too, had become somewhat reduced 
 from the confinement and fatigue which I have been constantly 
 subjected to during the past winter ; and as the state of affairs here 
 and throughout the country rendered it quite important to me, if 
 not to others, that I should be pretty constantly on my post, and I 
 could not therefore journey, we thought it best to leave town for 
 the summer. We board at a large house which, I believe, has 
 been erected since you left Boston, at South Boston Point. It is 
 a very quiet, well-ordered house, on a delightful site, with a few 
 pleasant people ; and I can ride by the public coaches, or walk, to 
 my office with entire convenience. 
 
 I have referred to the state of affairs here and in other parts of 
 the United States : it is, indeed, most gloomy. That has taken 
 place which never before happened in Boston. On Friday last, 
 every bank in the city stopped specie payments. This was pre 
 ceded by the failure of all the banks of the city of New York, and 
 has been followed by Philadelphia and Baltimore, and all other 
 places, so far as heard from, not even excepting Mr. Biddle s bank, 
 which held out only twenty-four hours after the other banks of 
 Philadelphia had stopped. We are thus reduced in a day to a state 
 of universal bankruptcy, at a time when the commercial engagements 
 of the country are vast beyond all former precedent. 
 
 Before this event, the merchants and manufacturers were reduced 
 almost to despair. No amount of wealth, no stability of credit, seemed 
 sufficient to prevent the bankruptcy of any man whose engagements 
 were at all extended, and indeed there were few whose engagements 
 were not extended ; for the large profits which have been constantly 
 realized from almost all kinds of business during the last two years 
 had drawn the most prudent into large speculations, and had multi 
 plied to a great extent the wants of all borrowers : so that, for the last 
 six weeks, New York especially, and Boston and the other cities to 
 a great amount, have seen their oldest and wealthiest merchants 
 sink into insolvency ; and I have no doubt, from the information 
 which I possess, and lawyers, you know, are behind the scenes 
 of this matter, that one month more would have left every con 
 siderable merchant in Boston connected with manufactures a bank 
 rupt, including even the Lawrences. The resolution of the banks 
 not to redeem their bills or pay their depositors in specie has, of 
 course, afforded a temporary relief to them. The banks can, and 
 do, now discount. Their pressing wants are supplied ; and, so far 
 
1837.] LETTEES TO MB. TICKNOB. 77 
 
 from feeling the sad calamity which has come upon us, the borrow 
 ers seem to be almost in an exulting, and certainly are in a very 
 happy, state of mind. For the present, they are much the largest 
 class. They give the tone to popular feeling in all the cities, and 
 public meetings have been held, in which resolves are passed ap 
 proving the course taken by the banks, agreeing to sustain them, 
 &c. ; and bills now pass from hand to hand as readily as when they 
 represented (or were supposed to represent) specie. This, how 
 ever, cannot last long. Neither comity, nor forbearance, nor 
 popular feeling, will create a currency any more than cause the 
 lifeless clay to perform the functions and render the services of a 
 living agent. And reflecting men, who are so far disinterested and 
 calm as to be able to think, are waiting for they know not what. 
 There is one good, however, which we all hope to bring out of this 
 body of evil ; and that is, to sweep from the offices of the country 
 the ambitious, selfish, and ignorant men who now carry on the 
 government. We believe this will be done. All the elections 
 which have taken place confirm our hopes that the mass of the 
 people will be taught by severe suffering the extent of the mistakes 
 they have made, and will be wise enough to confide their trusts to 
 safer hands. No doubt there are many views of the state of things 
 now existing here ; and perhaps I am wrong, and all will be well, but 
 I cannot think so. Give my love to Aunt and to Nannie. Eliza sends 
 her love to you all. 
 
 Yours truly, B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 BOSTON, Oct. 22, 1837. 
 
 MY DEAR UNCLE, Since I wrote to you (or to Aunt, I do not 
 remember which, and in point of law at least it is immaterial) , we 
 have come into town, and are now in a very good house on the 
 Mill-Dam, which you may have known as occupied by Mr. Picker 
 ing, and which the fall of rents and my own increased income 
 brought within my reach, I trust without exceeding the limits 
 which a just regard to the future prescribes. The third year of my 
 connection with Mr. C. P. Curtis expired with the month of 
 September; and we then made such new arrangements as will 
 give me an income from my profession sufficient to supply all the 
 wants of myself and my family, numerous as its members are 
 becoming, and to enable me to support mother in a comfortable 
 
78 MEMOIR OF BENJAMIN ROBBINS CURTIS. [1837. 
 
 independence. . . . She boards at Cambridge with Mrs. Holmes, 
 staying with us a considerable part of the time and returning there 
 whenever she chooses ; and although she is yet hardly accustomed 
 to her new mode of life, and has had one or two pretty severe 
 attacks of illness, yet I think she is in a fair way to spend the 
 remainder of a life, which has been more than commonly filled with 
 exertions and sacrifices for others, in peace and enjoyment. Cer 
 tainly I have many things to thank Heaven for, but for none more 
 than that I am able to repay, in some small degree, the debt which 
 I owe to her. The babies are all well and thriving. They are 
 healthy and bright children ; and though they doubtless give their 
 mother some cause to complain of the labor and care which three 
 such active and noisy youngsters impose upon her, to me, who see 
 them only for a short time every day, their gayety is an ever- 
 renewed source of happiness, and I find in my home the only, and 
 I sometimes think insufficient, protection from that hardness and 
 dryness of mind which a perpetual contact with the actual affairs 
 of life, and a constant struggle with the interests and passions of 
 men, almost inevitably produce. I would most gladly shake off 
 the cares and thoughts of business often, if it were in my power, 
 and find relaxation in literature ; but I cannot. In the first place, 
 I am of an earnest temperament, and can do nothing w r ell without 
 a strong devotion of my mind to it. In the next place, I have no 
 dislike to the practice or study of the law, nay, I believe I may 
 say without affectation that I have a strong love for its rough 
 chances ; and last, but most important, I am in the very midst of the 
 tide, where its current is strongest and most rapid, and nothing 
 would be easier than to be thrown out into comparatively still 
 water, but in this eager community of the bar I am sure I should 
 never get back again. It has been truly said, that a lawyer can no 
 more regulate the amount of business he will do, than an engineer 
 can blow a barrel of gunpowder half-way down ; so I think of 
 those who are dependent on me, and, blessing my stars for my good 
 fortune, rejoice in the clients who make me work so hard, but 
 withal pay me so well. Here I have written you the best part of 
 the sheet, and all about myself. But you will pardon my egotism, on 
 the plea that, though I have plenty to do, I have little to say about 
 any thing else which would be in the least interesting to you. I 
 learned to-day that letters from you in Paris, as late as 15th 
 October, were in town, and that Aunt s good health, which gives us 
 
1838.] LETTERS TO MR. TICKNOR. 79 
 
 all so much pleasure, continued unabated. Pray give my love to 
 her, and with mine Eliza s. I hope the winter in Paris will but 
 confirm what the last year has effected, and that we shall see her 
 (next autumn may I say) so well as to prove you a true reporter. 
 May I ask of you the favor to purchase for me while you are in 
 Paris a copy of the entire works of Pothier. I have not at hand 
 the catalogue, which would give me the title of the best edition ; but 
 it is probably the latest, and is the only one which has a full verbal 
 index. I presume you can easily ascertain at a law book-store. 
 If you can do this without too much trouble, and let it come with 
 any books of your own which you send in the course of six or eight 
 months, you will oblige me much, and I will pay the cost to your 
 agent here. You will of course purchase a copy unbound. The 
 elections have gone off well. Maine, Rhode Island, Tennessee, 
 New Jersey, thoroughly revolutionized, and great changes elsewhere. 
 The country has suffered dreadfully, and Congress has adjourned 
 without attempting any thing to relieve the people, except by 
 granting credits on duty bonds, which is only a submission not to 
 ask for payment of those who could not pay. 
 
 Yours truly, B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 BOSTON, Jan. 14, 1838. 
 
 MY DEAR UNCLE, From what I learned from Mr. Savage 
 some time ago, I suppose you have but little personal interest in 
 the fate of any banks in Boston ; and it argues well for your fore 
 sight, and is extremely well for your fortune, I think, that it is so. 
 On Friday last, the Commonwealth Bank, which you may remem 
 ber had a capital of $500,000, failed and blew up entirely. You 
 may at first be at a loss to know how a bank can fail in a city 
 where every bank pays only in promises ; but then, while the law 
 holds those promises to be binding, and is ready to enforce them, 
 you will readily perceive that there may be a difference in the 
 value of promises ; and I take it that the failure of this bank is 
 nothing more than a confession by itself, and a conviction in the 
 public mind, that its promises are worth nothing. The precise 
 state of its affairs is not yet known ; but the Legislature have 
 appointed a committee to investigate them, of which Mr. Samuel 
 Hubbard is the chairman, and Mr. C. P. Curtis is one of the mem- 
 
80 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1838. 
 
 bers, and they begin their examination to-morrow. This is the 
 third bank which has broken to pieces in this city, and they have 
 all been " pet banks," the Commonwealth Bank the chief of the 
 "pets." The United States are their creditors to a large amount; 
 and the debtors, in very large sums, are the prominent members of 
 the Administration party in Boston, and Isaac Hill, the Governor 
 of New Hampshire. The Commonwealth Insurance Company, 
 also belonging chiefly to the same party, has gone down with the 
 bank. It happens unfortunately, I think, that these events have 
 happened while the Legislature is in session. Every bank in the 
 Commonwealth, by reason of the suspension of specie payments, is 
 at the mercy of the Legislature ; and the danger is, that, under the 
 excitement of the occasion, they may deal with a subject which is 
 of great difficulty and of the first importance to the prosperity of 
 the Commonwealth, and which can only be properly handled by 
 wise and cautious men. These events have caused a very strong 
 excitement here, and the unsoundness of three or four other banks 
 in Boston is more than suspected. Of political events there is 
 nothing at present before Congress of much importance, waiving 
 that question which threatens so much the peace of the country, 
 viz. slavery. I believe, however, that it is now clear that the sub 
 ject must and will be discussed in Congress, not this winter, per 
 haps, but soon, and that when discussed it will be done freely, 
 perhaps too freely by the Northern members. If you see the 
 debates, you will notice the admirable dexterity with which Mr. 
 Clay is keeping himself in the position to act as a mediator upon this 
 great subject, as he has twice before done on other questions which 
 threatened a dissolution of the Union. The disturbances in 
 Canada have led to an unpleasant occurrence on the Niagara fron 
 tier, the royal troops having crossed over to the American territory 
 and burned a steamboat which belonged to our citizens, and killed 
 several people who were on board, an attack which was undoubt 
 edly provoked by the use which had been made of the boat to con 
 vey men and military stores to Navy Island in the Niagara River, 
 where a body of insurgents were, and still are, in arms against the 
 government of the Queen, though this cannot justify a hostile inva 
 sion of our territory. No one doubts that the English govern 
 ment will do all that is proper on such an occasion, and that it will 
 pass away without leading to further collisions. The President 
 has ordered out a body of militia, drawn from places remote from 
 
1838.] LETTERS TO MR. TICKNOR. 81 
 
 the scene of war, under command of General Scott, with the osten 
 sible object of protecting the frontier, but probably for the purpose 
 of restraining the New-Yorkers from taking part in the war in 
 Canada. Mr. George Bancroft, being eminently a practical man 
 and extremely well versed in mercantile affairs, has been appointed, 
 by the President, Collector of the Port of Boston, vice Mr. Hen- 
 shaw resigned. You may be sure that this is agreeable to the 
 merchants. 
 
 We heard from Mr. Guild the other day, that we might expect 
 to see you at home in the course of the coming summer, and so far 
 as we are concerned this was the last news we had heard of you 
 since you went away. Please to give my love and Eliza s to Aunt 
 and Anna, and tell Aunt we laughed heartily over her last letter, 
 which described the great advances in age made by all of you since 
 you left the country. Eliza and the children are well, and have 
 been so through the winter. Mother has been with us for a few 
 weeks, but has now returned to Cambridge. 
 
 Yours truly, B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 BOSTON, Feb. 11, 1838. 
 
 MY DEAR UNCLE, I return my sincere thanks for your wel 
 come present of the works of Pothier. They have not yet arrived, 
 but I have learned that they were on the way from your kind letter 
 of the 28th of December. It is not, however, for the purpose of 
 thanking you for the books that I so soon write to you again. 
 having sent a letter to Mr. Savage not more than two weeks ngo, 
 but to tell you and Aunt that another son was born to us on Satur 
 day last, and that Eliza is doing well. We have now two boys 
 and two girls, all healthy and good children, the youngest not ex- 
 cepted, for it sleeps all the time and troubles nobody ; and when 
 you come home next autumn, if God spares all their lives, you will 
 say they are a funny sight. 
 
 Matters are going on here much as when I last wrote to you. 
 A few more banks have failed, and the common impression is that 
 some three or four more must be disposed of in some way before 
 the community will be safe. Within the last fortnight there lias 
 been some improvement in the currency, inasmuch as before that 
 time it was difficult to get a bank-note which could be safely kept for 
 
82 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1836. 
 
 twenty -four hours ; but now the notes of the sounder banks are in 
 circulation. Still, all things in the money world are but little 
 removed from a state of chaos. . . . 
 
 While I write, it is snowing in that deliberate and cautious way 
 in which all good snow-storms begin, and it is the first good snow 
 storm we have had this winter. With the exception of a slight fall 
 of snow in November, the ground has been wholly uncovered, and 
 hardly a sleigh has been visible. Indeed, we have had no winter. 
 Mother is with us for a visit. She is well, except some touches of 
 rheumatism. Give my love and Eliza s to Aunt and Cousin Anna, 
 and believe me to be 
 
 Yours truly, B. R. CURTIS 
 
 A period of seventeen years residence and practice in 
 Boston, from the age of twenty-five to forty-two, now claims 
 the reader s attention. The impression which my brother 
 made upon the bar of that city, and upon its leading and 
 thoughtful citizens, was immediate and strong. 
 
 The Boston bar was then led by men of great learning and 
 ability, among the foremost of whom he soon vindicated for 
 himself a place. His rise to that place was rapid, but every 
 step was made good by the sure and steady development of 
 his powers. As successive opportunities for the employment 
 of his professional talents arose, he gave proof that he was 
 fitted for the occasion and equal to its utmost demands. 
 Yet there was no straining for meretricious effect ; no 
 ambitious struggling for distinction. It was very early 
 seen that his character was one of great weight, from his 
 simple earnestness, his aim to do faithfully the duty of the 
 day without looking for applause, and his peculiarly elevated 
 moral tone. Scarcely any man has become a distinguished 
 advocate, who was less prone to exaggeration, less relied 
 upon the force of mere rhetoric, or thought less of any thing 
 but the solid merits of his cause. 
 
 His means of producing conviction, whether with a court 
 or a jury, were plainness, conciseness, and accuracy. He 
 was persuasive, because of his rejection of all superfluous 
 
1836.] CHARACTER AS AN ADVOCATE. 83 
 
 and irrelevant matter, and because it was known that he 
 disdained all the mere devices of speech. Mr. Webster 
 said of him, that " his great mental characteristic is clear 
 ness ; and the power of clear statement is the great power 
 at the bar." 1 This power of lucid and exact statement, 
 observed by all his contemporaries, was united with the 
 power of close, logical, and sustained reasoning. There 
 have been very prominent advocates, who, when they have 
 stated their case, have done all they can for it ; and when 
 this gift has risen to a high accomplishment, it has been 
 of great value. But in Mr. Curtis it was accompanied by 
 another power of equal importance, the power of argu 
 ment, which should come into play after the groundwork 
 for reasoning has been laid. When he had stated his case, 
 he had not done with it, unless the statement was all that 
 was needful to lead the tribunal to the desired decision. 
 When more was requisite, his propositions followed each 
 other in their appropriate order, and were enforced by a 
 method of reasoning which was pure deduction from w r ell- 
 chosen premises to just conclusions, without a needless 
 accumulation of ideas. 
 
 With the gifts of what is sometimes called eloquence, he 
 was not endowed by nature or cultivation. Those who 
 took pleasure in listening to him at the bar derived their en 
 joyment from the lucid and unimpassioned character of his 
 discourse. This is an enjoyment which all minds can feel, 
 when there is the requisite intelligence to appreciate such a 
 treatment of a subject by one who deals with it without 
 prolixity, and with a sufficient exhibition of its essential 
 truths. This enjoyment was felt in listening to Mi-. Curtis, 
 by the unlettered as well as the lettered of his hearers, by 
 jurors as well as by judges. Yet, although he always had 
 his feelings under control, he had very deep feelings ; and 
 he sometimes, with great simplicity and with an imagery 
 that was all the more effective because it was never forced, 
 
 1 This was written in 1849. 
 
84 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1834 
 
 and was but a momentary deviation from the steady march 
 of his mind, touched the feelings of others while he was 
 addressing their reason. But on such occasions he used no 
 art, for he said nothing that he would not have said to him 
 self in his private meditations. To the passions or preju 
 dices of men he never appealed. His mind was too honest, 
 his strength was too real, to allow him to employ a weakness 
 in others which he knew should not be allowed to govern 
 them. He spoke directly to the judgments of those whose 
 convictions he was to gain, putting his mind into contact 
 with theirs, on an equality of condition, without assuming 
 the superiority that is implied in efforts to mislead through 
 the ignorance, the failings, or the peculiarities of men. 
 
 Such were the intellectual and moral traits of the young 
 man who began in 1834 a professional career that was to be 
 marked by extraordinary success, and that was recognized 
 as an uncommon one, among a people proverbially intelligent, 
 observing, and critical. The practice on which he entered 
 in Boston led him at once into fields of the law that were 
 then new to him. It obliged him to master the maritime 
 law in all its branches, and the peculiarities of the admi 
 ralty jurisdiction and procedure. It made him familiar with 
 the patent law, for which his mental characteristics gave 
 him a singular adaptation. Equity jurisprudence and its 
 distinctive system of pleading were opened to him by his 
 engagements in the Circuit Court of the United States. 
 Whatever of the commercial law is in active operation in 
 a commercial community was necessarily a part of his 
 studies and of his daily employment. The law of real 
 property and of wills and testaments was no less a part of 
 his needful acquisitions ; and in constitutional law and the 
 law of nations, he not only prosecuted new studies, but he 
 sometimes had practical use for them. Nor was he with 
 out occasion to know and apply the system of revenue 
 law which is in operation in all the ports of the United 
 States. In short, whatever learning an American lawyer, 
 
18.T6.] CASE OF THE SLAVE MED. 85 
 
 who is botli a chamber counsel and an advocate, needs to 
 have, in a wealthy, prosperous, and active community, of 
 diversified occupations, he acquired, and was constantly em 
 ployed in using, during this period of his life. He did not 
 attain the kind of eminence that comes from a speciality of 
 practice. The character of his mind and the requirements 
 of his daily avocations made him equally eminent in all 
 the civil departments of the law, while his studies in all of 
 them kept pace with the demands that were made upon 
 him. 1 
 
 The professional reader may perhaps look for an account 
 of some particular case which first brought this distin 
 guished lawyer into notice in his newly chosen sphere, and 
 secured his success. We read, in the lives of several 
 great lawyers, of some occasion happily availed of for the 
 display of powers until then unknown, and which has been 
 the stepping-stone to the subsequent career; which is looked 
 back upon in after years with honest pride and related cir 
 cumstantially by biographers and fiieiids. 2 In the profes 
 sional life of Mr. Curtis, there is no such case to be referred 
 to ; no fortunate supply by a junior of the shortcomings or 
 absence of a senior ; no lucky hit, attracting the sudden 
 attention of those who are on the watch for talent and 
 power. It is not remembered that, in the earlier years 
 of his career at the Boston bar, there was a single occasion 
 out of which he can be said to have a made his fortune." 
 This was partly because he came there to take part in an 
 established business ; but it was mainly because of the 
 uniform merit of his efforts and the early maturity of his 
 mind. 
 
 Yet I may here refer to a case in which he made a 
 
 1 He did not practise in criminal cases ; but when he came to the bench 
 it was found that his knowledge of criminal law was not inferior to his 
 other acquirements. 
 
 2 " Young man, your bread and butter is cut for life," a solicitor said to 
 John Scott (Lord Eldon), as the latter was leaving Westminster Hall after 
 his argument in Ackroyd v. Smith. 
 
86 MEMOIR OF BENJAMIN BOBBINS CUETIS. [1836. 
 
 remarkable argument, in the year 1836, when he had been 
 at the Boston bar not more than two years ; and I refer to 
 it on account of the character of the question, and because 
 the argument affords a good illustration of his power at an 
 early age to deal with a difficult subject in the conflict of 
 laws, growing out of the differing public policy of different 
 States of this Union. A lady whose domicile was in New 
 Orleans came to Boston on a visit to her father, bringing 
 with her her own female child of tender years, and, as a 
 companion to that child, a colored child of the same age, 
 who was the daughter of one of her husband s female slaves, 
 and who was, by the law of Louisiana, also the slave of the 
 husband. A writ of habeas corpus was sued out, by persons 
 who felt interested to put an end to all restraint of this 
 slave-child within the limits of Massachusetts, and in order 
 to have her declared free. The father of the lady, in 
 whose house the colored child was temporarily resident and 
 suitably cared for, made return on the writ, setting forth 
 the facts, and claiming that, as agent of her husband, his 
 daughter had a right, and intended, to return the child 
 to Louisiana, by the laws of which State she was a slave ; 
 and that no other restraint was exercised over her in Mas 
 sachusetts than such as was necessary for her health and 
 safety, and for her return to the domicile of her owner. The 
 writ was made returnable before one of the judges of the 
 Supreme Court of Massachusetts, in vacation, and was then 
 adjourned into court and argued before Chief Justice ShaAV 
 and a full bench. Had this case occurred at a later period 
 in the sectional conflict on the subject of slavery, it would 
 doubtless have been made the occasion of much excitement 
 and comment. As it was, it could be discussed and decided 
 calmly and rationally, and the determination of the question 
 could pass into the juridical history of the country, to stand 
 as an important precedent in reference to the inter-state rela 
 tions of the different members of this Union, upon the points 
 involved in the decision. There was no political motive 
 
1836.] CASE OF THE SLAVE MED. 87 
 
 whatever, on the part of the respondent or his daughter, in 
 asserting her right, as her husband s agent, to restrain the 
 child. They desired only to discharge their duty to the 
 child, and to her mother, who had remained behind in New 
 Orleans. At the argument, Mr. Curtis maintained for the 
 respondent the following proposition : 
 
 That a citizen of a slave-holding State, who comes to Massa 
 chusetts for a temporary purpose of business or pleasure, and 
 brings his slave as a personal attendant on his journey, may 
 restrain the slave for the purpose of carrying him out of Massa 
 chusetts and returning him to the domicile of his owner. 
 
 The question was confessedly new. For, whatever might 
 be the law of England, as declared by Lord Mansfield in 
 Somersett s case, it was obvious that the relations of the 
 different States of this Union involved other considerations ; 
 that comity between two American States, in giving effect to 
 each other s laws of personal relations, might require a court 
 in Massachusetts to allow the qualified exercise of the mas 
 ter s right that was here claimed ; while in Somersett s 
 case the master was a British subject, resident in Virginia 
 when it was a British colony. Mr. Curtis, therefore, 
 directed his argument mainly to the distinction between the 
 comity which an English court could show towards the 
 local law of one of her colonies when conflicting with 
 the common law of England, and the comity which a 
 Massachusetts court may and ought to show towards the 
 local law of Louisiana, which fixes the personal rights of its 
 citizens, although that law is itself in conflict with the pub 
 lic policy of Massachusetts in respect to her own citizens. 
 Such a discussion necessarily involved the sense in which 
 slavery was to be regarded as immoral in a court of law ; 
 whether it is prohibited by the law of nations ; whether, 
 although contrary to natural right, it is not, when recog 
 nized by the local law of an American State, a relation 
 between persons to which some effect must be given in the 
 
88 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1836. 
 
 courts of other States ; and whether it could in truth work 
 any injury to the public policy of Massachusetts to allow 
 of so much recognition of that relation as to admit of the 
 exercise of the qualified restraint claimed in this case. 
 Whatever learning could throw light upon these topics 
 found its appropriate place in a massive and impressive 
 argument, which, although made by a young man of 
 seven and twenty, was regarded by the eminent Chief 
 Justice as one calling for a careful judicial answer, step 
 by step. 1 
 
 The decision pronounced by the Chief Justice, and con 
 curred in by all the judges, negatived the proposition main 
 tained by Mr. Curtis. It held that the maxim that the 
 right of personal property follows the person of the owner 
 is to be limited to those commodities that are everywhere 
 and by all nations treated as and deemed subjects of prop 
 erty, which is not true of property in slaves ; that the local 
 laws which recognize property in slaves, while they operate 
 within their own jurisdiction to give to the subject the in 
 cidents of property, and apply to it the same rules that 
 govern other species of personalty, cannot operate proprio 
 vigor e out of that jurisdiction ; that the rule of comity does 
 not require a State to give to the laAVS of another State an 
 operation within its territory which is inconsistent with its 
 own public policy and legislation ; that to allow of the tem 
 porary and qualified restraint asked for in this case would 
 lead logically to the exercise in Massachusetts of other 
 rights of the master given by the local law of his domicile ; 
 and that, as slavery was a condition unknown in Massachu- 
 
 1 The argument in support of the writ was made with great ability and 
 learning by the late Mr. Ellis Gray Loring. Mr. Choate was on the same 
 side, but he did not add much to Mr. Loring s argument. The case is re 
 ported in the eighteenth volume of Pickering s Reports, at page 103, under 
 the name of Commonwealth v. A res. The report does but scant justice to 
 the arguments of Mr. Curtis and Mr. Loring. I heard them both. There 
 was a full and accurate report published at the time in a pamphlet. From 
 this the editor has taken his father s argument for insertion in the second 
 volume. 
 
1836.] CHARACTEKISTIC ANECDOTE. 89 
 
 setts, and repugnant to its Constitution and laws, the right 
 of property founded upon the local law of States where 
 slavery exists could not be exercised in that Commonwealth. 
 The opinion made a broad distinction between the right 
 secured by the Constitution of the United States to recap 
 ture a slave who had escaped from a slave into a free State, 
 and the right of the master who voluntarily brings his slave 
 within the territory of a State where slavery is prohibited. 
 
 The practical and direct importance of these questions, 
 in reference to the condition of servitude, has passed away. 
 But in the personal history of one who twenty years after 
 ward had to act upon them judicially, it is interesting to 
 note how he had sounded some of their depths at this early 
 period in his life ; and how this subject connects itself with 
 that great topic which became the occasion of his crowning 
 judicial distinction. At the time of this quiet but search 
 ing forensic discussion in Boston, that portentous claim to 
 the extra-territorial operation of the law of property in 
 slaves, which was afterwards advanced, had not reached the 
 proportions which it subsequently assumed in its political 
 and judicial aspects ; and it had attracted but little atten 
 tion compared with the intense interest that it was destined 
 thereafter to excite all over the country. But the reader 
 who is curious to trace the progress of an individual mind 
 may find, in the celebrated dissenting opinion in the case 
 of Dred Scott, how well its writer was prepared for the de 
 mands of that occasion, and how much further and with 
 what more forcible and ample illustration he then carried 
 the doctrine incidentally touched by the clear and vigorous 
 mind of Shaw. 
 
 An anecdote, which has been told by Dr. Robbins, may 
 be transferred to these pages, because it illustrates a well- 
 known trait in my brother s character, arid relates to the 
 period covered by the present chapter : 
 
 I remember that, a great many years ago, the late Governor 
 Kent of Maine told me that, having heard that Mr. Webster was 
 
90 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1839 
 
 about to argue a case at Portland, he went from Bangor to hear 
 him. One of the opposing counsel was Mr. Curtis, then a young 
 man, whose fame had hardly reached beyond his native State. 
 After Mr. Webster had finished his plea, of course powerful and 
 eloquent, Mr. Curtis, in rising to reply, made no allusion to his 
 mighty antagonist any more than if he had been of no reputation ; 
 but with perfect composure entered upon the merits of the case, 
 and argued it in a masterly manner. " I was greatly impressed," 
 said Mr. Kent, " by this remarkable instance of manly self-respect, 
 and honest reliance on the justice of his cause, in so young a man, 
 and at that moment recognized in him the genuine marks of 
 greatness." l 
 
 When he had been a resident in Boston for about five 
 years, he lost the most intimate friend of his early manhood, 
 to whom I have already alluded, James C. Alvord of 
 Greenfield. I can hardly dare to trust my pen in an at 
 tempt to describe this distinguished young man, for the num 
 ber of my readers who can test by their memories the truth 
 of my description is necessarily small. When the broken 
 column that typifies an unfinished career stands to remind 
 us of one with whom we began the journey of life, one to 
 whom we look back through the long vista of years that are 
 crowded with events and scenes and persons in which he is 
 not associated, but among which we have ever missed him, 
 ever thought of what he would have done, of what would 
 have been his impress upon the age, of what a part he must 
 have played upon the theatre from which he was snatched 
 by an early death, we are too apt perhaps to feel that 
 nothing has filled the void, that all comparison is vain. We 
 carry our early estimate of a long-lost friend, uncorrected by 
 our riper experience and wider observation, to the end of 
 our own pilgrimage; and at every stage of it we are too 
 prone to exclaim, 
 
 "For Lycidas is dead, dead ere his prime, 
 
 and hath not left his peer." 
 
 l Dr. Robbing s Memoir of the Hon. B. R. Curtis, pp. 16, 17. 
 
1839.] JAMES C. ALVOKD. 91 
 
 Yet I must here express my conviction that the State of 
 Massachusetts never lost, at so early an age, a citizen of 
 greater hope and promise of useful distinction, than she lost 
 in Alvord. As a lawyer, he was the equal of his friend 
 Curtis in learning and in logical power. But they differed 
 remarkably and obviously in another respect. There was 
 an energy of enthusiasm in Alvord which bore down all 
 opposition, while it won the sympathy and admiration even 
 of those who felt his blows. If he had had less intellectual 
 strength, his zeal would have carried him where mere ardor 
 and earnestness become of little value or effect. But in 
 him the fire of enthusiasm burned in an intellect of the high 
 est order, kindling without consuming his reasoning faculty. 
 In this he was a strong contrast to his friend, whose mind 
 and character derived none of their power from an ardent 
 temperament, or any impetuosity of the moral feelings. In 
 Curtis, the moral sentiments and convictions were very 
 strong ; but they lay deep beneath the surface, forming, like 
 conscience, the unseen and silent guide of life. In Alvord, 
 they were equally strong and sincere ; but they were worn 
 like the armor of a champion, which does hardy service in 
 the fight. 
 
 Two men so differently constituted, yet of such equal intel 
 lectual gifts, bound together by an affection surpassing that 
 of brothers, necessarily modified each other in some degree. 
 Alvord had a strong propensity to public life, and a large 
 capacity for it. He was an impressive and captivating 
 speaker in public assemblies, and he possessed a fine tact in 
 dealing with masses of men, especially in matters of legisla 
 tion and public policy. Curtis was acted upon by the 
 warmth of his friend s nature, as the bodily frame which 
 needs more heat than it can supply to itself is acted upon 
 by an external source. 1 The one of these men was formed 
 
 1 One who has survived Mr. Alvord for forty years, and who was united 
 to him in her early days by the closest of all ties, has recently said, in a 
 letter to my nephew, the editor of this work : " Mr. Alvord s magnetic 
 enthusiasm acted upon the natural reserve of your father like sunlight." 
 
92 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1839. 
 
 to be a great judge : the other was destined to become a 
 statesman. One lived to become what he was fitted by 
 taste and temperament to be : the other was cut off on the 
 threshold of a public career that promised to be singularly 
 brilliant, before his strong and noble character had become 
 known beyond his native State. The survivor paid the fol 
 lowing tribute to the memory of his friend, and went on 
 his way, feeling that he should never look upon the like 
 of him whom he had lost. 
 
 JAMES C. ALVORD. 
 
 Died, at Greenfield, on the morning of the 27th of September 
 [1839], James C. Alvord, aged thirty -one years. 
 
 Many can bear witness that in his death the Commonwealth has 
 sustained a serious loss, such a loss as should not be passed by 
 without some notice of its magnitude, and some passing tribute to 
 his talents and character. 
 
 Mr. Alvord graduated at Dartmouth College in August, 1827, 
 having held, throughout his collegiate course, a high rank in his 
 class, and having acquired a frank, generous, and manly character. 
 He may be said to have had an hereditary attachment to the science 
 and practice of the law ; for his father and another near relative 
 had studied the law with a strong love for the science, and had 
 practised it with much success, and from early life he had been in 
 the midst of scenes which gave his mind a decided bent towards 
 that profession. On leaving college, he entered the Law School 
 at New Haven, arid there, under the wise guidance of the two emi 
 nent lawyers who presided over that school, he continued for two 
 years, when he was called to the bar in his native county. For 
 a few months he devoted his time to the practice of the law, under 
 circumstances which enabled him, in that short period, to master 
 all its practical details ; and then, with an ardent love for the 
 noble science he professed, he withdrew himself from practice, 
 and entered the Law School at Cambridge, then conducted by Mr. 
 Justice Story and the late Mr. Ashmun. There he pursued his 
 studies with a breadth of views, a lively interest and strength of 
 purpose, which are rare indeed in one of his years. His progress 
 was truly great; and when, in the autumn of 1830, he returned 
 again to the bar, he carried with him a depth of learning and habits 
 
1839.] JAMES C. ALVOKD. 93 
 
 of thought and investigation which were a broad and deep founda 
 tion for future eminence. 
 
 The numerous and great obstacles which beset the path of a 
 young lawyer everywhere, especially at the crowded bar of our 
 Commonwealth, he cleared at a bound, and almost at once stood in 
 the front rank of the distinguished lawyers whom the valley of the 
 Connecticut River for several generations has continued to produce. 
 Within the short period of a little more than ten years, that valley 
 has seen three of its great lights of the law sink in early night. 
 Howe, that bright example of a Christian judge ; Ashmun, of whom 
 it was beautifully said that he was fit to teach when most men are 
 beginning to learn ; and now Alvord, of whom it is not too much 
 to say that he was worthy to stand side by side* with them. 
 
 At the decease of Mr. Ashmun, Mr. Alvord, though scarcely older 
 than the majority of the pupils at the Law School, was called to 
 supply his place until a permanent professor could be appointed. 
 The young men who were under his care, as well as the eminent 
 judge, who then, as now, was at the head of the school, will bear 
 witness how faithfully and well he discharged his duties. In the 
 Legislature of 1837, he represented his native town of Greenfield 
 in the lower house. In the next Legislature, he represented his 
 native county in the Senate ; and at the ensuing election, in the fall 
 of 1838, he was chosen, by a very large majority, to represent the 
 district in the Congress of the United States which will assemble 
 in December next. To the All-wise Disposer of events, it seemed 
 fit that his duties there should never begin. 
 
 His was truly a remarkable mind. With a quickness of intellect 
 which travelled to conclusions with the rapidity of light, he united 
 habits of the most patient investigation. Searching always for 
 principles, he had yet as much deference for authority as a vigorous 
 mind can feel. Though capable of long-continued labor, his power 
 of concentration was so great as almost to dispense with it. 
 
 Though exceedingly zealous in action and of an ardent tempera 
 ment, his opinions, even on the most exciting subjects of the dav, 
 were uniformly the result of a nicely balanced judgment. United 
 with these intellectual qualities was a character from which they 
 borrowed new vigor. Courage which always rose with the occasion, 
 until it became perfectly indomitable ; firmness of purpose which 
 no opposition could shake ; a generous self-devotion, easily excited ; 
 an entire frankness and openness, which sometimes would have 
 
94 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1839. 
 
 seemed almost childlike if it had not been united with a keen insight 
 into the characters and purposes and weaknesses of others, all 
 these qualities combined gave him a control over men such as few 
 can acquire. Yet how well do all that knew him know that his 
 courage was united with gentleness ; that, though firm, he never 
 showed any other obstinacy than an obstinate adherence to his 
 friends ; that he had no hardness of character, but almost a 
 woman s tenderness and quickness of feeling ; and that his per 
 ception of others weaknesses was no quicker than his impulse to 
 help them. 
 
 The writer of this imperfect sketch has known him in the halls 
 of legislation, at the bar, in professional studies, in domestic life, 
 in the offices of friendship, and, though he was ambitious, hns 
 never seen the least attempt to advance himself professionally or 
 politically by the smallest deviation from principle. From year to 
 year, the writer has found his convictions strengthening, that, if the 
 ordinary length of years should be granted to Mr. Alvord, the 
 country would owe to him at his death a debt of gratitude such as 
 is rarely due. He had hoped to see the noonday brightness of 
 that sun, but let no man say it is riot best as it is. 
 
 " Surrounded by his family, watched by affection s gentle eye, he 
 sank to rest ; " and, though he died young, we can truly say of him 
 what was said of one who had lived twice his years, " Multa ejus et 
 in senatu et in foro, vel provisa prudenter, vel acta constanter, vel 
 responsa acute;" and what is more, and most of all, we can say 
 that this brief life is competent to teach us how few years are 
 necessary to form a manly and virtuous character. Though to our 
 short sight his death may seem premature, yet even we can see 
 that he is indeed happy who has found such an end of such a life. 
 
 In after years, when great trouble came upon our coun 
 try, and the dark clouds of sectional passion lowered over 
 the whole land, it was often doubted, in my brother s hear 
 ing, whether Alvord s course and influence, if he had lived, 
 would not, from the ardor of his nature and in the tempta 
 tions of ambition, have proved unfortunate for himself and 
 for the public weal. But my brother never would admit 
 the peril which others suggested. He said that Alvord, 
 although ambitious and fond of popular approbation, was 
 
1836.] A GREAT PRACTICE. 95 
 
 too broad, wise, and great a man to have become in any 
 way a dangerous one ; that he was made for a national 
 statesman, and not for " a sectional man, a local man, a 
 separatist." 1 
 
 Of my brother s professional avocations and rank during 
 this period of his life, it is to be observed that, in the 
 variety and importance of his engagements and of the 
 branches of jurisprudence involved in them, he was second 
 to no man of that time in New England ; and that, before he 
 had reached the age of forty-two, he was known as a lawyer 
 of great eminence in the courts of his native State, and in 
 the Federal courts of that portion of the country. He first 
 became entitled to act as a Counsellor of the Supreme Judi 
 cial Court of Massachusetts in 1836, the year when he 
 argued the case of the slave " Med," described in the pres 
 ent chapter. The sittings of that court in bane were de 
 nominated its " Law Terms." It appears from the reports 
 of Pickering, Metcalf, and Gushing, that, during the fifteen 
 years from 1836 to 1851, he took part in the argument of 
 one hundred and thirty-eight cases at the law terms of the 
 Supreme Court. In the Circuit Court of the United States 
 for the First Circuit, he made arguments during the same 
 period in many cases, which are reported in Sumner, Story, 
 and Woodbury and Minot. An equally large proportion of 
 nisi prius trials, and of hearings in admiralty in the District 
 Court of the United States, constituted a part of his profes 
 sional labors, while a constant chamber practice also occu 
 pied his attention. To sustain such an amount of professional 
 labor in all departments of the law, and to answer the de 
 mands of clients who could expect the services of an attorney, 
 an adviser, and an advocate from the same person, required 
 an almost incessant labor and a great variety of professional 
 
 1 " What States are to secede 1 What is to remain American ? What 
 am I to be ? An American no longer ? Am I to become a sectional man, 
 a local man, a separatist, with no country in common with the gentlemen 
 who sit around me here, or who fill the other house of Congress ? Heaven 
 forbid ! " (Webster, Speech on the 7th of March, 1850.) 
 
96 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1836. 
 
 accomplishments. In the earlier years of his practice in 
 Boston, from the number and magnitude of the litigations 
 in which he was concerned, and the responsibility imposed 
 upon him by the weight of the interests on which he was 
 privately consulted, he was in some clanger of overtasking 
 both his mental and physical powers. But, as he Avent on, 
 he acquired a facility which is rarely found until a later 
 period of life. It was observed of him that, in the ease with 
 which he could go de die in diem from court to court in suc 
 cessive engagements of the most different kinds, and in the 
 sustained and uniform excellence of his efforts in them, he 
 resembled that distinguished person who was at the same 
 period exhibiting at the English bar what was considered 
 the most remarkable professional versatility of our times, 
 Sir William Follet. But the aids which a leading English 
 barrister derives from attorneys and solicitors, his general 
 exemption from the duty of seeing clients and witnesses, 
 and the completeness of the briefs which are placed in his 
 hands, give him one advantage, at least, over his American 
 brother, who is often obliged to be at once special pleader, 
 consulting counsel, and advocate in court. 
 
 The two systems of professional labor growing partly 
 out of a difference of manners in the two countries, and 
 partly out of a difference in their laws do not admit of a 
 comparison that will determine which of them produces 
 the most accomplished lawyers or the most accomplished 
 men. All that we can say of our own system, in regard to 
 its tendency to produce accomplished judges, is, that when 
 the varied experience of an American lawyer, as in the case 
 of Mr. Curtis, has carried him through the widest range of 
 the duties of an attorney, a chamber counsel, and an advo 
 cate, he is as well fitted for the bench as any man can 
 become under our institutions, and as the interests of our 
 society require him to be, provided he possesses the judicial 
 habit of mind and the moral qualities which the judicial 
 function demands in its highest exhibition. 
 
1840.] RULE OF PUBLIC ACTION. 97 
 
 I am now to turn from the strictly professional side of 
 his character, and to answer the natural inquiry of what he 
 was or did in other spheres of intellectual activity. It has 
 been frequently asked, how it happened that he did not 
 become a statesman. Why was it that one who was so 
 furnished with the knowledge that, under free institutions, 
 is a high qualification for public life, so endowed with the 
 power of impressing his convictions upon others, so capable 
 of instructing the public mind upon subjects material to 
 the public welfare, why was it that he did not enter the 
 political field and make himself felt in the political world ? 
 The question is one peculiarly liable to be asked in this 
 country, where the general expectation is that great abili 
 ties at the bar will be accompanied by corresponding emi 
 nence and activity in the political sphere. The popular 
 idea is, that, if a man is only a distinguished lawyer, there 
 is an implied defect in his character or his mind, and his 
 having attained or not attained political office is made the 
 test of his greatness. Not unfrequently, too, it is assumed 
 that distinction in politics is a proof of distinguished pro 
 fessional abilities. I am not content to rest the answer to 
 these inquiries, in the case of Mr. Curtis, upon his lack of 
 political ambition, which was certainly a trait of his char 
 acter ; for no right-minded person will suggest that political 
 ambition is necessarily a duty of a good citizen. Nor do I 
 think it sufficient to say that he had a chosen field for the 
 exercise of his powers, and that he found in that field abun 
 dance of occupation in what seemed to him the best oppor 
 tunity for being useful to society. It is rather my duty to 
 give frankly my own conception of the feelings and princi 
 ples which governed his course of life, believing that I 
 know them, not only from observation, but from frequent 
 conversation with him in regard to his public relations and 
 duties. It is equally incumbent on me not to leave the 
 reader to suppose that there was any neglect of those duties 
 and relations, measuring his fulfilment of them by what it 
 
 VOL. I. 7 
 
98 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1841. 
 
 was practicable for him to do, and by what he did. In this 
 measurement, it must be considered that for the lower poli 
 tics he had neither taste nor capacity. He could not " give 
 up to party what was meant for mankind." While he had 
 nothing about him that would have been specially useful to 
 party, he had a great deal about him that could be emi 
 nently useful to society. For the higher politics he had 
 great capacities. No man s views upon any important 
 public question were sounder; no man thought more justly, 
 comprehensively, and wisely upon any subject that con 
 cerned the public welfare ; no man possessed more courage 
 in encountering public opinion when it was wrong, or was 
 better able to instruct and guide it in the right. All this 
 was well known. But that which sometimes appeared in 
 him, to superficial observers, to be a fastidious withholding 
 of himself from the political conflicts of his time, or to be 
 induced by a selfish absorption of his energies in the pur 
 suits of his profession, was in truth a systematic principle 
 of action deliberately and wisely chosen. He regarded 
 whatever power he had to act upon public sentiment, what 
 ever weight of character he possessed, whatever facility he 
 had for instructing his fellow-citizens, whatever influence 
 their respect for him had given him, as so many trusts to 
 be exercised only when he saw or believed that an oppor 
 tunity was before him for doing good, and not to be lightly 
 or frequently employed. In this conscientious economy of 
 the moral capital which he held, he would not squander or 
 risk a particle of it upon mere partisan demands, or venture 
 it in any way, unless he felt that the occasion or the sub 
 ject called for just such discussion or inculcation as he felt 
 qualified to give. When he was satisfied that this was the 
 case, how much he risked, or what he was personally to 
 gain or lose, rarely entered into his thoughts. He aimed 
 to convince all whom he could convince, and thus to dis 
 charge his duty to society. 
 
 It is obvious that a man who thus acted in reference to 
 
1842.] ARTICLE ON THE STATE DEBTS. 99 
 
 public affairs would speak or write but rarely on any public 
 topic, and that the occasion or the subject which would call 
 forth his exertions would be one of more than ordinary im 
 portance. Some principle must be at stake ; some example 
 must be wanted ; some course of action must be material to 
 the public welfare in a large sense and to a high degree ; 
 some wrong of a more than ordinary character must require 
 to be rebuked ; some state of public opinion or feeling need 
 ing the best enlightenment must exist, before such a 
 man would be likely to come forward and use the influence 
 that he had. It will be found, therefore, in the instances 
 which I shall now adduce, and in others to which I shall 
 refer at a later period, that such was the character of every 
 occasion or topic on which Mr. Curtis undertook to ad 
 dress the public mind ; that these were frequent in the 
 proportion in which any just demands of public duty could 
 be said to rest upon him ; and that, in doing what he en 
 deavored to do, public duty alone was his motive, and the 
 public good his single aim. 
 
 Between the years 1836 and 1842, the States of Pennsyl 
 vania, Maryland, Mississippi, Michigan, Louisiana, Indiana, 
 and Illinois had contracted public debts, or become obli 
 gated for the debts of private corporations, which in one 
 form or another, on various pretexts, they refused or threat 
 ened to refuse to pay. It was then that the word REPU 
 DIATION, first coined in Mississippi into the sense and 
 application in which it has since had a bad eminence in 
 our country, began to be used. Many countries in Europe 
 contained numerous injured creditors of these States, who 
 had taken their obligations in reliance upon their public 
 faith ; and these creditors comprehended all ranks and de 
 scriptions of people who had any money to invest, bank 
 ers, clergymen, shopkeepers, mechanics, farmers, and women. 
 In short, the public stocks of these States were held by the 
 multifarious classes of individuals to whom punctual pay 
 ment of their incomes is a matter of supreme personal im- 
 
100 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1843. 
 
 portance. At home, the holders of these obligations were 
 not so numerous, and perhaps not so diversified. But 
 wherever they existed, there was great individual suffering ; 
 and, in addition to this, to borrow the language of Mr. 
 Curtis, " disgrace had fallen upon the people of this coun 
 try in the eyes of the civilized world." Abroad, there was 
 no true understanding of the facts, or any proper compre 
 hension of the degree of responsibility for this state of 
 things justly resting upon the national government or the 
 governments of the States. Public opinion in this country, 
 save in those States whose public credit and financial con 
 duct had always been without suspicion or reproach, was 
 inclining to excuse or justify some of the delinquent States. 
 There was danger that "repudiation" might become an 
 accepted mode of meeting public obligations which it 
 might be inconvenient to discharge, or unpopular to pro 
 vide for. 
 
 Mr. Curtis had no pecuniary interest whatever in any of 
 these securities, nor had any of his relatives. He felt 
 deeply the stain on the American name which already 
 rested upon it, and which threatened to become indelible. 
 He saw how imperfectly the subject was understood, how 
 necessary it was that the case of each of the delinquent 
 States should be analyzed, and have applied to it the true 
 principles of public law and that high moral code which 
 should govern the conduct of a sovereign people. He saw 
 that angry denunciation could effect nothing, and that only 
 a calm, judicial, and unimpassioned discussion could reach 
 the public mind. He was well aware that it would be 
 utterly vain to deal with this subject as a politician might 
 handle it ; and that it was only as a jurist, a moralist, and 
 an impartial citizen, fearing nothing but wrong, and con 
 cerned for nothing but right and justice, that he could hope 
 to accomplish any good. 
 
 He prepared himself with great care and research to sum 
 up the whole case of the repudiating States, and to examine 
 
1844.] ARTICLE ON THE STATE DEBTS. 101 
 
 in detail the several arguments, excuses, or subterfuges that 
 had been relied upon, in or out of each particular State, to 
 justify its delinquency. He chose the form of an article in 
 the " North American Review," because he could there best 
 deposit the facts, principles, and reasoning to which others 
 might resort as to a storehouse, and which would furnish 
 what he deemed the sound and just conclusions to which 
 public opinion should be led. His paper, entitled " Debts of 
 the States," was first published in the North American Re 
 view for January, 1844, and was immediately republished 
 and widely circulated in pamphlet. It is included in the 
 present collection of his writings; and whoever now reads 
 it will judge whether it justifies my remark, that for the 
 higher politics he had great capacities, which he was will 
 ing to use for the public good. If, in the whole range 
 within which a public topic may be treated, there be a 
 higher and a lower plane, if there be a supreme foun 
 tain of truth and reason, from which the means of persua 
 sion and conviction are to be drawn for the welfare of 
 mankind, and made practically more powerful than the 
 baser passions and narrow objects of immediate self- 
 interest, then there is a broad distinction between the 
 higher and the lower politics. That the loftier plane 
 was reached in this appeal to the better sense of a 
 people, that the highest strains of what is rightly called 
 eloquence flowed from his pen, through many passages in 
 prose of the purest diction, impressive thought, and chaste 
 construction, will I think be allowed. The paper is 
 valuable now, not only as an illustration of the writer s 
 character, but on account of the principles of public and 
 constitutional law to which he has there given the sanction 
 of his authority. He spoke of it in the subjoined letter 
 as having been written hastily ; but in fact, before it 
 was published, he went over the whole of it again very 
 carefully, and, with the aid of a friend in Baltimore, 
 he made it much more full, in regard to the real finan- 
 
102 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1844 
 
 cial situation of the State of Maryland, than it was in 
 its first form. 1 
 
 To MR. TICKNOR. 
 
 CIRCUIT COURT ROOM, Nov. 3, 1843. 
 
 DEAR UNCLE, I hoped to be able to see you a few minutes 
 before leaving for New York, but I cannot : I shall be in court 
 till the last moment. I wished to say that, if you will have the 
 kindness to use your pencil freely in reading my paper on the state 
 debts, 1 shall be much obliged to you : please to make any correc 
 tions of words or phrases or ideas which occur to you. I have no 
 doubt it will be found to need a good deal of correction. I have 
 been for ten years so little in the habit of writing any thing but 
 bills in equity, and such like, and so much in the habit of debating, 
 that I have found it very difficult to write in a style adapted to the 
 character of the paper. It has been written also in much ha.ste, and 
 in the short intervals I could snatch from severe professional labors. 
 I know it is incomplete also in some particulars, and I intend to add 
 something to show that Maryland is not in so bad a condition after 
 all. I beg you, in reading the article, to bear in mind the circum 
 stances under which it was written, and that I have not had time 
 to give it a revision. I hope to return from New York on Sunday 
 morning. Yours most truly, 
 
 B. R. CURTIS. 
 
 FROM MR. JUSTICE STORY. 
 
 CAMBRIDGE, Jan. 2, 1844. 
 
 MY DKAR SIR, I return you my sincere thanks for the present 
 of your article on the State Debts in the North American Review, 
 which I am glad to possess in an independent form. I have read 
 it with the greatest satisfaction. It is equally remarkable for its 
 conciliatory tone, its clear statement of facts, the calmness and 
 conclusiveness of its reasoning, and its sound constitutional views. 
 
 O" 
 
 I think that in this country, as well as in England, its influence 
 will be at once extensive and salutary. 
 
 For your personal remarks to myself, I am indeed truly your 
 
 1 The gentleman here referred to was John H. B. Latrobe, Esq., of Balti 
 more, to whom my brother was indebted for a comprehensive and accurate 
 account of the public debt and resources of Maryland. 
 
1844.] FIRST DOMESTIC SORROW. 103 
 
 debtor. Such kindness and such praise from one whose course is 
 so high and honorable is to me a source of the most unfeigned 
 gratification. I will not disguise that I have the greatest pride in 
 you as one of my law pupils ; and I trust that, even if a solitary 
 lesson at the School has left any deep impression on your memory, 
 it is no less a source of consolation to the Professor who still sur 
 vives, that his own recollections of your devotion to the law while 
 here gave him the strongest assurances of your future eminence. 
 Believe me most truly and affectionately yours, 
 
 JOSEPH STORY. 
 BENJAMIN R. CURTIS, Esq. 
 
 But I must now turn aside from public questions and 
 professional avocations, to a domestic event which put the 
 character I am endeavoring to place before the reader to one 
 of those trials that reveal the materials of which a character 
 is composed. In the month of July, 1844, my brother lost 
 the wife of his youth. Without comment, and without dis 
 closing more than should be seen, I may permit the perusal 
 of the following letters : 
 
 To MR. TiCKNOR. 1 
 
 BOSTON, July 10, 1844. 
 
 MY DEAR UNCLE, I got your letter, and Aunt s most kind and 
 welcome note to Eliza, this morning. I feel sustained and strength 
 ened by your sympathy in this trial. I have a strong conviction 
 that the event of the disease must be unfavorable, and I am as 
 well prepared to sustain it as I ought to hope to be. We have 
 spent ten days at Hopkinton. The change of air and the quiet of 
 the place were comforting to her, but I do not think she returned 
 really better. She does not suffer a great deal, except from exces 
 sive weakness at times ; and she bears it all patiently and cheer 
 fully. I feel grateful to you for your wishes to be with us ; but 
 there is nothing to be done save what we can easily do, and I am 
 quite equal to all which is necessary. 
 
 It gives me great pleasure that Aunt is doing so well. Give my 
 love to her, and to all, and believe me 
 
 Affectionately yours, B. R. CURTIS. 
 
 1 Absent and travelling. 
 
104 MEMOIR OF BENJAMIN BOBBINS CURTIS . [1841. 
 
 P. S. It has occurred to me that I ought, perhaps, to give you 
 some more particular account of the symptoms and progress of the 
 disease ; but such details are always painful. . . . This morning 
 when I left her she was quiet, and even cheerful, and made some 
 playful remark to me as 1 came away. While we were at Hopkin- 
 ton she herself was convinced that she should not recover ; but she 
 was not agitated, nor did she at any time lose her self-command. 
 I have entire confidence that she is quite prepared for either event, 
 and that, with God s help, she will bear it all well. 
 
 To MR. TICKNOR. 
 
 BOSTON, July 22, 1844. 
 
 MY DEAR UNCLE, I have just received your letter dated at 
 Geneseo. Eliza is still living, and it is possible may continue for a 
 day or two longer, though I think not. 1 Her sufferings have at no 
 time been great, and of late I think she has not suffered. Certainly 
 she is not conscious of any suffering. I am quite well. The advice 
 you give me in your letter I know to be most judicious ; for I have 
 followed the course you point out, and have up to this moment 
 preserved my composure of mind. I came early to the conclusion 
 that the termination must be fatal, and I thank God that I was 
 able to look steadily and calmly upon what was coming. From 
 that time, I have kept out of my mind all thoughts which would 
 disturb my firm trust in God, and acquiescence in his will, and have 
 endeavored to think and act, in regard to this event, just as 1 should 
 wish to have done in looking back upon it some months hence. I 
 have been every day to my office, and several times into court, and 
 have been able to apply my mind to some matters which required a 
 good deal of study and reflection. I mention these things, my dear 
 uncle, not because I like to talk about myself, but that you and 
 Aunt and Cousin Anna may not feel anxious about me, in short 
 that you may not fail to do what I have done, viz. to suffer no 
 unreal evil to disquiet you. Certainly it would be a great consola 
 tion to me to have you here, but it will be equally so by and by ; 
 and therefore I sincerely hope you will not by hastening home de 
 prive Aunt of any benefit which she can have by a longer stay. 
 The children are very well, and the infant is a fine child, and grows 
 fast. Give my love to all, and believe me now and always 
 Yours affectionately, 
 
 B. R. CURTIS. 
 
 1 The disorder was consumption. 
 
1844.] RESIGNATION AND PEACE OF MIND. 105 
 
 To MR. TICKNOR. 
 
 BOSTON, July 25, 1844. 
 
 DEAR UNCLE, George wrote to you two days since, but I 
 am not willing to let another day pass without a few lines from me, 
 to say that I am able to write to you, that I am well, that the 
 children are cheerful and in good health, and mother, who of course 
 is with me, is composed and quiet, though somewhat exhausted by 
 her labors and watching. I have been so long prepared for the 
 event, the tone of my mind for some weeks has been so far fixed 
 and adapted to what has come, that I have been able to bear the 
 blow with composure. The fortnight which I passed at Hopkinton, 
 in entire solitude when not in attendance on her, was of great use 
 to me, and on my return to Boston I at once forced myself into 
 constant occupation during a part of every day ; so that I have at no 
 time since I returned wholly lost that calmness of mind which it is, 
 in such scenes, so important to others, as well as to one s self, to 
 preserve. The children bore their grief with some fortitude, 
 though of course it was a grievous thing to them. They are now 
 cheerful and well. I feel quite anxious lest you should hasten 
 home. I earnestly hope you will not come one day sooner than is 
 for Aunt s advantage. I shall stay here a week or two and go 
 on with my business, and then go away for a short time to Newport, 
 or some other pleasant, healthful place. 
 
 Give my love to Aunt and the cousins, and believe me 
 Your affectionate nephew, 
 
 B. E. CURTIS. 
 
106 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1846 
 
 CHAPTER V. 
 
 1845-1851. 
 
 Death of Judge Story. Mr. Curtis appointed to succeed him in the Cor 
 poration of Harvard College. Letters to Mr. Ticknor. The Fugitive- 
 Slave Excitement in Boston. Address of Welcome to Mr. Webster. 
 Speech in Faneuil Hall on the Duty of obeying the Constitution. Ad 
 dress to the People of Massachusetts, occasioned by the " Coalition." 
 
 IN September, 1845, the death of Judge Story profoundly 
 moved the community in which the whole of his laborious, 
 useful, and distinguished life had been passed, when he was 
 not away from it on his judicial duties. His energetic 
 nature acted upon society in many ways that were not in 
 consistent with his judicial character. Among the local 
 positions which he had held for many years, the Dane 
 Professorship of Law in the University at Cambridge, and 
 a membership of its " Corporation," were the most con 
 spicuous and important. Mr. Curtis was selected to succeed 
 him in the Corporation. This had always been deemed a 
 great distinction. The trusts and authorities exercised by 
 this board required that it should be composed of men of 
 known wisdom and Aveight of character, Avhose residence in 
 the immediate neighborhood of the University would permit 
 their constant attendance to its concerns. A vacancy in 
 the Corporation had rarely been filled by the appointment 
 of so young a man as Mr. Curtis. 1 It was mainly through 
 
 1 " The Corporation," as it is habitually called in the neighborhood of 
 the University, is the governing body, which is charged with the care and 
 administration of all its fiscal concerns, the appointment of its professors 
 and all officers of instruction and government, and the regulation of all its 
 
1845.] LETTERS TO MR. TICKNOR. 107 
 
 his exertions and influence that Judge William Kent, of 
 New York, was appointed to and induced to accept the 
 vacant Professorship of Law. 1 
 
 The summer of 1845 was passed by my brother and his 
 children at Nahant, near the residence of his friend and 
 partner, Mr. Charles P. Curtis. The following letters, 
 written during that and the succeeding year, relate to 
 domestic affairs, to some of the concerns of the College, and 
 to the death of Judge Story : 
 
 To MB. TICKNOR. 
 
 NAHANT, Aug. 3, 1845. 
 
 DEAR UNCLE, I have no expectation now that I shall be able 
 to come to Geneseo this summer. I had hoped that Mrs. Curtis s 2 
 condition would be somewhat improved by the air of Nahant. and 
 though I expected no permanent effects from it, I thought she 
 would probably go through the summer pretty well. It has not 
 proved so. She has been saved from much discomfort by being 
 here, away from the noise and heat of the town ; but her condition 
 has been such as to excite constant apprehension in the minds of 
 those near her, and to leave no doubt that the disease has made 
 
 internal affairs, subject, in some respects, to the confirmation of another 
 body, known as " The Board of Overseers." In law, the Corporation, 
 officially styled " The President and Fellows of Harvard College," repre 
 sents the University. The President of the University is ex offido a member 
 of it, and there are five " Fellows " and a Treasurer. This Corporation fills 
 its own vacancies. 
 
 1 The Hon. William Kent, only son of the great Chancellor, admirably 
 qualified by his learning, his genial manners, and his numerous accomplish 
 ments for such a place, became Dane Professor of Law in Harvard Uni 
 versity in the autumn of 1846. He held the position, however, for a single 
 year only. He resigned the professorship in 18-47, to the great regret of the 
 authorities and friends of the University. It was stated by his intimate 
 friend, Benjamin D. Silliman, Esq., at a meeting of the New York bar, 
 held after his death, that he resigned " that he might be with his venerable 
 father, whose twilight was then fast fading into night." Judge Kent was 
 born in Albany, on the 2d of October, 1802, and died at Fishkill, on the 4th 
 of January, 1861. He was a very distinguished and much beloved member 
 of the bar of the city of New York, for nearly thirty-seven years. 
 
 2 Mrs. Anna Wroe Curtis, wife of Mr. Charles Pelham Curtis. 
 
108 >MEMOIB OF BENJAMIN BOBBINS CURTIS. [1845. 
 
 progress since she came here. Of course Mr. Curtis has been un 
 able to take his usual part in the business of our office, and I am 
 obliged to do more than usual. Add to this that my presence here 
 is some support and consolation to those who very much need them, 
 and you will see why I cannot leave my post. 
 
 Meantime, I am very well, and quite able to do what is required 
 of me, and, though it would be a very great pleasure to come to 
 Geneseo and see you all, I cannot say it is necessary. Mother 
 and my children are very well. The children have grown strong 
 and hardy here, and the youngest especially has improved very 
 much. Anna is well also ; but she is new to the care of her 
 father s house, and her mother s condition weighs heavily on her 
 heart. She goes along with her duties with that steadiness and 
 never failing sweetness of temper and clear judgment which, when 
 you know her, you will find her remarkable for. 1 
 
 A word about a matter of charity. A client of mine, who has a 
 very large estate, wishes to make such a disposition of it that, in 
 some contingencies, a part, and perhaps the whole of it, will go to 
 the establishing of a farm school in Massachusetts. His general 
 object is to afford to boys a good education to fit them to be scien 
 tific farmers. He has no such knowledge himself of what is 
 necessary or expedient to be said by him as founder, as would ena 
 ble him to prepare the proper directions ; and I have not the requi 
 site knowledge, nor can I give time to acquire it. If it would not 
 be too much trouble, it would be useful, I have no doubt, if you 
 would give me some of your ideas respecting such an institution. 
 Perhaps you would prefer to do it orally, and, if so, I can wait 
 till I see you ; for the will is executed, and the trusts are so 
 shaped that directions can be prepared at leisure. Give my love 
 to Aunt and the cousins. I hear of you through those who go 
 where you are, and this, though not hearing from you, is some 
 thing. 
 
 Always your affectionate nephew, 
 
 B. R. CURTIS 
 
 1 On the 5th of January, 1840, my brother was married to Miss Anna 
 Wroe Curtis, eldest daughter of Mr. Charles P. and Mrs. Anna Wroe 
 (Scollay) Curtis. 
 
1910.] LETTERS TO MR. TICKNOR. 
 
 To MR. TICKNOR. 
 
 BOSTON, Sept. 11, 1845. 
 
 DEAR UNCLE, It must surprise and grieve you, as it has our 
 whole community, to learn that Judge Story died last night, at a 
 quarter before nine o clock. He was doing well until Tuesday 
 night, and his physicians considered the danger past, or nearly so. 
 About seven o clock on Tuesday he began to grow weaker, and 
 continued to sink through the night, and yesterday morning his 
 case was hopeless. He lived, however, till about nine in the even 
 ing. He was without pain, and the cause of his death is as yet 
 undiscovered. Mother says that Mary bears this affliction well, 
 and I hear the same from Mrs. Story. 
 
 Please give my love to Aunt. I hope she is quite recovered 
 from the illness which I was sorry to hear of a week ago. 
 
 We have returned from Nahant, and are once more settled at 
 home. Mr. Curtis and his family have also come back. Mrs. 
 Curtis bore the ride better than was feared ; but she is now very 
 ill. She does not suffer much at present, and from the first has 
 borne all with great patience. How much longer she may be 
 required to wait is wholly uncertain, though it seems to me it can 
 not be long. 
 
 I find I have omitted to mention, what perhaps you would be 
 glad to know, that the bar have already made arrangements for 
 proper tributes of respect to Judge Story s memory, and, among 
 other things, Mr. Webster will deliver a discourse on his judicial 
 character and the value of his labors, &c. 
 
 Your affectionate nephew, B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 Jan. 9, 1846. 
 
 DEAR UNCLE, I have been invited to be a member of the 
 Corporation of the College in place of Judge Story. I am not 
 willing to act on a matter of so much importance without talking 
 with you. I hope you will not get tired with my applications to 
 you in reference to my affairs, and 1 do not believe you will. If 
 you come down in town this morning, will you stop at my office 
 for a few minutes. If it is not quite convenient to do so, I will 
 see you in the evening. 
 
 Yours always, B. R. CURTIS. 
 
110 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1846. 
 
 To MR. TICKNOR. 
 
 BOSTON, May 5, 1846. 
 
 MY DEAR UNCLE, I was very glad to get your letter this 
 morning, and I assure you I have had better reasons for my seem 
 ing neglect to write to you than mere inattention. The truth is, 
 I should have written more than once if I had been able to get 
 news of you in no other way ; but having learned from time to 
 time that all was going on well with you, I forgot that you might 
 wish to hear something of us, and not having a large amount of 
 leisure it had not occurred to me to write. Anna has been ill with 
 something like scarlet-fever, taken from one of the servants who 
 had it in the house ; but she was not very ill, and is now fast 
 recovering. No one else has taken it, and I think we are now 
 safe. Mother is with us for a few days, and is pretty well. 
 George and Mary went to the Connecticut River for a few days 
 last week, and have returned with improved health, though I think 
 they both need to go away from Boston for a few weeks. We 
 shall get into our new house in June. I was at Lynn yester 
 day, and it is going on well. It is the third time I have seen it ; 
 so it has not lost the charm of novelty yet. I am glad you got the 
 right accounts of the inauguration. 1 It was a very successful day. 
 Every thing went right. I was greatly pleased with Mr. Everett s 
 discourse, chiefly because it was practical, and showed interest and 
 feeling to a degree which I had not expected. I think he has 
 pledged both himself and the Faculty to good things ; but I may 
 say to you that I am surprised and pained to learn, even imper 
 fectly as yet, how lax Mr. Quincy s administration has been of late 
 years, and how lazy many of the faculty have become. What do 
 you think of a New England college where most of the teachers 
 do not go to church at all, and next to none go in the afternoon ? 
 I am satisfied nothing will answer but a system of direct and regu 
 lar accountability, upon a comprehensive and systematic plan, to 
 the Corporation. How far I may be able to do any thing to pro 
 cure this to be done I know not, but I shall try. At present it is 
 substantially unknown. I am grieved at what you say about Kent. 
 I had hopes of getting him, and, being disappointed there, I know 
 not where we can look. Doubts sometimes cross my mind whether 
 
 1 Inauguration of Mr. Everett as President of Harvard. 
 
1846.J LETTERS TO MB. TICKNOR. Ill 
 
 I ought not to say to the Corporation that I will take the place if 
 they cannot do better ; but it would be a great sacrifice of money 
 and inclinations, and I have not yet got very far into doubts 
 about it. 
 
 Please give my love to Aunt and the cousins. Anna, that is my 
 Anna, joins me in it. I have thought we might come to New 
 York soon, but it has blown over for the present. It is very grati 
 fying to us to know that all the eyes are looking and feeling better, 
 that is, when the doctor s medicine does not make them smart. 1 The 
 town has been all alive about the steamer s being ashore on Cape 
 Cod. She is now safe at the wharf here, thanks to the prompt and 
 spirited exertions of the Boston folks. The people from Cape 
 Cod who know the place where she was stranded, all thought 
 she would be buried there, and it was a most rare and fortunate 
 escape. 
 
 Yours faithfully, B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 BOSTON, June 6, 1846. 
 
 DEAR UNCLE, George goes to New York next week, and 
 being sure only of this-present-Saturday-night-leisure (to use a 
 compound ivord), I beg leave to say that we are all quite well, 
 and very glad to hear favorable accounts of your patients. We 
 have had two days of quite warm weather, but nothing to com 
 plain of, and this day has been very fine indeed. 
 
 I am sure you will be glad to learn that we have strong assur 
 ances both from Judge William Kent and his father that the 
 former will accept the vacant Law Professorship. He has not 
 actually accepted it, because he waits his father s consent, to be 
 sought after his return and conference with the Chancellor ; but 
 the latter has, in a letter to the Chief Justice [Shaw], substantially 
 given his approval. 2 I should prefer, however, for obvious reasons, 
 that this should not be known in New York till the party chooses 
 to make it known. It is in contemplation to establish a third pro 
 fessorship of law, but as yet it is an undigested scheme. I was 
 greatly grieved to hear some account, though very imperfect, of 
 
 1 Mr. Ticknor had taken his daughter and some other ladies to New 
 York, to be under the care of Dr. Elliot, an eminent oculist. 
 
 2 Judge William Kent was at this time in Europe. 
 
112 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1850. 
 
 Wadsworth. 1 Please to tell George what you know about his case, 
 as I wish much to learn how it is with him. 
 
 We shall probably go to Lynn about the first of July. The 
 damp weather has retarded the workmen, but the house will be 
 ready, I think, on that day ; and for a working lawyer, who wants 
 to be within half an hour s ride of his office, I think it will be an 
 agreeable and quiet place. 
 
 There is no news in Boston but what you have had or will 
 have before this reaches you ; and indeed if there were, I doubt if 
 I should know it, for I am a very poor collector of " intelligence." 
 But however old the story is, I hope you will allow me to assure 
 yourself, Aunt, and the cousins of the affectionate regards of 
 
 Your nephew, 
 
 B. R. CURTIS. 
 
 The four succeeding years, from 1846 to 1850, were passed 
 by my brother in unremitted devotion to professional pur 
 suits, scarcely broken by any vacation, but somewhat re 
 lieved by his residence during the summers at Lynn, from 
 which, however, he came almost daily to his business in 
 Boston. Nothing occurred during this period to draw him 
 into any participation in public affairs ; but troubled and 
 trying times were approaching, in which he again had occa 
 sion to act upon the rule which I have elsewhere described. 
 How largely the tranquillity of American life was disturbed 
 by the cause to Avhich I am now to refer, can scarcely be un 
 derstood by those who have no personal recollections of the 
 conflicts and events of the decade preceding our civil war. 
 
 The years 1850 and 1851 were years of great political 
 excitement throughout the country, occasioned by the adop 
 tion of a series of measures by the Congress of the United 
 States known as the " Compromise Measures of 1850," 
 which were designed as a final settlement of all questions 
 relating to slavery on which Congress could in any way act. 
 In Massachusetts this excitement was vastly intensified by 
 the course of Mr. Webster in the Senate in regard to these 
 
 1 William W. Wadsworth, of Geneseo, brother of the late General 
 Wadsworth. 
 
1850. POLITICAL EXCITEMENT. 113 
 
 measures, and by the differences and controversies between 
 those who approved and those who disapproved of his 
 support of them. 
 
 He had made a speech in the Senate, on the 7th of 
 March, lc Q 50, in reference to which there was a more angry 
 conflict among his constituents than had been known in re 
 spect to the conduct of any other statesman in their annals. 
 Men were divided from one another by a line, according to 
 their approbation or disapprobation of that single speech ; 
 one side consisting of the great body of Mr. Webster s per 
 sonal friends, and the conservative members of the two old 
 political parties, the Whigs and the Democrats, and the 
 other side being composed of a new and third party, made 
 up of individuals who had seceded from the political 
 organization of the Whigs, upon the professed ground that 
 the latter were not sound on questions relating to slavery. 
 This new political body called themselves the " Free-Soil 
 Party ; " partly by way of describing their superior opposi 
 tion to the further territorial extension of slavery, in respect 
 of which they accused all other parties of lukewarmness or 
 want of principle, and partly to characterize their deter 
 mination not to allow a certain provision of the Constitution 
 of the United States for the extradition of fugitives from 
 service to be executed on the soil of a non-slaveholdinef State. 
 
 O 
 
 The leading men of this organization were particularly 
 hostile to Mr. Webster. His avowed support and approval 
 of a proposed new law of Congress, one of the Compromise 
 Measures of 1850, designed for the more effectual execu 
 tion of that provision of the Constitution, gave them the 
 means of doing him much political injury. Mr. Webster s 
 friends claimed that he was acting for the welfare of the 
 whole country, taking upon himself the risk of losing sup 
 port at home in order to preserve the peace and harmony 
 of the Union ; and that, in the matter of the extradition of 
 fugitive slaves, he was acting from the highest sense of 
 constitutional obligation. His enemies, on the contrary, 
 
114 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1850. 
 
 contended that he was seeking the political support of the 
 South, in the hope of being made President, at the expense 
 of the interests of the North, of his own principles and his 
 own consistency. 
 
 Mr. Webster was expected to return to his home in 
 Marshfield for a short visit, in the latter part of April, 
 1850. He was still in the Senate of the United States. 
 The Compromise Measures had not then been enacted. 
 Men s minds were filled with the excitement caused by the 
 speech which he had made on the 7th of March. To en 
 courage him in the efforts which he was making for the 
 pacification of the country, and to mark their sense of his 
 patriotic exertions, a great body of his fellow-citizens deter 
 mined to receive him with a public demonstration, by 
 assembling in the square in front of the hotel at which he 
 was to arrive. Mr. Curtis was urged to make the address 
 of welcome to Mr. Webster, in the name of the assembled 
 multitude. Participation in such ceremonies was not much 
 to his taste. He never had been a partisan ; and although 
 he had generally voted with the organization known as the 
 Whig party, because their political principles had usually 
 been the same as his own, he was never willing to be put 
 forward on public occasions as the spokesman or representa 
 tive of any party. But he did not regard this as such an 
 occasion. It was evident that the multitude which would 
 be assembled for the purpose of welcoming Mr. Webster 
 and expressing their gratitude for his past and recent public 
 services, would be composed of citizens of all parties ex 
 cepting that one which denounced and reproached him. 
 Mr. Curtis felt, therefore, that he could and ought to accede 
 to the request that had been made of him, that it was 
 his duty to express publicly to Mr. Webster, for his fellow- 
 citizens and himself, the deep sense which he believed that 
 they, and which he knew that he himself, entertained of 
 Mr. Webster s unequalled exertions and sacrifices for the 
 good of the whole Union. He believed that the best inter- 
 
1850.] PUBLIC ADDRESS TO MR. WEBSTER. 115 
 
 ests of Massachusetts required her people to understand Mr. 
 Webster s motives and to approve his acts. For no purpose 
 and no reason less than this would he have consented to be 
 the organ of any body of men whatever in an address to any 
 public man in the country. 1 
 
 Mr. Webster arrived in Boston on the afternoon of April 
 29th, and was driven in an open carriage to his hotel. 2 The 
 square in front was densely packed with people. From 
 a temporary rostrum, erected for the occasion, Mr. Cur 
 tis welcomed him in the following sincere and heart-felt 
 address : 
 
 MR. WEBSTER, These your fellow-citizens have come here to 
 bid you welcome home. 
 
 They desire to express to you, by their presence, their apprecia 
 tion of your great past services in the public councils of the nation. 
 They are riot politicians, sir, any more than myself, nor deeply 
 skilled in political history ; but they know your political history, 
 and they have come here to greet you, on your return to Mas 
 sachusetts, after the arduous labors of the winter, because they 
 know it. 
 
 They are aware that, for the third of a century, during more 
 than the lifetime of a generation of men, you have been serving 
 their country with unsurpassed ability and patriotism. These, sir, 
 are Northern laborers ; for where is there a Northern man, of an 
 age to labor, who is respectable and respected, who is not a laborer 
 in some good work? And they are not ignorant how long and 
 zealously you have upheld the rights and interests of the labor of the 
 country. They are deeply concerned in the maintenance of a safe 
 currency, and they recognize the just and sound principles which you 
 have always held and enforced on this subject. Living almost at one 
 of the extremities of the country, and dependent for our prosperity 
 on the free development of all its commercial resources, we are not 
 unmindful that the internal improvements of the whole United 
 States have found in you a steady and powerful friend. We know 
 also, that when a protracted and difficult controversy with a great 
 foreign nation involved the honor and threatened the peace of our 
 
 1 He told me so at the time, almost in the words that I have here 
 used. 
 
 2 The Revere House, situated on Bowdoin Square. 
 
116 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1850 
 
 country, by your efforts, mainly, its peace was preserved, and its 
 honor maintained with increased brightness. 
 
 Allow me to say also, sir, that we never for one moment for 
 get that we are citizens of the American Union, that its peace and 
 prosperity and glory are our peace and prosperity and glory, 
 and that only under the Constitution, and in the Union, can these 
 exist for us or our children ; and therefore, with our whole hearts, 
 we say here and everywhere, that the friends of the Constitution 
 are our friends, and its enemies, whether open or secret, wilful or 
 blind, are our enemies also, that there is one party in which all 
 minor differences of opinion and feeling are merged and obliterated, 
 and that is the party of the Union. As members of that great party, 
 sir, we desire to express to you our abiding gratitude for the ability 
 and fidelity which you have brought to the defence of the Constitu 
 tion and Union of these United States. 
 
 Recent events have awakened our most painful attention to this 
 great subject. You are well aware, sir, that it involves some im 
 portant conflicting interests, and still more conflicting opinions and 
 feelings. Any attempt to reconcile them must, for a time at least, 
 be a cause of offence to many honest men. But even they, sir, can 
 scarcely withhold their respect from manliness which dares to speak 
 disagreeable things, and from the patriotism which seeks, in the 
 spirit of conciliation, a remedy for an inflamed and disordered state 
 of the public mind. And when they shall have waited long enough 
 to allow their judgments somewhat to cool, and their views to em 
 brace the end as well as the beginning, they may be expected to 
 feel as we now do, that we are not about to begin to distrust one 
 who, before many of us were born, was eminently vigilant, wise, and 
 faithful to our country, and who, without a shadow of turning, has 
 ever continued so. 
 
 You have for many years stood before this community as the 
 expounder and defender of the Constitution, and we have no doubt 
 that you will continue so to stand. In this cold Northern soil, con 
 fidence is indeed a plant of slow growth ; but believe me, sir, when 
 it is grown, it is not to be uprooted by any gusts of passion or 
 prejudice, nor blasted by the breath of suspicion. 
 
 Permit me once more to say, that we welcome you to your 
 home. 
 
 Upon the close of this address, Mr. Webster, standing in 
 the carriage, his imposing form in the full light of the de- 
 
1850.] MR. WEBSTER S REPLY. 117 
 
 scending sun, and in the sight and hearing of a vast assem 
 bly of his constituents, made the following reply : l 
 
 MR. WEBSTER S REPLY. 
 
 It gives me great pleasure to meet so large an assemblage of my 
 friends when my private affairs have called me from the seat of 
 government to my own home. As you have said, sir, the duties of 
 the winter in the public councils of the country have been arduous. 
 I am sorry to say that those arduous duties are not done with. 
 I am sorry to say that the public affairs of the country have not yet 
 made so much progress towards satisfactory adjustment as to remove 
 all the anxiety which has been felt about the adjustment of the 
 subjects under discussion. But I feel authorized to say that there 
 is now reason to hope, reason to expect, that further reflection 
 that a generous comparison of various wishes where we disagree 
 will bring about that improved state of public feeling on the 
 reproduction of which all our expectations of useful discharge 
 of public duty, all our expectations of useful legislation, must 
 depend. 
 
 I cannot but feel, sir, that I stand in the presence of my friends. 
 I must regard this gathering as the personal tribute of your wel 
 come to me. You do not welcome the politician, and this is not 
 an opportunity for discussing those questions which now agitate the 
 community and the government, questions which can leave little 
 repose in the mind of any intelligent man till he can see some 
 probability that from their discussion an adjustment may come in 
 favor of the prosperity, peace, happiness, and continued union of 
 the country. 
 
 Gentlemen, I have felt it my duty, on a late occasion, to make 
 an effort to bring about some amelioration of that excited feeling 
 on this subject which pervades the people of the country every 
 where, North and South ; to make an effort also to restore the 
 government to its proper capacity for discharging the proper busi 
 ness of the country. For now, let me say, it is unable to perform 
 that business. That it may regain that capacity, there is a neces- 
 
 1 As this speech has not been hitherto printed in extenso in a permanent 
 form, and can be found only in the newspapers of the time, I have here in 
 serted it at length. I was in the carriage next to Mr. Webster s, heard 
 every word that he uttered, and can vouch for the substantial accuracy of 
 the report which I have transcribed. 
 
118 MEMOIR OF BENJAMIN ROBBINS CUKTIS. [1850. 
 
 sity for effort both in Congress and out of Congress. Neither you 
 nor I sliall see the legislation of the country proceed in the old 
 harmonious way until the discussions in Congress and out of 
 Congress, upon the subjects to which you have alluded, shall be 
 in some way suppressed. Take that truth home with you, and 
 take it as truth ! Until something can be done to allay the feel 
 ing now separating men and different sections, there can be 
 no useful and satisfactory legislation in the two houses of Con 
 gress. 
 
 Mr. Curtis, and gentlemen, the Commonwealth of Massachu 
 setts has done me the honor to place me as her representative 
 as one of her representatives in Congress. I have believed that 
 she would approve in nie any honest, conscientious, and sincere 
 effort to allay the dissension which we see among the people of the 
 country, and to restore Congress to its constitutional capacity for 
 action. I have believed that the Commonwealth of Massachusetts 
 would support her representatives in that course. I have believed 
 that the general sentiment of the whole country would favor and 
 encourage their efforts to this end ; and I have the satisfaction now 
 to believe that in that hope I shall not be disappointed. However 
 that may be, that effort I shall repeat. In that course of pacifi 
 cation I shall persevere, regardless of all personal consequences. 
 I shall minister to no local prejudices. I shall support no agi 
 tations having their foundations in unreal, ghostly abstractions. 
 I shall say nothing which may foster the unkind passions separat 
 ing the North from the South. May my tongue cleave to the roof 
 of my mouth before it may utter any sentiment which shall increase 
 the agitation in the public mind on such a subject. 
 
 Sir, I have said that this is not an occasion for political discus 
 sion. I confess that, if the time and circumstances gave an op 
 portunity, I should not be indisposed to address the people of 
 Massachusetts directly upon the duty which the present exigencies 
 of affairs have devolved upon her, upon this great and glorious 
 Commonwealth, upon the duty, at least, which it devolves upon us 
 who represent her in the national legislature. I shall have occa 
 sion, in my seat in the Senate, to which I shall immediately return, 
 to give my opinions upon some topics of an interesting charac 
 ter, topics in regard to some of which there exist both mis- 
 statements and misapprehension, the greatest misstatement, the 
 greatest misapprehension, especially so far as I am concerned. I 
 
1850] MR. WEBSTER S REPLY. 119 
 
 may simply mention one of these. It is the question respecting the 
 delivery of fugitives from service. With regard to that question 
 there exist the greatest prejudices, the greatest misapprehen 
 sions. I do not wonder at these misapprehensions. I am well 
 aware that this is a topic which must excite prejudices. I can very 
 well feel what the prejudices are which must naturally start up in 
 the minds of the good people of this Commonwealth. But, Mr. 
 Curtis, and gentlemen, there are in regard to that topic duties ab 
 solutely incumbent on the Commonwealth, duties imposed by the 
 Constitution, absolutely incumbent on every person who holds 
 office in Massachusetts under her own constitution and laws, or 
 under those of the nation. She is bound, and those persons are 
 bound, to the discharge of a duty, of a disagreeable duty. We call 
 upon her to discharge that duty as an affair of high morals and high 
 political principles. We ask her to resolve upon the performance of 
 duty, though it be a disagreeable duty. Any man can perform an 
 agreeable duty, it is not every man who can perform a dis 
 agreeable duty. Any man can do what is altogether pleasant. 
 The question is whether Massachusetts, whether the old State of 
 Massachusetts, improved by two centuries of civilization, renowned 
 for her intellectual character, mighty in her moral power, conspicuous 
 before the world, a leading State in this country ever since it was 
 a country, a leading State in the Union ever since it was a Union, 
 the question is, whether Massachusetts will shrink from, or 
 will come up to, a fair and reasonable and moderate performance 
 (and no more than a fair and reasonable and moderate perform 
 ance) of her sworn obligations. 
 
 I think she will. 
 
 Sir, the question is, whether Massachusetts will stand to the 
 truth, against temptation, whether she will be just, against 
 temptation, whether she will defend herself against her own 
 prejudices. She has conquered every thing else in her time ; she 
 has conquered this ocean which washes her shore ; she has con 
 quered her own sterile soil ; she has conquered her stern and in 
 flexible climate ; she has fought her way to the universal respect 
 of the world ; she has conquered everybody s prejudices but her 
 own. The question now is, whether she will conquer her own 
 prejudices. I shall return to the Senate to put that question to 
 her, in the presence of our common mother, who will address it to 
 her heart. 
 
120 MEMOIR OF BENJAMIN ROBBINS CURTIS. [1850. 
 
 In the mean time, let me repeat that I tread no step backwards. 
 I am devoted to the restoration of peace, harmony, and concord 
 out of Congress, and such a degree of mutual co-operation in Con 
 gress as may enable it to carry on once more the legitimate business 
 of the government. 
 
 The Union for the preservation of which I strive, the union of 
 States for which I strive, is not merely a union of law, of consti 
 tution, of compact ; but while it is that, it is a union of brotherly 
 regard, of fraternal feeling throughout the whole country. I do 
 not wish that any portion of the people of this country shall feel 
 held together only by the bonds of a legal corporation, bonds which 
 some of them may think restrain their limbs, cramp their affec 
 tions, gall and wound them. I wish, on the contrary, that they 
 shall be bound together by those unseen, soft, easy-sitting chains 
 that result from generous affections, and from a sense of common 
 interest and common pride. In short, fellow-citizens, my desire is, 
 and my labor is, to see that state of things produced in which 
 filling all bosoms with gratitude, all hearts with joy, illuminating 
 all faces, spreading through all ranks of people, whether rich or 
 poor, whether North, South, East, or West there shall exist the 
 balm of all our sufferings, the great solace of all our political 
 calamities, the great security of every thing prosperous, and great, 
 and glorious in the future ; and that is, THE UNITED LOVE OF A 
 
 UNITED GOVERNMENT. 
 
 The Compromise Measures finally became laws in the 
 month of September, 1850. Throughout that summer, the 
 agitation of the subject of the surrender of fugitive slaves 
 had continued to increase in Massachusetts, the head-quar 
 ters of most of the excitement being in Boston. The ques 
 tion whether Mr. Webster was to be sustained by the 
 public sentiment of the State, became of comparatively less 
 importance than the question whether the State was to 
 array itself in open opposition to a provision of the Con 
 stitution. What might be the political fate or fortunes of 
 an individual statesman, however interesting or important, 
 was of less consequence than the issue whether the people 
 of Massachusetts were to refuse to be bound by a part of 
 the Constitution of the United States, which was at once a 
 
1850.] FUGITIVE SLAVE EXCITEMENT. 121 
 
 compact between the States and a command of the supreme 
 law of the land. The details of the law of Congress, 
 which had been recently enacted for the more effectual exe 
 cution of the Constitution, became comparatively insignifi 
 cant in the presence of the transcendent question whether 
 the Constitution was to be obeyed. The Constitution itself 
 was assailed: its moral foundations were assaulted. The 
 doctrine was broached that the compact, made in 1788, by 
 which it was solemnly stipulated between the States that 
 fugitives from service should be surrendered, was immoral 
 and unfit to be observed. Sermons were preached, incul 
 cating principles of action utterly inconsistent with the 
 duty of civil obedience. The rash and inconsiderate were 
 excited to a state bordering upon frenzy ; and many good 
 men were perplexed by doubts about the obligations im 
 posed by a fundamental law, which recognized the idea of 
 property in human beings. 
 
 In this state of things, in a community possessing many 
 classes peculiarly prone to mistake the moral foundations 
 of a civil obligation distasteful to their feelings, it was 
 clearly necessary that some one should treat the subject 
 from a point of view different from that ordinarily taken 
 by political men. The politician could argue, and could 
 argue truly and sincerely, that the Constitution required 
 the performance of a certain duty ; and that to remain 
 under it and to claim the benefit of its powers, and to 
 refuse to perform a part of its obligations, was both 
 inconsistent with the honor of a rational people, and in 
 the highest degree impolitic. He was answered with 
 the passionate outcry that the Constitution was in this 
 respect a u bond of iniquity," unfit to bind a moral and 
 religious people, a " covenant with hell" which ought to 
 be broken. 
 
 How Mr. Curtis viewed this matter, and how carefully 
 he had considered it, will appear from a letter which he 
 had occasion to write to a friend who had endeavored to 
 
122 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1850. 
 
 reach the minds of a certain class of persons who occupied 
 a sort of middle ground on this subject. 
 
 SUNDAY MORNING. l 
 
 DEAR . . . , I was sorry that a peremptory engagement pre 
 vented me from reading your article in manuscript ; but when I 
 saw it in the " Advertiser," I found there was not the smallest rea 
 son that I should do so. It is as accurate in its legal as its moral 
 principles. It cannot but do much good. I wish its ideas could 
 be repeated and enforced everywhere in New England. There 
 are many political principles with which our people are well ac 
 quainted, and there is an intuitive disposition to obey the laws very 
 prevalent among them ; but that the Constitution of the United 
 States is a law, binding by each clause the conduct of every 
 man in the country in the particular to which such clause relates, 
 equally obligatory whether obeyed or disobeyed, that organized 
 disobodience is rebellion, and, if force is used, insurrection or revo 
 lution according to the event, are things which a great many of 
 the teachers of political morals, of the present day, do not seem to 
 have taken into their minds at all. 
 
 I blame no one for arriving at the opinion, either by reasoning 
 or impulse, that fugitive slaves ought not to be restored to their 
 masters. But having arrived at this opinion, there remains another 
 step ; and I wish these Unitarian clergymen would sit down calmly 
 and measure, or attempt to measure, its length, and look as steadily 
 as they can, for one moment at least, into the place where that step 
 must carry us. 
 
 I want to see somebody come manfully up to the point, and 
 attempt to show that the moral duty which we owe to the fugitive 
 slave, when in conflict with the moral duty we owe to our country 
 and its laws, is so plainly superior thereto, that we may and ought 
 to engage in a revolution on account of it. I should be glad to 
 see this attempted, because it presents the true issue, and I am sure 
 the attempt must fail. Wendell Phillips and his followers have 
 taken the only sound ground ; and their success in maintaining it 
 does not seem to be very encouraging to others to join them there ; 
 nor do these gentlemen intend to do so. They are entirely un 
 aware of their own true position, or rather they were so; if they 
 have read your article, they can hardly be so any longer. 
 
 1 The letter is without other date, but the context places it in the period 
 soon after the enactment of the Fugitive Slave Law in 1850. 
 
1850.] SPEECH IN FANEUIL HALL. 123 
 
 I return the books you lent me the other day, and also two vol 
 umes of pamphlets about the College, which 1 have kept a good 
 while, as I have wanted to refer to them, and supposed you did 
 not. 
 
 Yours faithfully, B. R. CURTIS. 
 
 Not long after this letter was written, a public meeting 
 was held in Faneuil Hall, according to the custom of that 
 people when grave questions were to be acted upon, to 
 consider and discountenance the spirit of disobedience to 
 the laws of the land, which seemed to be so rife and so 
 fraught with dangerous consequences. It was an imposing 
 assemblage, in point of the character of those who took 
 part in its proceedings, and in the respectability and intel 
 ligence of the thousands who "thronged the venerable build 
 ing. There was at all times something peculiar in the 
 characteristics of a Faneuil Hall audience, when it had 
 been assembled on the call of citizens commanding the 
 public confidence, to act upon matters that rose in dignity 
 above party discussions. Nowhere could a great popular 
 assembly be found that more quickly appreciated, or more 
 instantly understood, or more closely followed, an argument 
 addressed to the reason and conscience of intelligent men. 
 
 Perhaps there has been nothing in modern times more 
 like the discussions in Athens before the whole body of the 
 citizens, than has sometimes been witnessed in Faneuil 
 Hall, when there was no object to be promoted less than 
 the good and the duty of the whole. 1 It was on such an 
 occasion, and to such an audience, that Mr. Curtis made the 
 following address : 2 
 
 It is a source of great satisfaction to me that I can stand here 
 and say, not fellow Whigs or Democrats, but fellow-citizens ; 
 
 1 The same remark lias been made by Mr. Tieknor in reference to 
 the town meetings in Boston, which he witnessed during the war of 1812. 
 I can bear witness to meetings of the same character at a much later period. 
 
 2 Proceedings of the Constitutional Meeting at Faneuil Hall, Nov. 26, 
 1850. 
 
124 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [I860. 
 
 that here I can meet on common ground, in an important 
 emergency, those who have a common interest with me in the 
 country. For I understand we have come here, not to consider 
 particular measures of government, but to assert that we have a 
 government ; not to determine whether this or that law be wise or 
 just, but to declare that there is law, and its duties and power ; 
 not to consult whether this or that course of policy is beneficial to 
 our country, but to say that we yet have a country, and intend to 
 keep it safe. These are the objects for which I understand we 
 have, as American citizens, here met ; and, for my own part, I can 
 not think we have come together too soon. 
 
 There is a very excited state of the public mind all over the 
 country. It grows out of a subject of the last importance, so 
 connected with the interests and sentiments and passions of our 
 countrymen as to make it difficult for the wisest and coolest on 
 either side to restrain themselves within the limits of prudence and 
 moderation. Many good men among us, with very tender con 
 sciences but not very sound practical judgments, apparently not 
 at all aware of the direction in which they are moving, or of the 
 results to which they are tending, believing themselves to be as 
 harmless as doves, and feeling, no doubt, quite sure they are as 
 wise as serpents, have plunged into this contest. Others , who 
 love excitement or notoriety, or influence and power, or who are 
 smarting under disappointment, have found here a new field of 
 promise. Others still, whose daily food is contention, and whose 
 daily drink is the waters of strife, have rushed hither as into a 
 quarrel, and brought with them temper and feelings which have 
 been justly characterized as " malignant philanthropy." While 
 influencing more or less all these, and thousands of others who 
 have suffered themselves to be led into this excitement, and lend 
 ing a certain dignity and power even to the bad passions which are 
 enlisted, is that deep and ineradicable love of human liberty which 
 beats in every throb of every heart of the true sons of New 
 England. 
 
 And when we add to all this, that the people of other parts of 
 our country, having opposite interests and passions, who, I be 
 lieve, have never been remarkable for letting that excellent virtue 
 called moderation be known unto all men, have, upon this subject, 
 used language and manifested feelings and done acts which I am 
 sure wise and good men everywhere must deeply regret, and that 
 
1850.] SPEECH IN FANEUIL HALL. 125 
 
 these things have produced their natural consequences here, we 
 may not be greatly surprised, however deeply we may be con 
 cerned, at the existing state of things. 
 
 In my humble judgment, it is a state of things calling for the 
 sober and careful consideration of good citizens of all parties in the 
 State, and for the public expression of a well-considered, temper 
 ate, but fixed opinion thereon. 
 
 In times of public danger it was the usage of our fathers to come 
 together in this hall to embody and express the public sentiment 
 of this people concerning their important affairs. Is not this an 
 occasion on which we may well imitate their example? 
 
 There has been heard within these walls, addressed to a public 
 meeting, and received with approbation by that meeting, the 
 declaration that an article of the Constitution of the United States 
 shall not be executed, law or no law. A gentleman offered a re 
 solve, which passed at a public meeting here, that, " Constitution or 
 no Constitution, law or no law, we will not allow a fugitive slave 
 to be taken from Massachusetts." Here and elsewhere have been 
 publicly uttered exhortations to violent resistance to law, and 
 assurances of aid and succor in maintaining such resistance. The 
 chairman of a public meeting declared here that " the law will 
 be resisted, and if the fugitive resists, and if he slay the slave- 
 hunter, or even the Marshal, and if he therefore be brought before 
 a jury of Massachusetts men, that jury will not convict him." 
 Here and elsewhere has been promulgated the idea, that it is fit 
 and proper for strangers coming from abroad on to our soil to put 
 themselves upon their natural rights, viewed according to their 
 own human light, and by that light arm and resist unto blood the 
 execution of the law of the Commonwealth. I speak not of any 
 law of Congress, but of the Constitution, the supreme law of the 
 land. The chairman of a public meeting here has ventured to 
 assure such persons that judges and jurors will violate their oaths 
 to protect them from punishment ; and as if there should be nothing 
 wanting to exhibit the madness which has possessed men s minds, 
 murder and perjury have been erected into virtues, and in this city 
 preached from the sacred desk. I must not be suspected of ex 
 aggerating in the least degree. I read, therefore, the following 
 passage from a sermon preached and published in this city : 
 
 Let me suppose a case which may happen here, and before long. A woman 
 flies from South Carolina to Massachusetts to escape from bondage. Mr. 
 
126 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1850. 
 
 Greathoart aids her in her escape, harbors and conceals her, and is brought 
 to trial for it. The punishment is a fine of one thousand dollars and impris 
 onment for six months. I am drawn to serve as a juror and pass upon this 
 offence. I may refuse to serve and be punished for that, leaving men with 
 no scruples to take my place, or I may take the juror s oath to give a ver 
 dict according to the law and the testimony. The law is plain, let us sup 
 pose, and the testimony conclusive. Greatheart himself confesses that he did 
 the deed alleged, saving one ready to perish. The judge charges that, if the 
 jurors are satisfied of that fact, then they must return that he is guilty. This 
 is a nice matter. Here are two questions. The one put to me in my official 
 capacity as juror is this, " Did Greatheart aid the woman ? " The other, 
 put to me in my natural character as man, is this, " Will you help to 
 punish Greatheart with fine and imprisonment for helping a woman to ob 
 tain her unalienable rights ? " If I have extinguished my manhood by my 
 juror s oath, then I shall do my official business and find Greatheart guilty, 
 and I shall seem to be a true man ; but if I value my manhood, I shall 
 answer after my natural duty to love a man and not hate him, to do him 
 justice, not injustice, to allow him the natural rights he has not alienated, 
 and shall say, " Not guilty." Then men will call me forsworn and a liar, but 
 I think human nature will justify the verdict. . . . 
 
 The man who attacks me to reduce me to slavery, in that moment of 
 attack alienates his right to life, and if I were the fugitive, and could escape 
 in no other way, I would kill him with as little compunction as I would 
 drive a mosquito from my face. 1 
 
 I should like to ask the reverend preacher, when he goes into 
 court, and holds up his hand, and calls on his Maker to attest the 
 sincerity of his vow to render a true verdict according to the law 
 and the evidence, whether he does that as a man, or in some other 
 capacity? And I should also like to ask him, in what capacity he 
 would expect to receive the punishment which would await him here 
 and hereafter, if he were to do what he recommends to others ? 
 
 Is it riot time that they who love their country, and respect the 
 laws, should come together and soberly ponder these things ? 
 
 If a case exists which demands a breach of a fundamental law 
 of the government, and justifies armed resistance by individuals, it 
 is a case for revolution, and it is time we knew and acted on it. 
 
 If there is not such a case, then this language, and the feelings 
 that prompt it, and the conduct which accompanies it, disgrace our 
 community, and endanger its safety and peace, and should receive 
 the rebuke of every good citizen. There is no middle ground 
 between these two alternatives. If there is a case for forcible 
 resistance of law, for refusal to execute one article in the compact 
 which constitutes the government, for vilifying this compact by 
 
 1 A Sermon of Conscience, by Rev. Theodore Parker. 
 
1850-1 SPEECH IN FANEUIL HALL. 127 
 
 names which I should be unwilling to repeat, for stirring up the 
 angry passions of men, and arraying one part of the country against 
 another part, it can be nothing less than a case for revolution, and 
 in a revolution it must end, if its progress be not checked. 
 
 Now I understand that those who act in concert on this subject 
 are divisible into two classes. One class openly avow that this 
 is a case for revolution. They say the Constitution of the United 
 States contains an article which is immoral, and must not, under 
 any circumstances, be obeyed; that as honest men they cannot 
 undertake to abide by this compact, with a mental reservation 
 that they will break an important part of it. And therefore they 
 reject the whole, and hold it to be the duty of this Common 
 wealth to withdraw itself instantly from this whole compact, and 
 thus revolutionize the government. This is the ground of action 
 and the end of one class, the ground of action being, that there 
 is a fundamental error in the Constitution of the government, and 
 the end, that the government must be destroyed. 
 
 Whatever else may be said of this, it cannot be denied that it 
 is open, definite, tangible, capable of being seen and understood 
 in its true proportions. These persons do not profess one thing 
 and mean another. They do not move blindly towards the gulf 
 of civil discord and national destruction. They do not lead their 
 followers towards it with boastful assurances that the ground is 
 safe and clear. They see treason, and they honestly say so, and 
 give their reason for it. 
 
 In my humble judgment, it is time that reason were examined. 
 You may say it needs no examination ; the bare statement of the 
 proposition carries its own refutation with it. So I had sup 
 posed, until recent events changed my opinion. I do not think 
 it important to examine their reason, because I entertain any 
 hope of influencing any of this class of men whom I have men 
 tioned. I believe their passions are too much excited. But 
 there is another larger class who are now acting with them, many 
 of whom, I verily believe, do not see whither they are going. 
 These have not thrown off their allegiance to the Constitution. 
 On the contrary, many of them hold, or have held, public office, 
 and have sworn to support the Constitution. Many more, if we 
 may judge from the recent elections, desire earnestly to take that 
 oath. 1 am bound to think, and do think, they have taken this 
 oath without any mental reservation. They include in it that article 
 
128 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1850. 
 
 which promises that fugitives from service escaping into this State 
 shall be given tip. But ask your Free-Soil neighbors, " Will you 
 give your support to a law which shall fairly and fully execute 
 this article, you are dissatisfied with the present law, but, laying 
 aside all questions about means and details, do you mean that 
 Massachusetts shall keep this promise, or break it ? " and depend 
 upon it, if you get any answer at all, it will be that it is a promise 
 not fit to be kept. 
 
 I do not mean to say that all would so answer. Some have 
 not sufficiently probed their own consciences to know what lies 
 at the bottom, and some who have may be willing to have this 
 article executed. I hope there are many such. But I do believe 
 that, when it comes to the practical question, whether the promise 
 shall be kept, many will be found in the condition in which Sir 
 William Blackstone says he was in respect to a belief in witch 
 craft. For, says he, in substance, inasmuch as both the Scriptures 
 and the laws of England recognize the crime of witchcraft, I 
 cannot take it upon myself to deny that there has been such a 
 thing, though I cannot give credit to any particular modern instance 
 of it. 
 
 So it is with some of these gentlemen. Inasmuch as the Con 
 stitution, which many of them have sworn to support, contains 
 an express promise that fugitives from service shall be given up, 
 they cannot take it upon themselves to deny, in the general, that 
 the promise is to be kept ; but as to its being done in any particu 
 lar way, or by any particular means, or in any modern instance, 
 they cannot consent, and to prevent it they are ready to join 
 their best and utmost exertions to those of the first class whom I 
 have named, though these latter all the time declare that this dis 
 tinction between the abstract and the concrete is too thin for their 
 eyes to see. 
 
 Now the real difficulty with both these classes of persons is the 
 same. The difference between them is, that one sees it arid avows 
 it ; the other does not see it, or is too prudent to avow it. 
 
 Is it not fit, then, that this supposed difficulty should be brought 
 out into the light of day and steadily looked at ? There ought to 
 be no reluctance to do this. If the difficulty be real, it should be 
 acknowledged, and due effect given to it. If it be unreal, it should 
 be dissipated. If the Constitution under which we live is, as is 
 expressed in the calm language so well befitting the discussion of a 
 
1850.] SPEECH IN FANEUIL HALL. 129 
 
 subject deeply involving the welfare of so many millions of people, 
 if it be a u bond of hell " which it is the duty of every just man 
 to break, we ought to know it and act on it. 
 
 I hope you will bear with me, therefore, fellow-citizens, while I 
 attempt to discuss this question. 
 
 I am a Massachusetts man, born on her soil, bred in her 
 schools, partaking, from my infancy to this hour, of the blessings 
 which, under Providence, flow from and are secured by her laws, 
 and I hope I am not unmindful of the honor and the duty of the 
 State. And I feel with you a common interest to inquire, whether, 
 when this Commonwealth entered into this compact, and agreed 
 that it should be the supreme law, it made a covenant of iniquity. 
 
 Let me say, at the outset, that this is not a question to be settled 
 by calling hard names. It is a moral question, to be approached 
 with calmness and solved by the reason and judgment of sober men. 
 And I shall endeavor to state, as well as I can, that course of 
 reasoning which has satisfied my own mind. 
 
 Let me begin by asking you to keep in view that we are consid 
 ering the rights and duties of a civilized state. The question is, 
 whether this Commonwealth acted within the bounds of right, in 
 1788, when it entered into the compact in question. 
 
 At that time Massachusetts was an independent, sovereign state, 
 possessing, of course, all the powers over its own citizens in refer 
 ence to foreign states which constitute and arise from sovereignty. 
 
 Among these powers, two only are important here : the power 
 to make binding compacts with other states, and the power to 
 determine what persons from abroad shall be admitted to, or ex 
 cluded from, the territorial limits of the state, and on what terms 
 and conditions any such persons shall be allowed to come, or be 
 required to depart. Both these powers are unquestionable. For 
 centuries a succession of great minds have been employed upon 
 this subject of public law. Beginning with Grotius, above two 
 hundred years ago, and ending with our countryman Wheaton, who 
 died in this city two years ago, or with Lieber, if you please, who 
 still lives, I believe there cannot be found anywhere a set of more 
 profound, wise, humane Christian moralists than these ; men of 
 great boldness of mind, restrained by no positive rules, seeking the 
 moral truth of the great subjects they have discussed by the best 
 lights of divine and human wisdom. 
 
 Yet not one of them, so far as I know, has ever doubted that the 
 VOL. i. 9 
 
130 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1850 
 
 powers which 1 have mentioned rightfully exist and are necessary 
 for the preservation of every civilized state. 
 
 There is another principle equally clear, and that is, that every 
 state may and should exercise its powers for its own preservation, 
 and the advancement of the welfare of its own citizens. 
 
 Indeed, outside of this exciting subject, all these principles are 
 not only unquestioned, but they have been acted on by this 
 Commonwealth, over and over again, to the acceptance of every 
 body. 
 
 As early as 1793, this Commonwealth passed a law prohibiting, 
 under a severe penalty, any shipmaster from landing in this State 
 any foreign convict ; and this has ever since been, and is now, the 
 law. What right had the State to pass this law ? The right to 
 protect its public peace, and the persons and property and morals 
 of its citizens ; and to exercise its own discretion as to what per 
 sons from abroad might prove injurious to either. 
 
 In 1830, it was found Ireland was pouring upon our shores a tide 
 of pauperism and disease. The victims of centuries of oppression 
 and wrong came hither to seek relief and succor. Poor-houses and 
 hospitals were emptied of their contents, which, at the public ex 
 pense, were transported hither. Did any man doubt the rightful 
 authority of the Legislature to put a stop to this ; to say that these 
 persons, however ground down by oppression and distress at home, 
 must not be thrown upon our hands? No one, that I ever heard 
 of, doubted it. On the contrary, very stringent laws were passed, 
 which we have been struggling ever since to maintain against the 
 exclusive power of Congress over commerce. What right has the 
 State to pass these laws ? I answer again, the right of self-protec 
 tion ; the right to determine what persons from abroad shall be 
 admitted to its territory ; the right to use its own discretion and 
 consult the safety and welfare of its citizens in admitting or exclud 
 ing them. 
 
 Let me borrow an illustration out of this very subject of slavery. 
 We all know that in every slave-holding State there are thousands 
 of slaves who, from age, disease, or infirmity, are mere burthens. 
 Now, we have heard some angry talk about retaliatory legislation. 
 Suppose Carolina and Georgia should pass laws that, if any such 
 aged, diseased, or infirm slaves desired, with the consent of their 
 masters, to come to Massachusetts, they should be transported 
 hither at the public expense. I wonder if a Free-Soil Legislature 
 
1850.] SPEECH IN FANEUIL HALL. 131 
 
 would consider itself powerless to prevent this State from being 
 overwhelmed by such an irruption ? 
 
 I have been attempting to illustrate what really requires no 
 illustration. The principles are clear. Every sovereign state 
 has, and must have, the right to judge what persons from abroad 
 shall be admitted, and this and all other powers the state is bound 
 to use for the safety and welfare of its own citizens. Taking 
 along with us these principles, I ask you to go back with me to 
 that Convention which assembled in this city on the 9th day of 
 January, 1788, to consider whether this State should adopt the 
 proposed Constitution. We are in the presence of no ordinary 
 assembly. In the chair is John Hancock, the man who, in 1775, 
 threw his name and his fortune into the scale of the Colony, at the 
 beginning of its contest with the Crown, and who, whatever else 
 may be said of him, was always true to the Revolution. There is 
 Theophilus Parsons, who has sounded all the depths of public and 
 private law. There is Samuel Adams, not improperly called the 
 Cato of America, his whole soul filled with the idea of human 
 liberty and popular rights, upon whose ears the sounds of the guns 
 at Lexington fell with sweeter tones than the songs of birds in 
 that morning of spring. There too were Gerry and Varnum, and 
 Gore, Ames, and Bowdoin, and Sedgwick of Stockbridge, the sol 
 dier, the jurist, the ardent patriot, the true philanthropist, who by 
 his professional exertions had just before struck the last blow at 
 negro slavery in Massachusetts, and a crowd of able, just, and wise 
 associates, fresh from the deep and intensely interesting discussions 
 concerning political and civil liberty, which originated and accom 
 panied and followed the war of the Revolution. The question is, 
 whether these men were so ignorant, or so blind to their duty as 
 legislators, as citizens, and as men, as to make, in behalf of this 
 Commonwealth, a compact so grossly immoral, that their children 
 may not fairly execute it, but must now overthrow and destroy the 
 work of their hands. Let us see. 
 
 In the first place, it was known to them, and is certain, that the 
 Union could not be formed, and the Constitution adopted, without 
 this article. 
 
 In the next place, they believed, and we know, that it was im 
 possible to over-estimate the importance of this Union and this 
 Constitution to the people whom they represented. The Con 
 federation had proved powerless for good. The public debt of 
 
132 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1850. 
 
 the country, due chiefly to the officers and soldiers of the Revo 
 lution, of whom this State furnished so large a part, could not be 
 paid. 
 
 The commerce of the country was in the utmost disorder. Each 
 State had its own navigation laws and imposts, and was already 
 using these powerful and exciting instruments in a manner hostile 
 to every other State. An insurrection against the laws in this 
 State, known as Shays s rebellion, which seriously threatened, not, 
 only the existence of our government, but the general peace of the 
 country, and was connected with risings both in New Hampshire 
 and Connecticut, had just been quelled with great difficulty. Great 
 Britain, from whose grasp we had escaped in open contest, was now 
 waiting to see us prostrated by internal struggles, and from the 
 great heart of Washington was extorted the exclamation, " What, 
 gracious God, is man, that there should be such inconsistency and 
 perfidiousness in his conduct ! It is but the other clay we were 
 shedding our blood to obtain the constitutions under which we live, 
 constitutions of our own choice and making, and now we are 
 unsheathing the sword to overturn them. The thing is so un 
 accountable that I hardly know how to realize it, or to persuade 
 myself that I am not under the illusion of a dream." 
 
 This was the state of public affairs under which, in January, 
 1788, this Convention assembled. They foresaw that this great" 
 instrument presented for their adoption would accomplish what it 
 has accomplished, that it would form a more perfect union, 
 that it would establish justice, that it would insure domestic 
 tranquillity, that it would provide for the common defence, 
 that it would promote the general welfare, and secure the bless 
 ings of liberty to the people of this Commonwealth, and their 
 posterity. 
 
 On the one hand were the evils, on the other the benefits, and 
 they were called on to choose between them for the people of this 
 Commonwealth during countless generations. 
 
 Now, let us suppose that some one had been mad enough to 
 rise in that Convention, and say, " I see these evils, they are 
 great now, and threaten to become intolerable. I see these bene 
 fits ; I believe this Constitution will perform for Massachusetts all 
 that it promises. But I deny that Massachusetts, as a sovereign 
 and civilized state, has the rightful power to make this compact. 
 For here is a stipulation in it that persons held to service in states 
 
1850.] SPEECH IN FANEUIL HALL. 133 
 
 now foreign to us, escaping hither, shall be given up to be carried 
 back again." 
 
 I cannot pretend, fellow-citizens, to give any idea of the treat 
 ment which such an objection would have received from the great 
 and powerful minds of that Convention. I believe they would not 
 have left a vestige of it on earth, no, nor the material to make a 
 ghost of, to rise from regions below, and frighten some of their 
 descendants. But it needs no uncommon ability and discernment 
 to see sufficient answers to this objection. 
 
 In the first place, are not these persons foreigners as to us, 
 and what right have they to come here at all, against the will of the 
 legislative power of the State ? And if their coming here, or re 
 maining here, is not consistent with the safety of the State and 
 the welfare of the citizens, in the name of all that is rational, may 
 we riot prohibit their coming, or send them back if they come ? 
 
 If we have a right to say to those who have been ground down 
 by the oppression of England, you must not land on our shores, be 
 cause your presence here is injurious to us, have we not a right to 
 avoid enormous evils, and secure incalculable benefits, not otherwise 
 attainable, by a compact, one article of which agrees that our State 
 shall not be an asylum for fugitives from service? 
 
 To deny this, is to deny the right of self-preservation to a state. 
 It strikes at the heart of every civilized community. It makes its 
 preservation impossible, and throws us back at once into a condi 
 tion below the most degraded savages who have a semblance of 
 government. 
 
 No sane man can reflect, and then make such a denial ; so that 
 there can be but one possible question, and that is simply a question 
 whether the emergency was such as called for the exercise of the 
 power. Upon this question also, unless we overturn principles 
 necessary to the existence of civil society, it is impossible to doubt 
 that we are precluded and justly bound by the action of the State 
 in 1788. Has not a state the right to make compacts and treaties, 
 and when they are made, are they not to be kept ? 
 
 May the State make a promise to-day, and to-morrow say, " Ou 
 the whole, our interest did not require that promise, and it is not to 
 be kept " ? If it be the test of a just man that, though he promise 
 to his harm, he keeps his promise good, is it not also applicable to 
 a state ? But, in truth, there is no occasion to rely on any such 
 obligation, for if it be once admitted that this Commonwealth in 
 
134 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1850. 
 
 1788 had the rightful power to assent to the Constitution, there 
 cannot be two opinions among those who know the facts, that the 
 requisite emergency existed. 
 
 I am not about to repeat what I have already said respecting 
 that emergency. You know what it was. You know that the 
 great duty of justice could not otherwise be performed ; that our 
 peace at home, and our safety from foreign aggression, could not 
 otherwise be insured ; and that only by this means could we obtain 
 the blessings of liberty to the people of Massachusetts, and their 
 posterity. I may add what now is a great and glorious motive, 
 which our fathers anticipated, and our eyes have seen, in no other 
 way could we become an example of, and a security for, the ca 
 pacity of man, safely and peacefully and wisely, to govern himself, 
 under free and popular constitutions. But I wish to ask your at 
 tention particularly to one thing, which is more intimately connected 
 with this subject. 
 
 I undertake to say, that men of forecast must then have fore 
 seen, and subsequent events have demonstrated, and it is now known, 
 that without an obligation to restore fugitives from service, Consti 
 tution or no Constitution, Union or no Union, we could not expect 
 to live in peace with the slave-holding States. 
 
 You may break up the Constitution and the Union to-morrow ; 
 you may do it by a civil war, or by what I could never understand 
 the method or the principles of, - what is called a peaceable seces 
 sion ; you may do it in any conceivable or inconceivable way ; you 
 may draw the geographical line between slave-holding and non- 
 slave-holding anywhere; but when we shall have settled down, they 
 will have their institutions, and we shall have ours. One is as 
 much a fact as the other. One engages the interests and feelings 
 and passions of men as much as the other. And how long can we 
 live in peace, side by side, without some provision by compact, to 
 meet this case ? Not one year. Any reflecting man can satisfy 
 himself of this, by turning his mind upon the facts ; and history 
 proves it. As early as 1643, when the country was a wilderness, 
 and the movement of persons from one part to another unfrequent 
 and exceedingly difficult, the Colonies of Massachusetts and Plym 
 outh, Connecticut and New Haven, found it necessary, even in that 
 primitive and imperfect union, which they founded to stay them 
 selves against destruction, to insert an article substantially like this 
 one : " That if any servant run away from his master, into any of 
 
1850.] SPEECH IN FANEUIL HALL. 135 
 
 the confederate jurisdictions, that in such case, (upon certificate 
 from one magistrate in the jurisdiction out of which the servant 
 fled, or upon other due proof,) the said servant shall be either de 
 livered to his master, or any other that pursues, and brings such 
 certificate and proof." 
 
 But we need not pause upon this very early experience of our 
 New England ancestors. The government of the United States 
 had not been in operation two years, when the necessity of some 
 such provision, in some form, to preserve the peace of bordering 
 independent states, was clearly proved. You know that in 1789 
 Florida belonged to Spain, and stretched along the southern border 
 of Georgia. Well, General Washington had not been two years 
 in office when the people of Southern Georgia became so uneasy 
 on account of the escape of their slaves across the border into 
 Florida, as to make very urgent representations to the national 
 government demanding redress. And thereupon orders were 
 obtained from the Spanish court to arrest the further reception 
 of the fugitives, and to make restitution ; and President Washing 
 ton sent a special messenger into Florida to see to the execution of 
 these orders. 
 
 It is unnecessary to enlarge upon this. If any one in this age 
 expects to live in peace, side by side with the slaveholding States, 
 without some effectual stipulation as to the restoration of fugitives, 
 he must either be so wise as to foresee events in no way connected 
 with human experience, or so foolish as to reject experience and 
 probabilities as guides of action. 
 
 I know it may be said, " Let the contest come. We are ready 
 for it. Let the blood of the slaughtered be upon the heads of 
 those who are in the wrong " When I look abroad over a hundred 
 thousand happy homes in Massachusetts, and see a people such 
 as the blessed sun has rarely shone upon, so intelligent, educated, 
 moral, religious, progressive, and free to do every thing but wrong ; 
 when I call to mind its admirable constitution of government, and 
 that it comes as near to perfection as the lot of humanity permits ; 
 when I remember that these things are the free gifts of that awful 
 Being, who holds peoples and nations in the hollow of his hand, I 
 fear to say that I should not be in the wrong to put all this at risk, 
 because our passionate will impels us to break a promise which our 
 wise and good fathers made, not to allow a class of foreigners to 
 come here, or to send them back if they come. 
 
136 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 With the rights of those persons I firmly believe Massachusetts 
 has nothing to do. It is enough for us that they have no right 
 to be here. Our peace and safety they have no right to invade ; 
 whether they come as fugitives, and, being here, act as rebels 
 against our law, or whether they come as armed invaders. What 
 ever natural rights they have, and I admit those natural rights to 
 their fullest extent, this is not the soil on which to vindicate them. 
 This is our soil, sacred to our peace, on which we intend to per 
 form our promises, and work out, for the benefit of ourselves and 
 our posterity and the world, the destiny which our Creator has 
 assigned to us. So far as He has supplied us with the means to 
 succor the distressed, we, as Christian men, will do so, and bid 
 them welcome, and thank God that we have the means to do it. 
 But we will not act beyond those means ; we will not violate a 
 solemn compact to do it ; we will not do it by holding up our 
 hands and swearing to render a verdict according to the law and 
 
 5 O 
 
 the evidence, and then knowingly violate that oath ; we will not 
 plunge into civil discord to do it; we will not shed blood to do it; 
 we will not so throw away the rich gifts which He has conferred 
 upon us, not for our benefit alone, but in trust for the countless 
 generations of His children. 
 
 In my judgment, these are not means which He has confided 
 to us to enable us to succor the needy and the oppressed of other 
 states ; and, so far as depends upon me, these means shall never 
 be used. 
 
 I have now to describe an occasion on which Mr. Curtis 
 felt called upon to appeal to the people of Massachusetts, in 
 regard to an act which he deemed one of great political 
 profligacy perpetrated by two different bodies of their 
 representatives, in the pursuit of party objects and power, 
 by a flagrant violation of a public trust. It may be that 
 such acts have become common ; that the public conscience 
 is somewhat blunted now by similar doings ; and that it is too 
 late for a true appreciation of their enormity. But even if 
 this be true, it must be remembered that this is a sketch of 
 the life and character of an individual, and that its princi 
 pal concern, in regard to any public affair, is with the man 
 ner in which he felt about it and acted upon it. 
 
1851.] THE COALITION. 137 
 
 In January, 1851, Mr. Curtis became a member of the 
 lower house of the Massachusetts Legislature. He had con 
 sented to be chosen to this position by his fellow-citizens of 
 Boston, in order to effect some reforms in the practice of the 
 courts. It happened that the State election of the preced 
 ing autumn had resulted in a condition of parties in the 
 Legislature which was quite unusual, if not unprecedented. 
 It was a period in the political history of that State, when 
 the third political party, already referred to, unable to con 
 trol the political power of the State by their own numerical 
 strength, sought to obtain as much of that power as they 
 could by a bargain with one of the other parties for an equal 
 distribution of the public offices between them. There had 
 been no election of a Governor and Lieutenant-Governor by 
 the popular votes, and those offices, and all the minor ones 
 involved in the organization of the State government, were 
 to be filled by the Legislature. Two United States Senators 
 were also to be chosen, one for a term of six years, to 
 succeed Mr. Webster, who had become Secretary of State 
 when Mr. Fillmore became President, after the death of 
 President Taylor, and one for a shorter period. 
 
 The members returned to the two houses of the Lemsla- 
 
 O 
 
 ture represented the Whig, the Democratic, and the Free- 
 Soil parties, neither party having by itself a controlling 
 majority. In professed public principles on all the ques 
 tions relating to national affairs, and especially to the 
 Compromise Measures of 1850, the representatives of the 
 Democratic and Free-Soil parties Avere as wide asunder 
 as men could be. They assembled, separately, on the eve 
 of the meeting of the Legislature, and, after various mes 
 sages and negotiations through their respective committees, 
 a bargain was at length concluded, by parcelling out office 
 for office between the two parties, according to an arranged 
 programme, which was afterwards followed out in exact 
 performance of the contract, step by step, in regard to all 
 the appointments that were to be made, Democrats vot- 
 
188 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 ing for men whose political principles they disapproved, and 
 Free-Soile rs doing the same thing. The ultimate object of 
 this trade in the positions of public trust that were to be 
 filled so far as the Free-Soil party Avas concerned was 
 to reach and secure the election of Mr. Charles Surnner to 
 the Senate of the United States for the long term. This 
 was finally accomplished, because the Democrats, after 
 they had gone, step by step, through all the preceding part 
 of the bargain, found that they had received both promise 
 and delivery of the consideration for which they had pledged 
 themselves in advance to elect whomsoever the Free-Soil 
 party might name as Senator in Congress for the period of 
 six years. It seemed to Mr. Curtis, and other members of 
 the Legislature who thought of this transaction as he did, 
 that the facts should be laid before the people of the State, 
 accompanied by appropriate comments. He was requested 
 to prepare for this purpose an Address to the People of 
 Massachusetts, to be signed by the Whig members of the 
 Legislature. This paper, signed by one hundred and sixty- 
 seven members of the two houses, and published and circu 
 lated throughout the State, read as follows : 
 
 To THE PEOPLE OF MASSACHUSETTS. 
 
 THE undersigned, members of the Senate and House of Repre 
 sentatives of the Commonwealth of Massachusetts, desire to address 
 you on a subject of great public concern. They wish to ask your 
 attention to certain transactions, which have passed under their 
 notice, and which demand your serious consideration. 
 
 It is known to you, that, at the election of State officers in 
 November last, the Free-Soil and Democratic parties were separate 
 political organizations, having different candidates for Governor, 
 and publicly professing very different political principles. You 
 sent to the Legislature members of each of these political parties, 
 who had theretofore held the distinctive political principles of each, 
 and who were elected because they were known to hold those 
 principles. On the first day of January, the Legislature assembled, 
 and its members, including the persons above referred to, were 
 
1851.] ADDRESS ON THE COALITION. 139 
 
 sworn. On the evening of that day, the Democratic members of 
 the Legislature came together in caucus, at a room in the State- 
 House in Boston, and at the same time, and in another room in the 
 same building, the Free-Soil members of the Legislature also met in 
 a distinct caucus. Each of these bodies on that evening appointed 
 a committee, to meet and confer in regard to all the offices to be 
 filled by the Legislature. 
 
 These committees met for this conference on the evening of 
 the 2d of January, and the Free-Soil committee " proposed to 
 concede the Governor to the Democrats, on condition that the 
 United States Senator for six years should be conceded to the 
 Free-Soilers." What was intended by ik conceding" the Governor 
 to the Democrats, was explained by the Free-Soil committee to 
 be this : " The Free-Soilers were ready to elect Mr. Boutwell 
 without any pledges whatever ; they were willing to place the 
 government of the State in the hands of the Democracy, asking 
 no pledges for principles, measures, or offices." But, at the same 
 time, they had so little confidence in the men to whom the administra 
 tion of all State affairs would thus be confided, that they thought it 
 necessary to make an explicit declaration, that " they would give no 
 pledges to support his (Governor Boutwell s) administration, and 
 would take no responsibility for it ; " so that they were willing, and 
 then offered, by their votes as members of the Legislature, to con 
 fide the whole executive power of the State, with no restriction as 
 to principles, or measures, to a man whom they so distrusted that 
 they expressly stipulated not to be in any way responsible for any 
 thing he might do. 
 
 In consideration of this, they required that the United States 
 Senator should be conceded to them ; and they went on to explain 
 the meaning of this It was, that " the Senator, whoever he might 
 be, must go to Washington uncommitted to any party, or any set 
 of men ; he mast stand upon the principles publicly recognized bij the 
 party with which he acted" That is, the Free-Soilers were to select 
 a person not yet fixed upon, the Democrats were to elect him, by 
 their votes as members of the Legislature, and he was to act in the 
 Senate of the United States upon the principles of the Free-Soil 
 party, the Democratic party having no right whatever to expect 
 him to act on their political principles. 
 
 Such was the bargain proposed by one of these committees to 
 the other ; it was agreed to on the spot by both ; and, as will here- 
 
140 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1851 
 
 after be seen, members of those committees, under this bargain, 
 voted for Mr. Sumner, and their votes were necessary to his elec 
 tion. Each committee afterwards reported to its respective con 
 stituents, in caucus assembled, the above arrangement to concede 
 the Governor to the Democrats and the Senator to the Free-Soilers, 
 and each caucus finally assented thereto. Subsequently, Mr. Charles 
 Sumner was selected by the Free-Soil caucus as their candidate 
 for the office of Senator; his name was sent to the Democratic 
 caucus, and a majority of this body voted to cast their ballots in 
 his favor. Such is a brief statement of this transaction, so far as 
 it relates to the office of Senator of the United States, as deduced 
 from printed statements made by parties who acted on each com 
 mittee, and had prominent parts in these affairs. 1 We have for 
 borne to say any thing of the negotiations about minor offices, 
 desiring to present distinctly the main subject. 
 
 The bargain being struck, it remained to execute it. Mr. Bout- 
 well was elected Governor, the Free-Soil members of the Legisla 
 ture voting for him, in pursuance of their contract. Mr. Sumner 
 was chosen by the Senate to fill the office of Senator of the United 
 States ; every Democratic Senator, twelve in number, except 
 Mr. Beach of Hampden, and one other who was absent, voting 
 for him, in execution of their compact, and their votes being neces 
 sary for his election. 
 
 The balloting in the House of Representatives was begun. It 
 was found that certain members of the Democratic party, about 
 ninety in number, voted for him, while others did not do so, and 
 no choice was made. And thereupon, through the newspapers, in 
 private conferences, and by public declarations, the members of 
 the Free-Soil party insisted that it was a matter of compact and 
 agreement that the members of the Democratic party would vote 
 for a person to be selected by the Free-Soilers, and that Mr. Sum 
 ner had been selected by them ; that the members of that party 
 who did vote for him acted in pursuance of a binding contract, the 
 consideration of which had already been paid by placing the State 
 government in Democratic hands ; that they who refused so to 
 vote, were guilty of bad faith ; that there was no liberty of choice, 
 but an absolute and perfect obligation, springing from a contract to 
 vote for a person to be selected by the Free-Soilers. No matter 
 who might be presented as a candidate for their suffrages, no 
 
 1 See infra, note to page 148. 
 
1851.] ADDRESS ON THE COALITION. 141 
 
 matter if it should appear, in the course of the contest, that the 
 Democratic votes would elect a man whom every Democrat in 
 Massachusetts would desire to place ii the Senate, they were 
 bound, hand and foot, by this bargain : * that the Free-Soil party 
 had a right to the specific performance of the contract, deliberately 
 entered into by the Democrats, the consideration for which they had 
 already received" 
 
 On the other hand, the Democratic members who refused to vote 
 for Mr. Sumner denied that they, as individuals, had engaged to 
 vote for him. With this charge of what is called " bad faith" we 
 do not meddle. It may be true or false. But it is an issue quite 
 collateral to the main subject. The Free-Soilers assert that they 
 bought *and paid for all the Democratic votes. These members in 
 effect say, the Free-Soilers bought and paid for only three quarters 
 of them, and that they themselves were not included in the con 
 veyance. This is very important to the honor and principle of 
 these individuals ; but inasmuch as three quarters, who are admit 
 ted on all hands to have been purchased, effected the election of 
 Mr. Sumner, there seems to be no necessity to determine with pre 
 cision just how many that purchase embraced. 
 
 In this position of parties, the balloting was resumed from time 
 to time, and after spending ten days in fruitless attempts to make 
 a choice, a strenuous effort was made by the Whig members of the 
 House to postpone the matter indefinitely. Their desire was to 
 save the valuable time of the Legislature, and to bring the whole 
 subject of the Senatorial election, and the conduct of parties in 
 reference thereto, before the people of the Commonwealth, and 
 allow their judgment to operate decisively thereon. It was known 
 to them that the pendency of this election, and the extraordinary 
 means resorted to by the Free-Soil party to carry their candidate, 
 were exercising a most prejudicial effect upon the business of the 
 session ; that it hung like a cloud over the minds of members ; 
 that it absorbed their thoughts and their time ; and that at no 
 period in the history of the State had so little public business been 
 transacted in the same length of time. It was their desire to 
 relieve the State from the enormous expense, as well as the hazard 
 of imperfect legislation, which they were convinced must arise 
 from the continuance of this contest; and they thought it due to 
 the people of the State, that they should have the opportunity 
 to make known their will concerning the transactions above 
 
142 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 detailed, before it should have become too late to make their 
 will felt. 
 
 In this effort they failed. The balloting was resumed from time 
 to time ; three more days were consumed ; and on the twenty-sixth 
 balloting, Mr. Charles Sumner was declared to have been elected, 
 he having received 193 out of 385 votes, two blank ballots not be 
 ing counted. It will be observed, that he had precisely the requi 
 site number of votes ; and of these, upwards of 80 were thrown by 
 Democratic members, procured by the means stated above. Thus 
 was declared to be elected, as one of the two representatives of the 
 State of Massachusetts in the Senate of the United States, for the 
 term of six years, a man who received less than a majority of the 
 votes of the members present and casting ballots, and who goes 
 there " standing on the publicly professed principles of a party " 
 which had only 111 out of 393 members of the House of Repre 
 sentatives, and whose popular vote at the election in November 
 last was only 27,000 out of 120,000 votes. 
 
 Time was when it would have been deemed an insult to the 
 instinctive love of right which has characterized the people of this 
 State, to do more than narrate these facts to bring down on the 
 contrivers and agents of this scheme the indignation of all decent 
 men. And notwithstanding the prevalence of party spirit, which 
 now so controls men s minds, we do not believe that honest men 
 anywhere can look calmly on this picture with any sentiment 
 except unmingled disgust. 
 
 But the unblushing effrontery with which these contrivances 
 have been avowed, and the arguments, so called, by which their 
 authors have endeavored to defend them, do, in our judgment, 
 render it fit that their true character, and the principles involved 
 therein, should be plainly stated. 
 
 We think it due to the fair fame of our State, that such trans 
 actions should not go forth to the world in a silence which might 
 be construed into an admission that they are in conformity with 
 the usual principles and conduct of those who are trusted by the 
 people of Massachusetts to make its laws. We think it due to the 
 public morals that the true character of such acts should not be 
 obscured in any minds by the miserable sophistries which have 
 been thrown over them. And we therefore crave your candid 
 attention to some considerations which we have to present to 
 you. 
 
1851.] ADDRESS ON THE COALITION. 143 
 
 The persons who have acted together in the election of Senator, 
 under the bargain above set forth, have called themselves " The 
 Coalition." We must be permitted to deny the propriety of the 
 name. A coalition is the union of two parties for the purpose of 
 carrying one or more measures in which they conscientiously agree. 
 It is concert of action, proceeding from concert of opinion. It is a 
 dangerous experiment, not only as respects the public confidence, 
 but the principles of the two parties ; and no coalition known to 
 political history has ever succeeded in retaining for any consider 
 able time the confidence of the public. 
 
 But this is not a coalition. A compact between two distinct 
 parties, having different political principles, for the purpose of 
 dividing public offices between them, a compact to do this by 
 electing a man for Governor in whom the one party does not con 
 fide, in consideration of electing a man for Senator in whom the 
 other party does not confide, is not a coalition, but a factious 
 conspiracy. And when such a compact is made between those who 
 have merely a delegated authority, held in trust, to be used under 
 the sanction of an oath, to place in office only those in whom the 
 trustees do confide, it is a factious conspiracy to violate a public 
 trust, and as such criminal, not only in morals, hut in the law of the 
 land. It is true, the statute law of the State has not defined this 
 offence, as it has failed to do others. It may be because it was 
 considered by all former Legislatures that a statute describing 
 and punishing such a transaction would be an impeachment of their 
 honesty, which they would not suffer as respected themselves, arid 
 were unwilling to suppose necessary to the public safety and 
 morals as might respect future Legislatures. But the common 
 law which pervades society, and enters into the relations of life, 
 both public and private, with its benign but bracing influence, 
 deems such an abuse of a public trust a misdemeanor, punishable 
 by indictment. And there is high authority that a bargain like 
 this, even when made by single persons, and in reference to subjects 
 of far less public concern than this, is an indictable offence. In 
 the year 1825 a case came before the highest criminal court of one 
 of our sister States, wherein it appeared that A. and B. were justices 
 of the peace, and as such had the right to vote in the county court 
 for certain county officers ; that they agreed together that A. would 
 vote for C. for commissioner, in consideration that B. would vote 
 for D. for clerk ; and that they voted in pursuance of that agree- 
 
144 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 ment. The statute of the State, like ours, did not reach the case. 
 But their common law, the same as ours, declared : " The defend 
 ants were justices of the peace, and as such held an office of high 
 trust and confidence. In that character they were called upon to 
 vote for others, for offices also implying high trust and confidence. 
 Their duty required them to vote in reference only to the merit 
 and qualifications of the officers ; and yet, upon the pleadings in 
 this case, it appears that they wickedly and corruptly violated their 
 duty, and betrayed the confidence reposed in them, by voting under 
 the influence of a corrupt bargain, or reciprocal promise, by which 
 they had come under a reciprocal obligation to vote respectively for 
 a particular person, no matter how inferior their qualifications to 
 their competitors. It would seem, then, upon these general princi 
 ples, that the offence in the information is indictable at the common 
 law." 1 
 
 This is the manly and clear response of the common law, the 
 inheritance of our fathers and ourselves, not only in that State, 
 but wherever it prevails. And now, what are the differences be 
 tween that crime and the case we lay before you ? The parties to 
 that bargain were electors in the court of a county ; the parties to 
 this bargain were electors in the Legislature of Massachusetts. 
 The parties to that bargain were two individuals, and their com 
 pact controlled two votes ; the parties to this bargain were numer 
 ous, and their compact controlled many votes ; arid every reflecting 
 man must see, that a conspiracy becomes more criminal, the more 
 persons it embraces, and the more power it wields. The parties 
 to that bargain made it " without reference to the qualifications of 
 the candidates ; " the parties to this bargain entered into it with 
 an open declaration that one of the candidates was distrusted by 
 one party, and the person who was to be voted for by the other 
 party was not even selected, nothing being known, except that he 
 was not to act on the principles which one of the parties who were 
 to vote for him had long professed to hold dear. The subjects of 
 the bargain in that case were a county clerk and a county com 
 missioner; the subjects of this bargain were the Governor of 
 Massachusetts and one of its Senators in the Congress of the 
 United States. And finally, in that case, it does not appear that 
 the officers voted for by the criminals were actually elected ; while 
 in this case it is known that this corrupt agreement made one man 
 
 1 Commonwealth \, Callayhan et at., 2 Virg. Cas. 400. 
 
1851.] \DDEESS ON THE COALITION. 145 
 
 Governor, and caused another to be declared elected a Senator in 
 Congress. 
 
 Such is the case we lay before you for judgment. But before 
 passing thereon, we request you to notice the grounds which have 
 been relied on in its attempted justification or excuse. 
 
 It is alleged that, inasmuch as neither of the three political par 
 ties in the Legislature had a majority, it was necessary to enter 
 into this compact. To judge of the soundness of this plea, it is 
 only requisite to bear in mind, that Congress does not assemble 
 until the first day of December ; that the next session of the 
 Legislature will begin on the seventh day of January ; and there 
 fore, if no election of Senator should have been made by this 
 Legislature, the place need be vacant only about thirty days at 
 the beginning of the long session of Congress, when no business 
 of importance is to be expected, especially in the Senate ; and out 
 of these thirty days must come the Christmas holidays, during 
 which no business is done. How far these parties were influenced 
 by any idea of necessity, may be estimated from the fact, that by 
 their united votes they chose Mr. Rantoul Senator, at a time 
 when he was known to be so distant from home that he did not 
 take his seat in the Senate until fourteen days after his election, 
 and that too at the close of the session, when the Senate was 
 crowded with business of the greatest importance to the country. 
 So far, therefore, as concerns the Senatorial election, the plea of 
 necessity is false in fact. But if it were not so, if the like 
 necessity existed for filling this office as for organizing the State 
 government, are the political institutions of Massachusetts such 
 as to impose on those intrusted by the people with the high func 
 tion of filling these great offices the necessity of making a corrupt 
 bargain, by Vhich one party wilfully surrenders its own convic 
 tions, in consideration that another party will commit a like breach 
 of trust? We utterly deny this. We know that emergencies may 
 arise, in which members of the Legislature, finding it impossible 
 to place in office those men whom they believe lest qualified, may 
 be under a moral necessity to vote for others who are next best, in 
 order to have a government. But let it not be lost sight of, for a 
 moment, that these delicate and difficult emergencies are precisely the 
 occasions on which every man is specially bound to keep his mind 
 free from all improper biases. He has a difficult duty to perform, 
 calling for the exercise of all the impartiality and wisdom which 
 VOL. i. 10 
 
146 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 he possesses. And when it is whispered in his ear, or impudently 
 proclaimed at a caucus, " Agree to vote for a man not yet known, 
 for Senator of the United States, and we will put your candidate 
 into the chair of state, though we care nothing about him, and do 
 not confide in him," who does not know that the tempter speaks 
 to him ? And how strange is the reason for listening, that an 
 emergency has arisen, calling for more than ordinary circumspection, 
 and a perfectly cool, clear, and free judgment! 
 
 It may be said by Democratic members, When we learned the 
 name, and found it was Mr. Sumner, we were well enough satisfied 
 with his qualifications. We have satisfactory evidence that this is 
 not true ; that not a few Democratic members voted for Mr. Sum 
 ner contrary to their own wishes and convictions, and solely 
 because they considered themselves bound by the bargain to do so. 
 But if there are any who can truly say, we were satisfied when we 
 learned his name, the answer is, you had unfitted yourselves to 
 judge. You had already placed yourselves under the influence of 
 a tempting offer, which you had accepted. You had made a bar 
 gain, and received the consideration, and could no longer bring to 
 the question that upright and unbiassed judgment which alone 
 would enable you to do your duty to the State. And when the 
 Free-Soil party were brought to the consideration of the question, 
 which of two persons, Mr. Briggs or Mr. Boutwell, was best quali 
 fied for the place of Governor, does any man believe they were 
 capable of deciding impartially and justly, when they found that, if 
 they cast their votes for the latter, they could secure the prize of 
 Senatorial power, at which they were so eagerly grasping? No 
 one can believe it. And yet it is precisely this pressure on the 
 judgment which renders all bribery illegal and immoral. The 
 essence of the offence of bribery is riot in the fact that one man 
 has parted with his money, and another man has got it ; nor in the 
 fact that an erroneous decision is made, or vote given. Lord 
 Bacon said he sold justice, and not injustice ; and no man gain 
 said it. The essence of the crime of giving and taking bribes 
 consists in the pressure and strain which are thus made, and in 
 tended to be made, on the fallible human judgment of one intrusted 
 with, authority. 
 
 It has happened in this State that the vote of a single man in 
 the Legislature elected the Governor, as the vote of a single man, 
 in this Senatorial election, put an end to the ballotings. Suppose 
 
1851.] ADDRESS ON THE COALITION. 147 
 
 a man to have stood neutral, not being wholly satisfied with either 
 candidate, and a sum of money, or any other temptation, is held 
 out to him to vote for one of them, and he does so. Would you say 
 he was to be held innocent, because, on the whole, he thought the 
 man for whom he at last voted was best qualified for the place ? 
 Would you not say to him, your crime consisted in placing yourself 
 under influences which did not leave you free to judge ? We care 
 nothing about your acts or your judgments afterwards ; you were 
 corrupted then, and deserve punishment therefor. 
 
 It has also been suggested that this was not a corrupt agree 
 ment, because no individual who was a party to it received, or had 
 reason to expect, any thing from it, to his own proper use. You 
 cannot know that. A bargain with the Democratic party to put 
 the power of the State into their hands, is a bargain to give them 
 the means to reward their friends and punish their enemies. How 
 far they who made the bargain expected to profit by it, either by 
 obtaining offices for themselves, or their friends or connections or 
 dependents, or by ejecting from office those whom they desired to 
 injure, no man can tell. It is in the recesses of the mind, inscru 
 table, except to the eye of Him who looks into the heart, that these 
 things lie hid. And this renders such bargains the more dangerous. 
 The statute law can reach a case where money is given or prom 
 ised. It is susceptible of proof. But nothing but the wise jeal 
 ousy of the people can afford an effectual remedy for the secret, 
 pervading, and powerful influence of hope of benefit, springing up 
 in the hearts of leaders of a political party, when the power of the 
 State is held out to them as an inducement to violate a trust. He, 
 therefore, who seeks to purge this bargain of corruption by the 
 assertion that the parties to it expected no selfish benefit, asserts 
 what he cannot know to be true, and what in all human probability 
 is false. It is unnecessary to refer to events to prove this. You 
 know it must be so. But if you will watch the executive appoint 
 ments made, and which may be made, by this administration, you 
 will see a practical exemplification of this truth. 
 
 And let it not be forgotten, that the giver is as guilty as the 
 taker. Let not the Free-Soil party lay the flattering unction to 
 their souls, that they are not to be suspected of entertaining any 
 such selfish hopes. They held them out to others ; and the tempter 
 is by all men justly considered worse than the tempted. 
 
 But the corruption of this bargain does not consist solely in this. 
 
148 MEMOIR OF BENJAMIN EOBBINS CURTIS. [1851. 
 
 Its essence is found, not merely in what was taken, but in what 
 was yielded. It is not merely that the Free-Soilers were to have 
 their unnamed man for Senator, but that, in consideration thereof, 
 they were to vote for a man for Governor whom they distrusted. It 
 is not merely that the Democrats were to have their man for Gov 
 ernor, but that, in consideration thereof, they were to vote for a man 
 for Senator who, so far as is even now known, has but one principle 
 of political action, and that hostile to the long-cherished and repeat 
 edly and solemnly avowed sentiments and wishes of the Democracy 
 of the State, a man whose only rule of action in the Senate of 
 the United States must be to create what every American states 
 man, from the time of Washington to the present moment, has 
 looked upon as a frightful evil, a geographical party, and 
 which the Democracy of Massachusetts, up to the time of this 
 bargain and its execution, had always shown themselves too wise 
 and too patriotic to aid or support ; a man who, from the neces 
 sity of the case, by consenting to take this office under and by 
 means of such a bargain, must thereby consent to stand as a receiver 
 of the fruits of a breach of a public trust, and to go into a repre 
 sentative assembly to exhibit there the political principle of a small 
 minority, constituting one of the parties to the bargain, and the 
 want of principle of both the parties by reason of which his elec 
 tion was made. We repeat, it is not merely in what is received, 
 but in what is betrayed, that we must look for the true character 
 of this transaction. 1 
 
 Another ground upon which this bargain has been defended is, 
 that such arrangements are common, and to be expected, in legis 
 lative assemblies. If this be so, it is time you knew it, and acted 
 upon it. If it be common in your Legislature for members to 
 
 1 A document is extant, prepared and published at the time by the late 
 Hon. Henry Wilson, setting forth with great distinctness and frankness the 
 progress and all the details of this bargain. Mr. Wilson was a prominent 
 actor in making it, and a political beneficiary under it. He avowed the 
 whole affair with great naivetf, and while Mr. Sumner s election was pending, 
 he claimed that the Democratic party, having received the consideration for 
 which they pledged themselves to vote for the nominee of the Free-Soil 
 party, were bound in honor to redeem their pledge by giving Mr. Sumner 
 their votes. They so considered it, and by their votes finally elected him. 
 The minute analysis of the consideration paid which was made by Mr. 
 Wilson, and the distinct display which he makes of the contract, apparently 
 without the slightest conception of its immoral character, render his docu 
 ment an amusing paper. 
 
1851.] ADDRESS ON THE COALITION. 149 
 
 vote against their own convictions of right, in order to induce other 
 members to vote against their convictions of right, and thus secure 
 to each some selfish or party ends, at the expense of the public, 
 it is time the people of Massachusetts swept out their halls of 
 legislation, and purified them from this corruption. The assertion 
 is a libel on the honesty of the State ; and no man will make it 
 who does not take his own conscious wickedness as the standard 
 by which to measure other men s honor. That such things have 
 been done, we are forced to believe ; and the impudence with which 
 this transaction has been proclaimed does more than all other 
 things known to us to lead us to fear that their true character is 
 not discerned by weak men, blinded by party spirit. That selfish 
 ness, party spirit, rashness, may lead men of loose principles, in 
 the halls of legislation as elsewhere, to do corrupt and wicked 
 things, we do not doubt. But that they are common, that they 
 have become a usage, that they have passed into a rule, and may 
 be appealed to as a principle, we beg the people of Massachusetts 
 not to believe. 
 
 We deliberately assure you, it has not yet become common for 
 those w r hom you select to represent yourselves so grossly to abuse 
 their trust. And we repel with indignation the assumption that 
 they who, by inadvertence, or recklessness, or a passionate love of 
 power, or a blind devotion to party, or any worse motive, have be 
 come involved in this immoral and illegal compact, can find an 
 excuse for it in the practices of any legislative assembly known to 
 us. But we feel obliged, not only to say that such conduct finds 
 no excuse in example, but to call on the people of the Common 
 wealth to bear their testimony against it, however usual it may be 
 asserted to be. It is not uncommon for men to steal, cheat, and 
 lie ; but the moral sense of mankind does not permit the frequency 
 of these crimes to be their justification. 
 
 And if it were admitted that it is common for members of the 
 Legislature of Massachusetts to enter into bargains like this, it is 
 submitted for your consideration, whether it would not be the more 
 necessary that you should hasten to place thereon the seal of your 
 condemnation. That public morals are essential to public order ; 
 that absolute fidelity to public trusts is the only secure basis of 
 republican government ; and that no people is safe which passes 
 over in silence even questionable acts of its servants, are political 
 truths which you have not yet to learn. That it is not lawful to 
 
150 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 do evil that good may come ; that there is not one rule of right in 
 the Capitol, and another by your firesides ; that the crooked paths 
 of intriguers and schemers are not safe ways for honest men to 
 travel, no people knows better than yourselves. We ask you to 
 apply these principles to this matter. You have placed us as sen 
 tinels upon the watch-towers. We have discerned these things 
 which seem to us to threaten your security and welfare. With an 
 earnest desire to do no injury to any man, with the judgment 
 wherewith we should be content to be judged, without passion, but 
 without fear, we have endeavored to do our duty to the Common 
 wealth and to you, by making known these transactions. You will 
 determine whether your interests are safe in the hands of men 
 who have grasped the offices and power of the State by such means ; 
 and whether you are willing to commend to your children this 
 example as safe to guide their steps. 
 
 The four instances of which I have given some account 
 in this and the preceding chapter, are the only ones in 
 which Mr. Curtis undertook, by any special effort, to act 
 upon public opinion during the period from 1834 to 1851. 
 They constitute exceptions to his ordinary rule of life, the 
 exceptions themselves, however, resting upon that part of 
 the rule which habitually governed him, namely, to speak 
 or act upon public affairs whenever the occasion or the topic 
 made it, in his own judgment, his duty to do so. His reti 
 cence on the ordinary subjects of political discussion or 
 party contest was not broken at any time before he became 
 a judge ; and, of course, it was never broken while he was 
 on the bench. He took no part in party politics, stood 
 entirely aloof from all the managements of parties ; and it 
 is not known to me that during this period he ever attended 
 a political caucus, or was ever a member of any political 
 convention. Nor did he employ his pen in political essay- 
 writing, whether in his own name or in anonymous com 
 munications or contributions to the press. At elections he 
 always voted ; and he generally voted for the candidates 
 of the Whig party while that organization continued to 
 exist. 
 
1851.] NO PARTISAN TENDENCIES. 151 
 
 And here it may be proper to ask, whether it was not far 
 wiser for such a man to abstain from all party activity, and 
 to make himself heard only when some important public 
 interest or public duty seemed to call upon him with a 
 more than ordinary demand, than it would have been to 
 have become known as a politician, or to have engaged his 
 intellect or his feelings in the discussion of public questions 
 of minor importance. During the seventeen years which I 
 have now gone over, he was, as a lawyer, by his varied 
 experience in all departments of jurisprudence, and his in 
 creasing acquisitions, laying up the store of those qualifi 
 cations for the judicial office which were at once recognized 
 by the public of his own section of the country, and by the 
 government of the Union as soon as an opportunity offered 
 for securing his services in the national judicature. Cer 
 tainly it could have been no advantage to the development 
 of his mind and character, and no help to the public sense 
 of his fitness for the judicial place to which he was called, 
 if he had devoted himself to party politics. It is, moreover, 
 worthy of note, that even the questions of public interest 
 on which he did act, exciting as they were to most men, 
 had no tendency to warp his mind into a one-sided condition, 
 or to deprive him of the power of just and accurate discrimi 
 nation in regard to other aspects of the same subject. He 
 made, for example, as the reader has seen, great efforts to 
 convince his fellow-citizens that the slave-holding States 
 and their people had every right to the full and faithful 
 execution of that constitutional stipulation which required 
 the extradition of fugitive slaves. But when the demands 
 of the slave interest as they were afterwards asserted by 
 those who claimed to represent the interests of the South 
 extended beyond that stipulation, and claimed for slavery a 
 position which he believed neither the Constitution nor 
 the system of the Union had given to it, his mind was 
 found to be just as capable of an unbiassed and impartial 
 examination of those demands as if he had never contended 
 
152 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 for a Southern right, or counselled his fellow-citizens to 
 obey a stipulation in favor of the Southern section of the 
 Union. Nor did his strong convictions of the duty of obey 
 ing that provision of the Constitution, or his disapprobation 
 of the conduct of those who opposed it, abate one jot from 
 the even judicial temper and the perfect fairness with 
 which he could preside at the trials of persons accused of 
 unlawful resistance to the measure designed for its exe 
 cution. 
 
1851.] APPOINTED TO THE BENCH. 153 
 
 CHAPTER VI. 
 
 1851-1856. 
 
 Appointed an Associate Justice of the Supreme Court of the United States. 
 Letter to President Fillmore and Mr. Webster. The "Fugitive Slave 
 Trials" in Boston. Judicial Life at Washington. Letters to Mr. 
 Ticknor. 
 
 THE death of Mr. Justice Woodbury, which occurred on 
 the 4th of September, 1851, cast upon the administration of 
 President Fillmore the performance of one of the most im 
 portant duties that can devolve on the national Executive, 
 that of naming a Judge of the Supreme Court of the 
 United States. The Circuit for which the vacancy was to 
 be filled comprehended Massachusetts, Maine, New Hamp 
 shire, and Rhode Island. Public opinion, both in and out 
 of the Circuit, pointed, with a near approach to unanimity, 
 to Mr. Curtis, as the man whose services in that position 
 it was most desirable to secure. President Fillmore had 
 but little personal knowledge of the leading members of 
 the bar of New England whom he had not met in public 
 life. But he was a wise and circumspect statesman, and 
 one who fully appreciated the responsibilities of the great 
 office which he held. He would have felt it, to the end of 
 his days, to be a reproach on his administration of the gov 
 ernment, if he had selected for this position any one whom 
 he could be said to have appointed from any motives but 
 those high considerations of the public good, which should 
 ever and alone be regarded in the making of judges. How 
 steadily and faithfully he looked to the public interests will 
 presently be seen. 
 
154 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1851. 
 
 Mr. Webster, who had become Secretary of State at the 
 same time when Mr. Fillmore became President, was of 
 course familiarly acquainted with the members of the bar 
 from among whom this appointment would have to be 
 made. There were reasons, in his judgment, which ren 
 dered it proper that Mr. Choate should be consulted. The 
 President, who was in Washington, and Mr. Webster, who 
 was at the moment in Boston, wrote to each other on this 
 subject on the same day, and consequently their letters 
 crossed each other in the mails. Mr. Webster s may be 
 first quoted, as it exhibits the general opinion and wishes, 
 as well as his own : 
 
 MR. WEBSTER TO THE PRESIDENT. 
 
 BOSTON, Sept. 10, 1851. 
 
 MY DEAR SIR, A very important vacancy is created by 
 Judge Woodbury s death. The general, perhaps I may say the 
 almost universal, sentiment here is, that the place should be filled 
 by the appointment of Mr. B. R. Curtis. Mr. Choate is perhaps 
 Mr. Curtis s leader, and is more extensively known, as he has been 
 quite distinguished in public life. But it is supposed he would not 
 accept the place. He must be conferred with, and I should have 
 seen him to-day, but he is out of town. I shall see him as soon 
 as possible. Every thing being put at rest in that quarter, as I 
 presume it will be the moment I can see Mr. Choate, I recommend 
 the immediate appointment of Mr. Curtis. There will be an ad 
 vantage in disposing of the matter as soon as may be. Judge 
 Sprague is now on his way home from Europe. His friends, no 
 doubt, will urge his pretensions. Judge Pitman too, the District 
 Judge of Rhode Island, is a learned lawyer, an able judge, and an 
 excellent man. If an appointment were to be made by promotion 
 from the bench of a District Court, it would be very difficult to 
 overlook Judge Pitman, who has been on the bench more years, 
 by a good many, than Judge Sprague, and working at a much 
 smaller salary. But, in my judgment, it is decidedly better to 
 appoint a man much younger than either of these judges. Mr. 
 B. R. Curtis is of a very suitable age, forty-one ; he has good 
 health, excellent habits, sufficient industry and love of labor, and, 
 
1851.] APPOINTED TO THE BENCH. 155 
 
 ^E need hardly add, is in point of legal attainment and general 
 character in every way fit for the place. ... I shall write you 
 again on this subject the moment I have seen Mr. Choate, or heard 
 from him. 
 
 We were all horror-struck this morning by the terrible news of 
 the death, so sudden, of Mrs. Crittenden. 
 
 Yours, always truly, DANIEL WEBSTER. 
 
 THE PRESIDENT TO MR. WEBSTER. 
 
 WASHINGTON, Sept. 10, 1851. 
 
 MY DEAR SIR, . . . The vacancy occasioned by the death of 
 Judge Woodbury will soon have to be filled, and I should be happy 
 to see you, that we might converse freely on the subject. I believe 
 that Judge McLean is the only Whig now upon the bench ; and he 
 received his appointment from General Jackson. I am therefore 
 desirous of obtaining as long a lease, and as much moral and ju 
 dicial power as possible, from this appointment. I would therefore 
 like to combine a vigorous constitution with high moral and in 
 tellectual qualifications, a good judicial mind, and such age as gives 
 a prospect of long service. Several distinguished names have 
 occurred to me, but I do not consider myself so intimately ac 
 quainted with the New England bar as to be able to form a correct 
 opinion. I have, however, formed a very high opinion of Mr. 
 B. R. Curtis. What do you say of him ? What is his age, con 
 stitution, and what are his legal attainments ? Does he fill the 
 measure of my wishes ? 
 
 The weather is extremely hot and uncomfortable. Nothing 
 new. 
 
 I am truly yours, MILLARD FILLMORE. 
 
 THE PRESIDENT TO MR. WEBSTER. 
 
 WASHINGTON, Sept. 12, 1851. 
 
 MY DEAR SIR, ... I am happy to see that we concur in opinion 
 as to Mr. B. R. Curtis. I shall wait until you can see Mr. Choate, 
 and, if all is satisfactory, I will issue the commission at once. . . . 
 I write in haste, but am truly yours, 
 
 MILLARD FiLLMORE. 1 
 
 1 These letters have been heretofore published, in the Life of Mr. Webster, 
 by the present writer. 
 
156 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 The President made a short visit to Boston, soon after 
 the date of his last letter to Mr. Webster, and was then 
 informed that Mr. Choate heartily concurred with the 
 general wish that this appointment should be tendered to 
 Mr. Curtis. It was made immediately after the President 
 returned to Washington. The commission bore date Sep 
 tember 22, 1851. 1 
 
 With what feelings it was received by the person to 
 whom it was addressed, will be apparent from the following 
 letter : 
 
 To THE PRESIDENT OF THE UNITED STATES. 
 
 BOSTOX, Oct. 7, 1851. 
 
 MR. PRESIDENT, On my return home, after an absence of 
 ten days in a distant city, where I went to discharge a professional 
 engagement, I have received from the Secretary of State a com 
 mission as an Associate Justice of the Supreme Court of the United 
 States. You have been pleased to appoint me to an office of great 
 dignity and power, and of corresponding responsibility. I accept 
 the office. The only return I can make I am sure the only 
 return you desire for having, unsolicited, conferred upon me 
 this honor, is to do my duty to my country, in this great office, with 
 entire fidelity. This return I can and do promise to make, accord 
 ing to the utmost of my ability. 
 
 Will you allow me to suggest that by the act of Congress of the 
 29th of April, 1802, section 4, it is necessary for the President to 
 allot the circuits anew on the appointment of an Associate Justice, 
 and that I cannot act until such allotment shall have been made. 
 As there is to be a term of the Circuit Court at Boston on the loth 
 instant, at which my presence is very desirable, I would respect 
 fully request that such allotment may be made, and notified to me 
 in season to enable me to sit at that term. 
 With the highest respect, 
 
 I am your obedient servant, B. R. CURTIS. 
 
 The President, by an instrument executed under the 
 seal of the United States, in the usual form, on the 10th 
 
 1 Judge Curtis was nominated to the Senate, December 11, 1851, and con 
 firmed December 20, on which day his last commission was issued. 
 
NT 
 
 1851.] LETTER TO MR. WEBSTEB.\ 157 
 
 of October, 1851, allotted to Benjamin R. Curtis the duties 
 of Judge of the First Circuit of the United States. As 
 the appointment had been made in the recess of the Senate, 
 it could subsist only until the end of the next session of 
 that body, unless it should be confirmed before the expira 
 tion of that session. But in the mean time the Judge had 
 full authority to act. Judge Curtis took the oath of office 
 on the 10th of October, 1851. The regular term of the 
 Circuit Court, at Boston, commenced on the 15th of that 
 month. 
 
 The following letter to Mr. Webster, written after he 
 had been for a month engaged in the business of the Cir 
 cuit, exhibits his views of the different functions of a 
 judge : 
 
 To MR. WEBSTER. 
 
 93 BEACON ST., Nov. 16, 1851. 
 
 DEAR SIR, I thank you for the notice of Judge Patterson, 
 which I should not otherwise have seen. It is full of good sense, 
 and, so far as I can judge from some knowledge of his recorded 
 opinions, it is true. But the recorded opinions of a judge, as you 
 know, present only one side of his judicial character and mind. 
 To write an able, learned, and satisfactory opinion of a case is cer 
 tainly not easy ; and in reference to the science of the law and to 
 the ultimate decision of causes which have advanced to that stage, 
 it is often very important. But it has seemed to me that a far 
 more difficult and useful field of labor, speaking generally, is the 
 safe, prompt, judicious, and wise controlling power of a judge on 
 the Circuit. I have no doubt that every quality and attainment of 
 which a judge is capable may there find their fullest exercise and 
 their most difficult work. I presume you will agree with me, that 
 there is no field for a lawyer which, for breadth and compass and 
 the requisitions made on all the faculties, can compare with a trial 
 by jury ; and I believe it is as true of a judge as of a lawyer, that 
 in the actual application of the law to the business of men, mingled 
 as it is with all passions and motives and diversities of mind, tem 
 per, and condition, in the course of a trial by jury, what is most 
 excellent in him comes out, and finds its fitting work, and whatever 
 faults or weaknesses he has are sensibly felt. 
 
158 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 Perhaps the necessities of the country may some day require 
 that the judges of the Supreme Court should sit only as a court of 
 error ; but it will certainly be a loss to the country, and an injury 
 to the judges themselves, when they cease to come directly in 
 contact with the people on the circuits, and when they are no 
 longer required to apply the law to evidence of facts, a process 
 not very satisfactory to the mind, but, in my opinion, of eminent 
 utility. 
 
 I have been led into these thoughts by reading this notice of 
 Mr. Justice Patterson, and asking myself what I knew about 
 him. No doubt they are all very familiar to you, but if they agree 
 with your own opinions you will not be sorry that I have learned 
 these lessons which I hope to practise. 
 
 Your obedient servant, 
 
 B. R. CURTIS. 
 
 Rarely lias any man entered upon a high judicial position 
 under circumstances more calculated to test the fibre of his 
 character, than those which in Massachusetts surrounded 
 Judge Curtis on his accession to the bench. If the cases 
 which awaited his judicial action had been merely in the 
 ordinary routine of civil or criminal trials, unconnected 
 with subjects that deeply excited the public mind, there 
 would have been nothing to call for special notice here, 
 beyond the manner in which he appeared to be qualified 
 for the usual duties of the place. But, as we have seen, 
 it was a period in the history of our country when the au 
 thority of the national government was put to a severe trial. 
 A government popular in its form, and accustomed to rely 
 largely on popular submission to its laws, was obliged to 
 make it manifest that it had the strength, irrespective of 
 popular and local feelings, to execute any law which the 
 legislative power had enacted, until it should be determined 
 by proper judicial authority that the law was not warranted 
 by the Constitution. It is difficult now, for two reasons, to 
 make appreciable to younger generations, how the excite 
 ments of this period put to the proof the force and steadi 
 ness of individual character. It is difficult, in the first 
 
1851.] NORTHERN AND SOUTHERN EXTREMISTS. 159 
 
 place, because those excitements had relation to the subject 
 of slavery, in regard to which the sympathies of mankind 
 are now no longer called upon to yield to the authority of 
 positive law ; and, in the second place, because the senti 
 ment of loyalty to the Union and the Constitution was, at 
 a later period, by the apparent necessities of a civil war, 
 made to take, in the popular feeling of the Northern section 
 of the Union, the shape of opposition and hostility to the 
 Southern section, and the interests and objects which that 
 section appeared to assert and uphold. He, however, who 
 would do justice to the acts and motives of men who took 
 any part in public affairs during the decade immediately 
 preceding our civil war, must learn that in many of the 
 Northern communities, and especially in New England, 
 during that period, the duty of loyalty to the Union and the 
 Constitution rendered it necessary to encounter a local 
 feeling, which was the direct reverse of that which after 
 wards blazed forth in defence of the national authority. 
 This duty rested upon individual consciences then with 
 the same force, and depended upon the same principles as 
 those which were at a later period so commonly felt and acted 
 upon by multitudes, when both the authority and the ex 
 istence of the national government were put in peril by the 
 attempted disruption of the Union which arose in the South 
 ern section of our country. If in 1851 the arguments, the 
 doctrines, and the feelings of men in the North, who rejected 
 the Constitution because one of its provisions was repugnant 
 to their feelings, or to what they deemed their interests, 
 were sound and defensible, the arguments, the doctrines, 
 and the sentiments of men in the South, who in 1861 re 
 jected the bonds of the Constitution because they felt that 
 their local interests or safety required them to quit the 
 Union, were equally sound and equally defensible. If, on 
 the contrary, there was a deeper ground of civil and moral 
 obligation to maintain the Union and obey the Constitution 
 than any local feelings or interests could alone afford, then 
 
160 MEMOIR OF BENJAMIN BOBBINS CTJKTIS. [1851. 
 
 the Northern extremists of 1851 and the Southern extremists 
 of 1861 were alike in the wrong. 
 
 To one who, at the earlier period of which I here speak, 
 was placed in a judicial position which made it necessary for 
 him to assert the authority of the national government, of 
 course the trial of character would bear most strongly upon 
 his power to hold the scales of justice with both a firm and 
 an impartial hand. It is not an easy thing to do this, in 
 the midst of a great popular excitement, when the magis 
 trate feels a strong disapprobation of the conduct of those 
 with whose acts he has to deal, and when he deems the 
 excitement unnecessary and unjustifiable. If he exhibits a 
 bias against those who are accused of unlawful acts, he 
 exhibits that which marks him as a weak judge, although 
 it is that which we sometimes expect of human nature. If 
 he rises above all feeling and all prejudice, to that supreme 
 temper of the mind which knows nothing and regards noth 
 ing but the law and the evidence, which seeks neither con 
 viction nor acquittal save for the ends of justice, we know 
 that the great interests of justice are safe in his hands. It 
 is exceedingly easy to be a high-prerogative judge, to treat 
 the claims of government as if they were every thing, and 
 the rights and safety of the citizen as if they were nothing. 
 To be an absolutely impartial judge, between government 
 and citizen, is not so easy, and it is a character as rare as 
 it is difficult of attainment. 
 
 One of the earliest judicial duties which Judge Curtis 
 was called upon to perform was to preside at the trial of a 
 young man of color, who was a member of the bar, and who 
 was indicted for a misdemeanor under the act of Congress 
 known as the Fugitive Slave Law. 
 
 The misdemeanor consisted in the forcible rescue of an 
 alleged fugitive slave from the hands of the Marshal, while 
 he was held for examination under a warrant issued pursu 
 ant to the statute. The rescue was effected in open day, by 
 a mob composed of a comparatively small number of men, 
 
1851.1 RESCUE CASES. 161 
 
 who burst into the court-room in Boston, where the negro 
 was held by the Marshal s officers, during a temporary 
 adjournment which had been allowed by the examining 
 magistrate in order that the supposed fugitive might obtain 
 the assistance of counsel. There was strong reason to 
 believe that the rescue was a premeditated act, by persons 
 who had combined to prevent by force the execution of this 
 particular law in all cases. If this was the fact, the offence 
 amounted to treason against the United States, and the 
 rescue was an overt act in a capital crime. It w r as so 
 understood by the authorities at Washington. No govern 
 ment that was worthy of respect could overlook such an 
 offence. Prompt directions were given to the District 
 Attorney to prosecute the offenders. When the grand-jury 
 of the district came to examine the affair, it was deemed 
 best to indict for a misdemeanor only. Among other cases, 
 an indictment for a misdemeanor was found against the 
 young colored lawyer above referred to, who appeared, on 
 the evidence presented to the grand-jury, to have had some 
 connection with the rescue. The indictment was found 
 before Judge Curtis came upon the bench, and was returned 
 into the District Court, whence it was removed for trial into 
 the Circuit Court. It was tried before Judge Curtis and 
 the District Judge, Hon. Peleg Sprague, in November, 
 1851. 
 
 While one of the counsel l for the defendant in this case 
 was addressing the jury, he claimed, as a proposition of law, 
 that in criminal cases the jury were the rightful judges of 
 the law, as well as of the fact ; and he urged that, if any 
 of them conscientiously believed the act of 1850, commonly 
 called the Fugitive Slave Act, to be unconstitutional, they 
 were bound by their oaths to disregard any direction to the 
 contrary which the court might give them. He was pro 
 ceeding to address the jury in support of this proposition, 
 when he was stopped by the court, and informed that he 
 
 1 Hon. John P. Hale, of New Hampshire. 
 VOL. i. 11 
 
162 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 could not be permitted to argue it to the jury, but that the 
 court would hear him, and if they should be of opinion that 
 the proposition was true, the jury would be so instructed. 
 The counsel then addressed the court in support of his 
 position. On the following day, Judge Curtis pronounced 
 the opinion of the court, holding that, under the Constitu 
 tion and laws of the United States, the jury are not the 
 judges of the law in a trial for a crime ; they are to take 
 the law from the court and apply it to the facts which they 
 may find from the evidence, and thus frame their general 
 verdict of guilty or not guilty. 
 
 This opinion, although heretofore accessible in the regu 
 lar Reports of the Circuit, 1 it has been thought proper to 
 include in the present collection of Judge Curtis s writings, 
 on account of the clearness and accuracy with which it 
 defines the respective functions of the court and the jury in 
 criminal cases. The substance of the charge delivered to 
 the jury, on the facts, is also printed in the second volume 
 of this work, because of the remarkable proof which it 
 affords of complete judicial impartiality ; and in this con 
 nection it may be observed that the biographer is not the 
 first to claim for Judge Curtis this praise, but that it has 
 always been claimed or conceded by those who were most 
 deeply interested in the result of the trials, and who were 
 sufficiently cool and sufficiently free from prejudice to 
 appreciate the conduct of a judge in prosecutions of this 
 nature. At the meeting of the bar of the Circuit Court, 
 held in Boston after the death of Judge Curtis, Mr. 
 Richard H. Dana, Jr. made, among others, the following 
 remarks : 
 
 About twenty-two years ago, the bar, the political world, and 
 the public were extremely excited by the Fugitive Slave trials. 
 There was a strong tide setting for the conviction of the rescuers. 
 I felt deeply on the subject, on account of my political opinions 
 and as counsel in the cases. Judge Curtis presided. I regretted 
 
 1 Curtis s Circuit Court Reports, vol. i. p. 23. 
 
1851. j JUDICIAL LIFE IN WASHINGTON. 163 
 
 deeply the conclusions to which he had arrived on the law. I 
 knew he would conduct the trials with impartiality. What I now 
 wish to say is, that I felt then, and have felt ever since, that there 
 was in the conduct of those trials more than passive impartiality. 
 There was, on his part, an affirmative determination that the trial 
 should be had with absolute fairness. At a critical stage of one 
 case, he volunteered a suggestion in favor of the accused, as to the 
 weight of testimony, which, I think, in the measuring cast, secured 
 the verdict of acquittal. And they who remember how things 
 stood at Washington in those days will see the force of the sugges 
 tion that Judge Curtis had not been confirmed by the Senate, but 
 was acting upon an executive appointment made during a recess of 
 the Senate. 1 
 
 These and other duties at the Circuit in Massachusetts 
 and Rhode Island being discharged, Judge Curtis repaired 
 to Washington, and took his seat on the bench of the Su 
 preme Court at its regular term, commencing in December, 
 1851. His reputation had preceded him. He was received 
 by the other judges with the greatest cordiality and respect. 
 All of them were men much older than himself. Mr. Jus 
 tice Grier, who was of a playful humor, began at once to 
 refer to him affectionately as " Benjamin, our youngest 
 brother." All were gratified by this accession of young 
 vigor and abundant learning, giving promise of assistance 
 not a little needed, and of work sure to be effectively per 
 formed. 
 
 After he had been in Washington for a month, he wrote 
 as follows : 
 
 To MR. TICKNOR. 
 
 WASHINGTON, Dec. 27, 1851. 
 
 MY DEAR UNCLE, I have now been here four weeks, long 
 enough to be settled both in my abode and occupations. I live at 
 Brown s new hotel, where I have a comfortable and pleasant, 
 though small room, and there are some pleasant people in the 
 
 1 The charge to the jury is to be found infra, Vol. II. Consult the Index, 
 verb. " United States v. Robert Morris." 
 
164 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851. 
 
 house. Judge and Mrs. McLean, and Judge and Mrs. Catron, live 
 here, and probably Judge Wayne will come here on his return 
 from New York, where he now is. The bench is full, with the 
 exception of Judge McKinley, and we have made uncommon good 
 progress in our work. But it is already so great as to be beyond 
 the ability of the court to despatch it ; and when the Texas and 
 California land-titles get here, Congress will probably see that the 
 judicial system of the country, fitted for fourteen States, with no 
 Circuit Court west of the mountains, is not adequate to do the busi 
 ness of the United States now, when there are thirty-one States, 
 and about four times as many people, and more than five times the 
 wealth. In the days when Chief Justice Marshall used to deliver 
 those great opinions, the calendar had about thirty causes on it ; 
 now it has two hundred and sixteen. I think there can be no ques 
 tion that, when the next administration comes in, the judges of the 
 Supreme Court will be relieved from all duty out of that court, and 
 two sessions a year will be held ; in which event, I shall live and 
 keep house here a part of the year. I find rent, and all the neces 
 sary expenses of living, are less than in Boston, I said to Mr. 
 Appleton about twenty per cent less, and he replied he thought so, 
 and he is a good judge. They [the Appletons] live in a large house 
 on the corner of President Square, and entertain a good deal, and 
 of course handsomely. I have dined there twice, the last time on 
 Christmas day. He evidently likes his position here. He said to 
 me that, when he came first into the House, he was so entirely un 
 accustomed to the whole thing that he felt almost lost ; but, he 
 added, with great simplicity, " by keeping quiet, I find people talk 
 ing of things that I know more about than they do." 1 I met 
 Mr. Webster at the Seatons last week, and he said, " I have just 
 had the pleasure of signing your commission." This was the first 
 intimation I had had that my nomination had been made to the 
 Senate. The next morning the commission came. I do not hear 
 much of politics, for there is a real and true separation of the 
 bench from politicians here, with perhaps one exception, and I do 
 not know that there is any exception. But I think, from all I see 
 and hear, Mr. Webster s chance for a nomination is very small. 
 If the Democratic party should nominate General Cass, or some 
 
 1 The Hon. William Appleton, an eminent merchant in Boston, who 
 had a short time before accepted a seat in Congress, is the person here 
 referred to. 
 
1851.] JUDICIAL LIFE IN WASHINGTON. 165 
 
 other civilian from the North, the Whig party may possibly 
 nominate Mr. Webster ; but I doubt if the nomination would be 
 of any value, for I think the Democrats will surely carry the next 
 election. 
 
 My brethren here have received me very kindly, and there are 
 some pleasant gentlemen among them. I find my duties require 
 constant labor ; but there is no more than a fair day s work to be 
 done in each day, and I have really more leisure than I have 
 known for ten years. The great difference between my pro 
 fessional labors at the bar and on the bench consists in the entire 
 freedom of the latter from anxiety and burdensome responsibility, 
 and the certainty when I rise in the morning that no one can force 
 me to do any thing which I am not equal to ; and, accordingly, my 
 health has been better during the last month than any time for a 
 year past. We have, argued and now under advisement, the case 
 of the Wheeling Bridge, built across the Ohio under the authority 
 of the State of Virginia. This is the first case since I have been 
 here which involved constitutional questions on which the court are 
 likely to divide, though I have been obliged in one case to dissent 
 from the majority. In general, we have thus far been very har 
 monious in our opinions. 
 
 The court was riot disturbed by the fire, and sat as usual while 
 the building was burning. We were not aware that we were show 
 ing any peculiar coolness by doing so ; for having made all necessary 
 arrangements to have the records, &c. removed in case of need, 
 we saw no reason why the business of the day should not proceed. 
 But I understand people thought it was like the Senate sitting 
 when the Gauls came. Give my love to Aunt and the cousins, and 
 believe me 
 
 Yours faithfully, B. R. CURTIS. 
 
 The subjoined letter, written to me recently while this 
 volume is passing through the press, is from the pen of a 
 gentleman who was a college friend of my brother s, and 
 who was in confidential relations with President Fillmore 
 at the time when he appointed the latter to the bench. A 
 part of it relates to their college days; but as it was not 
 received in season to be quoted in the chapter relating to 
 that period, the whole is inserted here. 
 
166 MEMOIR OF BENJAMIN BOBBINS CUBTIS. [1852. 
 
 202 MADISON AVENUE, NEW YORK, 
 March 22, 1879. 
 
 MY DEAR MR. CURTIS, I had not forgotten my promise, but 
 the day it was made I was called to Lenox on business, and have 
 but just returned. 
 
 My friendship with your brother was a matter of our earlier 
 and our later days, when we were in college and when he was on 
 the bench of the Supreme Court. He preceded me, as you know, 
 by a year, at Harvard, at a time when a year or two makes a great 
 difference in age, and I looked up to him always with as much respect 
 as if I had not regarded him with affection. I do not think there was 
 ever a period when his judgment was not as good, on such facts as 
 were submitted to it, as it became in his maturest days. Intellect 
 ually, he had no boyhood. He was a man from the start, if there 
 ever was one. I was frequently at his rooms, for I was fasci 
 nated by his singular sweetness of disposition, and his kind, genial 
 way of making me at home with my " senior," while his conver 
 sation was full of interest and instruction to me. In expressing 
 what I particularly remember of his character in those days, I 
 should say that it was nothing if not judicial. He knew that 
 every thing has two sides, and he looked for both sides of every 
 thing. 
 
 There was a long interval in our intercourse, from the time 
 he graduated till we met again more than twenty years after 
 wards. Meanwhile he had risen to the head of the bar of New 
 England. 
 
 When Mr. Justice Woodbury died, the first name presented to 
 the President for the vacancy thus created on the Supreme Bench 
 was that of your brother. Mr. Fillmore determined to appoint 
 him ; and although strong interests were active in behalf of others, 
 he never, I think, faltered in his resolution. On his visit to Boston, 
 in the summer of 1851, he assured himself that his intention of 
 appointing a young man, provided he was the best man, could be 
 best carried out by the appointment of Mr. B. K. Curtis ; and he 
 offered him the vacant seat solely because he thought it his duty to 
 do so. And I will here say, in parenthesis, that, if there ever was 
 a magistrate guided in every action by a stern sense of public duty, 
 that magistrate was Millard Fillmore. And I have reason to know 
 that there was no act of his administration in which he felt more 
 pride and satisfaction than in this single appointment. 
 
1852.1 JUDICIAL LIFE IN WASHINGTON. 167 
 
 When your brother came to "Washington as Mr. Justice Curtis, 
 we again fell naturally enough into our old relations, and slipped 
 as easily into " John " and " Ben " as if we had just come from a 
 game of foot-ball on the " Delta." It was a relief to him, after 
 sitting all day on the bench, to come up to my then bachelor 
 quarters and dine, and chat over a glass of claret into the small 
 hours, sometimes in company, sometimes alone. At those times 
 he did not seem to be a day older than when he was in college ; 
 there was the same infinite charm of simplicity, naturalness, and 
 sincerity that distinguished him in his earlier days. He never 
 failed to give due credit to his contemporaries. It was in their 
 praise, and not in their disparagement, if he ever went beyond his 
 habitual moderation in treating of men and things. If I could 
 trust myself to speak of conversations of so long ago, I could give 
 many instances of this ; but there is one that I am not obliged to 
 trust to my memory for. I copy from a pocket diary, that has 
 somehow survived the accidents of a quarter of a century, the 
 following entry, being that note taken on the spot which is truly 
 said to be worth a cart-load of recollections : 
 
 " Thursday, Jan. 20, 1852. ... In the evening Judge Curtis, Mr. William 
 Appleton, Crittenden, Conrad, Burnley, Rush, Hamilton Fish, and Dr. Pyne 
 dined with me. Mr. Webster could not come, but sent me with his regrets 
 a fine large cod that he had just received from a friend in Boston, which 
 was, of course, the crack dish of the occasion, and we did not forget to drink 
 his health with all the honors. Judge Curtis impresses every body most 
 favorably by his modest demeanor and his agreeable conversation. He 
 changes but little, he is of the same well-knit frame, with fine, expressive 
 eyes, and white teeth, which you notice when he smiles, not handsome, but 
 his face .lights up wonderfully. Crittenden, who does not like or dislike by 
 halves is perfectly charmed with him; and Crittenden, by the way, was in 
 great spirits to-night, and told some of his Western stories in his very best 
 style. They turned chiefly on his early professional experiences in Ken 
 tucky, and, the conversation taking this direction, Judge Curtis bore his full 
 share in it, and said, among other things, that he regarded Charles O Conor s 
 management of the Forrest Divorce Case as the most remarkable exhibition 
 of professional skill ever witnessed in this country." 
 
 This is word for word as Judge Curtis uttered it; and, coming 
 from such a source, it seems to me a tribute of which even Mr. 
 O Conor might be proud. 
 
 Yours sincerely, 
 
 JOHN 0. SARGENT. 
 
168 MEMOIR OF BENJAMIN BOBBINS CUBTIS. [1852. 
 
 To MR. TICKNOR. 
 
 WASHINGTON, Feb. 29, 1852. 
 
 DEAR UNCLE, I have no claim to be considered a correspond 
 ent of any one, for it is not possible for me to be such, but I assure 
 you my silence does not imply forgetfulness. We are winding up 
 the business of the session, and shall adjourn on Tuesday, the 
 2d of March, till the first Monday in April, and then sit for two 
 months. I voted against this adjournment, on the ground that the 
 law now requires us to go the circuit at least once a year, and that 
 in two of my districts no judge of the Supreme Court will have 
 been for a year. But I was outvoted, and must submit, and cer 
 tainly, if we can do what we hope, go entirely through the calen 
 dar, it will be a very important work. We shall leave no cause 
 undecided, which has been argued, when we adjourn. Judge 
 Catron will give the opinion of the court in Mrs. Gaines s case 
 to-morrow, against Mrs. Gaines. In this opinion I unite with 
 Nelson and Grier. Wayne and Daniel dissent, and McLean and 
 the Chief Justice did not sit, on account of an interest, in some 
 way, in the result, which some of their relatives have. 
 
 We shall undoubtedly be roundly abused by newspapers and 
 pamphlets for tins decision. The lady has talent and spirit, and 
 threatens strongly, I hear. . . . 
 
 On Tuesday, I shall give the opinion of the court on the constitu 
 tionality of the State Pilot Laws. There is involved in this the 
 much vexed question, whether the power to legislate on commercial 
 subjects is vested exclusively in Congress, or whether the States may 
 legislate in the absence of Congressional regulations. I expect my 
 opinion will excite surprise, because it is adverse to the exclusive 
 authority of Congress, and not in accordance with the opinions of 
 McLean and Wayne, who are the most high-toned Federalists on 
 the bench. But it rests on grounds perfectly satisfactory to my 
 self, and it has received the assent of five judges out of eight, 
 although for twenty years no majority has ever rested their de 
 cision on either view of this question, nor was it ever directly 
 decided before. 
 
 We shall leave here on Wednesday for a little excursion into 
 Virginia, as far as Richmond, and thence down to Norfolk, and so 
 to Baltimore and home on the 12th, if not unexpectedly delayed. 
 I hear they keep some warmer weather down there, and want to 
 see a little of it before coming back to ice and snow. . . . 
 
1852.] JUDICIAL LIFE IN WASHINGTON. 169 
 
 Presidential politics are in great confusion here, and no one can 
 conjecture who is to be nominated by any party. But I fear Mr. 
 Webster has no chance whatever for a nomination. I will tell you 
 my reasons when I see you. Please give my love to Aunt and to 
 the cousins. I shall be extremely glad to see you all, which I hope 
 to do in a fortnight. 
 
 Yours faithfully, B. R. CURTIS. 
 
 Of the opinions pronounced by the Supreme Court, at this 
 his first term of service, numbering in all one hundred and 
 ninety-seven cases, it was assigned to Judge Curtis to write 
 ten. 1 This continued to be about the average number of 
 cases in which he wrote the opinion of the court in the 
 succeeding terms, from the December Term, 1852, to the 
 December Term, 1856. 2 
 
 Of the discharge of his duties on the circuit, a sphere 
 which he regarded, as the reader has seen, as the most 
 difficult and useful field of judicial labor, what is recorded 
 is contained in the two volumes of Circuit Court Reports 
 which bear his name. Of that which is not recorded, and 
 which lives as yet in the memories of survivors, there is a 
 beautiful, and I think just description, given by a gentle 
 man who practised before him during nearly the whole of 
 the period of his service as a judge ; and this I cannot omit 
 transcribing into these pages : 
 
 A young man, coming a stranger into a large and strong bar 
 like this, (as I did in the year 1852, when Judge Curtis had just 
 gone upon the bench,) is apt to be deeply impressed by the marked 
 
 1 As there were nine judges, and as the opinions of the court on all 
 questions of practice, jurisdiction, &c. were usually written by the Chief 
 Justice, of which character there were at this term twenty-eight cases, 
 the number of the other cases in which Judge Curtis wrote the opinion 
 of the court was a large proportion to assign to the youngest judge, who 
 had just come upon the bench. The average share of the work for each 
 of the Associate Justices was about eighteen cases. But of course the 
 amount of this part of the labor that was performed by the different 
 judges varied considerably. 
 
 2 A list of all of the cases in the Supreme Court in which he delivered the 
 opinion of the court will be found in the Appendix. 
 
170 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1852. 
 
 manifestation on the part of the bench of certain moral qualities, 
 which others, not so anxiously situated, might take for granted; 
 and it is of some of these qualities, very conspicuous in Judge 
 Curtis, that I wish to speak. 
 
 He was a very patient judge. I suppose he thought that it was 
 as much a judge s duty to be patient as it was to be learned, and 
 that his possession of much learning did not excuse him from the 
 obligation of patience towards those who had less. And in his 
 case, I early observed that whatever encouragement or exhilaration 
 a young advocate might miss in the frigid and reserved and distant 
 manner which was maintained by the bench, was more than made 
 up by the steadiness conferred upon the speaker by the quiet and 
 courteous attention with which he was listened to, from the begin 
 ning to the end of what he had to say. If a young advocate 
 happened to be making bad work of it, he was at any rate not 
 helped downward by the slightest manifestation of weariness or 
 vexation from the bench. 
 
 lie was a perfectly impartial judge. If we are to speak of this 
 trait in its highest aspect, we cannot do better than to apply to 
 Judge Curtis the language which he himself applied to another dis 
 tinguished jurist of this bench (I mean, and I delight in this brief 
 opportunity of doing him honor, Mr. Justice Sprague) on the occa 
 sion of his retirement from judicial life: "The bar have found in 
 you that absolute judicial impartiality which can only exist where 
 an instructed and self-reliant intellect is joined to a tender and 
 vigilant conscience and a firm will." Not a word can be spared 
 from this definition. It was all true of Judge Sprague. It was all 
 true of his judicial comrade, Judge Curtis. We may assume now 
 that all judges mean to be impartial, as it is here defined. But 
 it is riot possible that all, or more than a very few, should have an 
 intellect at once instructed and self-reliant, and a conscience at 
 once tender and vigilant, as well as a firm will ; and without them 
 all, it is most true that absolute judicial impartiality, to be useful 
 to the world as well as meritorious in its possessor, cannot exist. 
 
 He was an absolutely independent judge, independent not 
 only in conduct, so that in his judicial seat he neither feared nor 
 favored any man, but by natural sentiment, so that he could be and 
 was single-minded, having no ends large or small to accomplish, 
 outside of and apart from the great end of doing justice. He had an 
 ambition, of course, to command the respect of his contemporaries, 
 
1852] CONFLICTING CRITICISMS. 171 
 
 and to make himself a lasting reputation as a wise and learned 
 judge ; but he had no judicial ambition beyond this. How he 
 would appear, what people would say, how his or any body s per 
 sonal feeling would be affected if he decided thus or thus, were 
 thoughts of which he was simply incapable. He was that kind of 
 man that could not lower himself to entertain such considerations. 
 The result of the possession and steady exercise of this principle or 
 instinct of independence was to make the administration of the 
 law in his court profoundly respected. 
 
 Patient, impartial, independent, possessing these three qualities 
 in absolute perfection, he might have been much less able and much 
 less learned than he was, and still have been a judge whose time 
 we could look back upon with pride and gratitude. 1 
 
 Judge Curtis was assailed by a certain class of persons 
 for restricting the right of trial by jury, because he had de 
 nied that juries are rightfully judges of the law in criminal 
 cases. Within a year he was abused by the same class of 
 persons for extending the right of trial by jury beyond 
 constitutional bounds. The subject on which the last 
 complaint was made related to the constitutional validity 
 of a law of Rhode Island for " the suppression of drink- 
 ing-houses and tippling-shops." An action, of replevin was 
 brought in the Circuit Court of the United States for Rhode 
 Island, by a citizen of New York, to recover possession of a 
 quantity of wine and spirits. The defendants justified the 
 taking and detention by virtue of certain proceedings under 
 the law. The plaintiff having demurred to the avowry, 
 insisted that the provisions of the law relied upon were in 
 conflict with the Constitution of the State. This question 
 Judge Curtis had to decide. His opinion, very carefully 
 considered and written, was, when promulgated, severely 
 and rudely assailed in the New York Tribune. The fol 
 lowing letter relates to this matter. 2 
 
 1 Remarks of Mr. Causten Browne, at the meeting of the Boston bar 
 held after the death of Judge Curtis. 
 
 2 Although this opinion is contained in the first volume of Curtis s 
 Circuit Court Reports (Greene v. Briyjs, p. 311), it seems to me so valuable 
 
172 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1853. 
 
 To MR. TICKNOR. 
 
 WASHINGTON, Jan. 14, 1853. 
 
 DEAI* UNCLE, I received your circular respecting the corre 
 spondence of Mr. Webster. I have no letters, myself, of any 
 value for your purpose, but may gather some. Our neighbor, 
 Mrs. Dr. Lindsley, is a relative of his remotely, and has many 
 letters from him, and perhaps may consent to send some. I know 
 of no other person to whom I can apply, but by inquiry may learn 
 of some, to use a clumsy phrase. 
 
 Mr. C. P. Curtis informs me you were somewhat disturbed by 
 articles in the Tribune newspaper concerning my decision in the 
 matter of the Rhode Island law for the suppression of tippling- 
 houses, &c. I have not seen the articles ; but I had no doubt, 
 when the opinion was given, it would be attacked, not by reasoning, 
 for that I did not fear, but by abuse, which I feared as little. It 
 is a fact of some significance, as illustrating the position which the 
 judiciary holds in this country, that within the period of one year I 
 have been abused for trenching upon the right of trial by jury, and 
 for extending that right beyond the bounds prescribed by the Con 
 stitution. I know that all the time I have occupied the same 
 ground, now repelling those who would make the jury judges of 
 the law, which would be destructive of liberty, and now restraining 
 those who, in the pursuit of an object deemed by them of great 
 importance, have disregarded principles contained in Magna Charta, 
 and affirmed in every American Constitution which has been formed 
 since 177G. Neither Mr. Greeley nor any one can overthrow the 
 opinion pronounced in this case ; and if their articles can even 
 temporarily influence any portion of the public mind, it is only 
 because there is not enough knowledge to judge, and not enough 
 deference to suspend their opinions. I have no doubt I may and 
 shall make mistakes in my judicial opinions. But I think I do 
 know when I have got down on to the primitive foundations, whose 
 situs will never be disturbed until our political fabric breaks up ; 
 and be sure this opinion rests upon them. I asked Judges Nelson 
 arid Grier to hear the opinion read before it was sent to Rhode 
 
 for the light which it sheds upon constitutional provisions common to al 
 most every American State, that I have advised its insertion infra, Vol. II., 
 as a pendant to the opinion on the right of juries to judge of the law in 
 criminal cases. 
 
1854.] FUGITIVE SLAVE TRIALS. 173 
 
 Island, I also stated its principles to the Chief Justice, and it 
 met the approbation of each of them. No doubt, the members of 
 the judiciary department of the government must make up their 
 minds to being treated hereafter by the press with very little defer 
 ence, and with no more fairness than other people. But, for one, 
 I am content, as long as I shall administer a part of this power, to 
 do my duty to the best of my ability, and let the country take care 
 of the consequences. It is more their affair than mine, in any just 
 way of viewing it. 
 
 We are going to-day to dine with Mr. Everett. Anna has con 
 tinued to grow better since we arrived here, and is now getting 
 quite stout. My own health is perfectly good. Please give my 
 love to Aunt and the cousins, and believe me 
 
 Always your affectionate nephew, B. R. CURTIS. 
 
 The judicial duties of Judge Curtis in his own circuit 
 continued for some time longer to involve trials growing 
 out of the Fugitive Slave excitement. In May, 1854, one 
 Anthony Burns, a fugitive slave from Virginia, was arrested, 
 and examined in Boston before a United States Com 
 missioner, upon a warrant issued under the act of Sep 
 tember 18, 1850. While the proceedings in this man s 
 case were pending, a public meeting was held in Faneuil 
 Hall, on the evening of May 26th, at which the Rev. Theo 
 dore Parker and Mr. Wendell Phillips made speeches, in 
 reference to this matter, of an inflammatory character. On 
 the same night an attack was made by a mob upon the door 
 of the Court-House, in which the Marshal who held Burns 
 under the Commissioner s warrant had his office ; and in 
 resisting this attack, one of the Marshal s officers was 
 stabbed and killed. 1 On the 7th of June the United States 
 grand-jury of the District were in attendance on the Circuit 
 Court. It belonged, of course, to the State authorities to 
 detect and punish the person or persons who had committed 
 the murder ; but as process of the United States had been 
 resisted, and as the object of the attack was avowedly to 
 
 1 The perpetrator of this deed was never discovered. 
 
174 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1854. 
 
 rescue the prisoner held by the Marshal, it became the duty 
 of Judge Curtis to charge the grand-jury in regard to the 
 offence of obstructing the execution of process of the United 
 States. The charge which he delivered is reprinted in the 
 second volume of this work. The grand-jury to which 
 this charge was delivered found no bills relating to this 
 particular offence ; but upon the evidence which the govern 
 ment laid before the grand-jury in October, 1854, tending 
 to show that the persons who made the attack on the Court- 
 House were incited to that act by the speeches to which 
 they had listened in Faneuil Hall, Messrs. Parker, Phillips, 
 and other persons were indicted for a misdemeanor, under 
 the statute on which the former grand -jury had been 
 charged by the court. The trials had not come on when 
 Judge Curtis went to Washington to attend the Supreme 
 Court in December. The following private letters make 
 some reference to the continued excitement in Boston 
 during the winter of 1854-55 : 
 
 To MR. TICKNOR. 
 
 WASHINGTON, Dec. 20, 1854. 
 
 MY DEAR UNCLE, We were truly sorry to hear of the death 
 of Dr. Parkman. 1 We knew of his illness, and were waiting with 
 much interest to hear of the progress of his disease. We did not 
 suppose he was in great danger. Your letter gave us the first 
 information of his death. I have not taken in a Boston news 
 paper this winter. I thought it more comfortable to leave Massa 
 chusetts behind me for three months, and the extract you sent me 
 from a newspaper, containing the substance of Mr. Hale s lecture, 
 is the first thing of the kind I have seen since I came here. . . . 
 
 O 
 
 Mr. Hale had a quarrel of a violent character with the Supreme 
 Court of New Hampshire, some years ago, on this subject of the 
 right of the jury to judge the law. He was entirely worsted. He 
 renewed the contest before me in the Circuit Court with no suc 
 cess. You are aware that, when the people of Massachusetts voted 
 on their proposed Constitution, the majority against the article 
 
 1 Dr. Samuel Parkman, married to a niece of Mrs. Ticknor. 
 
1854.] JUDICIAL FIRMNESS. 175 
 
 making jurors the judges of the law was greater than on any other 
 subject submitted to them. It is the opinion of every judge, save 
 one, now on the bench of this court, that, under the Constitution 
 of the United States, the jurors are never the judges of the law. 
 I say save one, and I do not know what his opinion is. 
 
 As to the individual and factious resistance of the court to 
 which Mr. Hale endeavors to excite his hearers, I have no appre 
 hension whatever. If one or two sufficiently wrong-headed per 
 sons on the panel should refuse to answer proper questions, good 
 temper, gentleness, and firmness will put them obviously and en 
 tirely in the wrong, and the ample power of the court to compel 
 obedience to its lawful commands, will reduce them to submission. 
 It will be as hopeless for them to attempt to gain a victory in this 
 way, as for Abby Folsom to speak at an abolition meeting. 
 
 I suppose great efforts are making, and will continue to be 
 made, to preoccupy the public mind in reference to the trials of 
 Theodore Parker and Wendell Phillips. This is no affair of mine. 
 My duty is to administer the law. This will be done. Whether 
 they are legally guilty of the charge, whether either of them 
 ought to be convicted, whether they will be convicted, are matters 
 respecting which I have no responsibility whatever, and, I can say 
 with perfect truth, no wish whatever save that justice should be 
 done. But I desire and intend, so far as in me lies, to have the 
 law administered ; if they are not guilty, for their acquittal ; if 
 otherwise, for their conviction ; and I think it will be done with 
 great quietness and calmness, and I believe with the same steadiness 
 in their cases as in those of the colored men who are accused of the 
 same offence. 
 
 It cannot be doubted that the position of the judges of the 
 Supreme Court, at this time, is in a high degree onerous ; and that 
 while it exposes them to attack, such as no honest judiciary, in any 
 country within my knowledge, have been subject to, they have not 
 the consideration and support to which they are entitled. Their 
 salaries are so poor that not one judge on the bench can live upon 
 what the government pays him, and the legislative branch of the 
 government are not friendly to them. The people, though retain 
 ing some of the respect which, in the formation of the govern 
 ment, made the judicial element predominant over every thing but 
 the reserved power of the people, yet are ready to listen without 
 indignation to the grossest charges against those who administer 
 
176 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1855. 
 
 the judicial power. I believe I have never spoken to you on this 
 subject ; but it has been and is a matter of grave doubt with me, 
 whether I will longer continue to occupy the post I now hold. I 
 can say with entire sincerity, that, if I could see an honorable re 
 treat from my post open to me, from which the country would take 
 no detriment, I would not hold it longer. Whether I shall con 
 tinue to do so, I do not now know. While I do hold it, however, 
 no power confided to me by the people of the United States, for 
 the benefit of themselves and their posterity, will suffer any loss 
 in my hands, however odious its exercise may be to a faction, or a 
 party, or even to my native State, and however ill supported I may 
 be by all other men. 
 
 I certainly had not intended to write in so grave a tone when I 
 began this letter. But I have been insensibly led to speak of 
 things which I often think of. 
 
 We are pretty well, though Anna has not been quite as well 
 as usual since coming here. My own health is good. Present my 
 love to Aunt and the cousins, and believe me 
 
 Yours affectionately, B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 WASHINGTON, Feb. 6, 1855. 
 
 MY DEAR UNCLE, I send herewith a note to Mr. Lowell, 
 which I suppose is what you suggest, though I did not quite 
 understand from your letter whether you desired me to send it 
 to you. I heartily approve of his employing Mr. Milburn to 
 give the proposed course of lectures. I think it would help to 
 enlarge the conceptions of our fellow-citizens in Boston to listen 
 to them. 1 
 
 There is nothing here of very special interest. Congress is 
 working pretty hard upon the public business, and is in a better 
 mood to do it than I have known before. The passage of the 
 French Spoliation Bill is creditable, but I fear the President will 
 veto it. The politics of parties are in a very confused state just 
 now. There are a few old Democrats who hold on to their tradi 
 tions ; but besides these almost all are looking over their shoulders 
 
 1 The Rev. W. H. Milburn, sometimes called " the blind preacher/ was 
 employed at this time to give a course of lectures at the Lowell Institute, in 
 Boston. He had been chaplain to one of the houses of Congress. 
 
1855.] JUDICIAL IMPARTIALITY. 177 
 
 on both sides to discern from what quarter the breeze is coming. 
 That the country is to go through a severe trial, and its institu 
 tions be hardly strained during the next few years, I have no doubt. 
 If it depended on the virtue and wisdom of its public men, I should 
 not have so much hope as fear. But the frame of the government 
 is so good, that it will work pretty well under great embarrass 
 ments, and will not stop without being first subjected to very vio 
 lent shocks. These I do not much fear. 
 
 I received a few days since, from Boston, a copy of an article 
 in the Advertiser, for the kindness of which towards myself I 
 am much indebted to the unknown writer, but I doubt the expe 
 diency of opening a newspaper discussion upon the subject. Per 
 haps I am not so well able to judge of its fitness as those on the 
 spot. I can say with entire truth, that the thing which I most 
 feel in all these matters is, that an audience of two thousand 
 people, in the city of Boston, should tolerate personal abuse of a 
 magistrate from a man who stands indicted in the tribunal over 
 which that magistrate presides, and that they should applaud one 
 who avows himself to be devoted to the destruction of his country. 
 I do not know enough of the geology of the State to say where the 
 hard-pan lies ; but if it is much lower down than this, I should 
 have some doubt of the power of that people to extricate them 
 selves from the mud at last. 
 
 With love to you and yours, I am 
 
 Yours always, B. R. CURTIS. 
 
 On the 3d of April, 1855, a jury was impanelled to try 
 one of these indictments in the Circuit Court, held by Judge 
 Curtis and Judge Sprague. The counsel for the defendants 
 made a motion to quash the indictment, on various techni 
 cal grounds, which were elaborately argued. When the 
 counsel for the government had argued in support of the 
 indictment, and the leading counsel for the defence was 
 about to reply, he was stopped by the court, and informed 
 that they did not deem it necessary to hear him. Judge 
 Curtis then said that there was a fatal defect in the indict 
 ment, which had not been pointed out at the bar, but which 
 had arrested the attention of the court. He said that 
 
 VOL. I. 12 
 
178 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1856. 
 
 the indictment did not contain a sufficient legal averment 
 that the Commissioner who issued the warrant was a Com 
 missioner duly authorized to issue process under the act 
 of 1850 ; and that, although such was undoubtedly the 
 fact, the want of such an averment in the indictment was 
 fatal. In the case that was then on trial (that of one 
 Stowell), the indictment was thereupon quashed. In the 
 other cases, including those of Messrs. Parker and Phillips, 
 in which the indictments had the same defect, the District 
 Attorney was allowed to enter a nolle prosequi. 1 
 
 Two of the following letters, written from Washington 
 in 1856, relate to the best mode of filling one of the 
 departments of the Boston Public Library, which Mr. 
 Ticknor was then busily occupied in enlarging, and in 
 reference to which he went abroad in the following sum 
 mer. 2 The third letter refers only to a matter of domestic 
 interest. 
 
 1 The Rev. Theodore Parker, whose case was never presented to a jury, 
 thought fit to publish in a book a supposititious and imaginary speech, which 
 he said he had intended to address to the jury on his trial. It filled 221 
 pages of an octavo volume with the most atrocious personal attacks upon 
 the judge, who would have presided at the trial, if there had been one. 
 In his Preface he said, " Of course, I knew that the court would not have 
 allowed me to proceed with such a defence, and that I should be obliged to 
 deliver it through the press." In this he was doubtless quite right. But he 
 did not " deliver " this " defence through the press " until the following 
 August. He then published one of the foulest libels that ever emanated 
 from the press, under the form of an intended speech to a jury, that was 
 never impanelled for the trial of his case, and directed that libel against a 
 judge whose legal acumen had saved him from a trial, which might, if it 
 had taken place, have been followed by his conviction. He did a worse 
 thing than this ; for in his Preface he attributed his escape from a trial 
 to his counsel, who, he said, " rent the indictment into many pieces, 
 apparently to the great comfort of the judges, who thus escaped the battle, 
 which then fell only on the head of the [District] Attorney." The indict 
 ment was quashed on an error detected and pointed out by the court, and 
 which had not been seen or referred to by the counsel for the defence. 
 Mr. Parker knew this, of course, just as well as it was known to every one 
 present. 
 
 2 See " Life and Letters of George Ticknor," vol. ii. p. 310, et seq. 
 
1856-1 BOSTON PUBLIC LIBRARY. 179 
 
 To MR. TiCKNOR. 
 
 WASHINGTON, Jan. 24, 1856. 
 
 MY DEAR UNCLE, It will give me great pleasure to comply 
 with your request to give the list of books on the commercial law 
 which you ask, but it is not the work of an hour, and I must take 
 a little time for it. I have no hesitation about English or Ameri 
 can books, or translations from the languages of Europe, or from 
 the Latin. The only doubt is, how far it is expedient to include 
 French books on commercial law. The Code de Commerce 
 now in force, with its most important commentators, the great 
 Ordinance of Louis XIV., and Valin s Commentary and his edit 
 ors, I should not hesitate a moment about. French speculations, 
 as the common lawyers call them, for we have never really be 
 lieved that French commerce afforded exactly a practical field for 
 commercial law, are VERY valuable. Their writers have done 
 more to give symmetry to the dry bones of our " cases," than one 
 would readily believe who had not studied them. The knowledge 
 of French is so common among merchants now, that, apart from 
 technical terms, which do not abound in their books on this branch 
 of the law, an intelligent man who reads the language would 
 understand Valin or Boulay Paty/as readily as Phillips or Arnold. 
 If I were to follow my own lights, therefore, I would put in the 
 library, alongside of a collection of the English and American Re 
 ports touching the admiralty and commercial law, and the English 
 and American text-writers on these subjects, a choice collection of 
 French books. Please say if this is within your plan, and I will, 
 as soon as possible, give my attention to it. 
 
 I have been entirely well this winter, and, though I do not be 
 come reconciled to living in a small room, away from my wife and 
 children, I bear it as well as I can. Give my love to Aunt, and 
 tell her I try to behave well in my solitary state. 
 
 Ever yours, B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 WASHINGTON, Tuesday, April 8, 1856. 
 
 MY DEAR UNCLE, I hope you will not consider me remiss in 
 attention to the list of French law-books. I went to work with 
 Dupin as soon as I arrived here, but I was dissatisfied with what I 
 had done, and asked Judge Campbell and Mr. Benjamin of the 
 
180 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1856. 
 
 Senate (who is an accomplished Louisiana lawyer) to help me. 1 
 They readily agreed to do so ; but they are both very much occu 
 pied, and I cannot urge them to hasten the work. If you are 
 desirous of having my imperfect results, I will send them ; but if 
 you can wait a week or two, I can do better by their aid. 
 
 The spring is steadily advancing here, and green grasses and 
 early flowers are no longer rare. 
 
 The court will not decide the question of the Missouri Compro 
 mise line, a majority of the judges being of opinion that it is not 
 necessary to do so. 2 (This is confidential.) The one engrossing 
 subject, in both houses of Congress and with all the members, is 
 the Presidency ; and upon this every thing done and omitted, ex 
 cept the most ordinary necessities of the country, depends. Judge 
 McLean hopes, I think, to be a candidate for the office. He would 
 be a good President, but I am not willing to have a judge in that 
 most trying position of being a candidate for this great office. 
 
 Please present my affectionate remembrances to your household, 
 and believe me, 
 
 Ever yours, B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 [WASHINGTON,] May 5, 1856. 
 
 MY DEAR UNCLE, I thank you for your note of the 3d 
 instant, which I received this morning. I shall certainly be present 
 on the 20th. if my health does not require me to remain at home, 
 and I hope and believe it will not. But I have been much run 
 down by continuous labor, and have suffered somewhat from living, 
 away from home, the life of a wanderer since last September. I 
 shall leave here on Tuesday the 13th, if I get through with my 
 share of the work, as I anticipate. I shall go to Pittsfield, and 
 unless I should be more under the weather than I expect, shall 
 come down on Monday. I have no court to bring me to Boston, 
 for I do not now suppose I shall hold a court till next September, 
 but I cannot stay away from an occasion which is so interesting to 
 you, and therefore to me. 8 Whether my wife will be able to come, 
 
 1 The Hon. J. P. Benjamin, afterwards the " Confederate " Secretary of 
 "War, and now an eminent barrister in London, is the person here referred to. 
 
 2 See infra, Chapter VIII., in regard to the Dred Scott case. 
 
 3 The marriage of Mr. Ticknor s youngest daughter, Eliza Sullivan, to 
 Mr. William S. Dexter. 
 
1856.] RETURN FROM WASHINGTON. 181 
 
 I know not. She has just got her flock safely housed at Pitts- 
 field ; I should not be surprised if she felt unable to quit the 
 homestead and make another journey. But she must speak for 
 herself. 
 
 I take it for granted that your house will not hold me in this 
 emergency, and shall look for a home elsewhere, unless you say I 
 am to come to your house, and I do not expect you to do so. With 
 much love to you and yours, I am 
 
 Ever yours, B. R. CURTIS. 
 
182 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1851 
 
 CHAPTER VII. 
 
 1851-1856. 
 
 Purchase of an Estate at Pittsfield. Country Life. Interest in Farming. 
 Letters to Mr. Ticknor. Projects and executes his Edition of the 
 Supreme Court Decisions. 
 
 WHILE the current of human life, for those who feel 
 strongly and think wisely concerning public affairs, flows 
 among dangers and trials, it also flows, for those who are 
 blest in their domestic ties, in enjoyments which public 
 occupations can neither give nor take away. He whose 
 enlightened patriotism makes him anxious about the pub 
 lic welfare finds in his private relations and interests the 
 relief which brings cheerfulness, and the happiness which 
 the outer world rarely disturbs. My brother was of a 
 temperament that made domestic life most necessary to 
 him ; and he had the wisdom, as soon as his means would 
 allow, to surround himself with the appliances which could 
 
1852.] COUNTRY LIFE. 183 
 
 gratify the tastes and minister to the wants of his nature. 
 These were always simple, and such as belong to a healthy 
 moral organization and a cultivated intellect. 
 
 Always a lover of nature, and with strong tastes for 
 agriculture, which he had imbibed in his boyhood, he had 
 never, until the year 1851, owned any land on which such 
 tastes could be indulged. Previous to that time, his sum 
 mers had for several years been passed at the sea-shore, 
 in a cottage which he built at Lynn, opposite Nahant. In 
 the summer of 1851, he passed with his family a couple of 
 months in Pittsfield, amid the beautiful scenery and in the 
 invigorating air of the Berkshire hills and valleys. He was 
 now so much attracted by an estate of three hundred acres, 
 near the village of Pittsfield, that he became its owner, and 
 made preparations to build upon it a handsome country res 
 idence. Occupied with these plans, he had no expectation 
 and no wish but to resume in the autumn his usual employ 
 ments at the bar. The steady income which he derived 
 from them was as large as that of any other lawyer in 
 New England who practised as an advocate. Without going 
 into details, it is enough to say, that, with his facilities for 
 meeting the most important demands of his profession, he 
 was in the way of making for himself a very good fortune. 
 At this time, however, his accumulations had been but 
 moderate. He had lived liberally, because his social posi 
 tion made it proper, and his numerous family rendered it 
 necessary that he should do so. But he had never lived 
 extravagantly or ostentatiously. He was not rich enough to 
 quit the bar, at the age of forty-two, for any public position 
 in which the compensation would be very much less than 
 the emoluments which he could earn as a lawyer. 
 
 His house in Pittsfield was completed in the spring of 
 1852, and was first occupied during that summer. It was 
 placed on a gentle elevation, with an ample lawn in front 
 and a noble wood behind it. Without, a large farm, which 
 he was capable of managing skilfully, gave him an interest- 
 
184 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1852. 
 
 ing and healthful occupation. He was a much better 
 farmer than amateurs generally are. He knew how to 
 make good crops and to fatten marketable beeves with 
 out undue cost, although he was not such a cultivator as 
 Burke, whose farming was a somewhat marvellous exer 
 cise of agricultural skill in one whose habitual pursuits 
 were those of a statesman. 1 
 
 It has been observed of Judge Curtis, that in the prac 
 tice and the administration of the law, in its application 
 to the various mechanical, commercial, or maritime objects 
 with which courts of justice have to deal, he possessed a 
 practical sagacity and facility which one might suppose 
 was derived from an experience in the workshop, or in the 
 counting-house, or upon the quarter-deck. 2 It was very 
 much the same with his knowledge of agriculture. It was 
 a pursuit to which he seemed to take, naturally and easily, 
 from the time when he first acquired the farm which for 
 a period of eighteen years was to him and his family a 
 summer home. of great happiness. In his boyhood, as I 
 have elsewhere observed, he had seen a good deal of prac 
 tical farming, on lands of one of his maternal uncles. 
 Great improvements had of course been made in the period 
 which elapsed between that time and his purchase of this 
 Pittsfield property. But he appeared, when he began farm- 
 
 1 Among the published correspondence of Burke, his letters to Arthur 
 Young, the celebrated author of the Farmers Calendar, and the best in 
 formed agricultural writer of his time, evince the most remarkable practical 
 knowledge of farming possessed by any statesman with whose annals I am 
 acquainted, excepting our own Webster. The editors of that correspond 
 ence say, that " farming, with him, could hardly be called a relaxation ; for 
 he entered into the business with all the eagerness, and with more than the 
 usual information, of those who practise it for a maintenance." (Corre 
 spondence of Edmund Burke, edited by Lord Fitzwilliam and Sir Richard 
 Burke, London, 1844, vol. i. p. 245.) The same was true of Mr. Webster, 
 with this difference, that he sunk a great deal of money in improving 
 very poor land to the highest state of cultivation, whereas Burke s estate 
 at Beaconsfield was apparently much better land than Webster s at Marsh- 
 field, and was managed with far greater economy. 
 
 2 Remarks of Elias Merwin, Esq., at the meeting of the Boston Bar held 
 after the death of Judge Curtis. 
 
1851.] LETTERS TO MR. TICKNOR. 185 
 
 ing, to understand the art in its improved condition, al 
 though he had been for five and twenty years engaged 
 exclusively in the study and practice of the law. 
 
 An anecdote, in which those who knew him will recog 
 nize a trait of his character, belongs to this period. Soon 
 after the completion of his Pittsfield house, a mechanic in 
 that neighborhood sold to him a patented gate, which was 
 to open by some contrivance operated upon by the wheels 
 of the carriage as they approached the gateway. The gate 
 was erected and paid for, but it proved in a little while 
 to be a complete failure. Judge Curtis brought an action 
 against the maker for the money paid, and, after a trial, he 
 recovered a verdict for the price of the gate and the costs. 
 Judgment w^as entered ; but learning that the defendant 
 was a man who could ill afford to pay the money, he directed 
 his lawyer to remit the whole claim, and paid the costs 
 himself. 
 
 To MR. TICKNOR. 
 
 July 27, 1851. 
 
 DEAR UNCLE, The enclosed letter will explain itself. It is 
 not in my power to comply with William s request, and, as he de 
 sires, I send it to you. The reason why I cannot is, that I have 
 bought " the farm," and this makes such a demand on my resources 
 as to leave me no means at present to serve my friends. Anna 
 went with me to Pittsfield, and, after duly considering the whole 
 matter, I made an offer, which was accepted, and I am going there 
 again to-morrow to close the bargain. I have just returned from 
 Newport, where, after a trial of eight days duration, I find that I 
 have some strength left. In short, I am much better, but not so 
 well as to be in any danger of forgetting the lesson which I have 
 received, and I hope I shall not neglect the warning which a kind 
 Providence has given me in season this time, if I will take it. My 
 arrangements with Mr. C. P. Curtis are concluded, and on the 
 1st of October I begin anew with Mr. Merwin, from the county of 
 Berkshire, as my partner arid assistant. 
 
 We are all well. Mother has been with us some weeks, and 
 will spend the rest of the summer here. Love to Aunt and the 
 cousins. 
 
 Yours always, B. R. CURTIS. 
 
186 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1852. 
 
 The new business arrangement spoken of in this letter 
 was of course superseded by his appointment to the bench, 
 in the following autumn, of which an account has already 
 been given. The letters which follow in this chapter were, 
 as their dates indicate, written after that event. 
 
 To MR. TICKNOR. 
 
 PITTSFIELD, July 13, 1852. 
 
 MY DEAR UNCLE, I learn that you will be on the move west 
 ward about the 1st of August. Can you not take Pittsfield in your 
 way, either out or home. We can find room for you and all yours, 
 and shall be most happy to have a visit from you for as many days 
 as you can allow us. Pray do not say no, if you can find it con 
 venient and agreeable to say yes ; for it will give both Anna and 
 myself great pleasure to show you our house, to which we are 
 becoming more and more attached. The country is extremely 
 beautiful, and, to one whose eye is no quicker than mine, gains con 
 stantly on my apprehension of its fine points. The farm amuses 
 and interests me, and, considering the amount of its produce we 
 consume, is a cheap luxury ; and the freedom with which we live 
 here, far enough away from the town to be entirely independent of 
 its requisitions, is very charming to one who likes his own ways as 
 well as I do. I confess to no want except talk, and I have not 
 been long enough without that to suffer yet. 
 
 I do not allow myself to be disturbed by the state of public 
 affairs. If I were disposed to be so, there are certainly many 
 causes. Indeed, when I look steadily at the condition of things, 
 not in New England merely, but over the whole country, I find 
 nothing to rely on for our future security and peace but the honest 
 instincts of the mass of the people. In them, I would include those 
 whose education and ability have elevated them above the average 
 intelligence of the country, provided they are not politicians, or 
 members of the third estate ; but I firmly believe that if the country 
 for five years were to be effectively governed by politicians and 
 editors, helped by speculative men of education and talent, it would 
 be ruined beyond hope of redemption. So far, I am a democrat, 
 though not likely to profess publicly so shocking a creed. In the 
 mean time, I go on quietly with my legal studies, and do not seri 
 ously fear that what I may learn of the Constitution and of the 
 
1855.] LETTERS TO MR. TICKNOR. 1ST 
 
 jurisprudence of the United States will become useless in my day. 
 The articles which George has written lately seem to me very 
 forcible and very important. When he has published his work 
 on the Constitution, I think there will be no man living in New 
 England who will have done so much to preserve it. He may not 
 find his exertions or his character appreciated now or soon ; but the 
 time will come when they will be, and he is young, and can wait. 
 
 Please present Anna s and my love to Aunt, and say we hope she 
 will be inclined to the visit, which will give us so much pleasure. 
 Yours always, 
 
 B. R. CURTIS. 
 
 P. S. Since writing the above, I learn you are now at Lake 
 George. I had previously heard you were not to leave Boston till 
 the 1st of August. But I will not change what I have written, as 
 it is equally applicable to your return as to your exodus. 
 
 B. R. C. 
 
 To MR. TICKNOR. 
 
 PITTSFIELD, July 19, 1855. 
 
 MY DEAR UNCLE, My letter must have passed yours on the 
 road. I have now only to add, that I shall be happy to accompany 
 you over the hills of Berkshire while you are here. But I think 
 I keep the best tavern in the county, and that in general it will 
 be most comfortable and quite practicable to spend the nights here. 
 When you are in Boston, please ask one of the Rogers brothers 
 for a copy of a pamphlet they published about a curious train of 
 boulders in this county, and we will go and see it. 
 
 Walter l is preparing for admission to college. . . . My anxiety 
 to have strengthened a constitution not promising well in his 
 childhood and early youth, has not been favorable to the acqui 
 sition of much Latin and Greek. His health is now good, and he 
 has great power of application. I think he will go in at the time 
 mentioned, without much difficulty. 
 
 Greenough and I have given up our Canada excursion ; he be 
 cause of his engagements in Boston, I because of my book, which is 
 going very rapidly through the press, and needs my constant care.. 
 
 Will you please present my respectful remembrance to Sir 
 
 1 His eldest surviving son. An elder son, Charles Deming, and a 
 daughter, Clara, died in Boston in 1842. 
 
188 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1855. 
 
 Edmund, and thank him for his request that I should see him. I 
 certainly should have waited on him if I had come to Canada. 1 
 Give my love to Aunt and the young ladies, and believe me 
 Yours always, 
 
 B. R. CURTIS. 
 
 The work to which reference is made in these letters was 
 his edition of " Decisions in the Supreme Court of the 
 United States," begun in 1853 and completed in 1856. 
 Nearly the whole of the labor of this undertaking was per 
 formed at his country home. He projected it when he had 
 had two years experience on the bench. 
 
 The decisions of the Supreme Court had hitherto been 
 embraced in fifty-seven volumes by five different reporters, 
 Dallas, Cranch, Wheaton, Peters, and Howard. In many of 
 the reports, the statements of the cases were encumbered 
 with unnecessary copies of the pleadings, or with a sum 
 mary of the facts which were sufficiently described in the 
 opinions of the judges. Some of the reporters had given 
 very good abstracts of the arguments of the counsel, while 
 others had done but imperfect justice to the discussions at 
 the bar ; and in many cases no attempt had been made by 
 the reporter to exhibit the views presented by the advo 
 cates. In this as well as in other particulars Mr. Wheaton 
 was probably the best reporter that had filled the office. 
 But it was more or less true of all these reports, that the 
 head-notes, or what is sometimes called the syllabus of the 
 cases, did not give an entirely exact and properly limited 
 statement of the points decided by the court. No good and 
 uniform model of reporting had been adopted and followed, 
 from the first sitting of the court under the Constitution 
 down to the time when Judge Curtis undertook to condense 
 the whole of the previous decisions into a smaller number 
 of volumes. It was a matter of considerable nicety to 
 determine the limits within which he could move in effect- 
 
 1 Sir Edmund Head was at this time Governor-General of Canada. 
 
1855.] CONDENSED DECISIONS. 189 
 
 ing this object. The decision of the court in the case of 
 Wheaton v. Peters had settled the point that the official 
 reporter could not claim a copyright in the written opinions 
 of the judges. 1 But this decision did not extend to the 
 statements of the cases that might have been written by 
 the reporter, or to his compilations of the arguments of 
 counsel, or to his head-notes ; and, upon the general princi 
 ples of the law of copyright, whatever was the original 
 composition of the reporter, in the sense of originality 
 which the law attributes to productions of this nature, 
 might be made the subject of a valid copyright. Judge 
 Curtis did not think it needful to inquire how accurately 
 the necessary steps might have been in fact taken, by any 
 of the reporters, to secure a copyright in any part of the 
 matter of their respective reports. It was enough for him 
 that those gentlemen or their assignees might have legal 
 rights in some part of their reports ; and as his plan con 
 templated the composition of head-notes of his own, he 
 could go forward freely in the use of the opinions of the 
 judges, which had been declared by the court to be publici 
 juris. Upon this basis, he proceeded to make a new edi 
 tion of the Decisions of the Supreme Court. 
 
 The preparation and publication of this great work, in 
 cluding in the twenty-second volume a digest of all the 
 cases, occupied him during his vacations and at his country 
 home until the latter part of the year 1856. What a 
 benefit to him this close study of the whole jurisprudence 
 of the United States, as embraced in the decisions of the 
 Supreme Court, must have been, the professional reader can 
 easily understand. It is quite unnecessary for me to speak 
 of the manner in which he performed this labor, for the 
 profession and the public have stamped a value upon the 
 
 1 This litigation grew out of an undertaking by Mr. Peters to make con 
 densed reports of the former decisions, including those reported by his im 
 mediate predecessor, Mr. Wheaton, and by Cranch and Dallas. See the 
 case of Wheaton v. Peters, 8 Peters s Rep. 591. 
 
190 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1855. 
 
 work to which no comments of mine can add any thing. I 
 believe it is generally allowed that his head-notes are mod 
 els of terse, accurate, and discriminating statement of the 
 points decided in the cases, and more useful than any simi 
 lar preceding performances. The general plan of the work 
 has been thought to be so nearly faultless, that it has been 
 followed by a distinguished judge now on the same bench, 
 in a series of volumes embracing some decisions of the Court 
 subsequent to those contained in the work of Judge Curtis. 
 While the seventh volume of his " Decisions " was passing 
 through the press, he felt it to be proper to apprise the pro 
 fession that he had not reprinted the reports of Mr. Peters 
 and Mr. Howard. The following note relates to a notice 
 which he inserted in that volume : 
 
 To MR. TICKNOR. 
 
 SUNDAY, A.M. 
 
 MY DEAR UNCLE, No foreign letter came for you, only one 
 from home which I did not send back, and you will receive it at 
 the same time as this. Walter writes that he is nearly six hours 
 in going to and from West Roxbury to Cambridge and reciting 
 there. This is too much time to use for those purposes, and I have 
 directed him to come and see if you can take care of him for three 
 weeks till Mr. Curtis comes to town. If you can do so without 
 inconvenience, I should be very glad to have him with you. I had 
 intended while you were here to ask your advice about a Notice 
 to be published in the next volume of my book. I have sent it to 
 George, and stated the necessary facts to him, and will ask him to 
 show it to you. I feel very anxious to do justice to the reporters 
 of the court, and to claim for myself nothing which is, even in the 
 least degree, doubtful. 
 
 Yours always, B. R. CURTIS. 
 
 The Notice was as follows : 
 
 NOTICE. 
 
 THE preceding volumes, together with the first 418 pages of this 
 volume, include all the cases decided by the Supreme Court of the 
 
1855.J CONDENSED DECISIONS. 191 
 
 United States, and reported by Mr. Dallas, Judge Cranch, and Mr. 
 Wheaton. Where it seemed to me that their reports of cases could 
 not be usefully condensed, they are reprinted. I have not thought 
 it necessary to indicate, in the preceding volumes, what has been 
 taken, without alteration, from those reporters. I do not know 
 how it could have been done without confusion, the alterations hav 
 ing been so numerous and extensive. I trust this general acknowl 
 edgment will be deemed sufficient ; and that it will be understood, 
 that, as respects these reporters, to whom the profession and the 
 public are under great obligations, I have only revised and con 
 densed their works. The reports made by Mr. Peters and Mr. 
 Howard are not reprinted. So far as they are the subject of an 
 existing copyright, I had no right to reprint them. I have, there 
 fore, made head-notes to all the cases during the times of their 
 reports, and, where I have deemed it needful, stated the facts of 
 each case. It may be that I should have adopted their reports of 
 many cases without change, if I had felt at liberty to do so. And 
 it is due to them that I should state why I have not considered 
 whether I should do so. 
 
 B. R. CURTIS. 
 PITTSFIELD, September 1, 1855. 
 
192 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 CHAPTER VIII. 
 
 1857. 
 
 Last Attendance as a Member of the Supreme Court. Foreshadowing of 
 Sectional Conflicts. The Case of Dred Scott. Fatal Errors of the 
 Majority of the Bench. Dissenting Opinion. Correspondence with 
 Chief Justice Taney. 
 
 THE term of the Supreme Court commencing in Decem 
 ber, 1856, and ending in March, 1857, was the last that 
 Judge Curtis attended as a member of that body. The 
 following letter, written to his uncle, Mr. Ticknor, then in 
 Europe, gives some notices of his views of public affairs at 
 that moment, and of the condition of the Court : 
 
 To MR. TICKNOR. 
 
 WASHINGTON, Feb. 27, 1857. 
 
 MY DEAR SIR, When I parted from you eight months since, 
 you told me you did not intend to carry on a correspondence with 
 any one, hut should be glad to bear from me. I like to write so 
 little, and am obliged to write so much, that I do no justice with my 
 pen to my interest in friends who are absent. If I had written to 
 you as often as I have thought of you, my letters would have been 
 frequent enough. I have only pleasant accounts to give of those 
 most nearly connected with me. My wife and the three youngest 
 children have spent the winter here. . . . Though it has been a 
 very severe winter, and many diseases epidemic, all of us have 
 been well, and my own health quite undeviating. As to public 
 affairs, you know Mr. Buchanan is to be our next President. His 
 Cabinet is settled, with the exception of the Postmaster-General. 
 It consists of General Cass, as Secretary of State, whom you know ; 
 Mr. Howell Cobb of Georgia, who did good service by the side of 
 
1857.] FORESHADOWING OF SECTIONAL CONFLICTS. 193 
 
 Mr. Webster in 1850, and is a sagacious and conservative man, 
 Secretary of the Treasury ; Mr. Toucey of Connecticut, Attorney- 
 General, an excellent lawyer, and a person of rather uncommon 
 breadth for a Connecticut man ; Mr. Thompson of Mississippi, 
 whom I do not know, Secretary of the Interior ; Mr. Brown of 
 Tennessee, Secretary of the Navy. Judge Catron thinks well of 
 him ; Mr. Floyd of Virginia (lately the Governor), Secretary 
 of War, of him I have only a vague knowledge ; and the Post 
 master-General is not yet publicly designated. I think the Cabinet 
 as good as the country could expect. It is no doubt composed of 
 conservative and cautious men ; but I fear it will not command the 
 confidence of the North for any long time. And I still more fear 
 that Mr. Buchanan has before him, both as to his foreign policy 
 and his domestic affairs, but a stormy and violent administration. 
 The Democratic party is greatly divided concerning Cuba, arid the 
 foreign policy of the United States. The North is now quiet, after 
 a sectional excitement such as was never before known ; but I am 
 greatly mistaken if events do not rouse it again to an exertion to 
 overthrow what is called " the slave-power," even greater than that 
 recently made. ... I do not expect the incoming administration 
 to expire without affording that seeming occasion [for making a sec 
 tional party at the North]. The great fact of such a misfortune is, 
 that the wisest and best men cannot belong to a party whose suc 
 cess is so dangerous ; and consequently its management and meas 
 ures must fall into such hands as now hold the political power in 
 all the New England States. But I will not weary you with evil 
 prognostications. I would have said nothing of public affairs, if I 
 did not suppose you would expect to hear from me concerning 
 them ; and, if I said any thing, I must give my honest impressions, 
 which I admit are not very cheering. 
 
 We return to Pittsfield next week, being prevented from a visit 
 at Boston by the prevalence there of scarlet-fever, within whose 
 precincts we are not willing to take our children. The term here 
 has been very laborious to those judges able to work. Our aged 
 Chief Justice, who will be eighty years old in a few days, and who 
 grows more feeble in body, but retains his alacrity and force of 
 mind wonderfully, is not able to write much. Judge Wayne has 
 been ill much of the winter. Poor Judge Daniel has been pros 
 trated for months by what was a sufficient cause ; for his young 
 and interesting wife was burned to death by her clothes acciden- 
 VOL. i. 13 
 
194 MEMOIR OF BENJAMIN HOBBINS CURTIS. [1857. 
 
 tally taking fire, almost in his presence. So that the rest of us 
 have been kept at the oar, as Judge Story used to say, " double 
 tides." I know probably less of Boston even than you do, for the 
 last four months. I got so tired of Massachusetts opinions and action 
 on all public affairs, before I came here, that I have scarcely de 
 sired to see a Boston newspaper ; and beyond family letters, which 
 Mrs. Curtis gets, and my correspondence with a very few persons 
 there, I am not in a way to learn news of any kind from thence. 
 George passed two months here, and argued the question of the 
 power of Congress to prohibit slavery in the Territories, in the 
 case of Dred Scott, before the Supreme Court, in a manner ex 
 ceedingly creditable to himself and to the bar of New England. 
 Judge Catron told me it was the best argument on a question of 
 constitutional law he had heard in the court, and he has been here 
 since General Jackson s time. Please give my love to Aunt and 
 
 O / 
 
 Cousin Anna. I think of them very often, and hope I may see 
 them again before many months. My wife desires her affectionate 
 remembrances to them and to yourself. 
 
 Ever yours, B. R. CURTIS. 
 
 As Mr. Ticknor observed in his answer, dated at Flor 
 ence on the 12th of May, this letter was written " not 
 without thought of the coming shadow of the decision of 
 the Supreme Court of the United States in Dred Scott s 
 case." l It was in fact written, as its date shows, within a 
 little more than a week previous to the promulgation by 
 the judges of their respective views in that too celebrated 
 case. The opinion of the Chief Justice, which was offi 
 cially treated as the opinion of the court, had been previ 
 ously read in a conference of the court, in the hearing of 
 the other judges, as it was afterwards read publicly in court 
 on Friday, the 6th of March, 1857. The opinions of the 
 other judges were read in court on Saturday, the 7th of 
 March, and on that day the court was adjourned for the 
 term. As there has never been a full and accurate account 
 given of the part taken in this case by Judge Curtis, as his 
 action has sometimes been misunderstood, and as he ex- 
 
 1 Life and Letters of George Ticknor, vol. ii. p. 402. 
 
1857.] DEED SCOTT CASE. 195 
 
 pressed in liis last illness a sense that some injustice had 
 been done to him in connection with this case, which he 
 expected those who were to come after him to repair, I 
 think proper to give a circumstantial account of the whole 
 matter. 
 
 I approach this part of my subject with unfeigned reluc 
 tance, but with a firm conviction that I have a duty to per 
 form to both private and public history which I ought not 
 to avoid. The course of a majority of the judges in this 
 case of Dred Scott precipitated the action of causes which 
 produced our civil war, and which would otherwise have 
 lain dormant until the period of danger to the Union, aris 
 ing out of the existence of slavery, had passed by. If, 
 without such an excitement as was occasioned by what was 
 claimed to have been the u decision " of the Supreme Court 
 on the subject of slavery in the Territories, we could have 
 gained ten years more in the growth of the North and in 
 the peaceful development of the power of the Federal gov 
 ernment within the just limits of the Constitution, South 
 ern secession would never have been attempted. On the 
 one hand, without the stimulus afforded by this " decision," l 
 there would have been no adequate cause for the formation 
 in the Northern States of a geographical party, with pro 
 fessed efforts aimed at the supposed predominance of the 
 " slave-power " in the councils of the nation. On the other 
 hand, without the new and unnecessary stimulus of this 
 supposed " decision," Southern feeling in regard to the im 
 portance of a theoretical right to carry slaves into the 
 Territories must have died a natural death. It could not 
 have risen to a sense of danger to their equality in the 
 Union, merely because the people of the North were un- 
 
 1 I am obliged, for convenience, to speak of the action of a majority of the 
 judges in this case as a " decision," although, as will be seen hereafter, there 
 never was a judicial majority, speaking correctly, formed upon the question of 
 the power of Congress to prohibit slavery in a Territory, and consequently 
 the claim that a " decision" adverse to that power had been made by the 
 Supreme Court was erroneous. 
 
196 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 willing to see the area of slavery extended through the 
 Territories. It was the factitious importance given to the 
 supposed constitutional right of such extension, by the ven 
 erable persons composing the majority of the Supreme 
 Court, that awakened anew a jealousy which had already 
 subsided under the tranquillizing influences of the great 
 settlement made seven years before. The so-called " Com 
 promise Measures of 1850 " had wisely avoided the de 
 termination of the theoretical question, by the legislative 
 department, for any of the new Territories ; and they had 
 tacitly assumed that the Missouri settlement of 1820 by 
 which that State had been admitted into the Union as a 
 slave State, while slavery was excluded by agreement from 
 all the Louisiana purchase north of the parallel of 36 30 
 would remain undisturbed. The subsequent repeal of 
 the latter part of that settlement, which took place during 
 the administration of President Pierce, would not have led 
 to a sectional conflict dangerous to the Union, if it had not 
 been followed, before Mr. Buchanan s administration was 
 fairly in the exercise of power, by declarations of opinion on 
 the part of a majority of the judges of the Supreme Court, 
 that the Missouri restriction was unconstitutional, decla 
 rations made under circumstances which caused a general 
 belief throughout the North that they had been made from 
 political motives. 
 
 For a period of nearly seventy years, the Supreme Court 
 of the United States had been looked to as the final arbiter 
 on constitutional questions, with a confidence such as has 
 not been reposed, on so great a scale and upon such impor 
 tant subjects, in any other human tribunal in which the 
 powers of a great government have been subjected to the 
 forms of judicature, if indeed there has been any other 
 tribunal of parallel functions known in history. Nobly 
 had that confidence been earned, and well had it been 
 deserved. It constituted one of the dearest treasures of 
 this nation. Wise men felt that its loss would be as great 
 
1857.] DEED SCOTT CASE. 197 
 
 a public calamity as war, pestilence, or famine. The rav 
 ages of these, time might repair. But what could repair 
 the injury that would be inflicted on the people of this 
 country by the first well-grounded distrust of a tribunal 
 from which their fathers expected, and they had experi 
 enced, such freedom from party bias, such elevation above 
 the political passions of the day ? That distrust, that first 
 fatal loss of confidence in the high chamber of justice, now 
 came to a large part of the people in one entire section of 
 the Union. It came because the belief that part} 7 spirit 
 had taken possession of the court, in the interest of slavery, 
 even if it was erroneous, had too much to support it in what 
 the public could see of the action of the judges. This was 
 the first time, on any subject affecting the welfare of the 
 whole Union, that such a belief concerning the court had 
 seriously taken hold of the public conviction in any part of 
 the country ; and this conviction sunk deeply into the minds 
 of men who struggled hard to exclude it, and who were pained 
 beyond expression that they could not reject it. 
 
 This was a consequence which the judges, who concurred 
 in declarations of opinion that slavery could go as a constitu 
 tional right into any Territory of the United States against 
 a Congressional prohibition, should have had the wisdom to 
 foresee and to prevent. They should have taken the utmost 
 care, by the formation of a majority concurring accurately 
 upon the effect of every part of the record, to make a real 
 decision, one that would be a judicial determination, be 
 cause consistent in all its reasoning and consistent with the 
 requirements of the case. If such a majority could not be 
 formed, and it never was so formed that the constitu 
 tional question relating to slavery in the Territories could 
 be legitimately reached by five or more out of the nine 
 judges, the case should have been disposed of quite oth 
 erwise than as it was. But an opinion written, read, and 
 promulgated by the Chief Justice as the opinion of the 
 court, followed by a separate opinion of each judge who 
 
198 MEMOIR OF BENJAMIN ROBBINS CURTIS. [1857. 
 
 concurred with him in the main result, but differing upon 
 the grounds on which each thought himself entitled to act 
 upon the constitutional question, left their declarations of 
 opinion upon it in the category of obiter dicta, 1 and left the 
 general public to believe that there was something wrong 
 in the whole internal history of the case. Thus a great 
 misfortune befell the Supreme Court of the United States, 
 a misfortune for which the people should not be blamed, 
 because it was not solely by the arts of demagogues or poli 
 ticians that their confidence in the court was impaired. 
 That confidence was impaired in the minds of men whom 
 no arts of the demagogue or the politician could reach. A 
 vast majority of the legal profession throughout the whole 
 North, and some of the best legal minds in the South, alike 
 rejected the supposed decision and were alike dissatisfied. 
 
 The facts in this case, as they appeared on the record, 
 were these. Scott, a negro of African descent, brought 
 an action in the Circuit Court of the United States for the 
 District of Missouri, to establish the freedom of himself, 
 his wife, and their two children. As was necessary, in 
 order to obtain the jurisdiction of the court, he described 
 himself, plaintiff in the case, as a citizen of the State of 
 Missouri ; and the defendant, the administrator of his re 
 puted master, as a citizen of the State of New York. The 
 
 1 The general reader will understand that this legal phrase describes the 
 expression, by judges, of opinions that are not called for by the record, or 
 which cannot be expressed consistently with the views that they take of the 
 technical attitude of the case before them, in respect to some principal ques 
 tion. Thus, one judge may hold that the principal question is not brought 
 before him, in consequence of the state of the pleadings; while another 
 judge may hold that the pleadings are so shaped that he is judicially obliged 
 to act upon the principal question. If the former expresses opinions upon 
 the principal question, they are not judicial, but they are extra- judicial, or 
 obiter, tilings said by the way. If the latter expresses opinions upon the 
 principal question, they are judicial, because it was his duty to form and to 
 express them, according to his view of the requirements of the record. This 
 distinction, quite important in the administration of justice, and not the less 
 important when constitutional questions are involved, it will be seen here 
 after, has a marked application to the opinions of the different judges in the 
 case of Dred Scott. 
 
1857.] DEED SCOTT CASE. 
 
 defendant interposed a plea to the jurisdiction, 
 the plaintiff was not a citizen of Missouri, because he was a 
 negro of African descent, whose ancestors were of pure 
 African blood, and were brought into this country and sold 
 as slaves. To this plea there was a general demurrer, 
 which was sustained by the court ; and the defendant was 
 ordered " to answer over," which meant that he must plead 
 to the merits of the action. The defendant then pleaded in 
 bar of the action, that the plaintiff and his wife and children 
 were negro slaves, the property of the defendant. At the 
 trial of this issue before the jury, the only evidence intro 
 duced was a statement of facts signed by the parties, in 
 substance as follows : 
 
 In 1834, Dred Scott was a negro slave belonging to Dr. 
 Emerson, a surgeon in the army of the United States. In that 
 year, Dr. Emerson took the plaintiff from the State of Missouri to 
 the military post at Rock Island, in the State of Illinois, and held 
 him there as a slave until 1836. Dr. Emerson then removed the 
 plaintiff to the military post at Fort Snelling, in the territory of 
 the United States north of 36 30 , and north of the State of 
 Missouri, where he held the plaintiff as a slave until 1838. 
 
 In 1835, Harriet, who was the negro slave of Major Taliaferro, 
 an officer of the army, was taken by her master to Fort Snelling, 
 where she was held as a slave until 1836, when she was sold to Dr. 
 Emerson, who held her as a slave at Fort Snelling until 1838. 
 In 1836, the plaintiff and Harriet, with the consent of Dr. 
 Emerson, intermarried at Fort Snelling. Eliza and Lizzie are 
 children of that marriage. Eliza was born on board a steamboat, 
 on the river Mississippi, north of the north line of the State of 
 Missouri ; Lizzy was born in the State of Missouri, at Jefferson 
 Barracks, a military post. In 1838, Dr. Emerson removed the 
 plaintiff and his wife and children to the State of Missouri, where 
 they have ever since resided. Before the commencement of this 
 suit. Dr. Emerson sold and conveyed the plaintiff and his wife and 
 children to the defendant, as slaves, and the defendant has ever 
 since claimed to hold them, and each of them, as slaves. 
 
 It is agreed that Dred Scott brought suit for his freedom in the 
 Circuit Court of St. Louis County ; that there was a verdict and 
 
200 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 judgment in his favor ; that on a writ of error to the Supreme 
 Court [of the State], the judgment below was reversed, and the 
 same remanded to the Circuit Court [of the State], where it has 
 been continued to await the decision of this case [in the Circuit 
 Court of the United States]. 
 
 At the trial, the jury, under an instruction from the court that 
 upon the facts of the case the law was with the defendant, found a 
 verdict that the plaintiff, his wife and children, were negro slaves, 
 the lawful property of the defendant. Upon this verdict, the 
 court gave judgment for the defendant, and the plaintiff filed 
 exceptions to the instructions of the court, and upon these excep 
 tions the case came up, by writ of error, to the Supreme Court of 
 the United States. 
 
 When the record, thus made up, reached the Supreme 
 Court of the United States, it presented two principal 
 questions : 
 
 First, whether Scott, by reason of his African descent 
 from ancestors who were imported into this country and 
 sold as slaves, independent of the question of his personal 
 freedom, could or could not be a " citizen " of one of the 
 States of this Union? 
 
 Second, whether Scott, who w T as formerly a slave in the 
 State of Missouri, having been taken by his master into a 
 free State (Illinois), and thence into a part of the Louisi 
 ana purchase north of the parallel of 86 30 , where sla 
 very was prohibited by an act of Congress known as the 
 Missouri Compromise Act, and then brought back to the 
 State of Missouri, was in legal effect emancipated by resi 
 dence with his master in a free State or a free Territory, 
 so that the condition of servitude would not reattach to him 
 on his return into Missouri ? 
 
 The first of these questions arose under the plea to the 
 jurisdiction of the Circuit Court. If it should be decided 
 by the Supreme Court that Scott was not a " citizen," by 
 reason of his African descent, the only thing that could be 
 done would be to direct the Circuit Court to dismiss the 
 case for want of jurisdiction, without looking to the ques- 
 
1857.] DEED SCOTT CASE. 201 
 
 tions raised by the plea to the merits. But if the Supreme 
 Court should decide that he was a u citizen," notwithstand 
 ing his African descent, then the questions raised by the 
 plea to the merits, relating to his personal status as affected 
 by his residence in a free Territory and his return to Mis 
 souri, would have to be acted upon. One of these ques 
 tions, relating to his personal status and that of his wife 
 and children, involved the constitutional power of Congress 
 to prohibit slavery in a part of the Louisiana Territory 
 which was purchased by the United States from France. 
 Still another question involved the effect to be given to a 
 residence in the free State of Illinois, and a subsequent 
 return into Missouri. The Supreme Court of the State of 
 Missouri had held Scott to be still a slave, upon the broad 
 ground that no law of any other State or Territory could 
 operate in Missouri upon his personal status, even if he did 
 become a permanent inhabitant of such other State or 
 Territory. 
 
 It will be apparent to the professional reader, that the 
 judges of the Supreme Court of the United States, who 
 held that Scott, even if a freeman, could not be a " citizen " 
 of Missouri, should, in judicial consistency, have expressed 
 no opinions upon the questions arising on the merits of his 
 action, but that they should, if they were a majority, have 
 ordered the case to be dismissed for want of jurisdiction. 
 But the manner in which the constitutional question re 
 specting the power of Congress to prohibit slavery in terri 
 tory of the United States was reached and acted upon by a 
 majority of the judges, requires other explanations. 
 
 The court at this time consisted of Chief Justice Taney 
 and Justices McLean, Wayne, Catron, Daniel, Nelson, 
 Grier, Curtis, and Campbell. The Chief Justice and Jus 
 tices Wayne, Catron, Daniel, and Campbell were from 
 slave-holding States ; Justices McLean, Nelson, Grier, and 
 Curtis were from non-slave-holding States. The case of 
 Dred Scott was first argued at the December term, 1855. 
 
202 MEMOIR OF BENJAMIN "BOBBINS CURTIS. [1857. 
 
 After consideration and comparison of views, it was deter 
 mined by a majority of the judges that it was not necessary 
 to decide the question of Scott s citizenship under the plea 
 to the jurisdiction, but that the case should be disposed of 
 by an examination of the merits ; that is to say, by decid 
 ing whether he was a freeman or a slave, upon the facts 
 agreed upon by the parties under the plea in bar of the 
 action. One of the questions thus arising was, as the 
 reader has seen, whether a temporary residence of a slave 
 in the State of Illinois worked an emancipation, notwith 
 standing his return to Missouri. If it did not, it might be 
 unnecessary to act upon the question of the power of Con 
 gress to prohibit slavery in the territory of the United 
 States, into which Scott had been taken from Illinois, un 
 less there were circumstances in his residence in the Fed 
 eral territory which ought to lead to a different conclusion. 
 It was assigned to Judge Nelson to write the opinion of the 
 court upon this view of the case; in which view, however, 
 Judge McLean and Judge Curtis did not concur. Judge 
 Nelson wrote an opinion, which, from its internal evidence, 
 was manifestly designed to stand and be delivered as the 
 opinion of a majority of the bench. This opinion, after 
 referring to the question of Scott s citizenship, as arising 
 on the plea to the jurisdiction, said: "In the view which 
 we have taken of the case, it will not be necessary to pass 
 upon this question, and we shall therefore proceed at once 
 to an examination of the case upon its merits. The ques 
 tion upon the merits in general terms is, whether or not 
 the removal of the plaintiff, who was a slave, with his mas 
 ter, from the State of Missouri to the State of Illinois, with 
 a view to a temporary residence, and, after such residence 
 and return to the slave State, such residence in the free 
 State works an emancipation." The opinion then pro 
 ceeded to a decision of the case upon the merits, upon the 
 ground that the highest court in the State of Missouri had 
 decided that a residence in the free State of Illinois had 
 
1357.] DEED SCOTT CASE. 203 
 
 not changed the original condition of Scott, so as to pre 
 vent that condition from reattaching upon him after his 
 return to Missouri ; that this was a question of the law of 
 Missouri, on which the Supreme Court of the United States 
 should follow the law as it had been laid down by the high 
 est tribunal of that State. The conclusion reached by this 
 opinion was, not, as was afterwards directed, that the case 
 should be dismissed for want of jurisdiction, but that the 
 judgment of the Circuit Court, which had held Scott to be 
 still a slave, should be affirmed. 
 
 The astuteness with which this opinion avoided a deci 
 sion of the question arising out of the residence of Scott in 
 a Territory of the United States where slavery was prohib 
 ited by an act of Congress, and the remarkable subtilty of 
 the reasoning that this too was a matter for the State court 
 to decide, because the law of the Territory could have no 
 extra-territorial force except such as the State of Missouri 
 might extend to it under the comity of nations, show 
 very distinctly, that, after the first argument of the case in 
 the Supreme Court, it was not deemed, by a majority of 
 the bench, to be either necessary or prudent to express 
 any opinion upon the constitutional power of Congress to 
 prohibit slavery in the Territories of the United States. 
 It was said in the opinion prepared by Judge Nelson, that 
 u even conceding, for the purposes of the argument, that 
 this provision of the act of Congress is valid within the 
 Territory for which it was enacted, it can have no opera 
 tion or effect beyond its limits, or within the jurisdiction of 
 a State. . . . Our conclusion therefore is, upon this branch 
 of the case, that the question involved is one depending 
 solely upon the law of Missouri, and that the Federal 
 court sitting in the State, and trying the case before 
 us, was bound to follow it." 1 If this view of the case 
 
 1 Of course, this question of the binding force of the State decision, upon 
 a matter depending upon international comity, and the effect to be given in 
 Missouri to the law of a Territory of the United States, was one on which a 
 different view could be taken. How far Judge Curtis considered it as a 
 
204 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 had been adhered to by a majority of the court, no judge 
 would have placed himself on record as holding that a free 
 negro could not be a citizen, and therefore could not obtain 
 a standing in the Circuit Court, and at the same time as 
 holding, under a subsequent plea to the merits, that he 
 had no claim to freedom because the Congress of the 
 United States had no power to prohibit slavery in the 
 national domain. All that Judge Curtis, with his con 
 victions in regard to the entire record, would have had 
 to do, would have been to show that he regarded the plea 
 to the jurisdiction as necessarily before him, as a special 
 traverse of the plaintiff s citizenship; that the plaintiff was 
 a citizen ; and that consequently the Circuit Court had 
 jurisdiction of his case ; and then to have shown that on 
 the merits it was necessary for him to decide the constitu 
 tional validity of the Territorial law, and to express his 
 opinion upon it, with his reasons for regarding its effect 
 on the status of the plaintiff, after his return to Missouri, 
 as a question of more than mere local law, and not one to 
 be determined necessarily by the views of the State court 
 of Missouri. This was the course of reasoning which Judge 
 Curtis felt bound to adopt, and did adopt, in the dissenting 
 opinion which he read in March, 1857 ; and if the opinion of 
 Judge Nelson had stood as the opinion of the majority, for 
 which it was originally written, no iud^e on the bench would 
 
 O 7 *J c? 
 
 have needed to express the opinion that the restriction of 
 the Missouri Compromise Act was unconstitutional. 
 
 At some time after the first argument of the case, but 
 during the same term, and after Judge Nelson s opinion 
 had been written, a motion was made in a conference of 
 the court, for a reargument of the case at the next term. 1 
 
 mere question of local law, or as being a broader one under the rules of private 
 international law, and how far he regarded the last decision of the Supreme 
 Court of Missouri as binding upon the Federal judiciary, can be seen by 
 any one who reads his dissenting opinion. 
 
 1 20 Wallace s Reports, p. xi., Remarks of Judge Campbell at a Meeting 
 of the Bar of the Supreme Court after the death of Judge Curtis. 
 
1857.] DEED SCOTT CASE. 205 
 
 This motion prevailed, and Judge Nelson s opinion was 
 consequently set aside. Two questions were then carefully 
 framed by the Chief Justice, to be argued de novo at the 
 bar, in the following terms : 
 
 1. Whether, after the plaintiff had demurred to the defendant s 
 first plea to the jurisdiction of the court below, and the court had 
 given judgment on that demurrer in favor of the plaintiff, and had 
 ordered the defendant to answer over, and the defendant had sub 
 mitted to that judgment and pleaded over to the merits, the appel 
 late court can take notice of the facts admitted on the record by 
 the demurrer, which were pleaded in bar of the jurisdiction of the 
 court below, so as to decide whether that court had jurisdiction to 
 hear and determine the cause ? 
 
 2. Whether or not, assuming that the appellate court is bound 
 to take notice of the facts appearing upon the record, the plaintiff 
 is a citizen of the State of Missouri, within the meaning of the 
 eleventh section of the Judiciary Act of 1789? 
 
 It will be seen that these questions, in substance and in 
 terms, related to the facts set up in the plea to the juris 
 diction, and to the power of the appellate court to act upon 
 those facts, after that plea had been overruled by the Cir 
 cuit Court, and the defendant had been ordered to plead to 
 the merits, and on those facts set forth in the plea to the 
 jurisdiction to determine the citizenship of the plaintiff. If 
 the facts of Scott s African descent and the slavery of his 
 ancestors, set forth in the plea to the jurisdiction, could be 
 rightly taken notice of in the appellate court, as admitted 
 by the plaintiff s demurrer to that plea, and if it should be 
 held that these facts amounted in law to proof that he was 
 not a "citizen," then there was nothing that could in judi 
 cial propriety be done but to order the case to be dismissed 
 for want of jurisdiction. But if it should be held that on 
 these facts assuming that the appellate court was bound 
 to notice them Scott was a " citizen," within the mean 
 ing of the Judiciary Act, then, and only then, it would be 
 necessary for the judges to act upon the merits of the case, 
 
206 MEMOIR OF BENJAMIN BOBBINS CUilTIS. [1857. 
 
 and as a part of those merits to determine the constitu 
 tional validity of the Missouri Compromise restriction. To 
 meet this possible result of a decision that the Circuit 
 Court had jurisdiction to try and determine the case on its 
 entire merits, the counsel for Scott, on the second argu 
 ment, which took place December 18, 1856, argued the tech 
 nical questions arising out of the plea to the jurisdiction, the 
 question of the citizenship of a free negro, and the consti 
 tutional validity and effect of the Territorial law, as well as 
 the effect of the residence in Illinois and in the Territory. 
 The counsel for the defendant-in-error, the alleged owner 
 of Scott, also argued most elaborately all of the same 
 questions. 
 
 After this second argument, and at some time during 
 the same term, Mr. Justice Wayne became convinced that 
 it was practicable for the Supreme Court of the United 
 States to quiet all agitation on the question of slavery in 
 the Territories, by affirming that Congress had no consti 
 tutional power to prohibit its introduction. With the best 
 intentions, with entirely patriotic motives, and believing 
 thoroughly that such was the law on this constitutional 
 question, he regarded it as eminently expedient that it 
 should be so determined by the court. In the short obser 
 vations Avhich he read in the court, referring to the consti 
 tutional questions involved, he said that " the peace and 
 harmony of the country required the settlement of them by 
 judicial decision;" and it is well known, from his frank 
 avowals in conversation at the time, that he regarded it as 
 a matter of great good fortune to his own section of the 
 country, that he" had succeeded in producing a determina 
 tion, on the part of a sufficient number of his brethren, to 
 act upon the constitutional question which had so divided 
 the people of the United States. He persuaded the Chief 
 Justice, Judge Grier, and Judge Catron of the public ex 
 pediency of this course ; and being perfectly convinced, as 
 he somehow had convinced himself, that the appellate 
 
1857.] DEED SCOTT CASE. 207 
 
 court could hold that the Circuit Court had no jurisdiction 
 of the case, because a free negro could not be a " citizen," 
 and yet could go on and decide all questions arising upon 
 the merits, he could conscientiously concur, as he did, in 
 every part of the opinion which the Chief Justice, after 
 the second argument, felt called upon to write, and which 
 was denominated the opinion of the court, although no 
 other judge, excepting Mr. Justice Wayne, concurred in 
 all its points, reasonings, and conclusions. 
 
 It has been already seen, I trust, that no imputation is 
 here intended to be cast upon the purity and good inten 
 tions of any of the judges. But it was a fatal mistake for 
 any of them to suppose that the doctrine that slavery could 
 go, proprio vigore, into any Territory of the United States, 
 against the prohibition of an act of Congress, could be re 
 ceived by the people of the North, even if a majority of 
 the judges of the Supreme Court did individually hold that 
 opinion. It was a fatal mistake for any of them to sup 
 pose, that they could convince the judicial mind of the 
 Free States that it was at once proper for them to hold that 
 the Circuit Court had no jurisdiction of the case, and then 
 to decide a constitutional question which arose only on the 
 pleas to the merits of the action. It was not so that the 
 legal profession had been accustomed to see constitutional 
 questions reached, acted upon, and decided in the Supreme 
 Court of the United States. All lawyers who knew much 
 of the Federal jurisprudence, knew that a constitutional 
 question, like any other question of law, can be decided by 
 the Supreme Court of the United States, so as to bind the 
 consciences of public or private men, only when the case, 
 as the court finds it to be, is one to which the judicial power 
 of the United States extends. 
 
 The action of a majority of the judges in this case, in 
 stead of promoting the peace and harmony of the country, 
 as Judge Wayne hoped it would, was in reality most dis 
 astrous to them. Nothing that had previously happened 
 
208 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 had afforded so much excuse for the consolidation of a 
 sectional Northern party, in array against the supposed 
 influence of the " slave-power " in national affairs. Noth 
 ing had been such a godsend to all the army of agitators, 
 and to men who expected to thrive politically upon the 
 Northern dislike of slavery. Nothing had been more in 
 jurious to the best interests of the South, whose safety 
 required that their claim of equality in the Union should 
 not be understood to embrace a claim to the occupation by 
 slaves of all the Territories of the United States, with no 
 power in Congress to prepare any of them to become free 
 States. It is often said that a judge is to declare what he 
 believes to be the law, regardless of consequences ; and, 
 Avithin proper limits, this is a just and accurate theory of 
 the judicial function. When those limits are observed, 
 there is no more noble exhibition of human character, as 
 there is no more necessary and salutary exercise of human 
 independence, than is displayed by a judge who looks to 
 nothing that may flow as an incidental consequence from 
 his declaration of the law. This is as true of constitu 
 tional questions as it is of all others. But the judge who 
 expects immunity from the consequences of his acts must 
 take care that his judicial duties strictly require of him the 
 act which he performs. If they do not, if he goes out of 
 his Avay to express opinions which he is not judicially bound 
 to express, or cannot with judicial consistency utter from 
 the bench, he is responsible for the mischief which he does, 
 in proportion to the importance of the office which he 
 holds. And even if we give, as I have always certainly 
 desired to give, all personal credit for purity of purpose to 
 those judges who sought, in this case, to promote the peace 
 and harmony of the country, it is too obvious that thev 
 Avere not, from their positions and habits of life, qualified 
 to discover or to weigh the means by which it could be 
 done. This was the office of statesmen and not of judges. 
 Above all, the Southern judges Avere very ill qualified to 
 
1857.1 DRED SCOTT CASE. 209 
 
 calculate with safety what would be the effect in the North 
 of their individual declarations that slavery travelled into 
 all the Territories, as a matter of constitutional right. 1 
 
 Among the curious incidents connected with this case of 
 Dred Scott there is one which has never heretofore been 
 publicly- noticed, and which strongly illustrates the vacilla 
 tion of some of the judges in regard to its final disposal. At 
 the same term at which Scott s case was first argued, (De 
 cember term, 1855,) a case was argued and decided, which 
 stands reported in the eighteenth volume of Howard s Re 
 ports under the name of Pease v. Peck. It involved the 
 effect that should be given by the Supreme Court of the 
 United States to the decisions of a State court upon a ques 
 tion of the State law. It was assigned to Judge Grier to 
 Avrite the opinion of the court. The decision was adverse 
 to that of the State court on the question of State law ; 
 and the case in the Supreme Court of the United States 
 was not on a writ of error to the State court, but it was, as 
 in Scott s case, on a writ of error to a Circuit Court of the 
 United States. Knowing from the first argument of Scott s 
 
 1 Among all the strange things that were said in this case, perhaps the 
 most unaccountable is what was said by Judge Grier, who thought that the 
 record showed a prima facie case of jurisdiction, requiring the court to decide 
 all the questions properly arising in it ; that, as the decision of the pleas in 
 bar showed that the plaintiff was a slave, and therefore not entitled to sue 
 in a court of the United States, the form of the judgment was of little im 
 portance ; for, he said, whether the judgment (of the lower court) be 
 affirmed, or dismissed for want of jurisdiction, it is justified by the decision 
 of the court, and is the same in effect between the parties to the suit. Yet 
 it was solely by reason of the distinction between dismissing or not dismiss 
 ing the case for want of jurisdiction, and affirming on the pleas to the merits 
 that Scott was or was not a slave, that Judge Grier, or any other member of 
 the court, could obtain the judicial right to declare that the act of Congress 
 which prohibited slavery in the Territory was or was not unconstitutional 
 and void. Perhaps no man ever said, in the compass of less than half a 
 printed page, more that was unsound, than Mr. Justice Grier said in his few 
 recorded observations in this case. Yet he was a man of great vigor of 
 mind, and of no common logical power. But he had somehow become con 
 vinced that it would be useful to the country for him to agree with the 
 Chief Justice, that Congress could not prohibit the existence of slavery in a 
 Territory. 
 
 VOL. i. 14 
 
210 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 case that the effect of the last decision of the Supreme 
 Court of Missouri would be involved in the consideration 
 of the merits, because the Supreme Court of Missouri had 
 held Scott to be a slave, on his return into that State, not 
 withstanding his residence, with his master, in a free State 
 and a free Territory, Judge Grier, representing a majority 
 of the court, laid down, in his opinion in the case of Pease 
 v. Peck, a very broad rule in regard to the binding force of 
 State decisions, in the Supreme Court of the United States, 
 on questions of State law. The rule thus propounded was 
 stated to be, that in all cases where there is a settled con 
 struction of the laws of a State, by its highest judicature, it 
 is the practice of the courts of the United States to receive 
 and adopt it without criticism or further inquiry; but that 
 when the decisions of the State court are not consistent, 
 the judges of the Supreme Court of the United States do 
 not feel bound to follow the last, if it is contrary to their 
 own convictions. 1 This was deliberately and purposely laid 
 down as the rule, not only to justify the intended decision 
 in Pease v. Peck, but also in order to make a precedent 
 under which the judges, when Scott s case should be finally 
 acted upon, might be free to disregard the last decision of 
 the Supreme Court of Missouri, and to give Scott the benefit 
 of their own convictions upon the question of his status, 
 after his return to that State, if they should differ from the 
 State court. 2 Unfortunately, when Scott s case came to 
 be finally acted upon, the opinion of the Chief Justice made 
 no allusion to what had been said in the case of Pease v. 
 Peck, but it attributed to the last decision of the State 
 court the most stringent effect that was ever given to a 
 State decision, and that, too, on a question of personal free 
 dom. But the great question on this part of the case was, 
 
 1 See the opinion in Pease v. Peck, 18 Howard s Rep. 505, 598. 
 
 2 I make this statement on the authority of a gentleman still living, Mr. 
 Edward N. Dickerson, of New York, an intimate friend of Judge Grier, 
 who was so informed by Judge Grier himself, at the time when Pease v. Peck 
 was decided. 
 
1857.] CORRESPONDENCE WITH THE CHIEF JUSTICE. 211 
 
 whether the status of Scott was a mere matter of the local 
 law of Missouri, or whether it was a question of universal 
 jurisprudence, on which the Supreme Court of the United 
 States was not bound by the decisions of the State court. 
 The Chief Justice treated it as a mere question of local 
 law. Judge Curtis treated it as a question of international 
 law. whose rules required the status of Scott, as fixed by the 
 laws of the Territory of Wisconsin, to be recognized in 
 Missouri by the Federal court sitting in that State. 
 
 I have already stated, that, after the second argument of 
 the case, the Chief Justice prepared, and read in a confer 
 ence of the court, the opinion which was read publicly as 
 " the opinion of the court " on the 6th of March, 1857. Of 
 course, the judges who did not concur in that opinion had 
 an opportunity to write their dissents from what they had 
 heard read in the conference. Judge Curtis, who had heard 
 the Chief Justice s opinion read in the conference-room, 
 deemed it his duty to dissent from it throughout. When 
 the time for acting publicly upon the case arrived, and on 
 the last day of the term (the 7th of March), Judge Curtis s 
 dissenting opinion was read. It was immediately filed in 
 the clerk s office, as the rule of the court required ; but the 
 opinion of the Chief Justice, which had been publicly read 
 on the previous day, was not filed. After the adjournment 
 of the court, and on that day, the editor of a Boston news 
 paper, or his agent in Washington, applied to Judge Curtis 
 for a copy of his dissenting opinion. It was given to him, 
 because Judge Curtis supposed that all the opinions had 
 been filed as the rule required, and that they would there 
 fore be accessible to the press, and would be published for 
 the information of the public, just as they had been read. 
 The copy of his dissenting opinion was taken to Boston, and 
 in a few days it was published. In the mean time, Jrtdge 
 Curtis had gone on a short visit into Virginia. After his 
 return to his home in Pittsfield, in the western part of 
 Massachusetts, without going through Boston, ho was in- 
 
212 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 formed that the opinion of the Chief Justice, from which 
 he had dissented, had been revised and materially altered. 
 Thereupon, on the 2d of April (1857), he wrote to Mr. 
 Carroll, the Clerk of the Supreme Court, requesting him to 
 send him a copy of the Chief Justice s opinion when printed}- 
 The Clerk replied as follows : 
 
 To MR. JUSTICE CURTIS, &c., &c. 
 
 MY DEAR SIR, I am this morning in the receipt of your favor 
 of the 2d instant, and regret that it is not in my power to send you 
 a copy of the opinion in No. 7, Scott v. Sandford. That, as well as 
 the opinions of yourself, Judge Wayne, Judge Nelson, and Judge 
 McLean, we have not yet had printed. But hope to have them 
 done in about ten days. 
 
 As, however, the Chief Justice had directed me not to furnish a 
 copy of his opinion to any one, without his permission, before it 
 is published in Howard s Reports, allow me to suggest that you 
 request him to direct me in the premises. 
 
 Very sincerely yours, 
 
 WM. THOS. CARROLL. 
 
 WASHINGTON, April 6, 1857. 
 
 On the 9th of April, Mr. Justice Curtis replied to the 
 above, and, after acknowledging its receipt, says: 
 
 " I wish to see only this opinion of the court, and you will please 
 send me a copy of that as soon as it is in print, and charge any ex 
 pense to me. You mention that the Chief Justice had directed you 
 not to furnish a copy of his opinion to any one, without his permis 
 sion, before it is published in Howard s Reports. If, by his opinion, 
 you mean the opinion delivered by the Chief Justice as the opinion 
 of the majority of the court, I can hardly suppose the direction 
 was intended to apply to and include a member of the court who 
 has occasion to examine the opinion before its publication. If you 
 have the least doubt upon the point, it is certainly proper for you to 
 consult him before you send me the copy." 
 
 1 It was the practice of the Clerk to prepare printed copies of all opin 
 ions of the judges filed in the office, before their publication by the official 
 Keporter of the court. 
 
1857.] CORKESPONDENCE WITH THE CHIEF JUSTICE. 213 
 
 In answer to this letter Mr. Justice Curtis received the 
 following : 
 
 To MR. JUSTICE CURTIS, SUPREME COURT, U. S. 
 
 MY DEAR SIR, I duly received your favor of the 9th instant, 
 suggesting that I might have mistaken the directions of the Chief 
 Justice referred to by my letter of the 6th instant. In reply, I beg 
 to inform you that, after mailing that letter, I called to see the 
 Chief Justice ; told him how I had understood his directions, and 
 that I had so written you ; and that he then told me that I had 
 understood him correctly, and reiterated the direction. 
 With the highest esteem and regard, I remain, dear sir, 
 Very truly yours, 
 
 WM. THOS. CARROLL. 
 WASHINGTON, April 14, 1857. 
 
 Even after this second letter from the Clerk had been 
 received, Mr. Justice Curtis could not believe it possible 
 that one of the members of the court should be refused 
 access to its records ; and with the desire to discover the 
 actual state of affairs, he wrote to Mr. Chief Justice Taney, 
 on the 18th of April, and said : 
 
 " I cannot suppose it was your intention to preclude me from 
 having access to an opinion of the court in the only way possible 
 for me to obtain it ; and if it was not, you will confer a favor upon 
 me by directing the Clerk to comply with my request." 
 
 To this the Chief Justice replied as follows : 
 
 HON. B. R. CURTIS, PITTSFIELD, MASS. 
 
 BALTIMORE, April 28, 1857. 
 
 DEAR SIR, I have been in Baltimore for the last two weeks, 
 holding the Circuit Court ; and, owing to my absence from Wash 
 ington, did not receive your letter until a few days ago, and could 
 not answer it until I obtained from Washington a copy of the order 
 under which the clerk declined to send you a copy of the opinion 
 of the court in the case of Scott v Sandford. I herewith en 
 close it. 1 
 
 1 See page 216. 
 
214 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 It is, however, proper that I should explain to you the reasons 
 for giving the order. Soon after the decision was given, circum 
 stances occurred which satisfied the court that justice to itself 
 required that the opinion in this case should be reported and 
 brought before the public under the usual supervision and re 
 sponsibility of the officer appointed by the court to perform 
 that duty ; and that it ought not to be separated from all of 
 the other opinions delivered by the court during the term, and 
 hurried before the public in an unusual manner, by irresponsible 
 reporters, through political and partisan newspapers, for politi 
 cal and partisan purposes. It became my duty to carry into 
 effect this determination of the court ; and I therefore gave an 
 order to Mr. Carroll not to give a copy to any one but the official 
 reporter. 
 
 The order in the first instance was verbal. But some time before 
 the opinion was printed and had undergone the accustomed revision 
 of a printed copy, Mr. Carroll mentioned to me that he had been 
 applied to for a copy by Mr. Charles P. Curtis, and wished to 
 know whether, from his near and intimate connection with you, he 
 would not be excepted from the operation of the order. Upon my 
 inquiring if Mr. Curtis had stated for what purpose he wished a 
 copy, he showed me his letter, in which Mr. Curtis says he is about 
 to publish a large edition of your opinion in a pamphlet, and wished 
 " to introduce that of the Chief Justice " with yours, meaning, I 
 presume, the opinion of the court delivered by me. I told Mr. 
 Carroll he could not have it for such a purpose. It appeared to 
 me that Mr. Curtis himself, upon more consideration, would feel 
 that his plan was open to serious objections. For the publica 
 tion of your individual opinion in this manner, in connection 
 with that of the court, leaving out the individual opinions of 
 the other judges, would hardly be respectful to them, as it would 
 seem to imply that he thought their opinions less worthy of pub 
 lication than yours ; and, also, that upon further reflection he 
 would hardly feel justified in anticipating the official reporter in 
 the publication of this opinion of the court, and thereby taking 
 for his own emolument the profits arising from its sale, which 
 legitimately and justly belong to the officer appointed by law to 
 perform that duty. And it is due to frankness also to say, that 
 I thought it would have been as well for any gentleman, before 
 he undertook to report the opinion of the court under his own 
 
1857.] CORRESPONDENCE WITH THE CHIEF JUSTICE. 215 
 
 supervision, and in what manner and in what form he pleased, 
 anticipating the officer of the court, to have asked and obtained 
 leave of the tribunal to do so. 
 
 A few days after I had given Mr. Carroll the answer above 
 mentioned to the application of Mr. Charles P. Curtis, he showed 
 me your first letter directing him to send you a copy, and told 
 me the answer he had given, and inquired whether he had cor 
 rectly understood the order in applying it to you. I told him he 
 had. 
 
 As I was about to leave Washington for some weeks, and 
 desired to relieve Mr. Carroll from any undue responsibility in this 
 matter, I put the order in writing, with the concurrence and appro 
 bation of Mr. Justice Wayne and Mr. Justice Daniel, who were 
 the only two justices beside myself then in Washington, and author 
 ized Mr. Carroll to show it, or give a copy of it, to any one who 
 might apply for a copy of the opinion. 
 
 It would seem from your letter to me that you suppose you are 
 entitled to demand it as a right, being one of the members of the 
 tribunal. This would undoubtedly be the case if you wished it to 
 aid you in the discharge of your official duties. But I understand 
 you as not desiring or intending to use it for that purpose. On 
 the contrary, you announced from the bench that you regarded 
 the opinion as extra-judicial, and not binding upon you or any one 
 else. And if the opinion of the court is desired by the judge, not 
 to aid him in the discharge of his official duties, but for some other 
 unexplained purpose, I do not see that his position in relation to a 
 copy of the opinion differs in any respect from that of any other 
 person. And I cannot admit that any one judge has the right to 
 take away from the court the control over its own opinion before 
 it is officially reported, or has the right to overrule its judgment, if 
 he thinks proper, in a matter which nearly concerns its judicial 
 character and standing, and more especially the judicial char 
 acter and standing of the members of the court who gave the 
 opinion. 
 
 You will observe that the order applies to every individual 
 member of the tribunal as well as to yourself, although it so hap 
 pens that you are the only one who has applied for a copy. 
 I am, respectfully, dear sir, your obedient servant, 
 
 R. B. TANEY. 
 
216 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 The u order of the court," which is referred to above, is 
 contained in the following communication addressed to the 
 clerk : 
 
 To WILLIAM THOMAS CARROLL, ESQ., 
 
 Clerk of the Supreme Court, Washington. 
 
 WASHINGTON, April 6, 1857. 
 
 DEAR SIR, I understand several applications have been made 
 to you for a copy of the opinion in the case of Dred Scott v. Sand- 
 ford. No one has a right to a copy of the opinion of the court until 
 it is reported and published by the reporter. He is the officer to 
 whom the law confides the duty of bringing the opinions of the 
 Supreme Court fairly and fully before the public, and of making 
 them equally accessible at the same time to every one. 
 
 I have observed that the opinion of the court has been greatly 
 misunderstood and grossly misrepresented in publications in the 
 newspapers. It is impossible that the court, or any member of the 
 majority which gave the opinion, having a proper regard to their 
 judicial positions, can enter into discussions with gentlemen who 
 write for newspapers, in order to correct misstatements in these 
 publications. It is due to the court, therefore, as well as to the 
 public, that the opinion in the case above mentioned should be 
 allowed to speak for itself, and not be brought before the public 
 garbled and mutilated, and with false glosses attached to it. The 
 law and the court confide it to the reporter to do this, and to no 
 one else. 
 
 You will therefore give no copy of this opinion to any one, until 
 the reporter has printed it, and has it in readiness for general dis 
 tribution, so as to be accessible to any one who may choose to 
 purchase it. 
 
 Respectfully, dear sir, your obedient servant, 
 
 R. B. TANEY. 
 
 I have read this letter from the Chief Justice to Mr. Carroll, 
 and concur in it entirely. 
 
 JAMES M. WAYNE. 
 
 I entirely concur in the opinion and instruction given by the 
 Chief Justice to the clerk. 
 
 P. V. DANIEL. 
 
1857.] CORHESPOXDENCE WITH THE CHIEF JUSTICE. 217 
 
 Having received the above, called forth by his simple re 
 quest for a copy of the opinion of the court, Judge Curtis 
 sent the following reply to the Chief Justice : 
 
 PITTSFIELD, May 13, 1857. 
 
 DEAR SIR, Your letter of the 28th ultimo came here during 
 my absence from home on the circuit. I avail myself of the earliest 
 practicable opportunity to reply to it. It is due to that harmony 
 of feeling among the members of the court, which concerns not 
 only themselves but the public interest, and it is due to the unaf 
 fected respect I feel for you, that I should reply to it frankly. 
 
 I wrote to the clerk of the Supreme Court, saying I had occa 
 sion to examine its opinion in the case of Scott v. Sandford, and 
 desiring him to send me a copy of the opinion when it should be in 
 print. I was told, in reply, that you had directed him not to allow 
 any one to have a copy of the opinion until it should be published 
 by the reporter ; and that, on inquiring of you, he had been told 
 that I was included in the prohibition. I thought there must be 
 some mistake on the part of Mr. Carroll, and therefore addressed 
 myself to you. It seemed to me, that when a judge called on the 
 clerk of the court to furnish him with a copy of one of its acts, 
 required by its rules to be entered on its records, and stated that 
 he had occasion to examine it before its publication in the printed 
 reports of the proceedings, neither the clerk nor any one else had 
 a right to presume that he had not occasion to examine it for a 
 purpose connected with his official duty, and to deny him access to 
 it. And therefore I supposed Mr. Carroll had in some way mis 
 interpreted his instructions. 
 
 Your letter informs me he did not, and explains the order under 
 which he acted, and also details some matters personal to myself, 
 which you suppose to be connected with my direction to Mr. 
 Carroll. 
 
 As respects what you say concerning Mr. C. P. Curtis s applica 
 tion to the clerk for a copy of the opinion of the court, I have only 
 to observe, that whatever application Mr. Curtis may have made 
 was without my knowledge ; that I had no connection with it 
 whatever, and do not perceive why I should make any observa 
 tions concerning it, or concerning the purpose for which you say it 
 was desired. If any one has supposed that I was availing myself 
 of my official relation to the records of the court to enable Mr. C. 
 P. Curtis to obtain indirectly through me what he could not obtain 
 
218 MEMOIR OF BENJAMIN BOBBINS CURTIS. 
 
 directly for himself, such person has done an injustice to me which 
 I believe a more intimate acquaintance with my character would 
 have saved him from. 1 
 
 You speak of my desiring the copy for some unexplained pur 
 pose. I certainly did not think it necessary to explain to the 
 clerk of the court the purpose for which I wanted a copy of one oi 
 its records. I thought it enough for me to say I had occasion to 
 examine it. To yourself, if I had imagined air explanation neces 
 sary, I could have felt no objection to make it, though I do not 
 consider myself bound to do so. But no explanation was asked ; 
 and the clerk was simply directed not to comply with my call on 
 him. Still, though no explanation has now been asked, and 
 though you appear to have assumed that I desired the paper for 
 some other than an official use, I think it proper to state what my 
 object was in calling for the copy. 
 
 I had an official duty to perform which alone caused me to 
 apply for the copy. In my judgment, and I cannot doubt you 
 will agree with me, a judge who dissents from an opinion of a 
 majority of the court upon questions of constitutional law which 
 deeply aifect the country, discharges an official duty when he lays 
 before the country the grounds and reasons of his dissent. That 
 he may do so, it is necessary he should know, and know accu 
 rately, what the opinion of the majority is, and its grounds and 
 reasons. For this end, opinions of the majority are read, before 
 
 1 I find among the papers relating to this case a note in the handwriting of 
 Judge Curtis, in which he says that Mr. Charles P. Curtis wrote to him to ask 
 if he knew how he (Mr. C. P. Curtis) could obtain a copy of the opinion of the 
 court. The note then proceeds: "I answered that I did not. Subsequently, 
 he mentioned to me that he had a letter from Mr. Carroll, saying that he 
 could have a copy for sixty dollars ; upon which I made no comment." And 
 again : " In respect to the propriety of Mr. Curtis s intentions, I do not feel 
 called on to enter into any discussion, further than to observe, that, as he 
 proposed to distribute the pamphlet gratuitously, he could have no intention 
 to take for his own use the emoluments arising from its sale ; and that it did 
 not occur to me, when the subject was spoken of by him, nor does it now 
 seem to me, on reflection, that such a publication would be disrespectful to 
 those judges whose opinions would not be included. I remember being told 
 that the opinions of Judge Daniel and Chief Justice Taney, in the Wheeling 
 Bridge case, were published without the opinion of the court, and extensively 
 circulated in Virginia and west of the mountains. I thought at the time 
 this was done to promote the views of those in whose favor those opinions 
 were ; and it did not occur to me that such a publication was disrespect 
 ful to myself and to the other judges who concurred in the opinion of the 
 court." 
 
1857.J CORRESPONDENCE WITH THE CHIEF JUSTICE. 219 
 
 they are promulgated, in presence of all the judges ; and not merely 
 made known privately to those judges who concur in them. This 
 opinion of the court, prepared by yourself, was so read in confer 
 ence of all the judges. I was thus informed what it was, and 
 shaped my dissent from that opinion accordingly. After I re 
 turned home, I was informed that this opinion, from which I had 
 dissented, had been revised and materially altered. I did not 
 know whether the information was true or false. I had no dis 
 position to raise any question on the subject. I had understood 
 that some difference of opinion as to the effect of the 42d rule of 
 the court had heretofore arisen. But I did not wish to make or to 
 have any controversy with any one respecting its application. At 
 the same time, I thought I had a right to know, before my own 
 opinion should be published by the reporter in a permanent form, 
 whether any alterations material to my dissent had been made in 
 the opinion from which 1 dissented, after its promulgation from 
 the bench. 
 
 I had no doubt then, and have none now, that in publishing my 
 opinion in a permanent form in the reports, either as it was origi 
 nally written, or with such notes or alterations as circumstances 
 growing out of changes in the opinion of the court might require, 
 I was discharging an official duty ; and that I had a right to 
 have free access to the records of the court, to enable me to per 
 form it in such manner as, on my own responsibility, I should 
 elect. 
 
 In respect to the order to which you refer, I may be in error, 
 but at present I do not perceive how the court could make an 
 order in vacation, without allowing to all the judges opportunity 
 to deliberate on it, and concur therein, or offer reasons why it 
 should riot be passed. If consulted, I should have urged on the 
 judges, to the best of my ability, the propriety and expediency of 
 not withholding from immediate publication the opinions in this 
 case ; that their publication would prevent, in the only way in 
 which they could be prevented, those great misunderstandings and 
 gross misrepresentations in the newspapers, which are mentioned 
 in your letter to Mr. Carroll prohibiting the allowance of a copy 
 of the opinion of the court. I am not able to perceive how the 
 allowance of an authentic copy of the opinion, by the clerk, could 
 have had any other effect than to correct misapprehensions, and 
 put an end to misrepresentations. It was for this reason, not 
 
220 MEMOIR OF BENJAMIN ROBBINS CUKTIS. [1857. 
 
 only entertained but expressed at the time, that I consented to the 
 publication of my own opinion ; and when I left Washington, 
 though, from illness and the pressure of my domestic affairs, I had 
 not opportunity to see you, I had not the least doubt that every 
 opinion filed in the case would immediately appear in the news 
 papers. I supposed that others would think as I did, that in our 
 country it is impossible to keep from the public what passes in an 
 open court of justice ; especially in the Supreme Court, where the 
 interests of the nation are discussed, and the people have the right 
 to know what is done, and feel a strong desire to know it ; that in 
 such a case the usual forms of reporting would inevitably be dis 
 regarded ; that if the public cannot get the opinions of the court 
 authentically, and in the usual way, speedily enough to answer their 
 claims, they will get them so far as, and in the best way, they can ; 
 that in England, if any similarly important case had occurred, a 
 detailed report of every opinion, which the usages of that country 
 require to be pronounced from the bench by each judge, would 
 have appeared the next morning in the leading newspapers; that 
 in our country there was the same desire and the same right to 
 know what is done in the courts, but not the same means at pres 
 ent to know accurately ; but that all concerned would suffer by at 
 tempting to withhold the opinions in this case after they had been 
 regularly promulgated in open court ; and I may add, that it is 
 quite usual in Massachusetts, and I believe in other States, to pub 
 lish immediately in the newspapers important opinions of the Su 
 preme Court, without waiting for the volume of the reporter ; and 
 that the same practice was allowed by both my predecessors in 
 office, arid has been occasionally by myself. 
 
 I do not detail these considerations to endeavor to convince you 
 that the order was erroneous. I have not the presumption to form 
 an opinion upon your act without knowing its reasons. But I wish 
 you to understand my views of the matter and the grounds on 
 which I acted. 
 
 I feel a very sincere reluctance to trouble you with this long 
 letter, but I know not how to avoid it. I have no personal feeling 
 to express other than regret that what I consider my rightful ac 
 cess to the records of the court has been denied me, and, as I fear, 
 under misconstruction of my motives and purposes. 
 
 With great respect, I am, dear sir, your obedient servant, 
 
 B. R. CURTIS. 
 
1857.] CORRESPONDENCE WITH THE CHIEF JUSTICE. 221 
 
 After the lapse of several weeks, Judge Taney replied as 
 follows : 
 
 To HON. B. R. CURTIS, PITTSFIELD. 
 
 WASHINGTON, June 11, 1857. 
 
 DEAR SIR, I received your letter of the 12th of May, the 
 day before I set out for Richmond to hold the Circuit Court for 
 the District of Virginia. And being much occupied in my prepara 
 tions to leave home, I was able to give it but a cursory perusal at 
 that time ; and while I was at Richmond, my duties in court filled 
 up all the time that in my infirm state of health I could devote to 
 business, and left me no leisure to answer your letter. 
 
 Since my return home, I have again looked over it ; and as I 
 have no desire to continue the unpleasant correspondence which 
 you have been pleased to commence, I should have been glad to 
 find that there was nothing in your last letter which called for a 
 reply on my part. 
 
 But there are some passages which cannot be passed by without 
 notice, because my silence in relation to them might lead to erro 
 neous inferences, unjust to the judges with whom I concurred in 
 opinion, as well as to myself. 
 
 You say that you were informed, after you returned home, that 
 the opinion of the court, in the case of Scott v. Sandford, was 
 materially altered after it was delivered from the bench. I do not 
 mean to inquire through what channel you sought or obtained 
 information on that subject. But however obtained, if it came to 
 you in a way sufficiently authentic to induce you to act upon it, 
 perhaps the more usual and appropriate course between members 
 of the same tribunal would have been to address an inquiry to the 
 judge who delivered the opinion. And if this had been done in 
 the present case, you would have been promptly and frankly 
 answered. But as you now, for the first time, inform me that this 
 information induced you to address your letter to me demanding a 
 copy, it is proper to say that it had no foundation in truth. There 
 is not one historical fact, nor one principle of constitutional law, or 
 common law, or chancery law, or statute law, in the printed opinion, 
 which was not distinctly announced and maintained from the bench ; 
 nor is there any one historical fact, or principle, or point of law, 
 which was affirmed in the opinion from the bench, omitted or modi 
 fied, or in any degree altered, in the printed opinion. You will 
 
222 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 find in it proofs and authorities to maintain the truth of the histori 
 cal facts and principles of law asserted by the court in the opinion 
 delivered from the bench, but which were denied in the dissenting 
 opinions. And until the court heard them denied, it had not 
 thought it necessary to refer to proofs and authorities to support 
 them ; regarding the historical facts and principles of law which 
 were stated in the opinion as too well established to be open to dis 
 pute. But you will find nothing altered, nothing in addition but 
 proofs to maintain the truth of what was announced and affirmed 
 in the opinion delivered. 
 
 There is another topic in your letter upon which I ought not to 
 be silent. You speak of the opinion of the court as having been 
 improperly kept back from the public when they had a right to 
 know it. It is true that the opinion was not given to a partisan, 
 political journal, to be published for political and partisan purposes. 
 But it was delivered in open court, in the hearing of every one who 
 chose to listen. It was placed in the hands of the officer appointed 
 by law to report it, as soon as it had undergone the usual revision. 
 And it has been published in the manner in which the opinions of 
 the court have been published for more than fifty years ; and much 
 sooner after the close of the term than they have commonly been 
 issued by the reporter. Yet I have never heretofore heard the 
 court charged with improperly keeping back its opinion from the 
 people. 
 
 It is also true, as you say, that the constitutional questions de 
 cided by the court in this case were at the time, and still are, the 
 subjects of earnest discussion as political questions, and the public 
 mind much excited about them. But this has often happened 
 before ; and whole States have been highly agitated upon constitu 
 tional questions of the deepest interest, at the very moment when 
 they were brought before the Supreme Court and there decided. 
 And it has happened, too. on such occasions, that differences of 
 opinion existed among the members of the court, and the opinion 
 of the majority has been elaborately contested and freely com 
 mented on by the dissenting members ; and it has likewise happened 
 in such cases that the opinion of the majority, after it was pro 
 nounced, was vehemently assailed and misunderstood and misrepre 
 sented in the political newspapers and journals of the day; yet 
 it was never deemed necessary, on that account, to depart from 
 the usual and established mode of promulgating the opinion of the 
 
1857.] CORRESPONDENCE WITH THE CHIEF JUSTICE. 223 
 
 court, nor the opinion of any one of the dissenting judges. The 
 majority who concurred in and gave the opinion, and the judges who 
 dissented, were all of them content that their respective opinions 
 should be reported and published in the usual manner, arid sub 
 mitted at the same time, and in the same volume, to the sober and 
 enlightened judgment of the public ; so that each opinion might 
 speak for itself and be compared witli the others when it was read. 
 And although this has heretofore been the uniform course of pro 
 ceeding, I have never heard the court or the dissenting judges 
 accused of improperly keeping back their opinions from the 
 public. 
 
 And if you supposed there was any thing new and peculiar to 
 this case which made it proper to depart from the established 
 usage, and to publish the opinion in the public journals immediately 
 after it was delivered, it is to be regretted that you did not suggest 
 such a measure to the court. A proposition of that kind coming 
 from one of its members, his reasons for it would undoubtedly have 
 been respectfully listened to and considered. And if the majority 
 had come to the same conclusion, directions could have been given 
 to the official reporter to carry the plan into execution. In that 
 case a copy of the opinion of the court and of the judges who con 
 curred in it, as well as of those who dissented, might have been 
 prepared and ready for the press as soon as the judgment was 
 pronounced ; and all of the opinions would have appeared simulta 
 neously and together, so that he who read one would have the 
 others before him, and be able to compare them together, and not 
 be left to form his judgment of the one from what might be said of 
 it in another and adverse opinion. 
 
 But the measures taken by you effectually prevented the publi 
 cation of the opinions together or simultaneously. You never 
 suggested (at least I never heard of such a suggestion) that you 
 thought the established mode of reporting and publishing the opin 
 ion of the court ought, in this instance, to be departed from. And 
 although I received a note from you in relation to the law library 
 the day after the opinions had been delivered, and the day before 
 you left Washington, you said nothing in it about the publication 
 of the opinions, nor intimated that a more prompt and different 
 mode of publication than the usual one was desirable. Nor did you 
 apprise me of your intention to publish at once your dissenting 
 opinion. And I learned with great surprise that, immediately on 
 
224 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 your return to Boston, you had published it in a political journal, 
 and that it was distributed, not only to the subscribers to the news 
 paper, but widely circulated throughout the country. You your 
 self, therefore, rendered it impossible that the opinions could come 
 out together, as you say would have been the case in England ; and 
 equally impossible that the readers of one should have the other 
 always at hand in order to compare them and judge between them ; 
 for the thousands, and tens of thousands, of persons who read your 
 opinion in the journal in which it was published, and in other news 
 papers associated with it in political partisanship, could by no possi 
 bility have the opinion of the court before them until some time 
 after yours had been read, and made its impression. And the far 
 greater part of the readers among whom it was hurried and pro 
 fusely scattered will never have an opportunity of reading the opin 
 ion of the court, nor of knowing any thing about it except what 
 they learn from your version of the opinion, and your account of 
 the proofs and authorities on which it is founded. 
 
 In this respect the case undoubtedly differed from all former 
 ones ; and for that reason made it the duty of the court to con 
 sider whether this new state of things required a more prompt or 
 different mode of publication from the one heretofore adopted. 
 For although, as I have already said, the opinion of the court on 
 former occasions has been assailed in political journals and by politi 
 cal partisans before the opinion itself could be published, yet this 
 is the first instance in the history of the Supreme Court in which 
 the assault was commenced by the publication of the opinion of a 
 dissenting judge ; carrying with it the weight and influence of a 
 judicial opinion delivered from the bench in the presence and hear 
 ing of the court. 
 
 No one could fail to see that this circumstance would encourage 
 attacks upon the court and upon the judges who gave the opinion, 
 by political partisans whose prejudices and passions were already 
 enlisted against the constitutional principles affirmed by the court ; 
 and that the usual weapons of party warfare would be resorted to 
 in order to impair its weight ; and that this would more especially 
 be the case in this instance, because the annual elections in several 
 States were at that time approaching, and the principal points in 
 controversy between parties were the constitutional questions de 
 cided by the court. Yet the judges who concurred in the opinion 
 did not think that this state of things would justify the Supreme 
 
1857.] CORRESPONDENCE WITH THE CHIEF JUSTICE. 225 
 
 Court of the United States in assuming the attitude of combatants 
 in the political arena, by publishing its opinion hastily in the public 
 journals. And the fact that the public mind had become highly 
 agitated in several States upon these questions by the near ap 
 proach of their elections, seemed to render any departure from the 
 long-established practice of the court at such a time peculiarly ob 
 jectionable. Hence the order of which you complain, and which 
 you represent as having kept back from the people what they had 
 a right to have. The order prevented the court from being placed 
 in the attitude of a combatant in the political arena without its con 
 sent, but it did nothing more. 
 
 You complain also, that you were not consulted when the court 
 came to this conclusion, and say that it was a violation of your 
 judicial rights, as a member of the tribunal, to pass the order with 
 out first advising with you. But you will recollect that you had 
 then published your own opinion, adverse to that of the court, with 
 out consulting the judges who gave the opinion, or apprising them 
 of your intention ; and I cannot see any just ground upon which 
 you could claim the right to share in the control and disposition of 
 the opinion of the court, when the avowed object of your dissent 
 ing opinion was to impair its authority and discredit it as a judicial 
 decision. 
 
 I have now done. I had, indeed, supposed that, whatever differ 
 ence existed on the bench, all discussion and controversy between 
 members of the tribunal was at an end when the opinions had been 
 delivered ; and I believed that this case, like all others that had 
 preceded it, would be s-ubmitted calmly to the sober and enlight 
 ened judgment of the public in the usual channels of information, 
 and in the manner in which it has heretofore been thought that 
 judicial decorum and propriety required. But if it is your pleas 
 ure to address letters to me charging me with breaches of official 
 duty, justice to myself, as well as to those members of the court 
 with whom I acted, makes it necessary for me to answer and show 
 the charges to be groundless ; and a plain and direct statement of 
 the facts appears to be all that is necessary for that purpose. And 
 having now made it, I have only to add that 
 
 I am, respectfully, your obedient servant, 
 
 R. B. TANEY. 
 
 VOL. I. 15 
 
226 MEMOIR OF BENJAMIN BOBBINS CURTIS. 11857. 
 
 To this letter Judge Curtis replied as follows : 
 
 To HON. ROGER B. TANEY, 
 
 Chief Justice Supreme Court of the United States. 
 
 PITTSFIELD, June 16, 1857. 
 
 DEAR SIR, Your letter of the llth instant was received by 
 me this morning. I read it with surprise. I did not suppose I had 
 expressed myself in such manner as to be open to the misappre 
 hensions your letter shows. 
 
 You say, " I have no desire to continue the unpleasant corre 
 spondence you have been pleased to commence." It is certain that 
 our correspondence has become unpleasant; but I do not^find, bj 
 reviewing it, that it began to be so by any act of mine. 
 
 In my first letter to you, I simply requested you to remove from 
 the mind of the clerk what I then thought was some misapprehen 
 sion on his part. I wrote the letter without expectation that any 
 thing unpleasant would grow out of it. 
 
 You speak of it as " a demand made on you for a copy of the 
 opinion of the court." It was riot so intended, and no circum 
 stances were known to me which could impress on the letter that 
 or any other unpleasant construction. It was not until I received 
 your letter of the 28th of April that any thing unpleasant was 
 apparent. I cannot admit, therefore, that I have begun such a 
 correspondence. 
 
 You speak of my addressing letters to you, charging you with 
 breaches of official duty. I do not know where you find such 
 charges. The only subjects you refer to specifically enough to 
 enable me to perceive what you had in your mind are, that I com 
 plain of the order to the clerk prohibiting a copy of the opinion, 
 and that I speak of this opinion having been improperly kept back 
 from the public. 
 
 But if you will recur to my letter, you will find that, so far from 
 charging you with any official misconduct in passing the order, I 
 expressly say I had not. even formed an opinion that it was erro 
 neous, because I was not informed of the reasons which induced its 
 passage. 
 
 I do state reasons which would have induced me, if consulted, 
 to favor the immediate publication of all the opinions ; and after 
 carefully considering what you have said in your last letter on that 
 subject, though I never supposed any one or more of the judges 
 
1857.] CORRESPONDENCE WITH THE CHIEF JUSTICE. 227 
 
 should do any thing as a partisan, yet I still think it was highly 
 inexpedient to restrain others from publishing the opinion of the 
 court. 
 
 But, surely, there is a wide distance between a difference of 
 opinion on a question like this, and a charge of official misconduct. 
 I must be allowed to entertain my own opinions on all points con 
 nected with my office, and to express plainly, on proper occasions, 
 my reasons for them ; but I claim no privilege to charge any one 
 of my brethren with official misconduct, nor have I done so. All 
 that I said on the subject of the publication of the opinion was not 
 by way of complaint of the order to the clerk. I stated that such 
 was not my purpose ; and that my purpose was solely to explain to 
 you the grounds on which I acted and assumed (erroneously, it 
 appears) that others would act, not to controvert the propriety 
 of the order so far as its purpose was to restrain the publication of 
 the opinion of the court. I did not then, nor have I at any time, 
 considered that I had a right to a voice on the question whether 
 the majority of the judges would allow their opinion to be pub 
 lished otherwise than by the reporter. So far as it was the pur 
 pose of that order to prevent a publication of that document, 
 though I must be allowed to entertain my own views upon the 
 question of expediency, I have never had any cause to complain, 
 and never have complained, that they who had a right to decide 
 thought differently from myself. What I complained of was the 
 assumption that I wanted a copy of the opinion for publication, 
 and not to enable me to discharge an official duty; and the applica 
 tion of this order to restrain me from having a copy of this docu 
 ment, when I did actually want it to enable me to discharge an 
 official duty. If I was otherwise understood, I regret that I did 
 not express my ideas more clearly. 
 
 You describe to me, in your last letter, the extent of the alter 
 ations made in the opinion of the court after it was delivered, and 
 you intimate I might have had this information earlier. 
 
 I feel no hesitation in leaving it to your own candor to judge 
 whether, if I had received this information earlier, it would have 
 prevented my reasonable wishes to see the document itself, that I 
 might know what were " the proofs and authorities to maintain the 
 truth of the historical facts and principles of law asserted by the 
 court, in the opinion of the court delivered from the bench," which 
 you say were afterwards added to the opinion ; since it must be 
 
228 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 admitted that these terms may embrace a wide field of examination 
 and argument. 
 
 A large part of your letter seems designed to show that I pub 
 lished my opinion for political and partisan purposes, and that I 
 could not have failed to see that it must be read by great numbers 
 of persons who would never read the opinion of the court, and 
 thus have an unfair effect. 
 
 I shall not yield to the desire I feel to reply at length to this 
 part of your letter, and this for two reasons : the first is, that to 
 carry on such a discussion without bitterness would seem to be 
 almost, if not quite, impossible, and therefore I do not think it 
 would be profitable either to you or myself; the second is, that I 
 do not deem a detailed reply to those parts of your letter necessary. 
 It is a sufficient reply for me to declare that I have no connection 
 whatever with any political party, and have no political or partisan 
 purpose in view, and no purpose whatever, save a determination to 
 avoid misconstruction and misapprehension, from which I have suf 
 fered enough in times past. 
 
 I had not the least doubt, when I consented to the publication of 
 my own opinion, that the opinion of the court would be at once 
 published in a similar way, and would appear as early as my own, 
 in the principal newspapers of the country ; as it undoubtedly 
 would have done, if its publication had not been prevented by a spe 
 cial order. But the fact that its publication without my knowledge 
 was restrained, or that it was not ready for publication when deliv 
 ered, if such was the fact, does not authorize any one to impute to 
 me intentional unfairness, or any willingness to do the least injus 
 tice to the reputation of others. 
 
 Being conscious of the truth of these facts, I deem them a suffi 
 cient reply to that part of your letter, and have only to add, that I 
 remain, Respectfully, your obedient servant, 
 
 B. R. CURTIS. 
 
 Chief Justice Taney replied as follows : 
 
 WASHINGTON, June 20, 1857. 
 
 DEAR SIR, I received your letter of the 16th instant this 
 morning, and am glad to find that there is nothing in it that requires 
 me to do more than acknowledge its receipt, and to say that I am 
 not aware of any thing in either of my letters that is not strictly 
 defensive in its character. The acts of no other person are alluded 
 
1857.] CORRESPONDENCE WITH THE CHIEF JUSTICE. 229 
 
 to in either of them further than was necessary to show the circum 
 stances under which I, and those with whom I concurred, have 
 acted, and the motives which induced us to adopt the course we 
 have pursued. 
 
 I am, respectfully, your obedient servant, 
 
 R. B. TANEY. 
 
 The above letter closed the correspondence. Judge Cur 
 tis filed the letters among his private papers, with the 
 following careful and deliberate summing up of the whole 
 matter, in his own handwriting, entitled, 
 
 SOME OBSERVATIONS ON THE ABOVE CORRESPONDENCE. 
 
 The 42d rule of the Supreme Court contains the following 
 words : 
 
 " All the opinions delivered by the court since the commencement 
 of the term (January 7, 1835) shall be forthwith delivered over to 
 the clerk to be recorded. 
 
 " And all opinions hereafter delivered by the court shall immedi 
 ately on the delivery thereof be in like manner delivered over to the 
 clerk to be recorded." 
 
 Instead of conforming to this rule, the opinion delivered by the 
 Chief Justice was retained, and many material additions were made 
 to it. I have marked in the margin of my copy the passages which 
 I believe to have been thus inserted. I have no doubt of the cor 
 rectness of my memory on this subject. I heard the opinion read 
 twice : once in conference, and once from the bench. I listened to 
 it with attention, and believe I know where and in what it was 
 changed. These additions amount to upwards of eighteen pages. 
 No one can read them without perceiving that they are in reply to 
 my opinion. 
 
 Having thus retained the opinion contrary to the rule of the 
 court, and inserted in it without notice to me what was designed to 
 be a reply to parts of my opinion, when I called on the clerk for a 
 copy of his record of it, he was prohibited from furnishing it to 
 me ; and I was thus deprived of all opportunity to see what had 
 been inserted until the reporter s volume was issued, and it was too 
 late to avail myself of the knowledge. 
 
 And when I complained of this, instead of answering my com- 
 
230 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1857. 
 
 plaint, an elaborate attack is made, after a month s reflection, upon 
 my motives in consenting to the publication of my opinion. 
 
 In obedience to the rule of the court, I delivered a copy of my 
 opinion to the clerk forthwith after it had been read. It then 
 became one of the public records of the country. Any citizen had 
 a right to a copy of it, and to print and publish it. I desired to 
 have it printed correctly and in full, arid took measures to effect 
 this. The Chief Justice withheld his opinion, contrary to the rule, 
 and for the purpose of altering it. The order to the clerk not to 
 furnish a copy was quite useless while there was no original on file, 
 unless for the purpose of concealing the fact that the original was 
 retained to be altered. I do not believe any such order, wholly un 
 precedented as it was, would ever have been passed if the opinion 
 had been ready for publication when delivered. But whether this 
 be so or not, the prohibition to give me a copy after it was com 
 pleted and delivered to the clerk to be recorded, was an act of 
 usurpation ; and the reason which is insinuated, but not stated, that 
 it was conjectured I wanted it for publication, certainly does not 
 render the act less offensive. 
 
 My purpose in the above correspondence was to place before 
 Judge Taney the true character of his act, not to enter into an 
 embittered controversy with him. I believe I have accomplished 
 this purpose, and that he knows it. 
 
 Although I read this correspondence soon after it was 
 closed, and have now thought it proper, in justice to 
 my brother s memory, to include it in this Memoir, that 
 it may furnish its own answer to some suggestions that 
 have been made respecting his course in allowing an 
 immediate publication of his dissenting opinion, I do 
 not deem it necessary to add any thing to the comments 
 which he himself made upon it, and which he left where 
 they would be accessible after his death. I believe that 
 those comments were deliberately made and deliberately 
 preserved. I ought, however, to say that my brother 
 had as high an appreciation of the judicial character 
 and public services of Chief Justice Taney as any man 
 who ever knew him. This is abundantly manifested in 
 
1857.] DRED SCOTT CASE. 231 
 
 what he said of the Chief Justice, publicly, after his 
 decease, and which is included in the present work. 
 Upon that eulogium I shall only say that Judge Curtis 
 never spoke of any man, living or dead, otherwise than 
 as he felt. 1 
 
 The dissenting opinion of Judge Curtis, in this case, was 
 greatly praised throughout the Northern States, for the 
 clear, learned, and able manner in which it maintained the 
 capacity of free persons of color to be " citizens " within 
 the meaning of the Judiciary Act, and for the power with 
 which he asserted the authority of Congress to exclude 
 slavery from the Territories. These were the topics that 
 most deeply interested the public mind at that time ; and 
 it so happened that his view of his judicial duty, under 
 the requirements of the case, made it necessary for him 
 to discuss them. But the practical importance of these 
 questions has passed away. What then remains of this 
 dissenting opinion, as of lasting value in the national juris 
 prudence? In my judgment, its permanent importance 
 consists in the demonstration which it made of this propo 
 sition : That the Supreme Court of the United States, 
 sitting as an appellate tribunal to correct the errors of a 
 Circuit Court, cannot, under a plea to the jurisdiction, 
 decide that the lower court had no jurisdiction to hear and 
 determine the cause, and then proceed to decide a question 
 of constitutional law which arises only on a plea in bar to 
 the merits of the action. The following impressive close of 
 Judge Curtis s discussion of this part of the subject com 
 prehends the whole substance of his objection to the course 
 of a majority of his brethren: "I do not consider it to be 
 within the scope of the judicial power of the majority of 
 the court to pass upon any question respecting the plaintiff s 
 citizenship in Missouri, save that raised by the plea to the 
 
 1 See the remarks of Judge Curtis at the meeting of the Boston Bar, 
 occasioned by the death of Chief Justice Taney, infra, Vol. II. 
 
232 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 jurisdiction ; and I do not hold any opinion of tins court, 
 or any court, binding, when expressed on a question not 
 legitimately before it. The judgment of this court is, that 
 the case is to be dismissed for want of jurisdiction, because 
 the plaintiff was not a citizen of Missouri, as he alleged 
 [that he was] in his declaration. Into that judgment, 
 according to the settled course of this court, nothing ap 
 pearing after a plea to the merits can enter. A great 
 question of constitutional law, deeply affecting the peace 
 and welfare of the country, is not, in my opinion, a fit sub 
 ject to be thus reached." 
 
 To those who do not fully appreciate the judicial func 
 tions of the Supreme Court of the United States, or who 
 do not fully understand the limits within which it should 
 carefully act, this may seem to have been hypercritical in 
 its technicality. But to the instructed and enlightened 
 student of our national jurisprudence, who contemplates 
 the true function of the Supreme Court as the judicial 
 arbiter of constitutional questions, these apparent techni 
 calities will be recognized as pregnant with most important 
 substance ; for it cannot be doubted, that the temptation 
 to be drawn into the expression of opinions on constitu 
 tional questions, because they are entering into the politics 
 of the time, is one against which that court should be 
 hedged by the strict and logical order of judicial action, 
 which can alone produce a judicial, and therefore a bind 
 ing determination. 
 
 From among the numerous letters addressed to Judge 
 Curtis by individuals in widely separated quarters of the 
 Union, respecting this dissenting opinion, I shall select 
 two only ; and I select them because they were written by 
 persons of eminence in the legal profession, who might be 
 considered as representatives of different sections of the 
 Union. 
 
1857.] DEED SCOTT CASE. 233 
 
 FROM JUDGE THOMAS. 
 
 COURT HOUSED BOSTON, March 18, 1857. 
 
 MY DEAR JUDGE, Let me thank you for your opinion in 
 Scott in Error v. Sandford. It seems to me to exhaust the sub 
 ject. The manner and matter are alike admirable. The tone is 
 firm, the learning thorough, the logic quiet but inexorable. A 
 great occasion, well used for your own judicial fame, and for the 
 vindication of the Constitution from the reproach of imbecility and 
 inhumanity, which these new prophets bring upon it. 
 
 Very truly yours, BENJAMIN F. THOMAS. 
 
 FROM MR. PETTIGRU. 
 
 CHARLESTON, S. C., March 24, 1857. 
 
 DEAR SIR, I received last evening a copy of the Courier 
 containing your judgment in Scott s case, for which I presume I 
 am indebted to you, and I thank you for the attention. I went 
 through it last night, with great interest, notwithstanding its 
 length. I am not quite satisfied with the disposal of the plea to 
 the jurisdiction which you place on the insufficiency of the plea in 
 abatement. That the plea was bad seems clear enough ; but I am 
 not so well satisfied that the court ought to take jurisdiction because 
 the defendant does not know how to plead, i. e. to argue logically. 
 I have riot seen the opinions of the Chief Justice and his adherents, 
 and am therefore bound in duty to reserve judgment till I have 
 heard both sides ; but so far I agree with you on both points, 
 that a colored man may be a citizen, and that the Missouri Com 
 promise is constitutional ; and [I] think further, that it was the 
 most equitable, and indeed the only fair, way of settling the rival 
 claims of North and South upon the Territory. 
 
 The reserve with which you have kept free from the political 
 questions that give the case such painful interest, cannot be too 
 much applauded, arid I wish that the example may be followed as 
 generally as it deserves universally to be commended. 2 
 
 Yours truly, J. L. PETTIGRU. 
 
 1 Judge Thomas was at this time one of the judges of the Supreme 
 Judicial Court of Massachusetts. 
 
 2 The residue of this letter related entirely to another subject. 
 
234 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 NOTE ON THE DKED SCOTT CASE. 
 
 I deem it proper to say, in reference to the active exer 
 tions of Judge Wayne to bring about a change in the de 
 termination of the court in regard to the final disposal of the 
 case of Dred Scott, after the second argument, that neither 
 he nor Judge Grier was at all reticent on the subject, and 
 that on the day when the vote was adopted by a majority 
 of the judges, in conference, to set aside the opinion which 
 had been prepared by Judge Nelson, and to have the con 
 stitutional validity of the Missouri restriction acted upon 
 and denied, Judge Wayne spoke of the result as an impor 
 tant achievement effected by himself. I have therefore 
 felt entirely at liberty to comment upon facts which be 
 came known, at the time of this occurrence, without any 
 agency of Judge Curtis. He did not speak of these occur 
 rences for many years, even after he had left the bench, ex 
 cepting to the members of his own family, and one or two 
 confidential friends. But the following letter, addressed to 
 my nephew, the editor of this work, by the Hon. Clement 
 Hugh Hill, formerly Assistant Attorney-General of the 
 United States, shows that, shortly before his death, Judge 
 Curtis spoke freely of what had happened in this case. 
 
 BOSTON, August 5, 1878. 
 
 DEAR MR. CURTIS, It will afford me much pleasure to com 
 ply with the request you made me a few days since, to write out 
 my recollections of a conversation I had with your father, the win 
 ter before his death, in regard to the decision in the Dred Scott 
 case, although there must be many of his old friends living who 
 have heard the same account from him, and who perhaps recollect 
 it more fully than I do. 
 
 One evening during the winter of 1873-74 (I think it was 
 in December), I called upon Judge Curtis, at the Ebbitt House, 
 in Washington, and spent more than an hour with him. He was 
 in very good spirits and full of anecdote, and among other things 
 gave me an interesting inside history of the Dred Scott case. He 
 told me that the court had voted to affirm the judgment below, and 
 
1857.] DEED SCOTT CASE. 235 
 
 that Judge Nelson prepared, as the opinion of the court, the opinion 
 he afterwards delivered as his individual judgment. Judge Mc 
 Lean and Judge Curtis were to dissent, in a brief opinion, to be 
 drawn up, I think, by Judge McLean. I do remember Judge 
 Curtis saying that, if the case had thus been disposed of, the opin 
 ions would have been devoid of all the bitterness which the case 
 ultimately gave rise to. After this, it was urged upon the court, 
 by Judge Wayne, how very important it was to get rid of the 
 question of slavery in the Territories, by a decision of the Supreme 
 Court, and that this was a good opportunity of doing so. I do 
 remember that Judge Curtis said that Judge Wayne was instru 
 mental in bringing about what followed ; that he persuaded the 
 Chief Justice to recall the case from Judge Nelson, and deliver the 
 opinion of the court himself ; and he busied himself also to persuade 
 the other judges to concur in the Chief Justice s opinion, and par 
 ticularly suggested to Judge Catron the entirely untenable ground 
 upon which he concurred in holding the Missouri Compromise to be 
 unconstitutional ; namely, that it conflicted with the treaty by which 
 France ceded Louisiana to the United States. 
 
 I take it that all this occurred after the second argument of the 
 case alluded to by Judge Campbell, in his address on Judge Curtis, 
 at the Bar meeting in Washington. (See 20 Wallace, pp. x. xi.) 
 
 Such, to the best of my recollection, is the substance of what 
 your father told me. I have since regretted that I made no note 
 of the conversation at the time, as he went into many details which 
 have now escaped me. I do not think, however, that I have erred 
 in my recollection, in any essential particular. 
 
 I remain, with great regard, yours very faithfully, 
 
 CLEMENT HUGH HILL. 
 
 With regard to the opinion prepared by Judge Nelson, 
 and originally intended to be the decision of a majority of 
 the bench, from which Judge McLean and Judge Curtis 
 were alone to have dissented, it has been stated by Judge 
 Campbell that it was not read in conference before another 
 disposition of the case was moved. 1 This fact is not very 
 material, since Judge Campbell admits that Judge Nelson s 
 opinion was prepared by instruction of the majority, to be 
 
 1 Memoir of Chief Justice Taney, p. 384. 
 
236 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1857. 
 
 read as the opinion of the court, and that it was, by Judge 
 Wayne s suggestion, set aside, and that then the Chief Jus 
 tice was requested to write an opinion on all the questions 
 in the case as the opinion of the majority. We have Judge 
 Nelson s own authority for the fact that the opinion which 
 he read as his individual judgment in the case was the one 
 that he originally wrote as the opinion of the court. In a 
 letter written by him on May 13, 1871, to the biographer 
 of the Chief Justice, he said : " I was not present when 
 the majority decided to change the ground of the decision, 
 and assigned the preparation of the opinion to the Chief 
 Justice ; and, when advised of the change, I simply gave 
 notice that I should read the opinion I had prepared as my 
 own, and which is the one on file." 1 All that Judge Nel 
 son did to this opinion was to prefix a short paragraph in 
 the first person, stating that he read it as his individual 
 judgment. All the residue of the opinion is in the plural 
 " we." 
 
 The biographer of the Chief Justice has deemed it proper 
 to vindicate him from a charge of complicity with Mr. 
 Buchanan, the incoming President, in regard to the de 
 cision to be given in this case. I never heard Judge Curtis 
 intimate a word that could give countenance to this charge, 
 or impute to Judge Wayne or the Chief Justice any motive 
 but the mistaken supposition that the public excitement in 
 regard to slavery in the Territories could be quieted by a 
 judicial decision adverse to the power of Congress to pro 
 hibit its introduction. I think that he regarded this as 
 Judge Wayne s motive, and with good reason ; and that he 
 was satisfied that Judge Wayne imparted this conviction to 
 the Chief Justice. But I do not think that he ever, for an 
 instant, imputed to Judge Wayne that he was influenced 
 by Mr. Buchanan to do what he did, nor do I myself be 
 lieve that such was the fact. Indeed, I do not imagine that 
 Mr. Buchanan was a man who would tamper with the 
 
 1 Memoir of Chief Justice Taney, p. 385. 
 
1857.] DEED SCOTT CASE. 237 
 
 administration of justice, and I am sure that the Chief Jus 
 tice and Judge Wayne would never have brooked such an 
 attempt. 
 
 My learned friend, the late Hon. Reverdy Johnson, in a 
 letter of some warmth addressed, on the 6th of March, 1858, 
 to a public meeting in Baltimore, and from which some 
 extracts are given in the Memoir of the Chief Justice, re 
 ferring to the mode in which the constitutional question of 
 the power of Congress to exclude slavery from a Territory 
 was dealt with in this case, said : 
 
 But this would seem to be obvious, that if it was the duty of the 
 dissenting judges, Messrs. McLean and Curtis, to pass upon a ques 
 tion of such importance, and to argue it with unwonted zeal and 
 rare ability, and with a practical appeal to Northern prepossession 
 and sympathy, calculated to impress upon the public mind of that 
 section a conviction of the right of Congress to prohibit slave labor 
 in the Territories then or thereafter to belong to the Union, a 
 power so pregnant with danger to our continuance as one people, 
 it was equally proper that the judges who entertained a different 
 opinion should have expressed it, and maintained it with all the 
 ability and research within their power. 
 
 Mr. Justice McLean s opinion occupies thirty-five pages of the 
 report in 19 Howard, and Mr. Justice Curtis s opinion one hun 
 dred and three. The greater part of each is devoted to this very 
 question, and as to the right to consider and decide it. The last- 
 named judge concludes his with an apology for its length by saying, 
 " These questions are numerous, and the grave importance of some 
 of them required me to exhibit the grounds of my opinion. I have 
 treated no question which, in the view I have taken, it was not 
 absolutely necessary for me to pass upon, to ascertain whether the 
 judgment of the Circuit Court should stand or be reversed. I have 
 avoided no question on which the validity of that judgment de 
 pends. To have done either more or less would have been incon 
 sistent with my sense of duty." 
 
 Were these two opinions to be spread, as they were, with unex 
 ampled haste, broadcast over the land, and the rest of the court, 
 who differed so widely and so decidedly, to remain silent ? Were they 
 by that very silence to leave the public to infer, as they might then 
 
238 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857 
 
 have fairly done, that they did not, or were unable to, maintain 
 different doctrine ? Assuming, therefore, what is I think palpably 
 unsound, that the decision of the court on this question was in 
 any sense extra-judicial, I hold it to be perfectly clear that the 
 course adopted by the dissenting judges rendered it the duty of 
 the court to correct, to the whole extent of their power, what 
 they believed to be the serious constitutional errors which that 
 course, if left unobstructed, was likely to fasten upon the public 
 judgment. 
 
 Judge Curtis did not deem it necessary to take any 
 notice of these remarks, made in a letter to a political 
 meeting, however distinguished the writer might be ; and 
 all that Mr. Johnson said vanishes of course into air, as 
 soon as it is remembered that every word written and read 
 by Judges McLean and Curtis in this case was written and 
 read as their dissent from an opinion of the Chief Justice, 
 which they had heard read in conference, and that in that 
 opinion the doctrine was elaborately maintained that Con 
 gress had no constitutional power to exclude slavery from 
 any Territory of the United States. The propriety with 
 which any member of the bench could touch this question, 
 the test of whether his views upon it were judicial or 
 extra-judicial, depended simply and solely upon his be 
 lief that the Circuit Court had or did not have jurisdiction 
 on the facts averred in the plea to the jurisdiction. No 
 judge who held on that plea that a free negro could not be a 
 citizen, could judicially promulgate from the bench an opin 
 ion, under the plea to the merits, that the plaintiff was not 
 a freeman because Congress could not constitutionally pro 
 hibit slavery in a Territory where he had once resided with 
 his master s consent. Mr. Johnson seems to imply that, even 
 if the views expressed were extra-judicial, it was proper, 
 under the circumstances, that they should be expressed. 
 The circumstances do not warrant the assertion, nor do I 
 think that the judgment of lawyers would sustain it. The 
 " unexampled haste " of which Mr. Johnson spoke, would 
 
1857.] DEED SCOTT CASE. 239 
 
 doubtless have been applied by the press to the circulation 
 of the opinion of the Chief Justice, if it had been accessible 
 immediately after it was delivered from the bench ; for 
 there was great eagerness on the part of the public to 
 learn all that had been said in this interesting and excit 
 ing case. 
 
 I cannot take leave of this case and its various incidents, 
 without expressing my regret that Chief Justice Taney did 
 not finish the autobiography which he began at Old Point 
 Comfort, when he was in the seventy-eighth year of his age. 
 The fragment of his own life which he then wrote, and 
 which has been used in Mr. Tyler s memoir of him pub 
 lished at Baltimore in 1872, is one of the most beautiful 
 pieces of that kind of writing that I know of in the Eng 
 lish language. The late Chief Justice was master of a sin 
 gularly graceful and easy style, perfectly perspicuous and 
 correct; and when he sat down in his old age, during a 
 vacation at the sea-shore, to write an account of his own 
 life, he commenced a work which, if he had completed it, 
 would have been a most valuable addition to our political, 
 juridical, and personal literature. He had lived and acted 
 in scenes of great importance in our history, had the means 
 of throwing much light upon the motives and characters of 
 the distinguished persons with whom he had been associated 
 in public life, and as Chief Justice of the United States for 
 a period of more than thirty years, beginning with the ad 
 ministration of General Jackson arid coming down to the 
 early years of our civil war, he could have told of much 
 that it would have been very desirable to know, and he 
 would have told it in a charming way. What prevented his 
 completion of the work which he had so felicitously begun, 
 we are not informed. 
 
 Nor can I pass from the mention of his name, without a 
 tribute of respect to his public and private virtues. He 
 was indeed a great magistrate, and a man of singular purity 
 of life and character. That there should have been one 
 
240 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 mistake in a judicial career so long, so exalted, and so use 
 ful, is only a proof of the imperfection of our nature. The 
 reputation of Chief Justice Taney can afford to have any 
 thing known that he ever did, and still leave a great fund 
 of honor and praise to illustrate his name. If he had never 
 done any thing else that was high, heroic, and important, 
 his noble vindication of the writ of habeas corpus, and of 
 the dignity and authority of his office, against a rash min 
 ister of state, who, in the pride of a fancied executive 
 power, came near to the commission of a great crime, 
 will command the admiration and gratitude of every lover 
 of constitutional liberty, so long as our institutions shall 
 endure. 1 
 
 I have dwelt thus long and minutely upon the case of 
 Dred Scott, for two reasons : 
 
 First, because I felt it to be my duty to Judge Curtis to 
 make known accurately whatever he did, thought, or felt, 
 concerning it. 
 
 Secondly, because we still have, and future ages to which 
 our Constitution may descend will continue to have, a Su 
 preme Court of the United States ; and in the present and 
 in all coming time, it is and will be important that those 
 who occupy or shall ever occupy the exalted seats upon 
 that bench shall understand, and take warning from, the 
 mistakes of their predecessors. 
 
 Perhaps it may not be improper for me to state that my 
 professional connection with this case, dating only from the 
 third day previous to the second argument, did not lead 
 me, at that time, to examine any of the technical questions 
 arising out of the state of the record, or the question of the 
 citizenship of a free negro. The Hon. Montgomery Blair, 
 who had sole charge of the case for Scott, requested me to 
 
 1 I refer to the case of John Merriman, a citizen, who in 1861 was im 
 prisoned in Fort McIIenry, near Baltimore, by a military order ; and in whose 
 case the writ of the Chief Justice of the United States was refused entrance 
 into the fort, upon the excuse that the President had suspended the writ of 
 habeas corpus. 
 
1857.] DRED SCOTT CASE. 241 
 
 assist him in the argument about three days before the 
 case was called. I told him that there was not sufficient 
 time for me to make any investigation of the technical 
 questions arising on the pleadings, or to be of much ser 
 vice to him on the question of the capacity of a free negro 
 to be a " citizen ; " but that I thought I knew enough of 
 the constitutional history of the country to be able, on 
 very short notice, to maintain the affirmative of the propo 
 sition that Congress could prohibit the existence of slavery 
 in any Territory of the United States, if it saw fit to do so, 
 and that, if he would assign to me one hour of the time 
 allowed by the rule of the court for the argument of his 
 side of the case, I should be happy to assist him by a dis 
 cussion of this constitutional question to the best of my 
 ability. Mr. Blair very politely acceded to this arrange 
 ment, and I argued the constitutional question thus assigned 
 to me. Two Senators, each of whom represented a slave- 
 holding State, Mr. Crittenden of Kentucky and Mr. Badger 
 of North Carolina, both of the highest rank as lawyers, Mr. 
 Seaton, the wise and accomplished editor of the National 
 Intelligencer, and other friends, urged me to write out and 
 publish my argument. I did so, and it was printed by Mr. 
 Seaton in his paper. I mention this, not as proof of merit 
 in the argument, but because I was convinced, by this and 
 many other occurrences, that some of the ablest minds in 
 the South, at that time, did not regard it as supremely im 
 portant to their sectional interests to have it judicially 
 proclaimed that the Missouri Compromise restriction was 
 unconstitutional. But at the time I made the argument, on 
 a constitutional question about which I felt no doubt, I little 
 thought what turn the case was to take, although I had a 
 strong presentiment that great public mischief would be 
 done, if the extreme views about slavery that were main 
 tained by our opponents should prevail, by any thing short 
 of a judgment arrived at by the strictest requirements of 
 the record, and in entire judicial consistency. Of course, 
 VOL. i. 16 
 
242 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 there has been, and perhaps will continue to be, a great 
 difference of opinion in regard to the judicial propriety of 
 the final judgment in this case ; but I think there can be 
 no sound opinion, among lawyers, which will justify the 
 assumption that a majority of the court " decided " that 
 Congress could not prohibit the existence of slavery in a 
 Territory of the United States. 
 
1857.] RESIGNATION OF OFFICE. 243 
 
 CHAPTER IX. 
 
 1857. 
 
 Resignation of Office. Reasons for the Step. Correspondence occa 
 sioned by it. 
 
 JUDGE CURTIS, after his return to Massachusetts in the 
 spring of 1857, expressed to me strong doubts about con 
 tinuing to hold his office, and requested me, after I should 
 have reflected upon the subject, to write to him concerning 
 it. I may say, that from the first I understood the control 
 ling reason for his resigning was the inadequacy of the 
 salary ; but I also understood that he no longer felt that 
 confidence in the Supreme Court which was essential to his 
 useful co-operation with its members, and with which he 
 certainly began his connection with it. The correspondence 
 with the Chief Justice, which is given in the preceding 
 chapter, had no influence upon the determination to which 
 he finally came. It will be observed, that that correspond 
 ence commenced in April, and was not terminated until 
 after the middle of June. My first conversation with my 
 brother, on the subject of his proposed resignation, occurred 
 before this correspondence began ; and in that conversation 
 he expressed to me fully the reasons for resigning on which 
 he finally acted. So far as his feelings concerning the court 
 entered into those reasons, they sprang entirely from what 
 occurred in the Dred Scott case before the adjournment of the 
 court in March ; and I am sure that they would have been 
 the same, if the correspondence with the Chief Justice had 
 never taken place. I am firmly convinced that his feelings 
 
244 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857, 
 
 in regard to the court received no color even, from any 
 thing that was personal between himself and any of the 
 judges. His personal relations with all of them had always 
 been of the kindest and most agreeable nature ; and al 
 though the correspondence with the Chief Justice shows a 
 personal conflict, and evinces a feeling that he had been im 
 properly treated, the real ground of his dissatisfaction with 
 the course of a majority of his brethren lay entirely behind 
 that occurrence. To state that ground with proper accu 
 racy, it was a conviction, more or less justified by what 
 occurred before the adjournment of the court, but held 
 with entire sincerity, that he could no longer expect, on 
 constitutional questions, to see the court act with that 
 judicial propriety and consistency, and that freedom from 
 political considerations, which could alone enable it to retain 
 the confidence of the country. The pecuniary reason for 
 resigning was the leading and decisive one ; the other, as 
 will presently be seen, although secondary and subordinate, 
 had a material influence. 
 
 His friend and classmate, Dr. Robbins, has said of his 
 resignation, that " it touches the only part of Mr. Curtis s 
 professional life upon which a shadow has rested ; " and he 
 alludes to " expressions of censure, mingled with those of 
 regret, in private conversation and the public press ; " and 
 he says that " even those who felt entire confidence in the 
 purity of his motives and the validity of his reasons found 
 it difficult heartily to approve his course, on account of their 
 deep sense of the loss of his services to the country. 1 
 Although I shared fully in the regrets which were felt, and 
 was perhaps as likely as any one to appreciate the loss of 
 such a man from the bench, I never sympathized in any 
 degree with the censure to which Dr. Robbins alludes, 
 and which undoubtedly was to some extent expressed. If 
 there is any " shadow " resting upon his fame, on account 
 of this resignation, it is proper that it should be dispelled ; 
 
 1 Memoir read before the Massachusetts Historical Society. 
 
1857.] RESIGNATION OF OFFICE. 245 
 
 and to this end, his own feelings, and the feelings of those 
 who stood nearest to him, should be laid fully before the 
 reader. 
 
 My own opinion in regard to the step which he contem 
 plated was expressed in a letter, which I have always been 
 thankful that I wrote to him, and from which some extracts 
 may now perhaps be appropriately given. 
 
 JAMAICA PLAIN, July 3d, 1857. 
 
 DEAR BROTHER, ... It is now twelve years, this very 
 month, since Judge Story made known to me his purpose to quit 
 the bench. I remember all his arguments and all his predictions 
 respecting the court. . . . He looked at a resignation from much 
 the same point at which you now stand, with the allowance for the 
 difference of your ages, and with the further allowance, that he did 
 not feel the pressure of pecuniary considerations, or the demands 
 of his family. . . . He determined to resign ; but Providence did 
 not leave him to act upon his intention. 
 
 The lapse of twelve years, and much more knowledge of the 
 institutions of the country than I then had, have not convinced me 
 that we ought to regard the Supreme Court as certainly destined 
 to final disgrace. [Some reasons were here urged to show that 
 the question seemed to be, whether he could do the most good by 
 resigning or remaining.] Undoubtedly, a serious lesson will be 
 taught, which cannot fail to be felt by the country, by the resigna 
 tion of a judge at your time of life, for the reasons which will gov 
 ern you, and which, whether stated or not, will be apparent to the 
 whole public. It will be certain that you resign on account of the 
 inadequacy of the salary, and on account of the undeniable fact, 
 that the conduct of the court has not been such as can command 
 the approbation of sound lawyers, or the respect of sound men, 
 who regard the proprieties of judicial conduct as an important part 
 of the administration of the law. Whatever is involved in this 
 lesson, your resignation would certainly teach in a rather striking 
 way ; for you are at an age, and you have tastes and capacities, to 
 make a long judicial life most desirable to you, if you could have 
 it upon the conditions which it is so clearly the public interest 
 to provide, and which can alone make it attractive to men like 
 you. . . . 
 
 Whether you can do most towards this end by leaving the bench, 
 
246 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 and leaving men to reflect on what may have driven you from it, 
 or by holding on and maintaining the standard by which your 
 course has hitherto been guided, is the real question, in my appre 
 hension, so far as the interests of the country are concerned ; and 
 if there were no private interests of your own to come in and decide 
 that question, I should certainly beg you to hold on. 
 
 But there are such private interests ; and upon this part of 
 the subject I must say that, while straitened circumstances and 
 narrow means are hard enough for all educated men and their 
 children, a poor judge is, of all conspicuous and important men, the 
 least desirable spectacle. There are very few things that a judge 
 can do to better his fortunes ; and if a man has not independent 
 means of his own, and the public will not make him independent, 
 it must be a stronger case of public duty than I have ever seen 
 that can impose upon him a moral obligation to sacrifice his own 
 comfort, and the just expectations of his family, to the public 
 advantage. . . . 
 
 I am very glad to find, by a note which I received from Uncle 
 this morning, that he will be here soon. I have known very few 
 men who take broader as well as more accurate views of any ques 
 tion of duty than he does, and I hope you will noi feel obliged to 
 act until you see him. . . . 
 
 Yours always, G. T. C. 
 
 On the same day on which this letter was written, and 
 therefore before lie received it, he wrote to Mr. Ticknor, 
 whose wife and daughter had embarked for home on the 
 30th of June, from Havre, in a steamer which touched at 
 Southampton, and left him in England to complete some 
 business relating to the Public Library in Boston. 1 
 
 To MR. TICKNOR. 
 
 MAPLEHURST, 2 July 3, 1857. 
 
 MY DEAR SIR, I thank you for your very interesting letter, 
 which came to me a fortnight since. 3 Since that time I have been 
 in Boston until yesterday. I got none but good accounts of Lizzie. 4 
 
 1 Life of George Ticknor, vol. ii. p. 356. 
 
 2 The name of his country place at Pittsfield. 
 
 8 This letter is contained in the Life of Mr. Ticknor, vol. ii. p. 402. 
 * Mrs. W. S. Dexter. 
 
1857.] RESIGNATION OF OFFICE. 247 
 
 Mother saw her a few days since, and thought her going on well. 
 You speak of returning in September. Before that time I shall 
 have come to a decision upon a matter of great moment to myself, 
 whether to continue to hold my present office. The expenses of 
 living have so largely increased, that I do not find it practicable to 
 live on my salary, even now ; and, as my younger children will 
 soon call for much increased expenses of education, I shall soon 
 find it difficult to meet my expenses by my entire income. Indeed, 
 I do not think I can do so without changing, in important particu 
 lars, my mode of life. Added to this, I cannot have a house in 
 Washington, and I must either live apart from my family from four 
 to six months every year while I go there, or subject them to a 
 kind of vagrant life in boarding-houses, neither congenial nor use 
 ful. I had hoped it would prove otherwise, and looked forward to 
 being able to have a house there for six months in a year. But 
 what with the increase of luxury and the greatly enhanced prices 
 there, I have now no hope of being able to do this. I can add 
 something to my means by making books, but at the expense of all 
 my vacations, when perhaps I ought not to labor hard. The con 
 stant labor of the summer has told on my health during the last 
 two years. Such is the actual state of the case as respects my 
 duty to my family. Then as regards the court and the public, I 
 say to you in confidence, that I cannot again feel that confidence in 
 the court, and that willingness to co-operate with them, which are 
 essential to the satisfactory discharge of my duties as a member of 
 that body ; and I do not expect its condition to be improved. On 
 the other hand, I suppose there is a pretty large number of con 
 servative people in the Northern, and some in the Southern States, 
 who would esteem my retirement a public loss, and who would 
 think that I had disappointed reasonable expectations in ceasing to 
 hold the office; and particularly in my own circuit I believe my 
 retirement would be felt to be a loss which would not presently be 
 fully supplied. But I do not myself think it of great public im 
 portance that I should remain where I believe I can exercise little 
 beneficial influence ; and I think all might abstain from blaming me 
 when they remember that I have devoted six of the best years of 
 my life to the public service, at great pecuniary loss, which the in 
 terest of my family will not permit me longer to incur. I have no 
 right to blame the public for not being willing to pay a larger sal 
 ary ; but they have no right to blame me for declining it on account 
 
248 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 of its inadequacy. These are the principal views which have 
 occurred to my own mind. I am now forty-seven years old, and 
 must decide the question finally without more delay. I believe I 
 have ten or twelve years work in me, if my life and health be 
 spared, which, without too much labor, would enable me to make a 
 competent fortune for my own old age, if I should live to old age, 
 and for my family after I shall be gone. I want your advice. I 
 wish it could be given after an oral explanation ; but I must decide 
 between this time and September 1st. I have no time to lose, and, 
 looking at the public convenience, the first day of October next is 
 the proper time for my retirement from office, if I am to retire. 
 Among all my friends, there is no one whose judgment on this 
 question would have more influence with me than yours ; for while 
 I know your affection for me would cause you to look carefully 
 after all that bears on my private welfare and my private duties, I 
 believe also you would take a just and comprehensive view of my 
 public duty. If you will let me hear from you at your earliest 
 leisure, you will aid me in this important affair. 
 
 We are all well, though Lois 1 has had the scarlet-fever severely. 
 Neither of the others took it. Walter 2 had not been well for some 
 time, and I took him home just before vacation began. The change 
 of air has been serviceable to him, and he is recovering. Please 
 give my love to Aunt and Cousin Anna, and believe me ever 
 Affectionately yours, 
 
 B. R. CURTIS. 
 
 Mr. Ticknor did not receive this letter before he re 
 turned home, and lie first learned of my brother s resig 
 nation when I met him on board the steamer on which 
 he arrived at Boston early in September, after it had 
 become public. The following note expressed in sub 
 stance what I am sure he would have said if he had an 
 swered my brother s letter ; and although it was expressed 
 with feminine feeling, it comprehended all that could be 
 truthfully said by those who felt at once the public and 
 the private considerations bearing upon such an occur 
 rence. 
 
 1 Now Mrs. William G. Low, of Brooklyn, N. Y. 
 
 2 His eldest son, then at Harvard. 
 
1857.] RESIGNATION OF OFFICE. 249 
 
 FROM MRS. TICKNOR. 
 
 PARK STREET, Sept. 5, 1857. 
 
 MY DEAR JUDGE, I feel very grateful to you for your kind 
 ness in writing to me to tell me of the great change you have made. 
 I am so sorry that I really don t know what to say to you about it. 
 I cannot doubt that your decision is just and right, but it is a 
 mournful thing that it should be so. That a country so overflow 
 ing with wealth will not sufficiently recompense those who would 
 willingly labor for its highest good, and that in its present confused 
 and excited condition it should lose your influence and authority in 
 just the place you are leaving, are sad facts, which trouble me much. 
 But I will try to look most at your release from heavy labor and 
 anxiety, and trust that you will no longer suffer from separation 
 from those you love best. Your uncle will lament, as I do, the loss 
 to the country ; but he has also the same reliance upon your judg 
 ment. I look for him next Thursday, such is the blessed punctual 
 ity of steam. . . . He has had two months of great enjoyment in 
 England. But for his love of work, of which he will find an 
 abundance here, I should fear he might find Boston a little dull. 
 Pray give my love to all with you, and congratulate your wife for 
 me upon the adieu to Washington. 
 
 Always affectionately yours, ANNA TICKNOR. 
 
 I trust it is now apparent that his resignation was not 
 determined on without due consideration ; and that the 
 question was one which a man must decide for himself, 
 with a full right to expect that his decision would be re 
 garded as correct. I have therefore only to give, as matters 
 that may have some interest for the reader, the official and 
 unofficial letters which accompanied or followed the resig 
 nation. 
 
 To THE PRESIDENT. 
 
 BOSTON, Sept. 1, 1857. 
 
 SIR, I hereby resign to you the office of Associate Justice of 
 the Supreme Court of the United States, which resignation is to 
 take effect on the first day of October next. 
 
 I have named that day because I shall then have discharged my- 
 
250 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 self of all judicial business pending before me, and no suitor will be 
 inconvenienced by my retirement. 
 
 My private duties are inconsistent with a longer continuance in 
 the public service. 
 
 With great respect, I am your obedient servant, 
 
 B. R. CURTIS. 
 
 FROM THE ATTORNEY-GENERAL. 
 
 ATTORNEY-GENERAL S OFFICE, 
 Sept. 14, 1857. 
 
 SIR, I am directed by the President to inform you that he re 
 ceived some days ago your letter of the first instant resigning your 
 office as Associate Justice of the Supreme Court, and caused it to 
 be filed in this office. This morning he received a duplicate of the 
 same letter, which he has disposed of in the same way. The Pres 
 ident gives you his thanks for postponing the time of your retire 
 ment to a period when no suitor will be inconvenienced by it. 
 I am, with great respect, yours, &c., 
 
 J. S. BLACK. 
 
 To EX-PRESIDENT FILLMORE. 
 
 BOSTON, Sept. 1, 1857. 
 
 DEAR SIR, Having received from you, as the President of 
 the United States, the appointment to the office of Associate Jus 
 tice of the Supreme Court of the United States, and having come 
 to the conclusion to resign that office, it seems to me proper that I 
 should state to you why I have done so. 
 
 The greatly increased expenses of living have rendered the 
 salary attached to the office inadequate to provide a suitable home 
 for my large family in Washington while attending the court there, 
 and to pay my other necessary expenses. I am obliged to expend, 
 in addition to my salary, my entire private income. By leaving 
 my family at my place in the country throughout the year, I might 
 be able to live on the salary, though this is not certain ; but it does 
 not consist with my views of my imperative duties to them to pass 
 eight months of the year away from those whom the providence of 
 God has placed nearest to me, and subjected to my care. This 
 alone would be sufficient to decide me to retire from the public ser 
 vice and return to the bar. 
 
 Nor do I think that, in the present state of the court, or in any 
 state of it which can reasonably be anticipated in my time, my con- 
 
1857.] RESIGNATION OF OFFICE. 251 
 
 tinuance on that bench ought o be deemed of such public impor 
 tance as to weigh much in favor of my continuing there. You will 
 readily understand that this is a subject on which I cannot go into 
 details, and cannot without indelicacy even offer reasons in support 
 of the opinion I have expressed; but I can say it is an honest opin 
 ion, founded deliberately upon a careful scrutiny of the subject. 
 
 I have held this great trust six years under your appointment. 
 I can assure myself of nothing concerning it, save that both in 
 holding it and resigning it I have endeavored to do my duty. 
 With much respect, I am your obedient servant, 
 
 BENJAMIN R. CURTIS. 
 
 Mr. Fillmore s reply was as follows : 
 
 BUFFALO, Sept. 4, 1857. 
 
 MY DEAR SIR, Your letter of the 1st, informing me that you 
 have determined to resign the office of Justice of the Supreme 
 Court of the United States, has just come to hand, and I have 
 perused it with surprise and regret. I had no suspicion that such 
 a calamity was to befall the country at this time. I have always 
 looked back to your appointment as one of the most fortunate acts 
 of my brief administration, and one to which I and my friends 
 could always point with proud satisfaction. This feeling was 
 greatly increased by your unanswerable arguments in the opinion 
 delivered by you in the Dred Scott case. 
 
 I cannot, of course, know what your duty to your family may 
 require, but I am sure I cannot be mistaken in saying that your 
 duty to your country requires that you should not resign. I beg 
 of you not to despair, though there may be much to discourage ; 
 yet I am sure your services and abilities are appreciated by the 
 bar and the intelligent portion of the public. I am sure no man 
 has, in so short a time, gained a more enviable judicial reputation ; 
 and there is no man to whom the country looks with more hopeful 
 confidence than to yourself; and I greatly fear that your resigna 
 tion, especially at this time, will not only impair the confidence of 
 all good and intelligent men in the stability of our institutions, but 
 that the appointment of a successor may be most unfortunate. I 
 will not be more explicit in my apprehension on this point. You 
 may know who will probably be selected, but I confess I fear the 
 worst. 
 
 I trust you will pardon me, therefore, for the earnest solicitude 
 
2-V2 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 which I feel on this subject, and excuse me if I urge you again and 
 again to reconsider the subject, and, if you cannot make the sacri 
 fice of holding the office permanently, at least consent to submit to 
 it for a time, until a reasonable hope can be entertained that the 
 vacancy will be well filled. 
 
 I write in haste, giving my first impressions, and must ask your 
 indulgence for the freedom with which I have spoken. 
 I am truly yours, 
 
 MlLLARD FlLLMORE. 
 
 FROM JUDGE PITMAN, OF THE DISTRICT COURT OF RHODE 
 
 ISLAND. 
 
 PROVIDENCE, Sept. 20, 1857. 
 
 DEAR SIR, It was with much sorrow that I received yours of 
 the 1st instant, informing me of your resignation of the office of 
 judge of the Supreme Court of the United States. There is a uni 
 versal sentiment of regret at this determination of yours among all 
 whom I have heard speak on the subject ; but you are the best 
 judge of the duties which you owe to the public, and to yourself 
 and family. My loss as one of the public, I fully appreciate ; and 
 also the loss of an associate in this district, whom I so much esteem, 
 and I fear whose place will not be filled to my satisfaction. I 
 deem it a sad misfortune, and one which indicates badly for the 
 future, that an honest judge will not find himself pleasantly situ 
 ated on the bench of the Supreme Court of the United States. It 
 seems to be expected that judges are to lend themselves to support 
 the party to which they owe their promotion. And I fear that a 
 court as independent as the Constitution could make it, and which 
 has heretofore been looked upon with so much confidence to pro 
 tect us from the madness of the times, will now be considered as 
 one of the instruments of a party. I intended to have written you 
 some time since, thanking you for your most able and independent 
 opinion in the Dred Scott case. It will stand to give you eternal 
 honor, when the unfortunate opinion of the majority will have been 
 consigned to the contempt which it merits ; if, indeed, we shall ever 
 recover from the down ward tendency which so strongly foreshadows 
 our destruction. ... I hope I may have the pleasure of seeing 
 you again at the bar, if I may not be favored with your presence 
 on the bench ; and I wish all the prosperity and happiness in your 
 return to the bar which you so well deserve. 
 
1857.] RESIGNATION OF OFFICE. 253 
 
 Whoever may be your successor, I have no reason to expect that 
 my situation as judge will be much longer prolonged, and therefore 
 it may be of little consequence to me personally. 
 
 I am very truly your friend and obedient servant, 
 
 JOHN PITMAN. 
 
 FROM JUDGE HARVEY, OF THE DISTRICT COURT OF NEW 
 HAMPSHIRE. 
 
 CONCORD, Sept. 5, 1857. 
 
 DEAR SIR, On my return home last night, after an absence 
 of a few days, I found your letter of Sept. 1, in which I am in 
 formed that you have come to the conclusion to resign your office 
 of Associate Justice of the Supreme Court of the United States. 
 
 No intelligence could have been more unwelcome or unexpected 
 by me. 
 
 At my time of life, now so far advanced in years, and having 
 already outlived two of your predecessors, both of whom were 
 younger than myself, I had no reason to expect, and indeed the 
 thought never occurred to me after your appointment, that the 
 office would ever become vacant again, from any cause, during my 
 life. 
 
 I am sorry to learn that that event is now about to take place. 
 Most sincerely do I regret it ; but I have no doubt you have fully 
 considered the subject, and have the best of reasons for it. 
 
 Your uniform kindness towards me, at all times, will ever be 
 remembered, and believe me, dear sir, I am, with great respect and 
 regard, Yours most truly, 
 
 MATTHEW HARVEY. 
 
 FROM JUDGE WARE, OF THE DISTRICT COURT OF MAINE. 
 
 PORTLAND, Sept. 6, 1857. 
 
 DEAR SIR, 1 hardly need say to you that it was with very 
 great regret that I learnt from your letter your determination to 
 vacate the office you now hold on the bench of the Supreme Court. 
 It came to me entirely unexpected, and though, on a little reflection, 
 my surprise is diminished, my regret is increased. I may add, that 
 the feeling of the public, and especially of the bar, is one of unmin- 
 gled sorrow. I can easily comprehend that you may have various 
 reasons for wishing to withdraw from the court. The powers which 
 
254 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 have always been supposed to be vested in it, of controlling and 
 annulling the legislation of not only the States but of the United 
 States, when exercised on ordinary subjects of legislation in the 
 most cautious and temperate manner, is one of very great respon 
 sibility. But when it touches great political questions, involving 
 the interests and passions of the whole nation, the responsibility is 
 fearful. I do not ask any man, and I can hardly blame him for 
 declining it. 
 
 I do not understand, for a certainty, from your letter, whether 
 it is your intention not to attend the September term of the court 
 in this district, though I infer, from the tenor of your letter, it is. 
 All the business on the docket at the Circuit term was, I believe, 
 disposed of that was ready. Since, there has been one Admiralty 
 appeal entered that will be ready for hearing at the next term ; and 
 this is all that I know of which cannot be disposed of without 
 your presence. Some of the bar have expressed a wish to 
 know beforehand, for a certainty, whether you contemplate 
 coming at this term or not. 
 
 With sentiments of great respect, 
 
 ASHUR WAKE. 
 
 FROM CHIEF JUSTICE TANEY. 
 
 FAUQTJIER SPRINGS, VA., Sept. 7, 1857. 
 
 DEAR SIR, Your letter informing that you have resigned the 
 office of Associate Justice of the Supreme Court did not reach me 
 until the day before yesterday. 
 
 My own experience has long since shown me the inadequacy of 
 the salary attached to the office. At your time of life, you may 
 reasonably expect many years of health and strength enough for 
 judicial and professional labors. And I have no doubt you have 
 judged wisely in returning to the bar instead of remaining on the 
 bench, and diminishing yearly the provision you had made for 
 your family before your appointment. 
 
 Respectfully, your obedient servant, 
 
 R. B. TANEY, 
 
 FROM MR. JUSTICE NELSON. 
 
 COOPERSTOWN, Sept. 4, 1857. 
 
 MY DEAR SIR, Your favor of the 1st instant has taken me 
 altogether by surprise ; and personally, as well as publicly, I sin- 
 
1857.] RESIGNATION OF OFFICE. 255 
 
 cerely regret your determination. I was fully aware of the sacri 
 fice you made pecuniarily in accepting the judgeship, but had hoped 
 that you had made up your mind to submit to it. I do not, how 
 ever, question the wisdom of your decision ; on the contrary, I am 
 free to say, if I was not in this place, with my knowledge and ex 
 perience of its responsibilities and sacrifices, I should never hold 
 the office. I have the advantage of you, however, as my age is 
 such that, in the ordinary course of life, my period of judicial labor 
 is short. You had a long term in prospect, and from the condition 
 of the members of the bench were unable to tell who would be 
 your associates. A few years must work an extensive change. 
 God grant the successors may be worthy of the place and the 
 Republic! Though we shall be separated as to judicial labors, I 
 trust you may be with us in an equally honorable and useful service, 
 at our stated term, as a counsellor and friend of the court. And if 
 I should see you advanced as a member of a still higher court in 
 the other end of the Capitol, there is no friend who will witness it 
 with sincerer satisfaction. . . . 
 
 Very truly and sincerely yours, 
 
 S. NELSON. 
 
 FROM MR. JUSTICE CATRON. 
 
 TULLAHOMA, TENN., Sept. 8, 1857. 
 
 MY DEAR SIR, I have just received your note informing me 
 that you had transmitted to the President your resignation as Asso 
 ciate Justice of the Supreme Court of the United States. I had 
 seen such an annunciation by telegraph four days since, which I 
 supposed to be true from a conversation you and I had last winter. 
 I regret that you felt constrained to take the step, on several ac 
 counts : the bench has been filling up for some years past with 
 lawyers, and that of the best the circuits afforded, with characters 
 suited to the position ; the loss of one of these is matter of public 
 concern. 
 
 On personal grounds, I regret your resignation very much. 
 Men may be good lawyers and good judges, but so disagreeable 
 in their official relations and social intercourse as to distress one 
 greatly. I have suffered much from it ; but I say it in all sin 
 cerity, that in your case I never heard a word, nor saw an act, 
 calculated even to irritate. Your conduct afforded me pleasure in 
 the consultation-room, and your conversation delight over the 
 social glass. 
 
256 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 That we may again meet I sincerely hope. If I can be of any 
 service to you or yours, or to your friends, command me freely. 
 Present my best regards to Mrs. Curtis, in which Mrs. Catron 
 joins me, and includes yourself. 
 
 With great regard, yours truly, 
 
 J. CATKON. 
 
 FROM MR. JUSTICE WAYNE. 
 
 WASHINGTON, Sept. 21, 1857. 
 
 MY DEAR SIR, I have been very much of a wanderer for 
 three weeks on my way to this city, and your friendly letter, for so 
 I esteem it, has overtaken me here ; but I have returned in good 
 health, and Mrs. Wayne is well. 
 
 I need not assure you how much I regret your resignation, 
 both on my own account and that of the public ; but having the 
 fullest confidence in your judgment, I cannot doubt your having 
 done well, both for yourself and family. What are we in social 
 life without adequate means to live up to our positions, and to give 
 to our children the chances of doing so too, with the aid of some 
 thing to begin life? How uncertain too is life! We know not 
 when we shall be called away. God grant that yours may be 
 spared for many years, for honor, happiness, and usefulness. But 
 I shall miss you much, privately as well as officially, all of us will 
 feel it. But though separated from those relations in which we 
 were, I shall ever cultivate for you and yours a very sincere friend 
 ship. Write to me at any time, particularly if I can serve you in 
 any way. Present Mrs. Wayne and myself to Mrs. Curtis and 
 your children. We shall leave here on Thursday for Cincinnati, 
 and perhaps further west, maybe Kansas. 
 
 I am sincerely your friend, 
 
 JAMES M. WAYNE. 
 
 FROM MR. JUSTICE CAMPBELL. 
 
 WASHINGTON CITY, Sept, 3, 1857. 
 
 DEAR SIR, Your letter of the 1st instant was received this 
 morning. 
 
 I greatly regret the decision you have made to resign your place 
 on the bench of the Supreme Court. Had I been aware that such 
 a measure was in contemplation, I should have placed before you 
 an earnest remonstrance on the subject. There are public con- 
 
1857.] RESIGNATION OF OFFICE. 257 
 
 siderations which in my judgment render your resignation a mis 
 fortune to the country. 
 
 I hope you will not consider it obtrusive or unbecoming in me 
 to express to you my high appreciation of the very great abilities 
 you brought to the performance of your duties, and my respect 
 and veneration for the integrity with which those duties were 
 habitually and consistently discharged on your part. It is a great 
 satisfaction to me that our relations on the bench have uniformly 
 been those of courtesy and kindness, and I trust that they may 
 from time to time be renewed, notwithstanding this official sep 
 aration. 
 
 Mrs. Campbell joins me in sincere regret for the decision you 
 have made, and in the expression of esteem and respect for Mrs. 
 Curtis and yourself. 
 
 Very truly yours, J. A. CAMPBELL. 
 
 I find no letter from Judge Grier, but his sentiments 
 were expressed in the following : 
 
 FROM MR. E. N. DICKERSON. 
 
 NEW YORK, Sept. 16, 1857. 
 
 MY DEAR SIR, It was with very great regret that I learned 
 from Judge Grier, who was staying with me at Rockaway, your 
 resolution to resign your office of Associate Justice of the Supreme 
 Court. We had been talking about the newspaper rumor at the 
 table in the evening, and we agreed to discredit it as an idle trick 
 of some country editor to set aspirants for office in an excitement ; 
 but in a few minutes your letter arrived which overturned our 
 theory. You can t conceive how much regret Judge Grier ex 
 hibited, and how much we all felt that a serious public loss 
 had been sustained. Judge Nelson has expressed the same feel 
 ing with great sincerity, and every gentleman at the bar whose 
 opinion is worth repeating has joined in a common expression of 
 regret. 
 
 Since it was made public, the feeling has been so universal that 
 I have hoped you would have reconsidered your determination and 
 yielded to the general desire of the bar and country, and I am now 
 actuated by the hope that you will see, in the manner your resig 
 nation has been received, an inducement to withdraw it. I sin- 
 VOL. i. 17 
 
258 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 cerely hope that such may have been the effect, and that you will 
 relieve the anxiety which every one feels about the appointment 
 of your successor, by retaining a position which you have so highly 
 honored, and from which you can be so ill spared. 
 
 My kind remembrance to Madame and to the children. 
 Very sincerely your friend, 
 
 EDW. N. DICKERSON. 
 
 FROM JUDGE MCLEAN. 
 
 CHICAGO, July 12, 1857. 
 
 MY DEAR JUDGE, I have just received your note, and have 
 read the latter part of it with the deepest concern. I beg you not 
 *o act until another winter at Washington. 
 
 The court can never retrieve what it has lost. But should we, 
 under such circumstances, abandon it? We may do the country 
 some service by remaining, at least another term. . . . 
 
 Again I entreat you to postpone action until you attend another 
 term. 
 
 I have no doubt wharfage is a maritime lien. It is given in 
 Michigan by statute, and does not depend on possession. The 
 District Judge held, the twelfth Admiralty rule limited the mari 
 time lien to material-men. In this, I think, he was mistaken. 
 
 When you receive this, please write to me, directed to Cin 
 cinnati. 
 
 I have about seven hundred cases on the docket at this place. 
 Mrs. McLean is not with me. My regards to Mrs. Curtis. 
 Very truly yours, 
 
 JOHN MCLEAN. 
 
 FROM THE SAME. 
 
 CHAPEL WOOD, July 30, 1857. 
 
 MY DEAR JUDGE, Your favor of the 23d instant I have received 
 and read with attention. Your reasons for the step you propose to 
 take are strong, and especially those which relate to your family. 
 I frankly admit, much as I should deplore your loss on the bench, 
 both from public and private considerations, if the future did not 
 promise more than the members of the court now realize, I could 
 not object to your resignation. 
 
 I think it is probable that at the next session of Congress we 
 
1857.] EESIGNATION OF OFFICE. 259 
 
 shall be relieved from circuit duties ; and there is some ground to 
 hope that our salaries may be increased to eight or ten thousand 
 dollars. If you could be assured that these changes would be 
 made, would it not change your present purpose? 
 
 I have no recent or reliable information from the party in power 
 in regard to either of the above subjects. But I judge, from the 
 party sagacity of the friends of the Administration, that they will 
 not suffer so favorable an opportunity as the next session will af 
 ford to pass without an increase of their patronage by creating 
 circuit judges and giving permanency to their constitutional views. 
 Nothing of this kind could be expected from the Whigs, if they 
 were in power, as they are always divided among themselves, and 
 especially in making appointments to office. This measure will 
 enable the judges to be with their families while in the discharge 
 of their duties. . . . 
 
 If you have not some local arrangements which will not admit 
 of a postponement, is there not enough in the possible, not to say 
 probable, events of next winter to justify a delay of your resigna 
 tion some three or four months ? 
 
 Would you not feel a little awkward at the bar ? There is no 
 instance in our history where a judge of the Supreme Court left 
 the bench and afterwards engaged in the practice of law. Chief 
 Justices Jay and Ellsworth resigned, but neither of them afterwards 
 appeared at the bar. . . . 
 
 The strongest consideration that I can present against your 
 resignation is, that our country is in a great crisis, and unless there 
 shall be a thorough reform in the administration of the govern 
 ment, it will be overthrown in twenty years. On the bench, being 
 in a minority, we cannot do much, except by maintaining the great 
 principles of the Constitution. . . . 
 
 Having before you all the circumstances and facts which have a 
 bearing upon the question of resignation, you are more competent 
 to decide than your friends can possibly be. While I shall most 
 sincerely arid deeply regret the separation, I trust, should you 
 leave us, that your cherished hopes may be more than realized at 
 the bar. In that event, there will be only left for me to remem 
 ber with great interest the intercourse we have had on the bench, 
 for the last seven years. 
 
 Very sincerely yours, 
 
 JOHN MCLEAN. 
 
260 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 FROM THE SAME. 
 
 CHAPEL WOOD, Sept. 6, 1857. 
 
 MY DEAR JUDGE, In our papers of yesterday, it was an 
 nounced that you had resigned your seat on the bench, and the 
 receipt of your very kind letter confirmed the report. Although 
 I had reason to believe, from your last letter, that you would 
 come to this determination, yet I cherished a hope that you 
 would postpone the resignation, at least until after our next 
 term. But I feel bound to say, the reasons you give show such 
 a high moral obligation and Christian duty, that I cannot say you 
 have erred. 
 
 My nature is so selfish, that I felt a regret that I cannot describe, 
 both in regard to personal considerations and also for the irrepara 
 ble loss sustained by the bench. When Story left us, the same 
 sensation oppressed me. One change after another, since I have 
 been a member of the court, has occurred, until I have lost the 
 interest and pride I once felt in the tribunal. In 1830, when I 
 first took my seat, the court commanded the respect and veneration 
 of the country ; but it can never hope to regain so elevated a posi 
 tion in the future. While I remain a member of it, I shall endeavor 
 to think of the time past, rather than of the present, or the time 
 to come. 
 
 In our journey through life, the most interesting associations 
 are broken, and we are thrown upon the past to cherish in our 
 memories and in our hearts whatever sweetened our labors and 
 contributed to our happiness. 
 
 I hope, my dear Judge, that your expectations will be more than 
 realized at the bar, and that your days may be peaceful, prosperous, 
 and happy. And rest assured, that no change of circumstance or 
 place can lessen the esteem and affectionate regard of 
 
 Your friend, JOHN McLEAN. 
 
 Mrs. McLean unites with me in regards to Mrs. Curtis and 
 yourself. 
 
 FROM THE HON. REVERDY JOHNSON. 
 
 SARATOGA SPRINGS, Sept. 11, 1857. 
 
 MY DEAR JUDGE, A letter just received from your brother, 
 to whom I wrote on the subject, confirms the report of your resig- 
 
1857.] RESIGNATION OF OFFICE. 261 
 
 nation. Your private reasons, as he states them, are controlling ; 
 but I cannot tell you how sincerely I regret your leaving the 
 bench. The loss to th^ public no one knows better, I think, than 
 I do ; while to me personally it is especially painful. I may be 
 pardoned, I hope, in saying, even to yourself, that I have never 
 known a mind more peculiarly fitted for judicial duty than yours. 
 That the change will be to your benefit in a pecuniary sense, I am 
 sure. This will be the consolation of your friends, it is the only 
 one they will have. That your life may be long spared, and your 
 success be all that you wish, is the ardent hope of 
 Your friend and servant, 
 
 REVERDY JOHNSON. 
 
 FROM THE SAME. 
 
 BALTIMORE, Sept. 22, 1857. 
 
 MY DEAR JUDGE, Thank you for your kind reply to my note 
 from Saratoga. As I then said, your reasons for retiring were 
 conclusive, but I yet wish that you had delayed it until after the 
 next term of the Supreme Court, as your reasons would be (as I 
 think they are) by many persons misunderstood, not only unjustly 
 to yourself, but to the other members of the court. I hope you will 
 not think it amiss, that I have taken steps to put the matter on its 
 true footing. An editorial to that effect will perhaps, in a few 
 days, appear in the Courier and Enquirer, New York. You know 
 how sincerely, with yourself, I value the high character of the 
 court, and how deeply we should feel the loss of it, in public 
 opinion. The sooner, therefore, that every misrepresentation is 
 corrected, the better ; and with that view I have done what I state. 
 Who your successor will be is yet uncertain. . . . 
 
 It would much increase the true concern of losing you from 
 the bench, if I thought that I was not often to meet you. It is 
 in all sincerity that I assure you, that much of the gratification I 
 have had in attending the Supreme Court was that you were of it. 
 Wishing you every success and happiness in life, I am, as ever, 
 Faithfully your friend, 
 
 REVERDY JOHNSON. 
 
 I do not know that Mr. Johnson s intended explanation 
 of the reasons for the resignation was ever published ; but 
 
262 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 I presume it was not, as I find the following on the back of 
 his last letter, in my brother s handwriting : 
 
 Replied on the 27th, and said in substance that the only cause 
 justifying my resignation was the insufficiency of the salary ; but 
 that I had never authorized any one to deny that my regrets were 
 diminished by the state of the court, that I could not do so with 
 truth, and therefore, to prevent misapprehension, wrote, &C. 1 
 
 After all the serious regrets expressed by these grave and 
 learned persons, the reader Avill be amused by a sally, which 
 came from one whose brilliant mind afterwards suffered an 
 eclipse, that never passed away until death released it from 
 the frail tenement which had been overmastered by its 
 eager and incessant activity : 
 
 FROM ST. GEORGE TUCKER CAMPBELL, OF PHILADELPHIA. 
 
 September 28, 1857. 
 
 MY DEAR JUDGE, Is it a fair question to say why? Now 
 that you have stepped down to the level of your fellow-craftsman, 
 that indefinite feeling of restraint is gone, and I feel at liberty to 
 ask questions. 
 
 I knew from our conversations while you were on the bench, 
 that you doubted ; but that was a year since. 
 
 Do you return to active practice, or the dignified retirement of 
 writing law books ? because I feel certain that you cannot mean 
 to live without law. 
 
 Honor bright, is it politics? I hear, the Senate. I should be 
 glad of this, patriotically as well as selfishly, for then you would 
 travel this way, and perchance we might meet in Washington. Do 
 you mean to practise there ? Or, in fine (this letter won t reach 
 you till you have left the bench), what the devil do you mean to 
 do ? It will be a queer sensation to be decided upon, after having 
 had the last word for some time. I am sincerely glad that you 
 have so decided. It will be more pleasant to meet and see you. 
 A judge is a chilly thing always ; if he is not, he is undignified; 
 the line between is shady. Let me have a word from you at your 
 
 1 The words printed in Italics are underscored in the original. 
 
1857.] RESIGNATION OF OFFICE. 263 
 
 leisure, and I look forward with sincere pleasure to the day we 
 meet on the same level again. With my kindest regards to Mrs. 
 Curtis, believe me, 
 
 Very sincerely, Si.G. TUCKER CAMPBELL. 
 
 P. S. If you haven t resigned, burn this without reading it. 
 It s rather free to a judge. 
 
 Sx.G. T. C. 
 
264 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857 
 
 CHAPTER X. 
 
 1857-1874. 
 
 Return to the Bar. Death of Mrs. Anna W. Curtis. A National Repu 
 tation. A great Practice of Seventeen Years. Its aggregate Pecuniary 
 Results. Some Opinions on Constitutional and other Questions. Ad 
 dress to Judge Sprague on his Retirement from the Bench. 
 
 JUDGE MCLEAN S anticipation that my brother " might 
 feel a little awkward at the bar " proved not to be correct 
 as soon as the trial was made ; and whatever doubts Judge 
 Curtis may himself have had were immediately dispelled. 
 Within a week after his resignation took effect, he received 
 seven retainers in important cases. He established himself 
 in an office in Boston, in a central position where lawyers 
 u most do congregate," and having engaged an old and 
 faithful clerk who had served him before he became a judge, 
 he began to lead the life of a " barrister" in the first week 
 of October, 1857. Writing in the summer of 1858 to Mr. 
 Greenough, his brother-in-law, who was then absent in 
 Europe, he said : 
 
 I expect to find it dull enough in town, during so much of the 
 summer as I am to be here. But as one purpose of my return to 
 the bar is to earn some money for my wife and children, I must 
 stay here and work while work is to be had, and I am able to do 
 it. Thus far I have not been disappointed in my expectations, and 
 if I have health and no bad fortune, for the next ten years, I can 
 place them where I should desire to, not with wealth, which I do 
 not desire, but with a competence. I wish I were with you in 
 England for three months. I desire it above all other mere grati- 
 
1857.] RETURN TO THE BAR. 265 
 
 fications. Rut I feel no assurance that the wish will ever be ful 
 filled. Each year I say to myself, perhaps I may go next year, 
 but the next year brings its own incompatibilities. 1 
 
 As affording some measure of a very important branch 
 of the practice on which he entered in the autumn of 1857, 
 I have examined his Opinion Books for the whole period 
 after his return to the bar. These opinions are not brief 
 answers to specific questions, without the processes of rea 
 soning which led to the results. They are full discussions of 
 the cases, such discussions as would be given by a court in 
 pronouncing judgment. His known judicial habit of mind 
 led parties and their attorneys to resort to him as an au 
 thority, whose view of their controversies would be of great 
 value to themselves, and might prevent the necessity of 
 litigation. It often proved so ; for although in the vast 
 number of cases that were submitted for his opinion, during 
 the seventeen years of his second period of practice, he was 
 called upon, in a great many instances, to defend as an ad 
 vocate the views that he had expressed as a counsellor, in 
 many other instances his written opinion settled the contro 
 versy, although it had not been asked for by both parties. 
 The examination which he made of the subject was so 
 thorough, the reasoning was so sound, the learning appro 
 priate to the question was so accurately applied, and there 
 was so much confidence felt in his fairness of mind, that his 
 opinions carried with them great weight. 
 
 No man is infallible ; and it is not meant to be implied 
 that in the great body of legal discussion which now lies be- 
 
 1 The tranquillity and happiness of his domestic life remained unbroken 
 from the time of his second marriage, in 1846, until the month of April, 
 1860. On the 24th of that month, Mrs. Anna W. Curtis died in Boston, 
 leaving three children. She had inherited from her father (Mr. Charles 
 Pelham Curtis) his calm and equable temperament, to which was added a 
 firm and decided, though most amiable character. Her reading was unusu 
 ally large and varied, and her musical talent and tastes had been much 
 cultivated. Her married life was one of entire devotion to her husband and 
 to the care of his children. 
 
266 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 fore me in Judge Curtis s Opinion Books, kept from October, 
 1857, to June, 1874, he was always right in his reasoning 
 or his conclusions. But probably there is no similar record 
 extant, concerning such a variety of subjects, arising in the 
 practice of an American lawyer, in which so extensive a 
 field of jurisprudence has been covered by such careful and 
 thorough discussions, uniformly based upon an exact state 
 ment of the case that was to be considered. At first, the 
 applications for his opinion came from his immediate 
 neighborhood. But they soon began to come from other 
 quarters of the Union ; showing that his judgment upon 
 important questions was held, in communities where the 
 local law would enter into the treatment of the subject, 
 or where some question of Federal jurisprudence was in 
 volved, or the conflict of laws would have to be consid 
 ered, in as high estimation as it was in his own State or 
 city. 
 
 In these opinions, filling nearly one thousand closely 
 written pages, of two folio volumes, and covering a consid 
 erable proportion of the controversies arising in different 
 regions of the country, during a period of seventeen years, 
 some of them relating to great operations of public im 
 portance, and embracing questions of State or Federal 
 Constitutional Law, and some concerning merely private 
 interests, the style in which they are written is uniformly 
 the same. Lucid, exact, logical argument, embracing all 
 the proper suggestions of an opposing view, marks the 
 whole. While there is no redundancy, the same condensa 
 tion of thought and expression that is necessary in oral 
 discussions at the bar, when an advocate is limited by a 
 rule of time, and in which Judge Curtis was so great a 
 master, is not always found in his written opinions given 
 as a chamber counsel, nor was it always needed in such 
 writings. In these discussions, he often enlarges more than 
 he would have done at the bar ; and this was done, because 
 the discussion was to go into the hands of others, to whom 
 
1857.] A LARGE PROFESSIONAL INCOME. 267 
 
 a more ample treatment of the subject would be useful. 
 But, in general, these opinions are full of the same clear 
 ness and force of reasoning, that characterized his oral 
 arguments. 
 
 As a source of professional income, his written opinions 
 brought an important part of his receipts ; although his 
 charges for these or any other professional services were 
 never immoderately high. He was aware that his clients 
 were, in general, obliged to compensate him according to 
 his own measure of the value of his services ; or, as he 
 once expressed it, that they were at his mercy, in the 
 matter of fees. He was therefore in the habit of making 
 a careful, and even judicially fair, estimate of what it 
 was proper, under all the circumstances, that they should 
 pay. He very rarely met with any complaint ; and he 
 did not always require that payment of any amount should 
 be made. " I have known him," said a gentleman of the 
 Boston bar, "in cases where he had thought that the judg 
 ment had fallen too hard upon his client, to turn and relin 
 quish every dollar of his fee, in order to soften the adverse 
 blow, and that, too, without a word, without any open 
 demonstration, and probably without any body knowing it 
 except myself, his book-keeper, and client." 1 Almost in 
 variably, however, when there were not peculiar circum 
 stances calling for such sacrifices, whatever he named as his 
 compensation was paid without any hesitation. 
 
 Another large part of his professional income was of 
 course derived from his practice as an advocate in the 
 Federal courts, and in the courts of his own and of other 
 States. In the Supreme Court of the United States, during 
 this period, he argued forty-six cases, involving every variety 
 of subjects that come into discussion in that tribunal. 2 In 
 
 1 Remarks of Hon. Charles L. Woodbury at the meeting of the Boston 
 Bar held after the death of Judge Curtis. 
 
 2 Reported in the volumes from the 20th of Howard to the 19th of Wal 
 lace inclusive. 
 
268 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1857. 
 
 the Supreme Court of Massachusetts, in the same period, 
 he made arguments in bane in eighty cases. 1 
 
 From these various sources, a large professional income 
 flowed in upon him with great steadiness after his return 
 to the bar. Judging from all the means that are before 
 me for such a computation, it appears that during these 
 seventeen years, from October, 1857, to June, 1874, his 
 aggregate professional receipts were about 1650,000. But 
 the fortune which he left to his family was much less than 
 this amount. He always lived liberally, but without any 
 ostentation, and he was not always fortunate in his invest 
 ments. Yet his wish to leave a competency to his family 
 was fulfilled. 
 
 Instructive and important volumes might be made by the 
 publication of the opinions to which I have referred in this 
 chapter. But many of them relate to private concerns, 
 which it might not be proper to bring before the public, 
 since they did not become subjects of public litigation. If, 
 therefore, any collection of them shall hereafter be pub 
 lished, it must be one carefully selected. There are some 
 of them, however, which relate to public and constitu 
 tional questions, on which Judge Curtis s views will be 
 regarded as important, and which I include in the present 
 volume, as some of the most interesting specimens of his 
 method of treating such subjects. Taken as the comple 
 ment of his judicial opinions on constitutional questions, 
 and they lack only the authority of judicial position to 
 enhance their value, the opinions given in his private 
 practice warrant a very high estimate of his rank as a con 
 stitutional jurist. Indeed, giving its proper scope to the 
 term Constitutional Jurisprudence, I do not think that he 
 should be regarded as less eminent or less accomplished in 
 that department than he was in any other. 
 
 1 Embraced in the Reports of that court from the 10th of Gray to the 
 112th of Massachusetts, inclusive. 
 
1858.] OPINIONS GIVEN AT THE BAR. 269 
 
 CONSTITUTIONAL LAW. REMOVAL FROM OFFICE. 
 OPINION. 
 
 My opinion has been requested upon the question whether the 
 Governor of Massachusetts, either with or without the advice and 
 consent of the Council, has power to remove the " Superintendent 
 of Alien Passengers," during the term of three years for which he 
 was appointed and commissioned. 
 
 The act of June 6, 1856, by which this office was created, pro 
 vides, in its first section, that " the Governor and Council shall 
 upon the passage of this act appoint a suitable person for the term 
 of three years" &c. ; and the second section enacts, " At the expira 
 tion of the said term, and hereafter, whenever a vacancy shall 
 occur, there shall be appointed to fill the vacancy in said board, 
 a person who shall hold the office for a term of three years" 
 
 The Legislature have thus created an office, and enacted that its 
 
 o 
 
 term shall be a term of three years. 
 
 There can be no doubt that the Legislature had power to create 
 this office arid prescribe how it should be filled and upon what tenure 
 it should be held. 
 
 Not being one of the officers provided for in the Constitution, it 
 falls under the clause which confers on the Legislature power " to 
 name and settle annually, or provide by fixed laws for the naming 
 and settling, all civil officers within the said Commonwealth, the 
 election and constitution of whom are not hereafter in this form of 
 government otherwise provided for; and to set forth the several 
 duties and limits of the said civil and military officers," &c. It 
 was at the option of the Legislature in creating this office and fix 
 ing its tenure, to make its tenure during good behavior, or during 
 a fixed time absolutely, or during the pleasure of the Governor ; 
 and it is very clear that the Governor has no power to change the 
 tenure which the Legislature has fixed. This being so, it is clear 
 he cannot remove at pleasure an officer who, by force of the law 
 creating the office, holds for a fixed term of years, and whose ten 
 ure is not by law made subject to his will. In reference to such 
 offices as this, it should be observed that the Governor derives all 
 his powers, even his power of appointment, from the law which 
 creates it. For our State Constitution does not contain a general 
 provision, like that in the Constitution of the United States, con 
 ferring on the President the power to appoint to all officers estab- 
 
270 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1858. 
 
 lished by act of Congress, unless Congress should enable the courts 
 of law or heads of departments to appoint inferior officers. And 
 when the Governor exercises the power which this law gives him, 
 he must, of course, act in conformity with it, and appoint for three 
 years ; and having done so, his whole power is exhausted, until a 
 vacancy occurs, by the expiration of the term, or by death or 
 resignation. 
 
 I am not aware that any court, or any legislature, has ever con 
 sidered that it is incident to appointing power to remove at pleasure 
 an officer required by law to be appointed and commissioned for 
 a fixed term of years, and not by the terms of that law subjected 
 to such removal. The great debite which took place in Congress 
 in 1789, which settled the practice of the Federal government, pro 
 ceeded upon the ground that the appointing power, if not controlled 
 by law, had by implication the power to remove. But no support 
 was given to the theory that, even under the Constitution of the 
 United States, the Executive could turn a tenure for a fixed term of 
 years into a tenure during pleasure ; and the practice, both of Con 
 gress and of our State Legislature, has been, when establishing offices 
 to be held for a term of years, to add unless sooner removed, &c., 
 thus qualifying the tenure, and admitting the necessity of such 
 qualification to enable the executive to remove. 
 
 In Avery v. Tyringham, 3 Mass. R. 177, Chief Justice Parsons 
 says, it is a general rule that an office is held at the will of either 
 party, unless a different tenure is expressed in the appointment, or 
 is implied from the nature of the office, or results from ancient 
 usage. In Ex parte Hennen, lo Peters, 259, the Supreme Court 
 of the United States said, all offices, the tenure of which is not 
 fixed by the Constitution, or limited by law, must be held either 
 during good behavior, or at the will of some department of the 
 government. 
 
 In Marbury v. Madison, 1 Cranch, 162, it was held by the 
 Supreme Court of the United States, that, where the law creating 
 an office provided that the person appointed should hold the office 
 for five years, the officer was not removable by the Executive. 
 
 The case of Iloke v. Henderson, 4 Devereux s R. 1, contains a 
 very able and instructive discussion of this subject ; it was there 
 held that the tenure of an office prescribed by the Legislature was 
 part of the right of the incumbent, of which he could not be 
 deprived. In Smyth v. Latham, 9 Bing. 702, it was ruled by the 
 
1858.] OPINIONS GIVEN AT THE BAR. 271 
 
 judges of England, on error, in the Exchequer Chamber, that when 
 an office is created by a statute, the question as to its duration and 
 tenure is no other than an inquiry into the meaning and intention 
 of the statute itself. 
 
 I think this is as good law here as it is in England. And that 
 where the Legislature have, as in this case, shown a clear intention 
 to have the tenure of the office a term of three years, and have not 
 conferred upon the Governor any power to shorten the term, he 
 has no such power by any implication. Such an officer holds for a 
 term of three years by as firm a title as if the Constitution had 
 fixed the term of three years as the duration and limit of his right ; 
 for the Governor has no more implied power to disregard or qualify 
 a constitutional law enacted by the Legislature, than to disregard or 
 qualify the fundamental law enacted by the people. And, to hold 
 for three years is as much a right of an officer appointed to an 
 office having that tenure by law, as to hold during good behavior, 
 where that is the legal tenure. In one case no more than in the 
 other is it a tenure at the pleasure of the Executive. 
 
 In my opinion, the Governor has not the power of removal 
 under the law in question. 
 
 B. R. CURTIS. 
 April 20, 1858. 
 
 MAKINE INSURANCE. GENERAL AVERAGE. 
 
 CASE. 
 
 The ship Star of Hope sailed from New York on the 10th 
 day of February, 1856, bound for San Francisco. Nothing ma 
 terial occurred on the voyage until the 14th of April, when, 
 being in latitude 46 54 south, longitude 68 36 west, a great 
 steam and smoke were discovered ascending from the fore and aft 
 hatchways. Investigation was immediately made, and the conclu 
 sion was that the cargo was on fire. The hatches were secured, 
 and measures taken to exclude the air from the hold, and it was 
 decided to make for the nearest port for safety. San Antonio, on 
 the coast of Patagonia, being the nearest port, the vessel s course 
 was shaped therefor. On the 18th of April, they made the 
 land, and approached with a signal for a pilot, and, the lead being 
 kept going, found eight, seven, six and a half, five, and four fathoms 
 of water. No pilot appeared, and the master, under the apprehen 
 sion that the ship would blow up, having a quantity of gunpowder 
 
272 MEMOIR OF BENJAMIN BOBBINS CUETIS. [1858. 
 
 and spirits on board in the hold, determined to run into the harbor 
 without a pilot. In making the attempt the ship grounded, and 
 struck heavily, and there sustained much damage. 
 
 The master hoped to be able to get into the harbor safely with 
 out a pilot, and believed he probably could do so ; but he was 
 ignorant of the navigation, found by the lead that the water was 
 shoaling from six to four fathoms, and was aware that there 
 was danger that the vessel would take the ground. 
 
 The question is whether this stranding is to be considered so 
 far voluntary that the damage which it caused is a general 
 average loss. 
 
 OPINION. 
 
 The master decided to take the risk of attempting, without a 
 pilot, to run into a place unknown to him, to obtain assistance to 
 extinguish fire, which was believed to threaten the speedy destruc 
 tion of the vessel and cargo, and all on board. It was an act en 
 tirely out of the usual course of navigation, and aside from the 
 duties which devolved on the ship-owners, as carriers of the cargo 
 on that voyage. It was an attempt to obtain safety from an 
 impending peril by the use of extraordinary means ; and it is not 
 to be confounded with the hazards, which ship-owners undertake, 
 of carrying such sail, and steering such courses, and making such 
 manoeuvres, while in the prosecution of the voyage, as its exigencies 
 may require. 
 
 The only ground upon which I can suppose the stranding can 
 be denied to be voluntary in contemplation of law, is that the 
 master hoped and expected that he might get in without taking 
 the ground, and therefore the stranding was unintentional. But 
 the master s hopes and expectations were one thing, his intention 
 another. lie decided to attempt to get into the harbor. He in 
 tended to take the consequences of that attempt. He hoped those 
 consequences would not be injurious to the vessel ; but whatever 
 they might prove to be, he voluntarily encountered them. And 
 when one of them proved to be stranding, his hope that it would 
 not happen does not prevent the stranding from being one of the 
 consequences which he voluntarily encountered. 
 
 It is true, that if, while seeking a port of necessity, a peril, 
 wholly unanticipated, and not necessarily arising from the change 
 of course, casually falls on the vessel, without human choice or 
 
1858.] OPINIONS GIVEN AT THE BAK. 273 
 
 agency, it must be borne by the vessel. But this is not such a 
 case. The peril of stranding by running into an unknown port 
 without a pilot, when the lead shows the water is shoaling from 
 six to four fathoms, is necessarily involved in an attempt to enter ; 
 the sanguine expectations of the master that he may escape, cannot 
 change its character into a mere casualty, nor, when such a volun 
 tary attempt results in an Actual stranding, can it be said to have 
 been independent of human agency. It was human agency which 
 made the attempt, and the attempt necessarily involved the peril. 
 I think it now settled, by the cases of The Col. Ins. Co. v. Ashby 
 et /., 13 Peters, 331, and Barnard v. Adams, 10 How. 305, that 
 it is not required that the voluntary act should necessarily inflict 
 a loss, nor that the master should intend to destroy, or even injure, 
 the particular subject. 
 
 It is enough that a particular subject, as in this case the ship, is 
 voluntarily exposed to a distinct and extraordinary peril, for the 
 general benefit. The voluntary sacrifice is made when the ship 
 is intentionally exposed to such a peril. What befalls thereon 
 are the consequences of that sacrifice ; and be they more or less 
 than was anticipated, they are all voluntarily suffered, in judgment 
 of law. 
 
 This is well illustrated by the case of goods put into lighters to 
 relieve a stranded vessel. The intention is not to destroy or injure 
 them. All concerned may expect them to be safe. But all con 
 cerned intend to expose them to a distinct and extraordinary peril 
 by placing them on board lighters ; and if, contrary to expecta 
 tion, they are lost or damaged, they are to be paid for in general 
 average. 
 
 My opinion is, that the attempt to run into San Antonio without 
 a pilot, exposed this vessel to the peril of stranding ; that this was 
 an extraordinary peril, assumed for the general benefit ; that it is 
 not inferable that it was an unknown peril, since it is not conceiv 
 able that any competent master could have failed to recognize it 
 as one of the risks of his attempt to get into an unknown port 
 without a pilot, with such soundings as he appears to have had ; 
 that his hope, or even expectation, of avoiding the peril does not 
 change the character of the stranding which actually resulted from 
 his attempt ; and that the intention to encounter that peril rendered 
 all its actual consequences voluntary sacrifices. 
 
 B. R. CURTIS. 
 
 February 2, 1858. 
 
 VOL. i. 18 
 
274 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1858. 
 
 FIRE INSURANCE. 
 
 OPINION. 
 
 My opinion has been requested upon the question of the valua 
 tion to be put by Messrs. Little, Brown, & Co. upon the printed 
 sheets of books destroyed or damaged by fire in their store-house 
 at Cambridge. 
 
 The policies contain no valuation, and no special clauses to 
 afford a rule of valuation, differing from that prescribed by the 
 law. The object of the contract is to indemnify the assured ; and 
 the law adjudges this object to be accomplished, if the insurer pays 
 to the insured an amount equal to the value of the subject insured, 
 as its value was when the risk was taken. This value is ordinarily 
 measured by the rule that a thing is worth what it can be sold for; 
 and the market value is the standard by which the amount to be 
 paid is usually measured. 
 
 After an attentive consideration of this case, I can perceive no 
 sufficient reason why the rule that a thing is worth to the owner 
 its market price, should not be applied to measure the amount of 
 this loss. And I am of opinion that it would be applied by a court 
 of law. These printed books, in the form of folded sheets, were in 
 a condition to be put into the market at established prices. It 
 may be suggested that they could not have been offered for sale, 
 in the quantities burnt, without reducing the market price. This 
 must often be true where a large quantity of an article is burnt. 
 But I do not think such a suggestion from underwriters was ever 
 allowed to affect the valuation. 
 
 It would be highly inexpedient, as well as unjust, to allow it to 
 do so. It would be inexpedient, because it would substitute in 
 place of a known standard, viz. the actual market price, mere 
 speculations concerning the effect upon that price of putting a large 
 quantity of the article into the market. And it would be unjust, 
 because, if not burned, there is no ground for saying the owner 
 would thus have forced sales and reduced the price. 
 
 Neither, as it seems to me, should the fact, that Messrs. Little, 
 Brown, & Co. were the manufacturers change the rule which 
 makes the market value the standard of the valuation, as between 
 insurer and insured. 
 
 If they by the use of their capital and skill have produced an 
 article which sells in the market for more than it cost them, I do 
 
1858.] OPINIONS GIVEN AT THE BAR. 275 
 
 not percev v^e why they should not be indemnified for its loss by re 
 ceiving what it would have sold for. If the article were given to 
 them, and so cost them nothing, it would hardly be asserted that 
 nothing should be paid by the underwriters. The cost of the sub 
 ject of insurance is of no importance in fixing its valuation, save in 
 those cases where the cost indicates the market value. 
 
 Mr. Phillips (Vol. II. p. 40), after laying down the rule, " the 
 amount of insurable interest in goods is their market value at the 
 time and place of the commencement of the risk," says their cost 
 is the most satisfactory proof of their value, in case they are pur 
 chased near the time when the risk commences. If they are not 
 purchased, but manufactured, the cost of making them has never 
 been deemed the measure of their value. It would be not only 
 an arbitrary, but a generally false assumption, to establish such a 
 measure. For if the value of manufactured products did not gen 
 erally exceed their cost, who would make them ? 
 
 The distinction between articles purchased and made is so plain, 
 that it seems not to have been thought necessary to point it out. 
 But Mr. Stevens does so incidentally : " Goods which are either 
 of the proprietor s own manufacture, or have been brought from 
 distant places to the port of shipping, where there is no regular sale 
 for them, merely for the purpose of being forwarded from thence, 
 must not be valued according to the price for which they might be 
 sold at the place of loading, but their value at the place where they 
 came from, together with the expenses, must be the basis of the 
 value to be insured." 
 
 My opinion is that the insurable interest of Messrs. Little, 
 Brown, & Co. in these books was their market value at the time 
 the risk attached. 
 
 B. R. CURTIS. 
 BOSTON, April 10, 1858. 
 
 PROCESS IN ADMIRALTY. 
 OPINION. 
 
 My opinion has been requested upon the question whether, 
 upon a decree in personam in the District Court of the United 
 States for the District of Ohio, (there being no rule of that court 
 on the subject,) an execution may issue, commanding a levy on the 
 lands of the respondent. The process act of May 19, 1828, sect. 3 
 
276 MEMOIR OF BENJAMIN BOBBINS CURTIS. [I860. 
 
 (4 Stats, at Large, 281), provides that writs of execution upon 
 decrees rendered in any of the courts of the United States shall 
 be the same in substance in each State as those then used in such 
 State, saving to the courts in those States where there are not 
 courts of equity the power to prescribe the mode of executing 
 their decrees in equity. 
 
 By the act of August 23, 1842, sect. 6 (5 Stats, at Large, 518), 
 the Supreme Court is empowered to regulate " the whole practice" 
 of the District and Circuit Courts. 
 
 By the 2 Lgt Admiralty Rule, the Supreme Court has regu 
 lated the practice of the District Courts as respects the execution 
 of decrees for the payment of money ; and has empowered those 
 courts to issue writs of fieri facias, to be levied on the goods and 
 chattels of the defendant ; but no authority is given to issue writs 
 of levari facias to be levied on lands. 
 
 The argument that expressio unius exclusio alferius, seems to 
 me, in this case, to be irresistible. For how can this rule be said 
 to regulate the practice of the District Courts, if the libellant, 
 instead of proceeding to execute the decree in the mode prescribed 
 by the rule, may proceed in a totally different manner. 
 
 In my opinion, this rule was designed as a substitute for the 
 authority contained in the third section of the act of 1828, if that 
 extends to admiralty decrees, and not as a supplement thereto ; 
 and consequently the present power of District Courts to execute 
 their admiralty decrees is found in this rule, and nowhere else. 
 
 I think it extremely doubtful whether the third section of the 
 act of 1828 was designed to cover the execution of admiralty 
 decrees. The provision for the execution of decrees in equity in 
 those States having no courts of equity, and the absence of any 
 special provision for the execution of decrees in admiralty when it 
 was known that no State could have courts of admiralty, tends 
 strongly to show that the decrees there spoken of were decrees in 
 equity only ; and that the execution of admiralty decrees was in 
 tended to be left to the second section of the act of 1792 (1 Stats. 
 at Large, 276). This enacted that executions in suits of admiralty 
 and maritime jurisdiction should be according to the principles, 
 rules, arid usages of courts of admiralty, subject to alteration by 
 the Supreme Court. I take it to be clear that, by the rules and 
 usages of courts of admiralty, no execution ever issued against 
 lands. 
 
I860.] OPINIONS GIVEN AT THE BAR. 277 
 
 It is said by Doctor Browne (1 Browne s Civ. and Ad. Law, 
 361 n.), that a stipulation in the admiralty does not bind lands ; 
 and this seems to be admitted by Doctor James in arguing Grun- 
 way v. Barker, Godbolt, 260, for he justifies the insertion of here- 
 des in the stipulation, as meaning personal representatives. 
 
 If there was no authority for executing an admiralty decree by 
 process against lands, under the act of 1792, and the act of 1828 
 was not intended to apply to such decrees (and I am strongly in 
 clined to this view), then it is certain there is no power residing in 
 a court of admiralty to issue a levari facias, or any other process 
 against lands. 
 
 But I prefer to rest my opinion on the other ground, viz. that 
 the 21st Rule was designed to cover the whole subject, and that 
 alone is the present regulation respecting the execution of the ad 
 miralty decrees of the District Courts. 
 
 Judge Conklin in his Practice, p. 775, was of this opinion. 
 
 B. R. CURTIS. 
 June 26, 1860. 
 
 Accord Ward v. Chamberlain, 9 Am. Law Register, 171, in 
 reference to which case the above opinion was taken by one of the 
 counsel. 
 
 CONSTITUTIONAL LAW. 
 CASE. 
 
 Constitution of the State of Missouri, Art. IV. Sect. 6. 
 
 " The Governor shall have power to remit fines and forfeitures, 
 and, except in cases of impeachment, to grant reprieves and 
 pardons." 
 
 Revised Statutes of Missouri, 1855, Chap. XVI. 
 
 BANKING ILLEGAL CURRENCY. 
 
 Section 4. " No corporation within the limits of this State (the 
 Bank of the State of Missouri and its branches inclusive), money- 
 broker, or exchange-dealer, shall pass or receive, within the limits 
 of this State, any bank-note or other paper currency of any kind, 
 promising or ordering the payment of money or other thing, of less 
 denomination than five dollars. Provided, however, that said 
 money-brokers and exchange-dealers may buy, take, and receive 
 
278 MEMOIR OF BENJAMIN BOBBINS CURTIS. [I860. 
 
 such bank-notes, post notes, and currency for the purpose of send 
 ing the same out of the State." 
 
 Sect. 9. " The charters of all corporations within the limits of 
 this State (the Bank of the State of Missouri and its branches in 
 clusive), violating or evading any of the provisions of this act, shall 
 be forfeited for any such violation or evasion ; and the fact of the 
 forfeiture, or any violation or evasion of this act, or any part 
 thereof, may be pleaded in bar to any suit brought by them, and, 
 if denied, the trial of the question of such forfeiture, violation, or 
 evasion shall be adjourned, under the direction of the court, and 
 change of venue awarded, upon the application of the defendant, to 
 some county in which such corporation is not situate." 
 
 OPINION. 
 
 The first question is, whether the above-recited provision of the 
 Constitution of Missouri empowers the Governor to waive a for 
 feiture of its charter, which has been incurred by a corporation 
 created by the Legislature by breach of either an express or im 
 plied condition of the legislative grant ; and if this general question 
 can be answered in the affirmative, the inquiry remains whether the 
 forfeiture can be waived by the Governor in this particular case. 
 
 I think the words of the Constitution were designed to describe 
 fully the power to remit penalties which might be incurred by the 
 breach of penal laws, but were not intended to authorize the Gov 
 ernor to affect the title of the State to civil remedies for enforcing 
 its title to money or property, or rights corporeal or incorporeal. 
 
 Thus, if a grant of land should be made on a condition for breach 
 of which the title granted was to be forfeited, this would not, in 
 my judgment, be such a forfeiture as was contemplated by the 
 Constitution. So if an incorporeal right, as to take tolls or the like, 
 were granted on a condition, I do not think the Governor could 
 waive a breach of the condition. 
 
 The determination of a title by breach of a condition, reserved 
 in the grant, though often called a forfeiture, and in many cases 
 treated as such by courts of equity, under their jurisdiction to 
 relieve against penalties and forfeitures, is clearly distinguishable 
 from that class of naked forfeitures which are enacted merely as 
 punishments. 
 
 The former are created by virtue of the disposing power of the 
 
I860.] OPINIONS GIVEN AT THE BAK. 279 
 
 grantor, and are a species of control over the title which he reserves 
 to himself when he makes the grant, and, being assented to by the 
 grantee through the acceptance of the grant, they are the result of 
 a compact between the parties ; while the latter are created by 
 the legislative will, qualify no grant, afford no remedy for the 
 breach of any compact, but are naked penalties for the punishment 
 of offences against the public. 
 
 The breach by a corporation of a condition expressed in its char 
 ter, or implied by law from its provisions and acceptance, whereby 
 the charter is forfeited, and the title to its incorporeal rights is 
 either ipso facto terminated, or rendered liable to be seized to the 
 use of the State by proper legal proceedings, seems to me to come 
 clearly within the first-mentioned class of forfeitures. 
 
 Such conditions are qualifications or restrictions upon the title 
 to the things granted, reserved by the grantor in pursuance of his 
 right of disposal, assented to by the grantee, and so resulting from 
 a compact, and capable of being enforced by the grantor, by civil 
 remedies appropriate to the nature of the things granted. 
 
 It has been repeatedly held, in the State of Missouri, that a writ 
 of quo warranto is within the meaning of the Constitution of that 
 State, and that an information in the nature of a quo warranto 
 comes within the same class of proceedings. (3 Mo. 278 ; 4 Ib. 
 302; 8 Ib. 330.) 
 
 And though there has been some diversity of decision upon the 
 point, it seems to me this decision is clearly correct. At all events, 
 I suppose the law of that State is so settled. 
 
 In The People v. Phoenix Bank, 24 Wend. 431, it was held by 
 the Supreme Court of New York, that, when a corporation was 
 created by the Legislature, a forfeiture could not be pardoned by 
 the Governor, but only by the power which made the original 
 grant. And it is said, and I think correctly, that though the king 
 can pardon a forfeiture of a charter which he has created, he has 
 no such power in reference to corporations created by act of 
 Parliament. 
 
 But if I were of opinion that, in general, the Governor of Mis 
 souri could waive a forfeiture of a charter granted by the Legisla 
 ture, so as to bar the State of its remedy by an information in the 
 nature of a quo warranto, I should still think it could not be: 
 effectually done in this particular case. 
 
 There seems to be a settled and a reasonable distinction between 
 
280 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1860. 
 
 cases in which the breach of a condition enabled the grantor to re 
 vest the title in himself by proper proceedings, and cases in which 
 the breach of a condition ipso facto determines the title. To the 
 latter class of cases the doctrine of waiver of the breach does not 
 apply. People v. Manhattan Company, 9 Wend. 351 ; State v. 
 Fourth Turnpike, 15 N. H. Rep. 162. 
 
 In general, the breach of a condition of its charter only subjects 
 the corporation to proceedings by the State to have the forfeiture 
 declared and the franchises seized to the use of the State, and can 
 not be taken advantage of collaterally, nor by private persons. 
 But this law expressly provides that any private person sued by 
 the corporation may plead " the fact of forfeiture," and the venue is 
 to be changed to obtain a proper jury to try the issue. 
 
 By "the fact of forfeiture " cannot be meant a judgment in quo 
 warranto, for a plea of such a judgment would not be triable by a 
 jury. Besides, after such a judgment, the corporation can prosecute 
 no suit; and the provision that a private person sued might plead 
 such a judgment, would be merely superfluous. And, unless the 
 forfeiture so pleaded results from, and is perfect by reason of, the 
 breach of the law, so that ipso facto the charter is forfeited, it 
 is difficult to see how " the fact of forfeiture " can be pleaded at 
 all. Otherwise, it would not be " the fact of forfeiture," but merely 
 a liability to forfeiture on a judicial finding of the breach of con 
 dition, to be followed by a judgment, and execution seizing the 
 franchises, which would be capable of being pleaded. 
 
 I think, therefore, there is strong reason to believe that the in 
 tention of the Legislature to have the act in question, when done 
 by a corporation, operate ipso facto as a forfeiture, does sufficiently 
 appear ; and in such a case the forfeiture could not be waived so 
 as to restore the existence of the corporation. 
 
 But, aside from this, the act gives to every private person an 
 absolute right to plead the fact of forfeiture as a full defence to 
 any suit brought by the corporation. 
 
 That such a private right cannot be affected by the pardoning 
 power, is an ancient and established doctrine of the common law. 
 3 Inst. 236 ; Bac. Abr. Pardon, B. Chief Justice Marshall said, 
 concerning this power : "As the power has been exercised from 
 time immemorial, by the executive of that nation whose language is 
 our language, and to whose judicial institutions ours bear a close 
 resemblance, we adopt their principles respecting the operation 
 
I860.] OPINIONS GIVEN AT THE BAR. 281 
 
 and effect of a pardon ; and look into their books for the rules pre 
 scribing the manner in which it is to be used by the person who 
 would avail himself of it." l 
 
 Though the language of the Constitution of Missouri, quoted in 
 the case stated, is comprehensive, it certainly does not confer on 
 the Governor more extensive powers than belong to the Crown in 
 England. Lord Coke says (3 Inst. 233) : " A pardon is a work of 
 mercy, whereby the king, either before attainder, sentence, or 
 conviction, or after, forgiveth any crime, offence, punishment, exe 
 cution, right, title, debt, or duty, temporal or ecclesiastical." And 
 as it has been settled there, for many centuries, that this pardoning 
 power can affect no private right, so I think the power conferred 
 on the Governor of Missouri cannot take away the right to this 
 plea of forfeiture conferred by law upon all those sued by the 
 corporation. 
 
 B. R. CURTIS. 
 August, 1860. 
 
 The following opinion relates to the question of a remedy 
 for a branch of the Cayuga tribe of Indians, seated in 
 Canada, to enforce their claims to an annuity pledged to 
 their tribe by the State of New York. 
 
 OPINION. 
 
 1st. Can any proceedings be taken before the Supreme Court of 
 the United States, for the recovery of the arrears of the annuity, 
 and for securing its continuance as a matter of right ? 
 
 The second section of the third article of the Constitution of the 
 United States grants to the Supreme Court original jurisdiction 
 over controversies between a State and foreign states, citizens or 
 subjects. 
 
 By an amendment, jurisdiction over controversies between a 
 State and citizens or subjects of a foreign state, was withdrawn 
 from the court. To sustain a suit against the State of New York 
 the matter in controversy must be of sucli a nature as to be a fit 
 subject of judicial cognizance and redress, and the party complain 
 ing must be a " foreign state " within the meaning of those words 
 in the Constitution. 
 
 Upon the first of these requirements no difficulty is perceived. 
 
 1 United States v. Wilson, 7 Peters, 150. 
 
282 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1SCJ. 
 
 To enforce the performance of a contract to pay an annuity, 
 whether perpetual or for a term of years, or of uncertain duration 
 depending on contingent events, and to apportion its payment 
 among those justly entitled thereto, are strictly subjects of judicial 
 cognizance, and the judicial power is sufficient to afford the needful 
 redress. 
 
 In respect to the other requirement, that a foreign state should 
 be the party complainant, more difficulty is felt. 
 
 In the case of The Cherokee Nation against the State of Geor 
 gia, reported in the fifth volume of Mr. Peters s Reports, the ques 
 tion was directly presented to the Supreme Court, whether the 
 Cherokee nation could sue as a foreign state ; and it was decided 
 they could not. 
 
 A majority of the judges held that the Cherokee nation were 
 a distinct political society, capable of managing their own affairs, 
 including some of those which appertain to its own government, and 
 so might be deemed to be in some sense a state ; though this was 
 denied by Justices Johnson and Baldwin. But five out of seven of 
 the judges decided that the Cherokee nation, being seated within 
 the territorial limits of the United States, and in a dependent con 
 dition, could not be deemed a foreign state. 
 
 Since that decision, no question directly affecting the present 
 inquiry has arisen in the Supreme Court. 
 
 After an attentive consideration of the history and present con 
 dition of that part of the Cayuga tribe or nation of Indians now 
 seated in Canada, so far as their history and condition have been laid 
 before me, or are within my own investigations, I am of opinion 
 they are not competent to sue, in the name of their tribe or nation, 
 as a foreign state, in the Supreme Court of the United States. 
 
 Assuming, what is settled in the case of the Cherokee nation, that 
 the words " foreign state," in this clause of the Constitution, were not 
 intended to include any Indian nation within the territorial limits of 
 the United States, I think there are strong reasons to conclude, that 
 the same words were not designed to include Indian nations or tribes 
 residing within the dominions of the sovereign of Great Britain, in a 
 condition which resembles a state of pupilage, and dependent on the 
 will of that sovereign for such powers and privileges as they may 
 be permitted and enabled to enjoy; among which powers, I sup 
 pose it must be conceded, is not included the rightful authority to 
 act as a foreign state by entering into negotiations with the United 
 
I860.] OPINIONS GIVEN AT THE BAR. 283 
 
 States, forming alliances or treaties with them, holding themselves 
 responsible for wrongs done to the government or citizens of the 
 United States, claiming redress for invasions of their territory, or 
 other infractions of their rights by the United States, or by those 
 for whose conduct the government of the Union is responsible to 
 foreign nations. 
 
 In all things which appertain to accountability for wrongs done 
 to the United States and redress of grievances suffered from the 
 United States, or its citizens, I suppose it to be clear that all the 
 Indian tribes in North America, out of the limits of the United 
 States, are subject to the will of the government of Great Britain, 
 which, under all circumstances, would act for them, as for any other 
 community within the empire, according to the dictates of its own 
 policy. And, as it would not be admissible for the political power 
 of the United States to treat an Indian tribe seated in Canada as 
 a foreign nation, so neither can the judicial power treat them as a 
 foreign nation, and allow them to sue, in that capacity, in the courts 
 of the Union. 
 
 But if this were not universally true, there would be great dif 
 ficulties in the way of an admission that the part of the Cayuga 
 tribe or nation of Indians now seated in Canada are to be deemed 
 a foreign nation, capable of suing in that capacity in the Supreme 
 Court. Without going into details, it may be mentioned that 
 neither the United States nor the government of Great Britain 
 have ever treated this band as a separate and independent nation 
 for any purpose. 
 
 2d. But the question still remains, whether a suit may not be 
 brought in the Supreme Court of the United States in the name 
 of her Majesty the Queen of Great Britain, etc., in behalf of the 
 Cayugas, to enforce their claim. 
 
 Upon a question some of the elements of which are of novel 
 impression, it would not become me to express a confident opinion. 
 But after an attentive consideration I think such a suit may be 
 maintained. 
 
 The right to receive an annual payment, in consideration for a 
 transfer of their lands, belongs to a tribe or nation of Indians, who 
 occupy a portion of her Majesty s territory, and who, while they 
 are, for some purposes, a separate political community, are also in 
 a state of pupilage, resembling the relation of a ward to a guardian. 
 Their rights and claims are under the care and protection of the 
 
284 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1860. 
 
 Crown, upon principles, and by reason of causes, which have been 
 long in operation in the United States, and which must be felt and 
 acknowledged here. And if the sovereign should think fit to act 
 as their trustee, in enforcing a claim of this nature in a court of 
 justice, I believe the right to do so would be acknowledged. 
 
 In case such a course should be deemed suitable and proper, it 
 would be important for the Cayugas, acting through their recog 
 nized and competent authorities, to prefer a petition to the Crown 
 to take cognizance of their claims, and act in their behalf in refer 
 ence thereto ; and to this end, that a formal transfer should be made 
 to the Crown of the agreements between the State of New York 
 and the Cayuga nation upon which the present claims depend. 
 
 What is said above answers the second question proposed. 
 
 3d. In answer to the third question I have only to say, respecting 
 the merits of the claim, that I concur in opinion with the Secretary 
 of State and other officers of the State of New York, composing 
 the board to whom the petition of the Indians was referred by the 
 Legislature of that State in the year 1849, whose report is among 
 the papers submitted to me. I believe their conclusions and the 
 reasons on which they rested are sound and just. 
 
 I should hope that a renewed presentation of this claim to the 
 Legislature of New York would be successful. If not, I. know of 
 no remedy other than the one I have indicated. 
 
 B. R. CURTIS. 
 
 April, 1860. 
 
 SCRIP OF A MUNICIPAL CORPORATION PAYABLE TO 
 THE HOLDER. 
 
 OPINION. 
 
 A certificate of the loan made on the credit of the city of 
 Augusta in the State of Maine, under the authority of an act of 
 the Legislature of that State, entitled, " An Act to authorize certain 
 cities and towns to grant aid in the construction and completion of 
 the Kennebec and Portland Railroad," together with the coupons 
 for interest thereon, has been shown to me, and my opinion has 
 been requested upon the question, whether the bona fide purchaser 
 of one of those coupons can maintain an action in his own name 
 thereon, at the common law, independent of any statute remedy. 
 
 I am of opinion that such action may be maintained, and I will 
 
I860.] OPINIONS GIVEN AT THE BAB. 285 
 
 state succinctly the reasons for that opinion. The certificate con 
 tains a promise, for value received,, to pay one thousand dollars to 
 its holder, in twenty years from its date, and also to pay the semi 
 annual coupons thereunto attached, as the same shall severally 
 become due. 
 
 It is not under seal. There can be no doubt that this scrip is, 
 in legal effect, a negotiable promissory note, payable to its holder 
 or its bearer, which, in this connection, are synonymous terms. 
 
 The distinction between this scrip and an ordinary promissory 
 note is, that, instead of promising to pay the principal sum, and the 
 interest thereon to the holder of the paper without more, it promises 
 to pay the principal sum to the holder, and makes a distinct promise, 
 though not expressed to be to the holder of the scrip or to the 
 holder of the coupons, to pay the semi-annual coupons thereunto 
 attached, which coupons are, severally and upon the face of each, 
 promises to pay the semi-annual interest. 
 
 What then is the legal effect of such a coupon as this, attached 
 to what is undoubtedly negotiable paper, promising to pay the 
 semi-annual interest upon the principal sum ? 
 
 If the promise contained in each coupon had been expressly 
 made to its holder, it would admit of no doubt that each coupon 
 was, in legal effect, a negotiable promissory note, payable on its 
 presentation by its lawful holder, though separated from the bond 
 not only physically, but in actual ownership. 
 
 Such was the decision of the Supreme Court of the United 
 States in the two cases of the Board of Commissioners of Knox 
 County v. Aspinwall, and Same v. Wallace, reported in 21 Howard, 
 539, 546. The statement of these cases and of the points argued 
 by counsel, is so imperfect, that I have obtained from one of the 
 judges his printed copy of the record and briefs. From these it 
 appears that the form of each coupon declared on was as fol 
 lows : 
 
 " Ohio and Mississippi Railroad Subscription, County of Knox, Indiana, 
 will pay the bearer sixty dollars at North Kiver Bank in the city of New 
 York, on the first day of March, 1857, being annual interest on Bond 
 No. 59. 
 
 A. V. SMITH, Auditor." 
 
 The declaration was on the promises contained in the coupons, 
 and did not aver that the plaintiff ever owned the bonds, and at the 
 trial it was admitted he never did own them. 
 
286 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [I860. 
 
 Among the points taken by the counsel for Knox County were 
 these : that no action lies on the coupons ; that the declaration did 
 not state facts sufficient to authorize an action of assumpsit ; and 
 that the plaintiff, not having produced the bonds at the trial, could 
 not recover. 
 
 The court held, in both cases, that an action of assumpsit by the 
 holder and owner of the coupons was maintainable. 
 
 These cases are not distinguishable from the one I am consider 
 ing, save by the fact that each of those coupons was expressed on 
 its face to be payable to its bearer. 
 
 The question is, whether each of the coupons now before me, 
 when rightly interpreted and understood, does not, in legal effect, 
 contain a promise to pay to its bearer. 
 
 Its language is, The city of Augusta will pay. This is an ex 
 press promise. And it is not perceived how any just effect can be 
 allowed to these words, without holding that they were intended 
 to create an obligation legally binding on the promisor. 
 
 The question is, to whom it appears, by legal and competent 
 evidence, it was agreed this stipulated sum should be paid. I say 
 by legal and competent evidence ; for, certainly, the action being 
 founded on an instrument alleged to be negotiable, we must find 
 enough in that instrument, when rightly interpreted, and when its 
 just legal effect is given to it, to support its negotiability. 
 
 But it by no means follows that we are to look only at what is 
 written on each coupon, to ascertain its just legal effect. 
 
 One great rule for the interpretation of all written contracts is, 
 that the judge who is called upon to interpret them has a right to 
 know, and if possible should know, all that the parties knew re 
 specting the subject-matter of their contract. And another equally 
 well-settled rule is, that, when a contract makes express reference 
 to some other writing, the writing thus referred to should be seen, 
 arid its bearings on the contract considered, in conformity with the 
 reference made to it. 
 
 Now each of these coupons is entitled u City of Augusta Loan," 
 and contains the words and figures on the margin, "(Bond 
 No. 107)," or some other number of reference to a particular bond. 
 And no lawyer will doubt that it is admissible to show that, when 
 issued, they were attached to another instrument thus referred to, 
 and that the meaning of the parties to the contract in the coupon 
 is to be gathered, not solely from what is said therein, but from 
 
I860.] OPINIONS GIVEN AT THE BAR. 287 
 
 that in connection with the other paper thus expressly referred to, 
 and the circumstances which made part of the original transaction. 
 Taking all these into view, the question is, whether it does not 
 sufficiently appear to have been the intention of the promisors to 
 create obligations distinct from the scrip, to which they were 
 attached, and paj V)le to any lawful holder who should present 
 them for payment. 
 
 The first material circumstance to be noticed, and in my judg 
 ment it is most material, is, that these are obligations of a municipal 
 corporation, whose power to contract in this behalf is derived 
 solely from a special act of the Legislature ; and that this act not 
 only authorized, but required, the city to make separate contracts 
 for the principal and interest. The third section of the act re 
 quired the treasurers of the city to make and issue the scrip of 
 such city "for the amount granted by such city, in convenient and 
 suitable sums, payable to the holder thereof on a term of time, not 
 less than twenty nor more than thirty years, with coupons for 
 interest attached, payable annually or semi-annually" 
 
 Here is an explicit direction to make the scrip for the principal 
 sum ; and as to the payments of interest, they were to be secured 
 by coupons attached to the scrip, payable annually or semi- 
 annually. 
 
 It is plain, therefore, that it was the intention of the Legislature 
 that the city should so contract, that the holder of scrip and 
 coupons attached should not be in precisely the same condition as 
 the holder of a promissory note, payable to bearer, on time, with in 
 terest annually or semi-annually. In such a case there is but one 
 promise, to pay the principal and the interest ; and the interest is 
 an incident inseparable from the principal ; it can be demanded only 
 by the lawful holder of the note, by virtue of the single promise con 
 tained in it. The special and particular requirements, industriously 
 introduced by the Legislature, that the scrip shall be for the prin 
 cipal sum, and that the obligation to make each payment of interest 
 shall be contained in a separate paper, originally attached to the 
 scrip, but, as its name imports, severable therefrom, satisfy my 
 mind that it was not intended that the obligations to pay interest 
 should be inseparable from the obligation to pay the principal ; but 
 that they should be distinct and separate promises, severable there 
 from. 
 
 When a corporation is empowered by the Legislature to do a 
 
288 MEMOIR OF BENJAMIN BOBBINS CURTIS. [I860. 
 
 particular act in a particular manner and form, it is incumbent on 
 the corporation to observe that manner and form (Head v. Provi 
 dence Insurance Co., 2 Cranch, 127) ; and when it has undertaken to 
 do the act, and there is nothing to show decisively that the corpo 
 ration intended to deviate from the authority granted, it is to be 
 presumed that the corporation intended to act in accordance with 
 its legal duty, and obey the requirement of the Legislature. And 
 in this case, unless there is something which decisively proves 
 the contrary, it should be presumed that the intention of the city 
 of Augusta was to make a promise to pay each instalment of in 
 terest, distinct from its promise to pay the principal, and capable 
 of being severed therefrom, and enforced by the lawful owner of 
 such distinct promise. 
 
 Before considering whether this contrary intent does appear, it 
 will be well to have distinctly in view what they who assert it 
 must maintain. They must maintain that it was the intention of 
 the city to enter into no separate obligation to the holder of a 
 coupon ; that, lawfully to demand the interest, he must be the 
 holder of the bond, and ought to produce it, to show that he is its 
 lawful bearer ; and that the city is in the same condition as it 
 would have been in if it had promised, in the ordinary way, to pay 
 to the bearer of the bond the principal sum, with interest semi- 
 annually. 
 
 But this is inconsistent, not only with the separable character of 
 the coupons, but with their express terms ; for each does contain a 
 separate promise to pay, and that not upon presentation of the bond, 
 but of the coupon. 
 
 Now, if each coupon is in legal effect payable to bearer, the 
 production of the coupon alone, and payment thereof in good ffdth 
 by the city, is a legal discharge ; though the bearer should, in point 
 of fact, not be the lawful holder of the coupon. (Byles on Bills, 
 173, 174.) 
 
 But if only the holder of the bond can legally demand payment 
 of the coupon, payment of the coupon without the production of 
 the bond would be made at the risk of the city. The intention of 
 the city to obtain a full and lawful discharge by each payment 
 cannot be doubted. How came the city to agree to pay without 
 the production of the bond, and upon the presentation of the 
 coupon alone, unless the title to the coupon, evidenced by its pro 
 duction, was to be a title to receive its contents ? 
 
1860] OPINIONS GIVEN AT THE BAR. 289 
 
 And how can possession of the coupon be a title to receive pay 
 ment, or any evidence of such a title, if the real title rests in the 
 holder of the bond which is not produced ? 
 
 It may be urged that these coupons are not payable to bearer or 
 holder. They are not, in terms ; but the question is, if they are not 
 so by legal intendment upon all the facts. 
 
 A note payable to is a valid negotiable note, and authorizes 
 
 any holder to insert his own name. Crutchley v. Clarence, 2 M. 
 & S. 90; White v. W. $ Mass. It. R., 21 How. 575. 
 
 The law intends that a valid contract was meant to be made 
 by the express promise to pay, and that justice requires that no 
 unfair and deceptive intention should be attributed to the prom 
 isor. It therefore attributes to him an intention to pay any lawful 
 holder. 
 
 In Gibson v. Minet, 1 H. Bl. 569, a majority of the judges held 
 that a bill not made payable to any payee, or to the drawer s order, 
 or to bearer, was in legal effect payable to bearer. 
 
 I should not be willing to say that, in my opinion, there is any 
 universal rule of law to this effect. In my judgment, whether 
 such a promise is payable to any one who becomes its holder in 
 good faith, or is no promise at all, must depend upon the surround 
 ing circumstances under which it \vas issued and received. Where 
 
 G 
 
 those circumstances evince an intent to have the paper operate as 
 a binding negotiable promise, I think the law allows it so to 
 operate. There is no technical difficulty in the way. 
 
 Take the case of a guaranty, not addressed to any particular 
 person. As Chief Justice Marshall has said, it is a promise to all 
 the world. Lawrence v. Mason, 3 Cranch, 493. And a succes 
 sion of persons may act on it, and it enures to the benefit of each. 
 Union Bank v. Coster s Ex Vs, 1 Sand. S. C. R. 563 ; S. C. in error, 
 3 Comst. 214; Lonsdale v. La Fayette Bank, 18 Ohio, 126. 
 
 So a promise to accept bills enures to the benefit of any one 
 who takes any of them on the faith of the promise ; and though he 
 cannot treat it as an acceptance, he may sue on the promise to 
 accept in his own name. Boyce v. Edwards, 4 Pet. Ill ; Russell 
 v. Wiggin, 2 Story, 113. 
 
 The same law has been applied to an offer of a reward for the 
 detection of an offender, the recovery of property, the restoration 
 of a lost child, arid the like. Loring v. Boston, 7 Met. 411 ; Tal- 
 lich v. Barber, 1 M. & S. 108. 
 
 VOL. I. 19 
 
290 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1860. 
 
 In these and many similar cases, where an assurance is held out 
 to all the world, it operates as an original promise to every one 
 who acts on such assurance, precisely as a promise to pay to bearer 
 does. Such a promise is not merely one promise to the original 
 taker which he sells to a subsequent bearer; it is an original and 
 independent promise to every lawful bearer. Bulland v. Bell, 
 1 Mason, 251 ; Bank of Kentucky v. Wistar, 2 Pet. 318; Smith v. 
 Clapp, 15 Pet. 125 ; Gorgier v. Melville, 3 B. & C. 45. 
 
 When, therefore, it appears, as in this instance I think it does 
 appear, that the intention of the promisor was to make promises 
 to pay interest on a sum secured by a negotiable instrument, and 
 to make each of these promises to pay interest by a distinct writ 
 ing called a coupon, for the purpose of having it severable from 
 the promise to pay the principal ; and when his promise is to pay 
 upon the presentation, not of the principal instrument, but of the 
 coupon alone, in my judgment such general assurance operates as a 
 promise to pay to any one who may lawfully present the coupon 
 for payment; and a requirement that not only the coupon, but the 
 bond also, should be presented, would materially change the legal 
 effect of the promise, and would not be sanctioned by law. Scott 
 County v. Aspinwall^\ How. 539. 
 
 And the supposition that it was the intention of the city to pay 
 on the presentation by the holder of a coupon on the holding of 
 which the title to payment did not depend, and on the production 
 of the bond on the holding of which the title to payment did 
 depend, is so preposterous that I cannot entertain it. 
 
 In my opinion, a written promise to pay a sum certain, at a time 
 certain, on presentation of the writing at a place certain, is a prom 
 ise to pay to the person who shall then and there present the 
 written promise for payment; it cannot be distinguished from, and 
 is the same in legal effect as, a promise to pay to the holder or 
 bearer of the writing. 
 
 We are required so to construe the promise by the manifest 
 leading intentions of the parties. 
 
 First, because, having adopted this peculiar and separate form 
 of contract to pay interest, it is not to be supposed they intended 
 that the parties should be in precisely the same condition as they 
 would have been in if it had riot been adopted. 
 
 Secondly, because it is most beneficial to the holder of the scrip / 
 and riot in the slightest degree more burdensome or hazardous to 
 
I860.] OPINIONS GIVEN AT THE BAB. 291 
 
 the promisor, to have the coupons severable from the scrip, and 
 negotiable, as the scrip is, by delivery. 
 
 Thirdly, because, as the promise is to pay on presentation of the 
 coupon, and the city has no right to require the scrip to be pro 
 duced, (see Scott County v. Aspinwall, 21 How. 539.) it is essen 
 tial to the security of the city that the coupons should be held to 
 be payable to bearer. 
 
 Fourthly, because, in legal effect, a general promise in writing 
 to pay a sum certain, on the presentation of the writing at a place 
 certain, is a promise to pay to him who shall present the writing; 
 that is, to its holder, or bearer. 
 
 There is another view of this matter to which I attach impor 
 tance. 
 
 I understand it to be capable of proof by abundant evidence, 
 that, at the time the act of the Legislature respecting these bonds 
 was passed, and at the time they were issued, it was a general 
 usage of the commercial world, both in this country and in England, 
 to treat such coupons as negotiable ; that they were passed from 
 hand to hand, as if payable to bearer, and were presented by and 
 paid to the holder, without further inquiry as to his title after the 
 production of the coupon. 
 
 Now I agree at once, that such a usage cannot, per se, make a 
 contract negotiable which by law is not negotiable, and that the 
 evidence of such a usage is not admissible for any such purpose. 
 But it seems to me equally plain, that when the law has made nego 
 tiable a written promise to pay a sum certain on a day certain to 
 the holder or bearer of the promise, and the question arises whether 
 a writing contains a promise to pay to its holder or bearer, and the 
 terms of the writing will not be contradicted by so interpreting it, 
 it is admissible to show a general usage of commerce so to inter 
 pret and act upon all similar writings. In other words, that the 
 parties will be held to have contracted in reference to such a 
 usage, and with the understanding that the contract in question will 
 be interpreted and acted on in accordance with the usage. And if 
 the usage was to treat such contracts as intended to be payable to 
 bearer, and their terms are not contradicted by so treating them, the 
 legitimate conclusion is, that they were designed to be, and in legal 
 effect are, payable to bearer. 
 
 Numerous cases might be cited in support of this position, but 
 it is enough to refer to Williams v. Oilman, 3 Me. R. 276 ; 
 
292 MEMOIR OF BENJAMIN BOBBINS CURTIS. [I860. 
 
 Em mom v. Lord, 18 Me. R. 351 ; and Renner v. The Bank of 
 Columbia, 9 Wheat. 581, where Mr. Justice Thompson has care 
 fully examined the subject. 
 
 I have carefully examined two decisions of the Supreme Court 
 of Maine, made in Myers v. T. fy O. R. R., 43 Me. R. 232, and 
 Jackson v. Same, in manuscript. Each is clearly distinguishable 
 from the case under consideration. 
 
 In each of these cases the bonds maintained express promises 
 under seal to pay the interest, and in the first case there was suffi 
 cient reason to hold, and this seems the only point decided in that 
 case, that the papers declared on were improvidently issued, with 
 out consideration. In the last case it was held that, as there 
 was a covenant in the bond to pay the interest, assumpsit did not 
 lie on the coupon, and that there was not enough upon the face of 
 the coupon to show that it was the design of the corporation to 
 make a negotiable contract. 
 
 As it seems to me that, in the case now under consideration, 
 there is enough to show a design to enter into separate negotiable 
 contracts, to pay the interest, and as the bonds or scrip are not 
 under seal, I conceive that the decisions of the Supreme Court do 
 not apply to this case. It is observable, also, that this scrip con 
 tains no promise to pay the interest, and that the promise to pay 
 the coupons does not purport to be made to the holder of the scrip, 
 but is general, and not limited to any party. 
 
 In reference to cases like this, I am forcibly impressed with the 
 truth and importance of the language of Lord Cottenham, when, 
 speaking of a question of parties, he said he thought it the duty of 
 the court to adapt its practice and course of proceeding, as far as 
 possible, to the existing state of society, and to apply its jurisdic 
 tion to all those new cases which, from the progress daily making 
 in the affairs of men, must continually arise, and not, from too 
 strict an adherence to forms and rules established under very 
 different circumstances, decline to administer justice and to enforce 
 rights for which there is no other remedy. Taylor v. Salmon, 
 4 M. & Cr. 141. The progress made by the courts of common 
 law, particularly in this country, in adapting its rules to the actual 
 affairs of men, affords, in my opinion, the strongest argument in 
 favor of our unwritten system of law ; and this progress has been 
 made, not under a claim of right to alter the law, but by treating 
 ancient rules, established under very different circumstances, with 
 
186a OPINIONS GIVEN AT THE BAR. 293 
 
 the strictness which is appropriate to them, and by admitting excep 
 tions vvhich changes in the affairs of men have both assumed to exist 
 and have rendered necessary. On this subject, instructive lessons 
 may be learned from Beverly v. Lincoln, 6 Ad. & El. 829 ; Bank 
 of Columbia v. Patterson, 7 Cranch, 299 ; and upon this very mat 
 ter of the negotiability of instruments, from White v. Vt. fy Mass. 
 R. (7., 21 How. ^75. Vast amounts of money have been lent in 
 good failh upon securities like those now in question. A decision, 
 or a course of decision, which should subject such contracts to 
 narrow and technical views wholly in conflict with the understand 
 ing and practice of all concerned in them, would, in my opinion, be 
 inconsistent with the just rights and obligations of the parties, and 
 with a proper application of the law. My conviction is perfect, 
 that in the courts of the great commercial States, and in the Su 
 preme Court of the United States, they will not be so treated ; and 
 I should be greatly disappointed and surprised if they should be so 
 treated in the Supreme Court of the great commercial State of 
 Maine. Certainly the Legislature of that State, which is the ex 
 positor of its public policy, has shown any thing but such a disposi 
 tion. By the act of April 4, 1857, apparently assuming that such 
 coupons are transferable, and so may previously have been trans-* 
 ferred apart from the bonds to which they were attached, it is 
 enacted, that assumpsit may be maintained thereon by the holder 
 for value ; thus giving a remedy which, aside from the act, could not 
 be had at the common law, where there was a promise under seal. 
 
 This is an important question, and I have given it the fullest 
 consideration. The best opinion I can form is, that the bearer of 
 each coupon has the right to present it and demand- its contents; 
 that the city has promised on each coupon that its contents shall 
 be paid to him who lawfully presents it for payment ; that this is, 
 in legal effect, a promise which enures to each bearer of a cou 
 pon ; and that, if not paid, he has a right of action to recover its 
 amount. 
 
 May 11, 1860. 
 
 CONSTITUTIONAL LAW. FOREIGN INSURANCE COMPANIES. 
 
 CASE. 
 
 The laws of New York, Massachusetts, and several other States 
 require from the agencies of insurance companies incorporated by 
 
294 MEMOIR OF BENJAMIN BOBBINS CURTIS. [186a 
 
 or organized in foreign countries, a deposit of securities, varying in 
 amount from $20,000 to $200,000, to be placed with their comp 
 trollers or other State officers, as a condition precedent for engaging 
 in the business of insurance. 
 
 They also impose discriminating taxes upon the premiums or 
 business of such agencies, varying in amount, but in excess of the 
 taxes imposed upon domestic companies or associations engaged in 
 the same business. 
 
 The question for consideration is, whether, such enactments can 
 be constitutionally made with respect to the association or partner 
 ship known as " The Liverpool and London and Globe Company," 
 whose legal status is defined in the accompanying paper, prepared 
 for and submitted to the trustees of that association. 
 
 OPINION. 
 
 The Constitution of the United States (Art. 4, sect. 2) secures 
 to the citizens of each State " all privileges and immunities of 
 citizens in the several States." There can be no doubt that among 
 these privileges and immunities is included an exemption from 
 impositions either of taxes or other burdens greater than are im 
 posed by State laws on their own citizens, under the same circum 
 stances. (See Corfield v. Coryell, 4 Wash. C. C. R. 371 ; Story 
 on the Constitution, sect. 1805, 1806; 2 Kent s Com. 71 marg. 
 page ; Scott v. Sundford, 19 How. 583, 584.) 
 
 This article, however, has no reference to corporations ; and any 
 State may exclude foreign corporations from transacting business 
 within its territory, and consequently may prescribe the conditions 
 upon which they may be permitted to do so. 
 
 But the association now in question is not a corporation. No 
 political person has been created by the law of England. The 
 cdmpany consists of natural persons, associated together by con 
 tract for the purpose of conducting the business of insurance for 
 their joint profit, and cannot be distinguished from other commer 
 cial partnerships. The facts, that the business of the association is 
 managed by trustees, who are the active partners, and that one of 
 the countries where their business is conducted has a municipal law 
 dispensing with the necessity of joining all the partners in suits by 
 and against the association, cannot change its legal character. It is 
 still a partnership, and, as in other partnerships, each person who 
 
1865.] OPINIONS GIVEN AT THE BAR. 295 
 
 participates in the profits is liable to third persons, and the members 
 are liable inter sese, according to the stipulations of their articles 
 of association. 
 
 The true inquiry, therefore, is whether the State of Massa 
 chusetts (for instance) can impose on a partnership, consisting 
 partly of citizens of New York and partly of British subjects, any 
 tax or burden greater than is imposed on its own citizens, trans 
 acting the same business within the State. 
 
 If the partnership consisted wholly of citizens of some other 
 State than Massachusetts, the right of exemption from such 
 greater tax or burden, under the fourth article of the Constitution, 
 would be clear and indisputable ; and, in my judgment, the fact 
 that aliens are associated with citizens does not constitute a ma 
 terial difference ; not only because, from the necessity of the case, 
 it is impracticable to impose the greater burden on the alien 
 without imposing it on the citizen, which is forbidden ; but be 
 cause the privilege of associating themselves with alien friends 
 as partners, and of reaping all the benefits of such association, 
 is one which is enjoyed by citizens of Massachusetts without 
 restriction, and consequently no burden or restriction can be 
 imposed upon citizens of New York, who desire to form such 
 associations and transact business within the State of Massachu 
 setts. 
 
 Though my opinion has not been specially requested upon the 
 true construction of the law of Massachusetts, on the subject of 
 taxing foreign insurance companies, yet I think I ought to say that 
 it seems to m,e doubtful whether those laws are applicable to any 
 but incorporated companies. But if ch. 58, sect. 78, of the General 
 Statutes of Massachusetts should be construed to include unin 
 corporated companies, then there is not in fact any discrimination 
 between unincorporated companies consisting of citizens of Massa 
 chusetts, and those consisting of citizens of other States. Whether, 
 under the Constitution of the State, the Legislature can impose a 
 tax on its own citizens and others who carry on the business of 
 insurance as individuals, is extremely doubtful, to say the least. It 
 is deemed here to be " a fundamental maxim of our social system, 
 that all burdens and taxes laid on the people for the public good 
 shall be equal" (per Shaw, C. J., 16 Pick. 509,) and I do not think 
 it can be successfully maintained that a special tax on one kind of 
 business only is equal. Speaking of the State of Massachusetts, 
 
296 MEMOIR OF BENJAMIN ROBBINS CUKTIS. [1865. 
 
 I should expect it to be held, either that the differential tax 
 applies only to corporations, or that it is not warranted by the 
 Constitution. 
 
 Of course I do not express my opinion upon the meaning of the 
 laws of any other State, for I have not examined them ; but my 
 opinion is, that a law of any State which requires this company to 
 pay a greater tax, or to bear a greater burden of any kind, than 
 the laws of such State impose on its own citizens, who may choose 
 to engage as natural persons in the business of insurance, is in con 
 flict with the Constitution of the United States, and therefore is 
 inoperative. 
 
 The question whether the treaties between the United States 
 and Great Britain prevent the States from imposing on the busi 
 ness of this association a tax or burden not imposed on the citi 
 zens of such States who conduct the like business, is attended, 
 I think, with some difficulty ; but I am inclined to the opinion that 
 such tax or burden cannot be imposed. 
 
 If the association consisted exclusively of British subjects, it 
 seems to me no State could prohibit them from carrying on " trade 
 or commerce" within its limits; and if so, no State can, in my 
 judgment, impose differential taxes upon them by reason of their 
 trade or commerce. The power to tax them qua foreigners is a 
 power to exclude them; and I do not perceive that the objection 
 is diminished by the fact that the tax falls on some citizens, be 
 cause they are their associates in business. It is not the less a 
 discrimination against them, because the discrimination is also 
 against some citizens merely because associated with them. Such 
 discrimination tends directly, not only to exclude the foreigner 
 from the business, but to deprive him of the free liberty of con 
 ducting it in partnership with our citizens ; and if this business can 
 be deemed " trade " or " commerce " within the meaning of the 
 treaty of 1794, then, in my opinion, the States are precluded by 
 the treaty from levying a differential tax thereon. 
 
 My doubt is whether those words are broad enough to include 
 the business of fire and marine insurance. I am, however, strongly 
 inclined to the opinion that they are. They should receive a lib 
 eral interpretation in accordance with the liberal and humane spirit 
 of the treaty, and so as to produce that mutual satisfaction and good 
 understanding, and those reciprocal and equal benefits, which formed 
 its inducements and objects. 
 
1865.] OPINIONS GIVEN AT THE BAR. 297 
 
 It has been long settled that the general meaning of the word 
 commerce in our Constitution is intercourse ; and I perceive no 
 sound reason why the same word in this treaty should not include 
 that intercourse, the purpose of which is the formation of a class of 
 contracts known to the general commercial law of the world, and 
 which are of such vast importance to the trade and commerce of 
 all nations. 
 
 These contracts are among the most important instruments 
 through which commerce and trade are rendered practicable and 
 safe ; and it seems to me, one w.hose business it is to make them 
 may be said to be engaged in commerce, as this word was intended 
 to be used in the treaty of 1794 with Great Britain. 
 
 B. R. CURTIS. 
 
 January 5, 1865. 
 
 CONSTITUTIONAL LAW. FREEDOM OF TEADE. 
 
 CASE. 
 
 It has been the practice of wholesale merchants, both in this and 
 other countries, to employ persons to travel over the country and 
 solicit orders for merchandise. This practice has been extensive 
 and long continued. It has long been, and is, a recognized and im 
 portant means of carrying on wholesale business. It has nothing 
 whatever to do with retail trade, and is wholly distinct from the 
 trade of " hawkers and pedlers," who travel from place to place to 
 sell their wares at retail to consumers. The persons thus employed 
 are the representatives and agents of established wholesale mer 
 chants and manufacturers, whose places of business are fixed and 
 permanent, and in whose behalf orders are obtained, and on whose 
 responsibility they are executed. 
 
 A law has been enacted by the State of Maine, in the following 
 terms : 
 
 Sect. 1. No person, except as hereinafter provided, shall travel 
 from town to town, or place to place, in any town in this State, on 
 foot or by any kind of land or water, public or private conveyance 
 whatever, carrying for sale or offering for sale any goods, wares, 
 or merchandise whatever, whole or by samples, under a penalty of 
 not less than fifty nor more than two hundred dollars, and the for 
 feiture of all property thus unlawfully carried. 
 
298 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1865. 
 
 Sect. 2. The county commissioners in their counties may license, 
 for the purposes aforesaid, any person applying who proves to their 
 satisfaction that he sustains a good moral character, has been five 
 years a citizen of the United States, and has resided the year pre 
 ceding in some town in the county where the application is made ; 
 and such licenses shall expire in one year from their date ; shall not 
 be transferred or assigned without the consent of the board grant 
 ing the same ; and the applicants shall pay therefor to the county 
 they are to travel in : if on foot, or in any boat or other water craft, 
 ten dollars ; with a carriage drawn by one animal, fifteen dollars ; 
 and drawn by two animals, twenty dollars ; and shall present to 
 the commissioners, with their application, a certificate of good moral 
 character from the municipal officers of the town where they reside, 
 which shall be attached to their license. 
 
 Sect. 3. No person licensed as aforesaid shall sell, carry, or offer 
 for sale any property belonging to persons not five years residents 
 of this State, or any jewelry, playing cards, or other property 
 prohibited by law, under the penalty provided in Sect. 1. But 
 nothing in this chapter shall prevent any citizen of this State from 
 selling any fish, fruit, provisions, farming utensils, or other articles 
 lawfully raised or manufactured in this State. 
 
 Sect. 4. Every person shall exhibit his license at all times when 
 required by any justice of the peace, or any constable or other 
 peace officer ; and a refusal to do so shall be deemed evidence of 
 not having any ; and if afterwards prosecuted, the production of 
 his license at the trial shall not avail him in defence, but he shall 
 be dealt with as unlicensed ; and the carriages, goods, wares, and 
 merchandise of any person thus refusing may be seized by a war 
 rant from any justice of the peace, and detained until the payment 
 of any fine to which said person is liable. 
 
 Sect. 5. All penalties and forfeitures herein provided may be 
 recovered by indictment, or action of debt, one half to the use of 
 the town where the offence is committed, and the other to the use 
 of the person prosecuting therefor ; and any justice of the peace 
 may cause the arrest of the accused, on complaint, and seizure of 
 the property alleged to be forfeited, and detain the same until trial 
 in the proper court ; and in case of conviction, the property shall 
 be decreed forfeited to the uses aforesaid ; to be sold in like manner 
 as goods taken on execution. 
 
 Sect. 6. Every person licensed shall have painted on every car- 
 
1865.] OPINIONS GIVEN AT THE BAR. 299 
 
 riage employed by him, in letters at least one inch wide, his name, 
 and the words, " Licensed by C. C." 
 
 Your opinion is requested, whether this is a constitutional and 
 valid law, so far as it operates upon persons not citizens of Maine, 
 and upon their property. 
 
 OPINION. 
 
 So far as it respects the commerce or the persons of citizens of 
 other States, the substance of this law is: 1. That citizens of 
 other States are absolutely prohibited from going from place to 
 place within the State of Maine, and offering for sale, in whole or 
 by samples, any goods, wares, or merchandise whatever. 2. That 
 citizens of the State of Maine are prohibited from going from 
 place to place within that State, and offering for sale, in whole or 
 by samples, any goods, wares, or merchandise belonging to citizens 
 of other States. 3. That citizens of the State of Maine may sell 
 without restriction any articles lawfully raised or manufactured in 
 that State. 
 
 The Constitution of the United States empowered Congress " to 
 regulate commerce with foreign countries and among the several 
 States." 
 
 It is clear that a merchant who is a citizen of any State other 
 than Maine, and who has his domicile and his established house of 
 trade in the State of which he is a citizen, and who sends his agent 
 into the State of Maine to obtain orders for merchandise, which he 
 executes by sending the merchandise to the purchaser in Maine, is 
 thus engaged in commerce between his own State and the State of 
 Maine, within the meaning of the Constitution. It is equally clear 
 that the agent who goes into the State of Maine to obtain such 
 orders, is also engaged in such commerce. For it has been settled 
 by the Supreme Court of the United States, that one signification of 
 this word " commerce " in the Constitution is intercourse ; and that 
 the power to regulate it granted to the Congress extends to the 
 regulation of the persons by means of whom intercourse for the 
 purposes of traffic is carried on. Gibbons v. Oydeti, 9 Wheat. 1 ; 
 Cooley v. Board of Wardens, 12 How. 299. Nor can there be any 
 doubt that a law of Maine which prohibits merchants in other 
 States from using any accustomed and regular means to carry on 
 traffic, or intercourse for the purposes of traffic, between their own 
 States arid the State of Maine, is not only a law regulating com- 
 
300 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1865. 
 
 merce among the several States, but is a law which, so far as it 
 operates at all, operates to prohibit such commerce ; and the first 
 question which arises is. whether the State of Maine has power to 
 prohibit the use of one of the long established, regular, and impor 
 tant means of carrying on commerce between other States and 
 that State. Upon this question I do not entertain any doubt. 
 There has been some diversity of opinion in former times, among 
 the judges of the Supreme Court, upon the question whether Con 
 gress has the exclusive power to regulate commerce among the 
 several States and with foreign nations, or whether the several 
 States may legislate in some cases, upon this subject, in the absence 
 of Congressional legislation. But I am not aware that the exer 
 cise, by a State, of the power absolutely to prohibit the use of one 
 long established, regular, and important means of carrying on such 
 commerce, has even been supposed to be constitutional since the 
 decision of Gibbons v. Ogden, in 1824. 
 
 It must be borne in mind, that this is a question of the existence 
 of power, and not of the expediency of the particular use made of 
 it. It must be remembered, that it is not the purpose of this law 
 to regulate the conduct of foreign merchants or their agents, when 
 they come within the State of Maine for the purpose of using a 
 regular and accustomed means of lawful traffic between the States. 
 As respects foreign merchants and their agents, who come within 
 the State for the purpose of using this means of traffic, it is not a 
 law of regulation, but of prohibition. They are not permitted to 
 use this well-known, usual, and important means of traffic by com 
 plying with certain conditions and observing certain regulations. 
 They are absolutely prohibited from using this means. Now if the 
 power exist to prohibit one customary and important means of car- 
 rving on commerce between the States, where are the limits of 
 such power ? Why may it not be employed so as to greatly 
 embarrass and even to annihilate it? If a State may prohibit mer 
 chants of other States from sending their agents into the State to 
 go from place to place and obtain orders for goods by exhibiting 
 samples, what is to prevent the prohibition to send an agent at all 
 to obtain orders for goods? Or what the prohibition to come for 
 that purpose himself? Or the prohibition to solicit orders through 
 the mail, or even through advertisements in newspapers within the 
 State ? I can perceive nothing in the nature of the power, or the 
 subject upon which it is exercised, or the nature of the particular 
 
1805.] OPINIONS GIVEN AT THE BAR. 301 
 
 prohibition in question, which can distinguish it from either of the 
 other prohibitions mentioned, or from many others which might be 
 mentioned. Their exclusively internal commerce the several States 
 may regulate. They may pass laws to regulate travelling only 
 from town to town within the State. But they cannot prohibit 
 merchants in other States from carrying on commerce within their 
 several limits, or from using any of the known and established 
 means and instruments for that purpose. 
 
 But in my opinion this is not the only valid objection to this 
 law. The Constitution provides that " the citizens of each State 
 shall be entitled to all privileges and immunities of citizens in the 
 several States." The law of Maine, now in question, prohibits 
 citizens of other States from using this known, regular, and accus 
 tomed means of selling their own property within the State of 
 Maine, by employing even duly licensed agents within the State 
 for that purpose. It confines the privilege of using this means of 
 traffic to citizens of the State of Maine. A citizen of Maine may 
 employ a duly licensed person to travel from place to place, and 
 solicit orders to buy his merchandise by sample. A citizen of 
 Massachusetts is prohibited from exercising this privilege. If it 
 be among " the privileges " intended to be secured by the Constitu 
 tion, the law in question is inoperative and void as against citizens 
 of States other than Maine. And I have no doubt that the privi 
 lege of employing a duly licensed agent to solicit orders for goods 
 by sample is among the privileges secured by this clause of the 
 Constitution. 
 
 In one of the Articles of Confederation (Art. 4), there was this 
 clause: "The people of each State shall, in every other, enjoy all 
 the privileges of trade and commerce, subject to the same duties, 
 impositions, and restrictions as the inhabitants thereof respectively," 
 &c. As well because of the mention of " duties, impositions, and 
 restrictions," which under the Constitution were no longer to be 
 left in the power of the States, as because of ambiguities in the 
 article which are pointed out by the Federalist (No. 42), the lan 
 guage of this article was not inserted in that corresponding pro 
 vision of the Constitution designed to create a general citizenship. 
 The general words " privileges and immunities of citizens " were 
 substituted in place of the particular enumeration of privileges in 
 this 4th Article of the Confederation. But considering that it was 
 among the declared objects of the Constitution " to form a more 
 
302 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1865. 
 
 perfect union," and that the power to regulate commerce among 
 the several States was conferred on Congress, there can be no 
 doubt that among the privileges and immunities of citizens secured 
 by the Constitution is the privilege of using all such instruments 
 and means of traffic as are allowed by the laws of the State to be 
 used therein by its own citizens. It may be admitted that, in the 
 exercise of their police power, the States may pass laws which in 
 directly affect commerce among the several States. For instance, 
 they may regulate sales at public auction, and may prohibit any one 
 but a duly licensed auctioneer from making such sales. But they 
 cannot prohibit citizens of other States from selling their property 
 at public auction, through a duly licensed auctioneer, so long as 
 they permit their own citizens to do so. 
 
 The right to take, hold, and dispose of property, in the same 
 manner, and under no greater restrictions or burdens than are 
 imposed on their own citizens, is among the clearest and most im 
 portant of those privileges and immunities conferred by the Con 
 stitution. And inasmuch as this law prohibits citizens of other 
 States from using an established, long-accustomed, and important 
 means of selling property, which it allows to citizens of Maine, I 
 have no doubt this prohibition is inoperative and void. 
 
 I think also it would be found to be impossible to maintain the 
 validity of that discrimination which this law attempts to make 
 between articles the growth or manufacture of Maine, and those 
 which are the growth or manufacture of other countries or States. 
 In the former a citizen of Maine may deal without restriction ; 
 but not in the latter. This law therefore imposes on the traffic 
 in all merchandise grown or manufactured by a citizen of Massa 
 chusetts, within his own State, burdens and restrictions not imposed 
 on like articles grown or manufactured in Maine by its citizens. 
 If a citizen of Maine own articles grown or manufactured in Maine, 
 he may sell them unrestricted by this law. But if he own mer 
 chandise grown or manufactured out of Maine, he cannot. I 
 greatly doubt the power of a State to make any regulation of 
 traffic which thus discriminates between articles of its own growth 
 or manufacture, and articles grown or manufactured in other States 
 and in foreign countries. This discrimination is not the exercise 
 of a police power. It is not an inspection or health law. It is 
 not designed, like laws regulating hawkers and pedlers, and auc 
 tioneers, to secure the inhabitants of the State from imposition, or 
 
1865.] OPINIONS GIVEN AT THE BAB. 303 
 
 to regulate the internal commerce of the State. It is a regulation 
 of commerce, the only purpose and effect of which is to give to 
 producers in Maine, and all who traffic in their products, a privi 
 lege and immunity not allowed to producers elsewhere, and to 
 those who traffic in their products ; and, to the extent it operates, 
 to encourage and protect the former, and to burden and restrain 
 the latter. 
 
 I think such a regulation is not within the power of a State. 
 While my opinion is that the power to regulate commerce among 
 the several States and with foreign nations is not in all cases an 
 exclusive power, and the States may make some commercial regu 
 lations which, in the absence of Congressional legislation, will be 
 valid, yet when the subject in question is one which from its nature 
 demands uniform regulation for the general benefit of the nation, 
 there is no room for doubt, and so far as I know it has not been 
 doubted for many years, that the power of Congress is exclusive 
 and the States cannot legislate thereon. And such is the settled 
 doctrine of the Supreme Court. ( Cooley v. Board of Portwardens, 
 12 How. 318-320.) Now if each State may discriminate in favor 
 of its own products and manufactures, according to its own views 
 of its own interest, it is iri the power of the States to create a 
 condition of things quite as bad, as respects commerce among the 
 States, as that which existed when the Constitution was formed. 
 
 The general good of the nation demands uniform rules, oper 
 ating equally on the entire internal commerce of the nation, with 
 out regard to State lines, and unembarrassed by partial, conflicting, 
 and vexatious State regulations. In other words, it demands entire 
 freedom, except so far as Congress, for the general good, may 
 find it needful to impose restrictions. 
 
 In my opinion, therefore, this State regulation of commerce, 
 which attempts thus to discriminate between products of Maine 
 and those of other States and countries, is in conflict with the Con 
 stitution of the United States. And if this be so, there is no part 
 of this law, and no provision in it, which is operative or valid as to 
 sales, or offers to sell by sample, any goods, wares, or merchandise, 
 the growth or manufacture of any other State or country than the 
 State of Maine. And as citizens of Maine may sell without re 
 striction by this law any article which is the growth or manufacture 
 of that State, citizens of other States may sell without regard to 
 this law any article which is the growth or manufacture of any 
 
304 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1865. 
 
 othei State or country. It is only in this way the growths and 
 manufactures of other States, and the privileges of their citizens, 
 can he protected against the unconstitutional operation of this law. 
 It is impossible to say that the clause which declares the law shall 
 not affect the sale of articles the growth or manufacture of Maine is 
 inoperative. The Legislature of Maine had the power to make this 
 provision, and hy force of it no sale of such an article can come 
 within the law. But the Legislature had not the power to enact 
 that the sales of other articles should come under a different rule 
 of restriction from that which governs the sales of the products 
 and manufactures of Maine ; and the courts must declare that the 
 attempt to bring the former under a different rule is inoperative 
 and void. 
 
 My opinion is, that the law has no force as against persons offer 
 ing for sale by sample merchandise belonging to citizens of States 
 other than Maine, especially if such merchandise be not the growth 
 or manufacture of Maine. 
 
 B. R. CURTIS. 
 June 2, 1865. 
 
 CONSTITUTIONAL LAW. EX POST FACTO LEGISLATION. 
 
 OPINION. 
 
 My opinion has been requested upon the question whether the 
 fourteenth section of the act of March 3d, 1803, (12 Stats, at 
 Large, 741,) enables the United States to maintain an action, or 
 proceeding, for the recovery of a fine, penalty, or forfeiture incurred 
 by reason of an act done or omitted more than five years before the 
 passage of that act. 
 
 Ex post facto laws are forbidden by the Constitution of the 
 United States ; and in my opinion, if the law in question were so 
 interpreted and applied as to maintain an action or proceeding to 
 recover a fine, penalty, or forfeiture for a past act not otherwise 
 recoverable, because completely barred, it would be an ex post facto 
 law, within the prohibition of the Constitution. 
 
 It is true that, strictly speaking, such a law has not the effect to 
 make an innocent act criminal, nor enhance the punishment or 
 aggravate the crime, or perhaps to change the rules of evidence 
 existing when the offence was committed ; and these are the effects 
 usually specified as descriptive of the character of an ex post facto 
 
1865.] OPINIONS GIVEN AT THE BAR. 305 
 
 law. But I am of opinion that they are but instances, and do not 
 exhaust all cases in which a law may be ex post facto under our 
 Constitution ; and that the reason why they are instances is be 
 cause, in each of them, a law enacted after the act done introduces 
 a new rule of decision, by force of which the citizen may be convicted 
 and punished as he could not have been under any rules of decision 
 existing when the act was done. 
 
 If a law introduces and makes obligatory on the courts any rule 
 of decision, by force of which a citizen becomes punishable for 
 what he was not, at the passage of the law, punishable, such law is, 
 as to his case, ex post facto ; and it is not material what is the 
 precise character of the rule, or by what precise mode of operation 
 it is to have this effect. 
 
 In the case proposed, it was incumbent on the prosecutor, at 
 the time of the passage of this act, to prove that the accused had 
 committed the offence within five years before the institution of the 
 suit or proceeding. Failing to prove this, the prosecution must 
 fail. Now, a law which dispenses with this proof, and requires a 
 conviction whenever the offence was committed, relieves the prose 
 cutor from one of the requirements of the existing law, and thereby 
 subjects the citizen to conviction and punishment, which could not 
 have been awarded under the law existing when the act was done, 
 nor until the new rule was enacted. 
 
 A statement of the exact case will make this plain. Suppose 
 an information of debt for a penalty. Plea, the statute of limita 
 tions. Demurrer by the prosecutor. The day before this act 
 took effect, the judgment of law is for the citizen. If the day this 
 act takes effect, the judgment of law is for the prosecutor, does not 
 this act subject the citizen to a penalty? Without it, the law 
 commands a judgment in his favor ; with it, the law commands a 
 judgment against him. What change in the law has changed the 
 judgment ? This legislative act only ; and if this law alone has 
 changed a judgment for the citizen, by reason of a past act, into a 
 judgment for the government, for a penalty, how can it be that 
 this act is not ex post facto ? 
 
 I can see no distinction in principle between such a case and 
 the enactment of a new rule of evidence, or dispensing with any 
 legal element necessary to a conviction when the act was done. 
 
 In truth, the new law does dispense with one of the elements 
 necessary to a conviction ; for the law previously made the time of 
 VOL. i. 20 
 
306 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1865. 
 
 instituting the proceeding an essential element necessary to a con 
 viction, just as essential as the corpus delicti itself. 
 
 In the leading opinion of Judge Chase on this subject, ( Calder 
 v. Bull, 3 Dal. 390,) it is said that " the prohibition is an additional 
 bulwark in favor of the personal security of the subject, to protect 
 his person from punishment by legislative acts having a retrospec 
 tive operation." It is plain he did not mean to include only those 
 acts which themselves prescribe the punishment, for he expressly 
 instances those which merely change the rule of evidence. What 
 he intended was protection against all legislative acts having a 
 retrospective operation, to render the subject punishable who 
 without such acts would be dispunishable ; whether such acts 
 should newly define the offence, or establish new rules for its proof, 
 or take away a defence given by the existing law, complete and 
 perfect at the time of the passage of the retrospective act. 
 
 There is certainly some want of comprehensiveness in the defi 
 nitions which have been attempted of ex post facto laws. Perhaps 
 as good a description as is to be found in our books, is that of Chief 
 Justice Richardson in 3 N. H. Rep. 476. " It therefore seems 
 that a retrospective law for the punishment of an offence, within 
 the meaning of our Bill of Rights, must be a law made to punish an 
 act previously done, or to increase the punishment of such act, or 
 in some way to change the rules of law in relation to its punish 
 ment, to the prejudice of him who committed it. In other words, 
 it must be a law establishing a new rule for the punishment of an 
 act already done." Close analogies might be added in favor of this 
 conclusion. 
 
 The Constitutions of some States guard rights of property 
 against retrospective laws. Under these it has been held, that a 
 law so extending the statute of limitations as to cut off existing 
 rights of property (ICennebec Purchase v. Laborer, 2 Greenl. 275 ; 
 Webster v. Cooper, 14 How. 495), or a law repealing a statute of 
 limitations as respects claims already barred, is inoperative and 
 void. ( Willard v. Harvey, 4 Foster, 344 ; Briggs v. Hubbard, 
 19 Vt. 86.) 
 
 Surely, the rights of the citizen in respect to his personal liberty 
 and his security against penalties, which are protected by the arti 
 cle now in question, are not to receive a less liberal interpretation ; 
 and if a right of private action barred by the statute of limitations 
 cannot be revived by the Legislature, because prohibited from 
 
1865.] OPINIONS GIVEN AT THE BAB. 307 
 
 affecting the rights of property involved in civil actions, how can 
 the rights of persons involved in penal actions be affected by the 
 Legislature, by reviving such rights when completely barred ? If 
 the former kind of retrospective laws is void as interfering with 
 civil rights, how can the latter be held operative when they act in 
 the same way, and to the same extent, to subject citizens to fines 
 and forfeitures ? 
 
 If, therefore, it were necessary to understand from the repealing 
 act of Congress now in question, that it was the intention of the 
 Legislature to have this law so act as to render punishable acts not 
 punishable by law when it was passed, I should say, without 
 hesitation, such intent cannot prevail. But it is not necessary to 
 attribute to Congress any such purpose, not only inconsistent with 
 the Constitution, but repugnant to the whole course of modern 
 legislation. 
 
 In Adams v. Woods, 2 Cranch, 336, Mr. Chief Justice Marshall, 
 in considering whether an act of limitations should be construed as 
 extending only to offences theretofore enacted, says : " In expound 
 ing this law. it deserves some consideration, that, if it does not 
 limit actions of debt for penalties, those actions might, in many 
 cases, be brought at any distance of time. This would be utterly 
 repugnant to the genius of our laws. In a country where not 
 even treason can be prosecuted after a lapse of three years, it 
 could scarcely be supposed that an individual would remain for 
 ever liable to a pecuniary forfeiture." 
 
 Add to this, that, if it be possible so to construe a law as not to 
 operate on existing vested rights, it shall be so construed. (Dash 
 v. Van Kleeck, 7 Johns. 477 ; Moon v. Darden, 2 Ex. Rep. 722.) 
 And that, if otherwise construed, it is an ex post facto law. In such 
 a case I do not think the intention of Congress to make this law 
 operate on cases where the statute of limitations had already con 
 stituted a complete bar, can be found or assumed. Its terms do 
 not import any such violent infringement of principles or rights. 
 It simply repeals two statutes of limitations so far as they embrace 
 a class of cases. 
 
 That it was the intention of the Legislature to have all past 
 cases of that character tried without regard to lapse of time, is not 
 expressed, and surely is not to be implied. 
 
 B. R. CURTIS. 
 
 May 3, 1865. 
 
308 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1867. 
 
 CONSTITUTIONAL LA W. OBLIGATION OF CONTRACTS. 
 
 CASE. 
 
 The Legislature of Michigan on the 15th of February, 1859, 
 passed the following act. 
 
 AN ACT 
 
 To encourage the Manufacture of Salt in the State of Michigan. 
 [See Laws, 1859, page 551.] 
 
 Sect. 1. The People of the State of Michigan enact, That all companies or 
 corporations formed, or that may be formed, for the purpose of boring for 
 and manufacturing salt in this State, and any and all individuals engaged, 
 or to be engaged, in such manufacture, shall be entitled to the benefits of the 
 provisions of this act. 
 
 Sect. 2. All property, real and personal, used for the purpose mentioned 
 in the first section of this act, shall be exempt from taxation for any purpose. 
 
 Sect. 3. There shall be paid from the treasury of the State, as a bounty, 
 to any individual, or company, or corporation, the sum of ten cents for each 
 and every bushel of salt manufactured by such individual, company, or 
 corporation, from water obtained by boring in this State : Provided, That 
 no such bounty shall be paid until such individual, company, or corporation 
 shall have at least five thousand bushels of salt manufactured. 
 
 Approved, February 15, 1859. 
 
 This act took effect May 16, 1859. 
 
 The questions submitted are, 
 
 1st. Whether the second section of this act amounted to a con 
 tract with such persons or corporations as should thereafter use 
 real and personal property for the purposes mentioned in the first 
 section of the act, that while so used such property should be 
 exempt from taxation, so that the repeal of the act would impair 
 the obligation of a contract, and therefore be invalid. 
 
 2d. Whether the Legislature had the power, by a repeal of the 
 third section of the act, to deprive of the bounty therein mentioned 
 all persons who should manufacture salt after such repeal took 
 effect. 
 
 OPINION. 
 
 Upon the first of these questions I am of opinion that the second 
 section of the act does contain a grant of the right of exemption 
 from taxation, which grant became operative, and amounted to a 
 contract, when accepted by employing real and personal property 
 for the purpose mentioned in the first section. The language em- 
 
1867.] OPINIONS GIVEN AT THE BAR. 309 
 
 ployed is clear and explicit. The exemption promised is complete. 
 There is no limitation of time during which the exemption is to 
 exist. Its duration is made to depend only on the continuance of 
 the special use of the property. In my judgment this is clearly a 
 contract, the obligation of which would be impaired by a repeal of 
 this section. 
 
 It comes fully within the principles settled by the Supreme 
 Court of the United States in New Jersey v. Wilson, 7 Cranch, 
 164; Gordon v. Appeal Tax Court, 3 How. 133; State Bank of 
 Ohio v. Knoop, 16 How. 369; Dodge v. Woolsey, 18 How. 331 ; 
 Jefferson Branch Bank v. Kelly, 1 Black, 436. 
 
 This case is also clearly distinguishable from Hector, fyc. v. 
 Philadelphia, 24 How. 300. The exemption from taxation in 
 that case was a mere gratuity. There was no consideration for 
 any contract, and the law was held to be repealable. Here the 
 application of the property to the use which the Legislature de 
 sired to encourage, amounts to a valuable consideration for the 
 grant. 
 
 The second question is attended with more difficulty. In terms, 
 the promise of the State to pay a bounty is explicit. The purpose 
 to induce persons to engage in the manufacture of salt, by this offer 
 of a bounty on its production, is equally clear. The acceptance of 
 this offer, and the making of the investments of capital necessary 
 for the manufacture, constitute an adequate consideration for a 
 complete contract, and, at first view, it may seem impossible to dis 
 tinguish the case presented by the second section from that pre 
 sented by the third section. But, after much reflection, I am of 
 opinion that such a distinction exists, and that it is quite certain 
 that the Supreme Court of the United States would fix upon it. 
 
 This distinction is found in the nature and the subject-matter 
 of the offer itself. 
 
 In its nature it is the offer of a gratuity. It is true that the 
 producer, to entitle himself to it, must first produce the article on 
 which the bounty is to be paid. But this is true in all cases of 
 bounties. It is also true, that in this case the producer must invest 
 capital in the manufacture. But this again is also true of the 
 means of production of all things on the production of which gov 
 ernments have offered bounties. The question is, whether the offer 
 of a bounty on an article, when viewed in reference to the nature 
 and circumstances of the offer and the practice of governments in 
 
310 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1867. 
 
 such cases, binds the government to continue to pay the bounty 
 so long as any one shall continue to produce that article ; or 
 whether it is a measure dependent on the policy of the government, 
 and to be changed at its pleasure ; and I am of opinion that the 
 latter is the true character of the offer, and that there would be no 
 reasonable chance of inducing the Supreme Court of the United 
 States to take a different view of it. 
 
 The practice of governments, both of the States and of the 
 United States, has been to consider such offers dependent on the 
 pleasure of the legislative power. Considerations derived from 
 the expediency of continuing such offers, and the intrinsic injustice 
 of withdrawing them, have been relied on. I am not aware that 
 they have ever been treated as necessarily of continuing obligation. 
 They are measures of policy usually dependent on temporary 
 causes, and generally experimental merely, and where, as in case 
 of the fishing bounties, the causes which have produced them have 
 been supposed to be continuous, I do not think it has ever been 
 supposed that the government might not judge freely whether to 
 repeal or continue them. I think the offer of a bounty on pro 
 duction, like the offer of a reward for detection of crime, or any 
 similar public service, may be withdrawn at any time before the 
 service is performed ; and that whatever previous preparations for 
 the service may have been made must be taken to have been made 
 subject to the public right to withdraw the offer, and not upon 
 the faith that it would be perpetually continued. 
 
 The decisions made upon the first question above proposed, 
 though they have upheld, with a firm hand, the validity of an ex 
 emption from taxation founded on an investment of property made 
 on the faith of it, and the acceptance of such an offer, have also 
 asserted with equal strength the principle that contracts are not to 
 be deduced from legislation when there is any reasonable doubt of 
 the intention of the legislative power to propose them. In the 
 present state of the Supreme Court of the United States, I should 
 riot anticipate any extension of these principles, and I ought to add, 
 that I am quite satisfied that there ought not to be any such exten 
 sion of them as would make the offer of a bounty by a State, on 
 the production of any article, an irrepealable contract to pay that 
 bounty so long as any one should choose to produce it. 
 
 B. R. CURTIS. 
 BOSTON, May 16, 1867. 
 
yf 
 
 1868.] OPINION GIVEN AS AN AIIBITRATOB^W f . 311 
 
 ^S 
 
 A case which came before Judge Curtis as an arbitr? 
 in 1868, by the voluntary submission of the parties, related 
 to the proprietary rights of the States to their lands under 
 the water of the sea, and to the right of laying submarine 
 telegraph cables on the shores of a State. The questions 
 arose in the following manner : 
 
 Charles Havard and C. C. Leigh obtained, from the 
 Legislature of the State of New York, an exclusive right 
 and privilege, for a period of years, to land and work a 
 telegraphic cable between the empire of France and the 
 State of New York. By an agreement in writing, executed 
 in London, July 31, 1868, they sold and conveyed this 
 right to Emile d Erlanger, for the sum of 12, 000 ; part of 
 which sum was paid in cash, and the balance was made 
 payable on the following condition: That the Hon. Sal 
 mon P. Chase, Chief Justice of the United States, should, 
 as an arbitrator between the parties, decide and certify that 
 in his opinion this grant w^ould legally and effectually enable 
 the grantees, or their assigns, to prevent and hinder the 
 laying and working of a telegraphic cable from the empire 
 of France to any part of the waters, reefs, islands, shore? 
 and lands of the State of New York, by any person or pei 
 sons claiming authority to do so under or by virtue of any 
 concession granted, or which might thereafter be granted, 
 by the Congress of the United States, or by the State of 
 New York, or under or by virtue of the riparian and pro 
 prietary rights of any owner of land lying on the shores 
 of the State of New York, or any of the islands on the 
 coast of the State. The agreement of submission further 
 provided, that if Chief Justice Chase should decline to act 
 as arbitrator of these questions, he should have power to 
 appoint a substitute arbitrator, whose opinion and award 
 in the premises should be final between the parties. 
 
 Chief Justice Chase declined to act, for the reason that 
 the questions were of such a nature that they might, in 
 some other case, come before him judicially; and he 
 
312 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1868. 
 
 appointed Judge Curtis as his substitute. Judge Curtis 
 heard the parties in the city of New York, in December, 
 1868, 1 and soon afterward made the following 
 
 AWARD. 
 
 Pursuant to the agreement, a copy whereof is hereunto annexed 
 and marked A, and to the nomination by the Hon. S. P. Chase, 
 Chief Justice of the United States, of the undersigned to act in the 
 premises, a copy of which nomination is also hereto annexed and 
 marked B, the undersigned has met and heard the parties by their 
 respective counsel, and, pursuant to the authority conferred on him 
 by the said paper writings, copies whereof are annexed as aforesaid, 
 has made his decision in the premises in manner following : 
 
 I do hereby express my opinion, and declare that in my judg 
 ment the said parties of the second part named in the said agree 
 ment, a copy whereof is marked A, as aforesaid, have acquired 
 under the said two acts of the Legislature of the State of New 
 York referred to in the said paper writing marked A, and under 
 the assignment and transfer made by the original of the said paper 
 writing, a copy whereof is marked A, such an exclusive right and 
 privilege to land and work a telegraphic cable between the empire 
 of France and the said State of New York as will enable the said 
 parties of the second part legally and effectually to prevent and 
 hinder the laying and working of a telegraphic cable from the 
 empire of France to any part of the waters, reefs, islands, shores, 
 and lands of the State of New York by any person or persons 
 claiming authority to do so under or by virtue of any concession 
 granted, or which may hereafter be granted, by the Congress of the 
 United States, or by the said State of New York, or under and by 
 virtue of the riparian and proprietary rights of any owner of land 
 lying on the shores of the said State of New York, or any of the 
 islands on the coast of the said State. 
 
 In testimony whereof I have hereunto set my hand, this twenty- 
 sixth day of December, A. D. eighteen hundred and sixty-eight. 
 
 B. R. CURTIS. 
 
 1 For the assignee, in opposition to the exclusive character of the grant, 
 the questions were argued by Mr. W. W. MacFarland. Mr. George Ticknor 
 Curtis argued for the assignors, in support of their claim to receive the bal 
 ance of the purchase-money. 
 
1868.] OPINION GIVEN AS AN ARBITEATOB. 313 
 
 OPINION. 
 
 In the matter of the arbitration between Charles Havard and 
 others, of the first part, and Emile d Erlanger and another, of the 
 second part, under an agreement bearing date July 31, 1868. 
 
 For the information of the parties and their counsel, but not 
 intending to make the same any part of his award in the premises, 
 the undersigned states the following grounds and reasons for the 
 formal award which he has separately made and certified. 
 
 First. I am of opinion that, at the dates of the several acts of 
 the Legislature of the State of New York now in question, that 
 State was the proprietor of the soil on its maritime border below 
 high-water mark, as far to the seaward as the laws of nations 
 recognize ownership of land under tide- waters, saving such spe 
 cially described parts thereof as before those dates had been granted 
 in fee simple to the United States, to municipal corporations, and to 
 private persons. No one of these grants appears to have extended a 
 considerable distance below low-water mark, and the soil of the State 
 does extend some miles to the seaward of each and all of them. 
 
 Second. The State of New York being the proprietor of this 
 soil, its Legislature had power to make the grant now in question. 
 That grant is of the exclusive right, for the period of twenty years, 
 to lay, construct, maintain, and operate telegraphic cables in and 
 over the waters, reefs, islands, shores, and Jands over which the 
 State of New York has jurisdiction, to connect the State of New 
 York with the empire of France. There is a proviso to the act 
 which shows the grant was applicable only to such cables as should be 
 landed from the ocean directly on the shore of the State of New 
 York ; and not to any cable landed from the ocean within some other 
 jurisdiction and connected thence with the State of New York. 
 
 If this had been a transaction between private persons, the rights 
 derived from it might be found to rest, in part at least, upon an 
 executory contract ; but I am of opinion that the Legislature of the 
 State, dealing with its domain, had the power to make a complete 
 executed grant, such as is described in this law ; which in my 
 opinion vested in the grantees an exclusive interest in the soil 
 under tide-water, which belonged to the State so far as the same 
 can be used for the purposes described in the grant. I think it 
 clear that, by reason of the prohibition in the Constitution of the 
 United States to impair the obligation of a contract, the State of 
 New York can pass no law revoking or impairing this grant. 
 
314 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1868. 
 
 It has been argued with much force and ability, that the State 
 held that part of its domain under tide-water in trust for public 
 uses ; that though the only public uses designated by legal writers 
 and judicial opinions are those of navigation, anchorage, and fish 
 eries, yet the extent of the jus publicum is riot to be measured by 
 the specific instances in which it has heretofore been found useful 
 to assert it ; and that the soil of the sea, so far as the State is its 
 proprietor, is held subject to a public right to lay telegraphic cables 
 thereon, and repair and work them. 
 
 After much consideration I am unable to come to this conclusion. 
 
 I must begin with the clearly established position that the State 
 is the proprietor of this soil, and before I can declare this owner 
 ship to be restricted, I must find such restriction either expressed 
 or satisfactorily implied in settled rules and principles of law, ap 
 plicable to the subject. I am unable to find either the one or the 
 other. Not only is such use not expressly included within the 
 jus publicum, but it is of such a nature as to be distinguished from 
 those uses which are within the jus publicum. Neither of the 
 defined uses within the jus publicum involves the exercise of any 
 permanent right in the soil itself. The right to sail over, or 
 temporarily to cast anchor on this soil, or the right to take fish 
 floating over it, or shell-fish resting on it, is distinct from a right 
 permanently to occupy this soil by a structure placed thereon. 
 The former rights may be exercised and enjoyed by the public. 
 Like a right of way on land, each one in his turn, and according to 
 his wants, may enjoy the right, but his use is transitory, and his 
 right must be exercised only in such reasonable time and manner 
 as not to interfere with the common right of others. They are 
 rights which may and do exist in common, and be enjoyed by all 
 equally. But the right to place permanent structures on the soil, 
 arid keep them there, and have unobstructed access to them for use 
 and repairs, cannot be in any proper sense a public and common 
 right. A right to possess and use the soil permanently and exclu 
 sively is in its nature a several and private, and not a common and 
 public right. 
 
 It is true that a telegraphic cable is designed to be used by the 
 public, and, looking to that ultimate design only, this use of the 
 soil may be considered a public use ; just as the soil belonging to 
 a private person, taken under the power of eminent domain, for the 
 construction of a railroad, is taken for a public use. But soil so 
 
1863.] OPINION GIVEN AS AN ARBITRATOR. 315 
 
 taker is appropriated also to the private use and ownership of the 
 railroad corporation, which takes and exclusively owns it for all 
 the purposes of a railroad, and within the limits of the authority 
 conferred by its charter such a corporation controls the use of this 
 property, for its private advantage, as effectually and absolutely as 
 a private person controls the use of his own house. 
 
 In this and other similar cases, property belonging either to 
 private persons or to the domain of the State is acquired and held 
 as private property ; but by the act which enables its acquisition it 
 is made subject to certain defined public uses. 
 
 It is a settled question in American constitutional jurisprudence, 
 that the power of eminent domain is broad enough to take prop 
 erty for such individual ownership, if some public necessity is the 
 ultimate reason for the grant. But in all such cases the public use, 
 so far as it exists, is impressed on and arises out of the act of taking 
 by force of the controlling legislative authority which enables the 
 act of taking ; and this impresses on all the property taken, whether 
 it be private property, or whether it be a part of the public domain, 
 those denned public rights which the legislative power has deemed 
 to be at once the consideration for its grant of power to take prop 
 erty, and the reason for the delegation of that power. 
 
 In other words, it may be said, that the reason why the legisla 
 tive power may authorize the taking of private property and ap 
 propriate the domain of the State to the ownership of individuals 
 and private corporations is, that the legislative power, at the same 
 time that it makes such grants, makes the property so acquired 
 subject to certain denned public necessities. But what I have to 
 consider in this connection is not the legislative power to subject 
 either the lands of private persons, or the domain of the State, to 
 that individual ownership, and that subservience to public wants 
 impressed by the act enabling their acquisition, but the question 
 whether, independent of any specific action of the legislative power, 
 the maritime soil of the several States is held to any other public 
 use besides those of navigation and the fisheries, and I am of 
 opinion that it is not subject to any other public rights. I am of 
 opinion that the maritime States hold that part of their soil below 
 high-water mark by as absolute a title as they hold their State 
 Houses ; and may make such grants thereof, exclusive or otherwise, 
 as they may consider suitable and expedient. 
 
 There is another point of view from which this subject may 
 
316 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1868. 
 
 be looked at, and which leads more directly to the consideration 
 whether the Congress of the United States can in any effectual 
 manner interfere with the grant made by the State of New York. 
 
 By the Declaration of Independence, followed by the treaty of 
 peace with Great Britain, the State of New York became a free, 
 sovereign, and independent State, and in that capacity the absolute 
 owner of its entire maritime border below high-water mark, subject 
 only to some possible restrictions from grants to individuals which 
 are of no importance in this connection. This absolute ownership 
 still continues wholly unimpaired, save so far as the Constitution 
 of the United States has restricted its exercise. The only clause 
 of the Constitution which needs to be here considered, is the grant 
 to Congress of the power to regulate commerce between the several 
 States and with foreign countries. This grant of power to the 
 Federal government at the same time restricted the State of New 
 York from making any use of its maritime frontier inconsistent 
 with the power of Congress to regulate foreign commerce, and 
 conferred on Congress the power to regulate that commerce. 
 
 It must be admitted that the word " commerce " in the Constitu 
 tion extends to mere intercourse, and is not restricted to traffic ; 
 and that consequently that kind of communication with a foreign 
 country which is carried on by means of a telegraphic cable is 
 commerce with a foreign country within the meaning of that clause 
 of the Constitution, and consequently may be regulated by 
 Congress. 
 
 It is a theory of recent origin, that, under its power to regulate 
 commerce, Congress may empower individuals, or a corporation 
 created by it, to take lands and erect structures to carry on that 
 commerce. I do not find it necessary to enter into any inquiry on 
 this disputed power. Because I do not understand that I am to 
 decide what may be taken away under the power of eminent 
 domain, but what was effectually granted. I must assume that 
 both these parties knew that all property in this and other civilized 
 countries is held subject to the power of the government to take 
 and pay for it, and therefore it is not a question whether some 
 power in the United States may subject what is granted to some 
 permanent public use, after making just compensation for what 
 may be thus taken, but only whether the exclusive rights in ques 
 tion are effectually granted. 
 
 Looking at the subject in this point of view, the only inquiry is, 
 
1868.] OPINION GIVEN AS AN ARBITRATOR. 317 
 
 whether Congress, by force of its power to regulate foreign com 
 merce, can empower an individual or a corporation to lay a tele 
 graphic cable over the maritime property of the State of New 
 York without taking it for a public use, and making compensation 
 therefor to those to whom the State has granted its rights ; which 
 compensation must of course be adequate to make good the damage 
 inflicted. 
 
 And 1 am clearly of opinion, that Congress has not this power. 
 The State of New York holds not only its maritime frontier, but all 
 its territory, subject to the power of Congress to regulate commerce 
 between the States and with foreign nations. So does each indi 
 vidual owner of lands and all other property. But the power to 
 regulate commerce certainly no more enables Congress to take the 
 private domain of a State to advance its policy of promoting com 
 merce with foreign nations, than it enables Congress to take the 
 private domain of individuals without compensation. It is a ques 
 tion into which I do not find it necessary here to enter, under what 
 conditions Congress can interfere with the private domain of a 
 State without its consent. But certainly Congress, under its power 
 to regulate commerce, or under any other power, cannot take away 
 from the State or its grantees that estate or interest in its domain 
 which the State holds, or has granted to private persons, without 
 first lawfully subjecting it to a public use and making provision for 
 just compensation. 
 
 It is true, if the State held this part of its public domain in sub 
 jection to a specific public use, and the regulation of that public 
 use was under the control of Congress, no compensation would be 
 demandable for such regulation. But it has already been stated, 
 that in my judgment the State does not hold this part of its domain 
 subject to this particular use, and consequently an exemption from 
 the duty of compensation cannot be claimed on this ground. 
 
 It is hardly necessary to add, that the riparian owners whose 
 lands are bounded by the shore, or who have special grants from 
 the State of defined parts of the soil under tide-water, have no 
 such rights in the soil of the State below these granted limits as 
 enable them to interfere with the grants of the State now in ques 
 tion. And in these respects the United States, as grantees of cer 
 tain defined parts of the soil, stand on the same footing as private 
 persons, and have no other or greater rights. 
 
 B. R. CURTIS, 
 
318 MEMOIR OF BENJAMIN BOBBINS CUBTIS. [1868. 
 
 LOANS BY NATIONAL BANKS. 
 
 OPINION. 
 
 My opinion has been requested on the following questions : 
 
 1st. Would a loan of more than ten per cent of the capital of 
 a national bank to any one person, corporation, or firm, be valid or 
 void in law ? 
 
 The 29th section of the National Banking Law is as follows : 
 " That the total liabilities to any association, of any person, or of 
 any company, corporation, or firm, for money borrowed, including 
 in the liabilities of a company or firm the liabilities of the several 
 members thereof, SHALL at no time exceed one tenth of the amount 
 of the capital stock paid in. PROVIDED, that the discount of bona 
 fide bills of exchange drawn against actually existing values, or 
 the discount of commercial or business paper actually owned by 
 the person or persons, corporations, or firms negotiating the same, 
 shall not be considered as money borrowed." 
 
 Such a loan as is mentioned in the first question, being in con 
 travention of an express prohibition of the law which governs and 
 limits the powers of such banks, would create no legal rights of 
 the bank or liabilities of the borrower capable of being recognized, 
 or enforced, either directly or indirectly, in a court of law or equity. 
 This follows not merely from the principle that an illegal contract 
 cannot be enforced, but from an absolute and total incapacity of 
 such a corporation to become a creditor for a prohibited amount. 
 
 2d. Would such contract of loan be valid to the amount of the ten 
 per cent of the paid-in capital, or void as to the whole contract? 
 
 If a series of loans should be made from time to time, until 
 their amount exceeded ten per cent of the capital of the bank, only 
 such loan or loans as were in excess of the ten per cent would be 
 made in contravention of the law which created the corporation, and 
 therefore would create no legal rights in the corporation ; the 
 prior loans would be valid. But if one loan of more than ten per 
 cent should be made, the entire contract, being in contravention of 
 the law, would be inoperative to create any legal right in the cor 
 poration. 
 
 3d. Could a bank maintain an action at law, or in equity, to 
 collect money of a person, corporation, or firm to whom it had 
 loaned more than ten per cent? 
 
 The answers already given cover the subject of this question. 
 
1868.] OPINIONS GIVEN AT THE BAR. 319 
 
 4th. Does or does not the section apply directly to the person 
 of the debtor, and limit the amount of his debt to the bank ? and 
 can he be indebted beyond the limit specified in the law ? 
 
 A person cannot be legally indebted to a bank for an amount 
 prohibited by law. 
 
 5th. What is meant by the term liabilities, (observe the word 
 appears three times in the section,) and does it, or does it not, mean 
 to include indorsements, as well as direct debts ? 
 
 The word liabilities includes every form of liability, absolute 
 and conditional, except those included in the proviso. The liability 
 of a drawer or indorser of a bill of exchange not drawn against 
 actually existing values, and the liability of an indorser of a note, 
 not being business paper, owned by the indorser and discounted for 
 him, are included. 
 
 This is clear, not only because the word liabilities is broad 
 enough to include the contracts of drawer and indorser, but because 
 the proviso has excepted certain drawers and indorsers specially 
 described, thus leaving all others within the prohibition. 
 
 6th. If the bank, having loaned over the amount, or say three 
 times the amount, the law allows to one person, firm, or corporation, 
 and having received, and holding large quantities of collaterals, 
 could or could not any legal creditors of the debtor, by proper 
 action (say trover), sue the bank, and apply such securities to the 
 payment of these debts, if the contract of loan was illegal ? 
 
 If the bank holds collaterals for a void contract, any creditor ot 
 the general owner of those collaterals may reach them, and subject 
 them to the payment of his debt, by resorting to proper legal pro 
 ceedings for that purpose. What proceedings would be proper 
 must depend on the laws of the place where they are to be had. 
 If the creditor has recovered a judgment at law, and his execution 
 has been returned nulla bona, he may then have the aid of a 
 court of equity to reach and apply the collaterals to the payment 
 of his debt. In some States the process of garnishment would be 
 sufficient. 
 
 7th. Would the deposit of stocks and bonds with a bank as 
 general collateral, where money is loaned thereon in excess of the 
 amount allowed by law, be such a transaction as to come within 
 the proviso in the 29th section? 
 
 I answer this question in the negative. 
 
 8th. Would the forfeiture provided in the 53d section operate 
 
320 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1865. 
 
 to sustain the right of the bank to recover on such contract, and 
 leave them subject to be proceeded against by the Comptroller ? 
 
 I answer this question in the negative. Corporations cannot 
 maintain actions on contracts which they are prohibited from mak 
 ing, whether such acts are or are not cause of forfeiture of their 
 charter. 
 
 B. R. CURTIS. 
 BOSTON, May, 11, 1868. 
 
 In March, 1865, the Hon. Peleg Sprague who had held 
 the office of Judge of the District Court of the United 
 States for the District of Massachusetts during a period of 
 three and twenty years, retired from the bench. Judge 
 Curtis, in compliance with the request of the bar, prepared 
 and presented to Judge Sprague the following Address of the 
 Bar of the United States Courts : 
 
 ADDRESS. 
 
 To THE HONORABLE PELEG SPRAGUE: 
 
 SIR, The members of the bar of the courts of the United 
 States, in which you have presided during the last twenty-three 
 years, cannot allow you to withdraw yourself from the office of 
 judge without an expression of their high estimate of your public 
 services, their profound respect for your judicial qualities and at 
 tainments, and their grief for the physical disability which has 
 caused your retirement. They esteem it to be due to their 
 country, to you, and to themselves, that they should bear their 
 testimony to the great value of those services, and to the rare com 
 bination of intellectual and moral powers which alone could make 
 them possible. 
 
 They have found you to be not only thoroughly instructed in 
 the common law, but master of those special branches of juris 
 prudence and legislation which it has been your peculiar province 
 to administer. 
 
 They have found in you such power of analysis as they have not 
 known surpassed, united with sound judgment to weigh its results. 
 
 They have found in you that absolute judicial impartiality 
 which can exist only when a tender and vigilant conscience is 
 joined to an instructed and self-reliant intellect and a firm will. 
 
 And these great powers and attainments have been used by you 
 
1865.] RETIREMENT OF JUDGE SPRAGUE. 321 
 
 so steadily, so patiently, so continuously, through more years than 
 are comprised in the professional life of most of us, that we have 
 scarcely known, and your patience and courtesy have never allowed 
 us to realize, that during much of the time you have been a sufferer 
 from physical pain, and that during all the time you have been in 
 a great measure unaided by that precious sense of sight, without 
 which such labors as yours would have seemed impossible. 
 
 We are heartily thankful for the great benefits you have con 
 ferred, not on us only, but on this community, and on our country, 
 whose judicial bench you have strengthened and illustrated. 
 
 We deplore the cause which has seemed to render your retire 
 ment necessary. 
 
 Would that it were in our power to do something to alleviate 
 your condition, instead of giving expression to our sorrows and to 
 our affectionate respect. 1 
 
 B. R. CURTIS, 
 CHARLES G. LORING, 
 SIDNEY BARTLETT, 
 
 J. H. CLIFFORD, 
 T. D. ELIOT, 
 GEORGE LUNT, 
 G. S. HILLARD, 
 H. W. PAINE, 
 JOHN C. DODGE, 
 R. H. DANA, JR. 
 
 C. L. WOODBURY, 
 
 S. H. PHILLIPS, 
 
 Committee of the Bar. 
 BOSTON, March 27, 1865. 
 
 1 In explanation of some of the allusions in this address to the physical 
 infirmities of Judge Sprague, it may be stated that for many years he had 
 been, though not blind, deprived of all use of his eyes in either writing or 
 reading. Yet such was his extraordinary power of memory, and the disci 
 pline to which he had subjected himself, that he would preside at a long and 
 complicated trial, and charge the jury with perfect accuracy, without mis- 
 recollecting or misstating any part of the testimony. The writer of this 
 work has personally known him to do this in a patent cause lasting through 
 many days, without recourse to a note of any kind. Whenever a dispute 
 arose between counsel as to what a witness had said, Judge Sprague s recol 
 lection of the testimony was always received with implicit and unquestioning 
 submission. Such intellectual feats would have been almost incredible, if 
 they had not been repeatedly witnessed. 
 VOL. i. 21 
 
322 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1860. 
 
 CHAPTER XL 
 
 I860. 
 
 Change of Religious Sentiments. No Change in Religious Character. 
 
 I HAVE, in a former chapter, spoken of the early religious 
 impressions which my brother derived from the influences 
 that surrounded his youth. His religious sentiments and 
 opinions continued to be those generally held by the Uni 
 tarians of New England, until he was past the middle 
 period of life. Immediately after his residence in Boston 
 began, he became a constant attendant at King s Chapel, 
 where there has been in use, since the year 1785, a modi 
 fied form of the Liturgy of the Episcopal Church, adapted 
 to the opinions and tastes of a congregation which at that 
 time became Unitarian. So long as Dr. Greenwood, the 
 fervent and admirable preacher who was the minister of 
 the Chapel when Judge Curtis became a member of its con 
 gregation, lived, and through the ministry of his successor, 
 Dr. Peabody, my brother was satisfied with the preaching 
 which he there heard. But as he grew older, and gave 
 more study to certain parts of doctrinal religion than he 
 had at an earlier period of his life, he felt obliged to relin 
 quish the fundamental dogma of the Unitarian belief, and 
 to accept the doctrine of the Trinity. It happened that, at 
 about the time when his mind began to tend in this direc 
 tion, a very distinguished Unitarian preacher, the Rev. Dr. 
 Huntington, now a Bishop in the Episcopal Church, offi 
 ciated a good deal at King s Chapel, after the death of 
 Dr. Peabody. Dr. Huntington s mind, at this time, was 
 
I860.] CHANGE OF RELIGIOUS SENTIMENTS. 323 
 
 tending towards a similar change ; and his sermons gave 
 evidence of it. They found a sympathizing hearer in Judge 
 Curtis. 
 
 Aware that Bishop Huntington would be able to say all 
 that needs to be said in regard to this change in my 
 brother s religious views, I wrote to him when I had deter 
 mined to prepare this Memoir, and received from him the 
 following reply : 
 
 SYRACUSE, Oct. 1, 1878. 
 
 MY DEAR SIR, Till 1860, I knew nothing of the religious 
 convictions or relations of Judge Curtis, except that he was a 
 regular and reverent worshipper at the King s Chapel. In that 
 year, Emmanuel Parish was organized. I had just passed into the 
 Episcopal Church, and it was understood that I should become its 
 rector on being ordained Priest, as I did. The Judge and his wife 
 appeared in the congregation, with the children, except Minnie, 
 who, you know, continued a Unitarian. Bessie had been married. 
 If her connection with the " Advent " had any bearing, direct or 
 indirect, on her father s change of views, I never knew it, either 
 from him or otherwise. His coming to " Emmanuel " at the time 
 struck me as a sign that he was in earnest, because the service was 
 temporarily held in a hall, and his preference was known to be for 
 what is settled and stable. 
 
 At an early day, he came to me to say that he desired to come 
 to the Holy Communion with Mrs. Curtis ; that I might not un 
 naturally imagine he came as a Unitarian, but that he did not; 
 that thought and inquiry had led him to accept the doctrine of 
 the Trinity and the system of the Church. 
 
 Confirmation was mentioned as a Church ordinance. He said 
 that his education and habits had not prepared him to conform to 
 that rite, and that it did not seem to him then to be necessary or a 
 duty ; but that he should not in any case take the sacrament of the 
 Supper without my express consent. My reply to him was what 
 it has usually been in like cases ; namely, that I thought he had a 
 right to come, under the language of invitation in the Prayer- Book, 
 till he should feel disposed to take the more definite step, and that 
 he would be welcome. From that time he was a regular com 
 municant. 
 
 In this conversation, or in some other, he mentioned that of the 
 
324 MEMOIR OF BENJAMIN ROBBINS CURTIS. [1860. 
 
 sermons he had heard me preach formerly at King s Chapel, where 
 I used to officiate a good deal when I was preacher to the Univer 
 sity at Cambridge (there being no pastor), he had been most 
 interested in those which indicated the movement of my mind away 
 from Unitarianism, towards what are called in New England 
 " Orthodox " or * Evangelical " opinions, but which I rather desig 
 nate as Scriptural and catholic beliefs. You know what he meant. 
 I cannot recall his words, always so clear and precise on every 
 subject. But neither you nor I would be likely to suppose his 
 conclusions were the result of any thing but independent processes 
 of his own mind. 
 
 After that, I do not think he referred to those processes. He 
 implied that they were deliberate and final. In his great kind 
 ness and that of his family, I was often a guest at his house, 
 sometimes to render the offices of the Church. . . . The Judge 
 always conversed on theological and religious subjects naturally, 
 moderately, and devoutly. He recognized himself freely as a 
 Churchman. He took an interest in parish affairs, and I think 
 was a vestry-man. His name being brought forward in the 
 Massachusetts Convention, he was elected a Deputy to the Gen 
 eral Convention held in New York in 1868, and I remember his 
 saying that he had never been more impressed by any public body 
 of men. 
 
 Whether I was correctly informed when I was told that it was 
 his practice to make some devout daily observance of worship in 
 his family, you doubtless can tell better than I. 1 
 
 If I have said more or less than you desired. I hope you will 
 pardon it. ... 
 
 Very sincerely yours, 
 
 F. D. HUNTINGTON. 
 
 P. S. It would be mortifying if any thing I have written 
 should appear ungracious to my old and life-long friends among 
 the Unitarians, to whose learning, character, and good-will I am 
 greatly indebted, and whom I never loved and honored more than 
 now. 
 
 It is not to be inferred, from this change of religious be 
 lief, that there was any change in his religious life. The 
 
 1 The Bishop was correctly informed on this point. 
 
1860.J RELIGIOUS CHARACTER. 325 
 
 substratum ol bis religious character remained always the 
 same, from bis youth onwards. I cannot adduce better 
 testimony of this, or give a better idea of what bis religious 
 character was, than by quoting from the Memoir read 
 before the Massachusetts Historical Society by his friend 
 and classmate, the Rev. Dr. Robbins, who has himself 
 always been a Unitarian : 
 
 Any sketch of Mr. Curtis would be imperfect which should fail 
 to notice and give prominence to his religious character. . . . He 
 was ready on all proper occasions to express his belief in Divine 
 revelation, and to defend it against the objections of the sceptical. 
 In commenting upon the proposed prayer test, he said that every 
 thoughtful man might find a test in his own experience, and that it 
 was enough for him that the Saviour was himself accustomed to 
 pray, and assured us that prayer had its answer. He once remarked 
 that communion between man and his Maker seemed to him as 
 reasonable arid real as that between one human being and another. 
 In conversing with him on these subjects, I have been struck with 
 the deep feeling and positiveness of conviction with which he 
 spoke. I have heard him say that theology was one of his favorite 
 studies outside of his profession, and that he had weighed and 
 examined the evidences of Christianity with a lawyer s scrutiny, 
 and found them to be sufficient and irrefutable. But his own belief 
 did not rest upon them as much as upon the necessities of his own 
 heart, the study of his own nature, the lessons of experience, and 
 the impression made upon his mind by the Holy Scriptures, 
 especially the New Testament. Many reminiscences of acts and 
 sayings illustrative of this part of his character the highest and 
 best part of any character, and that which always asserts its 
 supremacy in our regard when the life of a friend is ended are 
 cherished among his confidential associates. They are attached to 
 every period of his life. Some of them are reserved for the com 
 munion of private friendship ; but to others the utmost delicacy of 
 feeling would not deny the permanent record of which they are not 
 unworthy. The following was related by a classmate, 1 at the annual 
 dinner of the Class of 1829, after Mr. Curtis s death : " Among 
 several incidents of a journey on horseback with Curtis to Niagara 
 
 1 Mr. G. W. Phillips. 
 
326 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1860. 
 
 Falls, during one of our college vacations, I recall an interesting 
 one illustrative of his religious character. One Sunday night, 
 when we had lain by, as our practice was, he asked me if I would 
 hear him read a short prayer ; and taking out a pocket prayer- 
 book he read, in that singularly charming voice which remained the 
 same through life, some appropriate prayer. We had very punc 
 tiliously avoided saddle-bags, carrying instead the small, round 
 military valise, which held little more than a single change of 
 clothes ; but he had remembered, and contrived to find room in his, 
 for the little volume." 
 
 On one occasion, while he w r as practising law at Northfield, 
 Sheriff - , observing the Bible open before him, playfully 
 remarked that that was a strange book for a lawyer to be seen 
 reading in his office. Mr. Curtis replied, " Then I pity the law 
 yers ; for those who are ignorant of the principles inculcated in 
 that book cannot be thoroughly furnished for the duties of their 
 profession." 
 
 In a letter to a clerical friend, who had congratulated him on his 
 appointment to the Supreme Bench of the United States, he 
 expresses with profound humility his sense of obligation to the 
 Divine Power for any success which he had achieved, without 
 invoking which he had never taken any important step, and would 
 not presume to undertake the responsible office to which he had 
 been appointed. 
 
 Some time after he had retired to private life, he remarked con 
 fidentially to an intimate friend, that he had never taken his seat 
 on the bench, or risen to charge a jury, until he had first offered a 
 silent prayer for wisdom and guidance. 
 
I860.] THKEATENINGS OF SECESSION. 327 
 
 CHAPTER XII. 
 
 1860-1866. 
 
 Threatenings of Secession. Efforts to produce a Conciliatory Spirit in 
 Massachusetts. Civil War. President Lincoln s Proclamations of Sep 
 tember, 1862. Pamphlet on Executive Power. Curious Interview with 
 Mr. Stanton. Death of a Mother. Appointed Umpire under a Treaty 
 between Great Britain and the United States. Opinions given at the 
 Bar. 
 
 PUBLIC events require to be noticed in this work so far 
 only as a reference to them may be needful to describe the 
 efforts of Judge Curtis to influence the action of his fellow- 
 citizens in accordance with the rule of his life which I 
 have already explained. In the period on which I now 
 enter, he felt the demand which the gravity of the crisis 
 made upon him, in proportion to the dangers which im 
 pended over his country. It has been seen, that, during an 
 earlier part of his life, although occupying none but a private 
 station, and with no forwardness to take part in political 
 affairs, he did not refuse to make the efforts that became 
 him, to produce a sound public sentiment on important 
 occasions. He had since filled one of the highest judicial 
 offices in the country, in which he had acquired a greater 
 amount of reputation than any other man had gained in six 
 years of such public service. He was now again a private 
 citizen ; but he was one to whom the thoughtful and con 
 siderate men of his own community, and a much wider 
 public, looked for the best and most seasonable counsels, 
 counsels which were all the more deserving of weight, from 
 the fact that he was known to have no political object what 
 ever for himself, or for any party. The class of persons 
 
328 MEMOIR OF BENJAMIN BOBBINS CURTIS. [I860. 
 
 who, in any serious junctures of public affairs, were likely 
 to urge him to act upon them, were undoubtedly a minority. 
 But they were those whose wishes he could not disregard, 
 even if he required prompting. In truth, however, he re 
 quired no urging, when his own patriotism and his own 
 judgment taught him that he had a public duty to fulfil. 
 He was then willing to become such a leader of opinion as 
 a wise and disinterested man may be, who utters his own 
 earnest convictions, and leaves them to do what they may 
 for the public good. 
 
 Mr. Lincoln was duly elected President of the United 
 States, in November, 1860, without receiving the Electoral 
 vote of a single slave-holding State. With the reasonable 
 ness or unreasonableness of the apprehensions which the 
 circumstances attending his election awakened in the minds 
 of the Southern people, I have here no concern. Many 
 will remember the excitement which followed throughout 
 that section of the country ; and will recognize the fact, 
 that, through all that region, there was a party, more or less 
 strong, who struggled manfully to retain their States in 
 the Union. If there was any thing that the people of a 
 Northern State could do, without any sacrifice of principle 
 or of any important interest, which would at that crisis 
 strengthen the hands of the Union men of the South, it 
 was certainly fit and proper that it should be done. Above 
 all, if there was any just complaint that the whole people 
 of the South could make of any Northern State, it was a 
 clear duty resting upon such State to remove it. 
 
 There had long been upon the statute-book of Massachu 
 setts a law, known as the Personal Liberty Law, that was 
 believed by many competent judges to be in open conflict 
 with a provision of the Constitution of the United States 
 about which the people of the South were peculiarly sensi 
 tive The repeal of this law had been several times pro 
 posed in the Legislature, and several times refused. It 
 seemed as if the people of the State ought to be willing to 
 
I860.] ADDRESS TO THE PEOPLE OF MASSACHUSETTS. 329 
 
 be instructed, in their obligations to the national Constitu 
 tion, by their own citizens who were most competent to 
 enlighten them. It was now thought to be wise, that a 
 special effort should be made to cause this law to be re 
 pealed, before the madness of Secession had extended so 
 far in the South as to make a civil war necessary for the 
 supremacy of the Constitution and the preservation of the 
 Union. Judge Curtis was requested to prepare an Address 
 to the People of the State on this subject, to be signed by 
 a select body of men of known probity, disinterestedness, 
 and weight of character. It was written and issued in the 
 middle of December, 1860. The first signature that it bore 
 was that of the great magistrate who had been Chief Jus 
 tice of the State for a period of more than thirty years, but 
 who had recently resigned that office. 
 
 ADDRESS. 
 
 To THE CITIZENS OF MASSACHUSETTS: 
 
 The undersigned are moved by an imperative sense of duty to 
 address their fellow-citizens of the State of Massachusetts concern 
 ing the portentous condition of our public affairs. 
 
 We are private citizens, of different political parties, neither 
 holding nor desiring any public employment, having no interest in 
 the subject which is not common to all, and being impelled by no 
 motive save the love of our country and our sense of responsibility 
 to God for the preservation and transmission of the priceless bless 
 ings of civil liberty and public order which his providence has 
 bestowed upon us. Many of us have heretofore held public em 
 ployments, arid we say, not in a spirit of boasting, but because the 
 occasion calls on us to say it, that the people have seen we have 
 not been unfaithful to their trusts. 
 
 For our honest and profound convictions, for the cause of truth 
 and right, for the sake of your own duties and welfare, we ask you 
 to hear us. 
 
 A large and important part of our common country is excited 
 and alarmed. We deceive ourselves if we suppose this excitement 
 and alarm are riot real, deep, and general throughout fifteen States, 
 
330 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1860 
 
 which have been united to us by the closest ties which ever did, or 
 in the nature of human affairs ever can, connect different political 
 communities. 
 
 The foundations of our government are shaken, and, unless the 
 work of destruction shall be stayed, we may soon see that great 
 union, our honor and safety abroad and at home, broken into weak, 
 discordant, and shattered fragments; and that people, who have 
 dwelt under its protection in unexampled peace and prosperity, 
 shedding fraternal blood in civil war. 
 
 At such a time, it is a great and solemn duty of the people of 
 every State, to consider well whether any part of the wrong which 
 has produced this condition of our affairs can justly be laid to its 
 charge ; and, if any such should be found, every consideration of 
 duty and interest demands that such wrong should be promptly 
 repaired. 
 
 No specious fallacies, no blind resentments, no loud recrimina 
 tions, no false pride, should be allowed to keep us in any wrong 
 which can form even a small part of the causes which threaten a 
 great people with ruin. 
 
 Our first duty is with ourselves. It can be performed only by 
 a just, candid, and manly examination of our own conduct. 
 
 When we shall have done altogether right ourselves, we can 
 firmly demand all that is due from others, and calmly abide what 
 ever consequences may ensue from insisting on that demand. 
 
 Fellow-citizens of Massachusetts, we are forced by these con 
 siderations solemnly to declare, that we believe the State of 
 Massachusetts has violated our great national compact, by laws 
 now on her statute-book which are in conflict with the Constitu 
 tion and laws of the United States. 
 
 The Federal government, like the government of each State, 
 extends over the territory of each State arid over all persons 
 within its limits. Each of these governments is sovereign and 
 supreme within its own constitutional sphere of action, and entitled 
 to the implicit obedience of the people to its laws, and to its judi 
 cial and executive officers appointed to apply and enforce them. 
 It is plain, that, if one of these governments may command its 
 officers arid its citizens to do an act, the other cannot command 
 them to abstain from doing it, or require them to do something 
 which prevents or obstructs its execution. It is an inevitable con 
 sequence, that, when either persons or property have been taken 
 
I860.] ADDRESS TO THE PEOPLE OF MASSACHUSETTS. 331 
 
 into the custody of the law of one of these governments, and its 
 executive officers are required by its laws to preserve that custody, 
 then the other government cannot require its officers and citizens 
 in any manner to interfere therewith. Such interference would be 
 a plain departure from its constitutional powers ; and laws com 
 manding it are laws commanding civil war. 
 
 Yet it is nevertheless the fact, that if a fugitive from service, 
 whom the Constitution and laws of the United States require to 
 be delivered up, be in the custody of a Marshal of the United 
 States, who is commanded by the laws of the United States to 
 retain that custody, the laws of Massachusetts require every judge 
 of its Supreme Court, its Superior, Probate, or Police Court, (and 
 any justice of the peace in some contingencies,) to issue a writ 
 requiring the Marshal of the United States, having such custody, 
 to bring the fugitive before a State tribunal, to subject him to the 
 control of such tribunal, and to relinquish his custody upon its 
 order. And having thus taken the fugitive from the custody of 
 the law of the United States, the State tribunal is to proceed to 
 a trial of the matters in issue, with forms and principles of its 
 own, which it is believed have never been applied to any other 
 case, which are wholly inconsistent with the laws of the United 
 States, and in open defiance of their authority. And, as if the 
 execution of these laws could not be left to the ordinary instru 
 mentalities, deemed sufficient for the protection of the lives, per 
 sons, and property of our citizens, and in preparation, as it would 
 seem, for an inevitable and perilous contest, special commissioners 
 are required to be appointed in each county of the Commonwealth, 
 and the treasury of the Commonwealth is subjected to their un 
 limited control, for the purpose of provoking the conflict and 
 pressing it onward to its final and inevitable issue of physical 
 force. 
 
 Besides the laws already referred to, there are other provisions, 
 which are manifestly designed to surround the performance of our 
 constitutional duty of surrendering fugitives from service with such 
 obstacles as must prevent its performance, even though, by so 
 doing, our own public peace should be left at the mercy of a 
 lawless mob. 
 
 We hold it to be plain, that a State has not the constitutional 
 power to subject to severe and ignominious punishment persons 
 who, by mistake of facts, or misapprehension of law, and without 
 
332 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1860. 
 
 any corrupt or wicked intent, make a claim under the laws and 
 before the authorities of the United States. If such a power 
 existed, every law of the United States could be rendered inop 
 erative by State legislation. For who would demand any right 
 under a law of the United States, if the penalty of an innocent 
 failure to prove his case, which may proceed from merely acci 
 dental causes, should subject him to a fine of five thousand dollars, 
 and imprisonment in the State prison for five years ? Yet such is 
 one of the laws now on our statute-book. 
 
 The volunteer militia are prohibited from acting in any manner 
 in the rendition of a person adjudged to be a fugitive from service. 
 The volunteer militia is the only arm on which the municipal 
 magistrates of our cities and towns can rely to quell organized and 
 dangerous riots. Every one of its members is a member of the 
 militia of the United States, and they are armed at the expense 
 and under the authority of the United States, expressly conferred 
 by the Constitution. Yet this law declares, that the arms of the 
 United States, in the hands of citizens of the United States, who 
 are a part of the militia of the United States, shall not be used by 
 them to protect officers of the law of the United States from law 
 less violence in the streets of a city, whose peace the Common 
 wealth is bound to preserve. 
 
 Fellow-citizens, is it consistent with the duty we owe to our 
 common country, to our State, and to ourselves, that such laws 
 should be permitted longer to exist ? 
 
 We know it is doubted by some whether the present is an op 
 portune moment to abrogate them. It is said, We grant these 
 laws are wrong, but will you repeal them under a threat ? We an 
 swer no. We would do nothing under a threat. We would repeal 
 them under our own love of right ; under our oiun sense of the sa- 
 credness of compacts ; under our own conviction of the inestimable 
 importance of social order and domestic peace ; under our feeling of 
 responsibility to the memory of our fathers and the welfare of our 
 children, and not wider any threat. We would not be prevented 
 from repealing them by any conduct of others, if such repeal were 
 in accordance with our own sense of right. He who refuses to do 
 a right thing merely because he is threatened with evil conse 
 quences, acts in subjection to the threat ; he is controlled by it ; 
 his false pride may enable him to disregard the threat ; but he 
 lacks courage to despise the wrong estimate of his own conduct, 
 
I860.] ADDRESS TO THE PEOPLE OF MASSACHUSETTS. 333 
 
 which conduct he knows would spring only from his love of duty. 
 If every right-minded man must admit that he ought to govern his 
 own conduct by these principles, are they inapplicable to the con 
 duct of a great and populous State ? On what ground can it be 
 maintained that hundreds of thousands of innocent citizens are to 
 be subjected to suffering, because the false pride of their rulers 
 refuses to do right ? Mankind have been afflicted long enough 
 and grievously enough by commotions and strifes and wars spring 
 ing from such causes. We had hoped that the nature of our 
 government would protect us from swelling the great sum of hu 
 man misery produced by the evil passions of rulers. We had 
 hoped that, inasmuch as the masses of the people can have no 
 interest but to do right, they would have the discernment to per 
 ceive, and the manliness to do it ; and would be too calm, too wise, 
 too magnanimous intentionally to persevere in any wrong ; and we 
 hope so still. 
 
 But what is meant by the exhortation not to repeal these laws 
 under a threat? Who threatens us if they should not be re 
 pealed? 
 
 Whatever may have been true in the past, whatever faults of 
 speech and action may have been committed on the one side or on 
 the other, we firmly believe that the men from whom the worst 
 consequences to our country and ourselves are likely to proceed 
 have no wish that these laws should be repealed, and no disposition 
 to use any threats in reference to them. On the contrary, they 
 desire to have them stand as conspicuous and palpable breaches of 
 the national compact by ourselves, and as affording justification to 
 themselves, to the world, and to posterity for the destruction of the 
 most perfect and prosperous government which the providence of 
 God has ever permitted the wisdom of man to devise. How far 
 these acts of ours are from affording any justification for the 
 enormous wrong such men contemplate ; how precipitate, rash, and 
 unnecessary are the violent and destructive measures they are 
 seeking to pursue, we know but too well. But we know equally 
 well, that there are other men, living among these last, and con 
 nected with them as members of the same society, who are 
 struggling to preserve our government, who are seeking for other 
 remedies than revolution and civil war, who still love their whole 
 country, however bounded, and who would not see the glory of 
 our fathers sink into the darkness of their children s shame ; and 
 
834 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1860. 
 
 we know that these patriotic, wise, and courageous men are checked 
 and weakened in their efforts to save the country by our persist 
 ence in our wrong. They threaten no one ; but their labors and 
 their sacrifices for our common country call on us, in tones more 
 eloquent than any words, to do our duty, and not to obstruct them 
 in doing theirs. 
 
 We have heard it suggested, also, that this is not the time to 
 repeal these laws, because, in any future attempt at a compromise 
 between the North and the South, we should not have them to 
 surrender on our part. But we cannot listen to those who counsel 
 us to make merchandise of our own honor. Shall we grasp what 
 does not belong to us, and, when satisfied it is not ours, say, we 
 will keep it wherewith to make a bargain ? And a bargain with 
 whom ? With strangers, with aliens in blood and speech, in 
 interests and destiny ? Not so. We all have but one country, 
 one welfare, one destiny ; whether that destiny be to climb by the 
 upward path of peace and union to the height where we should be 
 the envy and delight of the nations, or to plunge into the gulf of 
 civil discord, and find a dishonored grave. No serious wound can 
 be inflicted anywhere on our body politic, without making the 
 whole head sick and the whole heart faint. And he who should 
 approach an attempt to cure our disorders, not with a spirit of 
 moderation, of justice, of kindness and fraternal regard, but with 
 a disposition to seem to surrender what is not our own, that we 
 may keep what we have not the courage otherwise to claim, has 
 but a poor kind of cunning and very little manhood. 
 
 We do not believe that such is the temper of the people of 
 Massachusetts. 
 
 We know they have in time past had great provocations. And 
 we firmly believe that, if they have so far yielded to them as to 
 allow their resentment to press too strongly on their judgment, it 
 is not because they do not love the right, or because they feel any 
 indisposition to discharge honestly and generously every constitu 
 tional obligation. The entire history of our State, back to its 
 earliest germ on the rock of Plymouth, forbids us to doubt the 
 integrity, the magnanimity, the intelligence, or the patriotism of 
 our fellow-citizens. To these great qualities we earnestly appeal. 
 We beseerh you to consider carefully this momentous subject ; to 
 act upon it justly, firmly, wisely, as becomes men to whose care 
 so great privileges have been intrusted, and who are accountable to 
 
I860.] ADDRESS TO THE PEOPLE OF MASSACHUSETTS. 335 
 
 posterity, to the world, and to our Creator for their transmission 
 unimpaired to our children. Let those whom you have delegated 
 to represent you know your determination. Cause them to obey 
 it. Let not the public servants be above the people, who are their 
 masters. See that they do right. 1 
 
 No practical effect followed this appeal. It served only 
 to show how the counsels of wise men may be disregarded 
 in times of popular excitement, and to certify to the people 
 of the South that the feelings which then swayed the great 
 majority of the people of Massachusetts were not shared by 
 a select and important body of her best citizens. It is, of 
 course, problematical whether the repeal of this law and 
 of similar laws of some of the other Northern States, would 
 have had any considerable tendency to arrest the progress 
 of Secession ; but it is not to be doubted that the duty of 
 removing this cause of complaint was not to be measured 
 by any speculative belief that it would be a useless act. 
 Nor was the refusal to do that act without an unfortunate 
 influence in more than one of the Southern States, a portion 
 of whose people were looking toward the North for some 
 tangible signs of a conciliatory spirit, to which they could 
 
 1 The Address bore the following signatures : 
 
 LEMUEL SHAW, Boston. 
 BENJAMIN R. CURTIS, Boston. 
 JOEL PARKER, Cambridge. 
 JOSEPH GRINNELL, New Bedford. 
 ISAAC DAVIS, Worcester. 
 HENRY J. GARDNER, Boston. 
 GEORGE PUTNAM, Roxbury. 
 JAMES SAVAGE, Boston. 
 GEORGE PEABODY, Salem. 
 HOMER BARTLETT, Lowell. 
 GEORGE TICKNOR, Boston. 
 JARED SPARKS, Cambridge. 
 ALBERT FEARING, Boston. 
 HENRY W. CLAPP, Greenfield. 
 NATHANIEL WOOD, Fitchburg. 
 CHARLES THEO. RUSSELL, Cambridge 
 GEORGE T. RICE, Worcester. 
 EDWARD DICKINSON, Amherst. 
 LEVI LINCOLN, Worcester. 
 WILLIAM BAYLIES, Bridgewater. 
 SIDNEY BARTLETT, Boston. 
 
 JOHN H. CLIFFORD, New Bedford. 
 EMORY WASHBURN, Cambridge. 
 JAMES JACKSON, Boston. 
 THEOPHILUS PARSONS, Cambridge. 
 JAMES WALKER, Cambridge. 
 EDWARD A. NEWTON, Pittsfield. 
 CHARLES B GOODRICH, Boston. 
 J. G. ABBOTT, Lowell. 
 WIN SLOW WARREN, Plymouth. 
 JAMES M. BEEBE, Boston. 
 LINUS CHILD, Lowell. 
 JOHN AIKEN, Andover. 
 HENRY W. BISHOP, Lenox. 
 WILLIAM G BATES, Westfield. 
 SAMUEL L. CROCKER, Tuunton. 
 WILLIAM C PLUNKETT, South Adams. 
 DAVID AIKEN, Greenfield. 
 HENRY W. PAINE, Cambridge. 
 ISAAC L. HEDGE, Plymouth. 
 CHAS. S. STORROW, Lawrence. 
 INCREASE SUMNER, Great Barrington. 
 
336 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1861. 
 
 point in their controversies with those who were seeking to 
 carry their States out of the Union. 
 
 Before the month of February, 1861, had arrived, the 
 people of six of the Southern States had adopted Ordi 
 nances of Secession, which, according to their theory of the 
 Constitution, had severed them from the Union, and dis 
 solved their obligations to obey the laws of the United States. 
 Another group of the slave-holding States from their geo 
 graphical position between the free States of the North 
 and West and the seceded States of the extreme South 
 known at this time as the Border States hung trembling 
 in the balance. These were Maryland, Virginia, North 
 Carolina, Kentucky, Tennessee, and Missouri. It seemed to 
 one of the last of a race of statesmen of an earlier period, 
 a man who had been bred in the best school of constitu 
 tional interpretation, who regarded the supposed right of 
 secession as merely mythical, but who knew the strength 
 of popular delusions when stimulated by popular fears, 
 that the time had come for a union of all sober men upon 
 some conciliatory plan, which would arrest the progress of 
 the revolution, and save the Border States from being 
 ingulfed in it. This was John J. Crittenden, a Senator in 
 Congress from Kentucky. If he had not the force of char 
 acter and the commanding influence of his great friend and 
 compatriot, Henry Clay, who had twice before successfully 
 intervened between an excited North and an excited South, 
 he had, from his venerable years, his known patriotism, his 
 long experience in the service of his country, his fairness 
 of mind, and his moderation of temper, that which should 
 have caused him, and to a considerable extent did cause 
 him, to be regarded as a fit mediator in this dangerous con 
 flict of ideas and passions, of opposing sectional interests 
 and hostile claims. Mr. Crittenden proposed in the Senate 
 a comprehensive plan of settlement, by which he hoped to 
 effect a compromise between the North and the South, which 
 would have the effect of retaining the Border States in the 
 
3861.1 SPEECH IN FANEUIL HALL. 337 
 
 Union. If it had received the assent of those who were 
 supposed to represent and act for the Administration that 
 was about to come into power, there can be no rational 
 doubt that Virginia, at least, would not have adopted an 
 Ordinance of Secession, and that it would not have been 
 necessary to save the other Border States by armed occu 
 pation. 
 
 The details of Mr. Crittenden s plan, and the causes 
 which prevented it from receiving the assent of all parties, 
 do not need to be considered here. For a time, it arrested 
 the attention of the country ; and it was while there were 
 hopes that it might take effect, or might lead to measures 
 that would prevent the further spread of the revolution 
 which had been begun in the remote South, that a great 
 popular meeting was held in Faneuil Hall, on the 5th of 
 February, called by and composed of those who desired to 
 sustain Mr. Crittenden s efforts. It was not a meeting of 
 citizens of Boston alone, but it was attended by prominent 
 men from all parts of the State, who filled the historical build 
 ing to its utmost capacity. At this meeting, Judge Curtis 
 made the following speech : 
 
 FELLOW-CITIZENS, I suppose every man in this assembly 
 has come into it with the conviction weighing heavily on his 
 heart that our country is in imminent peril. I believe there is 
 not one man here who is not anxiously ready to do what he 
 can to avert the dangers which encompass us, and restore union 
 and peace. What can and should be done ? That is the question 
 to-day. 
 
 The rapid march of events is leaving little time to deliberate, or 
 even to act. Six States have declared the union between them 
 selves and the other States to be dissolved. The Constitution and 
 laws of the United States are, practically, no longer laws for them. 
 They are about to form a confederacy, the only definite and agreed 
 object of which seems to be the military defence of the position 
 they have assumed. 
 
 At least in two places, the military power of the United States 
 and of the seceding States is now set in hostile array, within strik- 
 VOL. i. 22 
 
338 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1861. 
 
 ing distance. A supposed public policy, popular passion, any one 
 of the many casualties which attend on hostile forces, in each oth 
 er s presence, may begin a civil war. We may hear its sounds in 
 the stillness of any evening, or they may be borne to our ears on 
 the next morning s breeze. 
 
 Some of the causes which have produced these events have 
 deeply excited and alarmed all the other slave-holding States. 
 
 The greater part of the people of those States are about to take 
 early organized action on the question of Secession. It is difficult 
 to see how the next thirty days can fail to produce decisive results, 
 one way or the other. If Maryland, Virginia, North Carolina, 
 Kentucky, Tennessee, and Missouri remain in the Union, I think I 
 can see how we may have peace, and a reasonable hope of restoring 
 our country to its former completeness. 
 
 And if we cannot in your time, Mr. Chairman, or in mine, 
 regain the unbroken circle within whose limits we have been per 
 mitted to enjoy such security and honor, we shall yet have a great 
 country, which can calmly bide its own time for convincing its 
 former erratic members, in some appropriate ways, that their inter 
 ests and honor are identical with our own. 
 
 Who that loves his country will not do what he can to assist 
 those Border States to remain within the Union? Are there any 
 insuperable difficulties in doing so ? Let us consider and decide for 
 ourselves. Let us take hold of this subject as a practical thing, 
 which it belongs to the people, the true arid only sovereigns, to 
 consider and decide. 
 
 We have trusted sundry persons, here and there, with this or 
 that agency in our affairs. We have trusted no man, and no set 
 of men, to make our opinions for us. We form them for ourselves, 
 and hold every public servant accountable accordingly. And in 
 this great, unhappy controversy, which threatens so much that is 
 disastrous to ourselves and our children, we, as a part of the people, 
 choose to come together in this hall, and hear and judge concerning 
 this matter. Such I understand to be the purpose of this meeting ; 
 and I proceed to address myself to the topics which seem to me to 
 belong to it. 
 
 And I begin by saying, that, whatever may heretofore have been 
 the differences of opinion among reflecting men in the Northern 
 States, I believe all may be found, at this moment, on one side or 
 the other of a line easily described, and that there are not radical 
 
1861 | SPEECH IN FANEUIL HALL. 339 
 
 differences between those who are on the same side of that line. 
 It divides those who, in the existing emergency, think every thing 
 reasonable should now be done to meet the views and wishes of the 
 conservative people of the border slave States, from those who 
 think nothing at all should be done. On one side or the other of 
 that line the Federal government and the people of the Northern 
 States must place themselves. 
 
 In my judgment, the only doubt is, not whether concessions are 
 ultimately to be made, but whether they are to be made in season ; 
 whether concessions are to be so made as to avert civil war ; or 
 are to be made in consequence of civil war, and in attempts to 
 repair wounds which civil war will have inflicted. 
 
 I look upon this question, whether something reasonable should 
 now be done, or nothing should now be done, in deference to the 
 views and wishes of the slave-holding States still remaining in the 
 Union, as the great and paramount question of this day, this 
 day, which is one of the very few remaining days in which it can 
 be seasonably decided and acted on. Let it be determined that all 
 just and reasonable concessions should now be made, and I have 
 confidence that it will not be found impracticable to agree what 
 they should be. And therefore I address myself, first of all, to this 
 momentous question, and ask your voices upon it, whether this be or 
 be not the time to act. 
 
 But before I proceed further, I desire to prevent all possible 
 misconception concerning my own opinion as to what is termed 
 the right of secession. I consider the Constitution of the United 
 States to have been ordained by the people of the United States, 
 acting through their several State organizations. I believe it to be 
 what the Constitution asserts of itself in so many words, " the su 
 preme law of the land." Not a league, but a law ; like all other 
 laws, binding when obeyed, none the less binding because dis 
 obeyed by those subject to its authority. 
 
 And, consequently, Secession, whether successful or unsuccessful, 
 is successful or unsuccessful revolution. 
 
 At the same time, two things are indisputable. The one is, that 
 the right of revolting against an unjust and oppressive government 
 is one of the inalienable attributes of every people. And the 
 other is, that a union of organized and powerful States necessarily 
 contains within itself organized arid powerful instruments of revo 
 lution. 
 
340 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1861. 
 
 The events of the last fifty days have afforded the most striking 
 evidence of this. For, by the mere fiat of conventions, we have 
 seen the laws of the United States silenced, their property seized, 
 and their power, for the time, annihilated throughout a great tract 
 of country, extending from the Atlantic Ocean to the Mississippi 
 River. It is with States thus organized, thus prepared for revo 
 lution, that we have to deal. We must bear in mind, also, that the 
 question is not what we think of their grievances, or apprehensions 
 of danger to their peace and security, but what they think of them. 
 They will act on their own views of their own necessities, not 
 on ours. And, therefore, if we would form a correct estimate of 
 what their conduct is likely to be, we must not content ourselves 
 with denying that they have occasions for complaint, but must, at 
 least, listen to what they assert them to be. 
 
 Now, looking at what has actually occurred in the secession of 
 six States ; at the preparations for decisive action already made in 
 some of the Border States ; at the common interest of all the slave- 
 holding States in the subject of slavery ; at the unanimity of feeling 
 which springs from it ; at the conviction which, however ill-founded, 
 undoubtedly now exists, that the President elect will be placed in 
 power by a party confined to the Northern States, hostile to slavery, 
 and dangerous to their peace; considering that the secession of six 
 States has left the legislative power in the hands of that party ; that, 
 in the course of nature, important changes may be expected in the 
 judicial department of the government during the next four years ; 
 and that their sincere and urgent apprehensions of injustice are met 
 only by irresponsible individual assurances that there is no occasion 
 for alarm, while nothing is done to regain their confidence ; con 
 sidering all this, should we have any rational ground of confidence 
 that the Border slave States will continue in the Union if we 
 should continue to do nothing? 
 
 Undoubtedly there now exists in each of those States a power 
 ful party friendly to the Union. But how long could it stand, 
 how long would it attempt or desire to stand, against a settled 
 conviction in the minds of their people that the North is indif 
 ferent to their complaints, and intends to employ no agency to 
 retain them in the Union but military force ? Sir, the Union 
 party will dissolve and disappear under the influence of popular 
 passion excited by that conviction, like Northern snow under a 
 Southern sun. 
 
1861.] SPEECH IN FANEUIL HALL. 341 
 
 Is this party to be made powerless through our inaction ? Will 
 you stand still and see those who would restore peace and union 
 swept into the gulf of secession and war, for want of our encouraging 
 acts and helping hands? If not, let us have action. No mat 
 ter what becomes of party platforms. We will use the planks of 
 all of them to make a bonfire wherewith to celebrate returning 
 peace, and think that is the best use they were ever put to. Let 
 us have action, just, wise, conciliatory action. Let us hold 
 out the hand of friendship to every man who has comprehensive 
 patriotism enough to propose a plan for it, whether his name be 
 Seward or Douglas, Etheridge, Adams, or Crittenden. Is there 
 any insurmountable difficulty in agreeing on a plan of pacifica 
 tion ? I do not believe it. The subjects are few, easily understood, 
 and lie within a manageable compass. The sober second-thought 
 of the Northern people has never yet failed to be moderate and 
 wise. Upon some important points there are no differences of 
 opinion among them, if we exclude that small number who avow 
 their hostility to the Constitution, and their wish to destroy the 
 government. I pray you to consider each of the principal 
 subjects involved in this unhappy family quarrel, and see if 
 there be not a way of peace, without any sacrifice of integrity 
 or honor. 
 
 The most practically important subject, and that from which all 
 the others directly spring, is the existence of negro slavery within 
 the States themselves. Now there is no political party in the 
 North which does not admit that the existence of this institution in 
 any State is, and of right ought to be, wholly dependent on the 
 will of the people of that State ; that neither the Federal govern 
 ment, nor the government of any other State, nor the people of 
 any other State, have any just right or claim whatsoever to inter 
 fere therewith ; that what neither of these have any just right or 
 claim to do, directly and openly, they can have no just right or 
 claim to do indirectly and secretly ; that fraud is as unjustifiable 
 as force ; that if the legislative power of Massachusetts cannot be 
 used to break the ties between master and slave in Virginia by 
 force, neither can force or fraud be used for that end by citizens 
 of Massachusetts, or by aliens, dwelling within its limits, and sub 
 ject to its control. 
 
 Now if all this be admitted, and, I repeat, I know of no North 
 ern political party which denies any part of it, there ought to be 
 
342 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1861. 
 
 no real difficulty in procuring suitable provisions of the Constitution 
 arid laws ft> give practical effect to these principles. 
 
 First of all, the Constitution of the United States should contain 
 a provision absolutely securing each slave-holding State from all 
 interference with this institution within the State by the Federal 
 government. Suitable laws should be passed by Congress to 
 guard the several States from organized attempts to set on foot, in 
 any other State, the means of exciting insurrection. And I hold 
 it to be the plain duty of every State, also, to enact laws which, 
 without unduly interferring with individual liberty of speech or 
 action, shall punish conspiracies to interfere with the institution of 
 slavery in any other State by force or fraud. And I ask you 
 to-day, if there ought to be any just impediment to prevent us 
 from affording to our brethren in the Border States these evi 
 dences of our sincerity and these means for their security. Let 
 us not forget that, with them, this is a practical question of the 
 last importance. It concerns the daily and the nightly safety of 
 themselves and their families. If we are sincere in our disclaimer 
 of all right or intention to cause or permit, among ourselves, any 
 attack on their safety, how can we refuse to embody our princi 
 ples in appropriate legislation. If we could think their apprehen 
 sions founded on no facts, would it be right for us to refuse to 
 relieve even their unnecessary fears? In the face of what has 
 been done in the light of day, and of still more which no sane man 
 doubts has been secretly concocted and executed, what candid man 
 will venture to assert that there is no practical necessity for such 
 laws ? I repeat, then, that so far as respects the absolute security 
 of slavery within the States from all attempts at interference by 
 legislation, by force, or by fraud, every political party in the 
 North is pledged to it ; and there ought to be no hesitation in 
 proving the sincerity of that pledge by prompt and efficient action. 
 If there should be, let the responsibility rest on those who palter 
 with the danger. 
 
 Another difficulty, however, grows out of the fact of the exist 
 ence of this institution in fifteen of the States ; I refer to the use 
 of the territory of the United States. In my judgment, this part 
 of the subject has assumed a factitious importance, and has been 
 surrounded by imaginary difficulties which in no degree belong to 
 it. The causes of this are easily discovered, but the present is not 
 a suitable occasion for their discussion. In general, they may be 
 
1861.] SPEECH IN FANEUIL HALL. 343 
 
 said to have been the repeal of* the Missouri Compromise ; the 
 opinion of the Supreme Court concerning the power of Congress 
 over the Territories ; the struggles to establish and exclude slavery 
 in Kansas ; and the formation of a political party in the Northern 
 States, which derived some, at least, of its ostensible strength and 
 activity from the excitement which that repeal and opinion and those 
 struggles occasioned. We have nothing to do, at this moment, 
 with the merits of any or all these causes ; they who are responsi 
 ble for each of them may have been wholly right, or wholly wrong, 
 or, which is more often true in respect to great and complicated 
 human affairs, partly right and partly wrong. 
 
 However this may have been, and whatever may have been the 
 causes, the consequence was, that, for a time, it seemed as if the 
 question of slavery in the Territories of the United States was not 
 only the paramount, but almost the only, national question worthy 
 of any consideration, that it was of such stupendous magnitude 
 that the national existence must be staked on it. Now that the 
 smoke of the contest has cleared away, it has become plain to those 
 who have eyes and will use them, that no such proportions now be 
 long to this subject. 
 
 In the midst of all the existing excitement and alarm, Kansas 
 has been quietly admitted to the Union as a free State ; and 
 New Mexico is the only questionable Territory now belonging to 
 the United States. It was of New Mexico that Mr. Webster 
 said, in 1850, that, though opposed to the extension of slavery, 
 he was willing to trust the laws of nature, which prohibited its 
 establishment there. 
 
 It is of New Mexico that Mr. Adams l has said, in substance, in 
 that speech, pronounced within a few days in the House of Repre 
 sentatives, admirable in matter and manner, worthy of Massachu 
 setts, of his ancestry, and of himself, that, though opposed to the 
 extension of slavery, and though New Mexico is, confessedly, in 
 no condition to be admitted as a State, yet, for the sake of termi 
 nating our unhappy quarrels, he would vote to admit her as a slave 
 State, feeling entire confidence that, as only twelve slaves were 
 resident there after a territorial existence of ten years, the laws 
 of nature would take care of the question of slavery in the 
 future, as they have done in the past. 
 
 1 The Hon. Charles Francis Adams. 
 
344 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1861. 
 
 And now let me ask you, men of Massachusetts, if the peace 
 and welfare of this great and glorious and beloved country of ours 
 is to be kept at hazard by disputes about the particular mode of 
 disposing of such an abstraction as this. 
 
 But then further difficulty is found, or made, respecting possi 
 ble future territory. It is supposed the people of Virginia and 
 Pennsylvania, Kentucky and Massachusetts, New York and Ten 
 nessee, are obliged to plunge into a civil war in a quarrel about the 
 sick man s effects. In view of what has been actually done, and 
 omitted to be done, during the past month, it would be extremely 
 rash to feel no apprehensions of this. 
 
 But I firmly believe that, if the people can get at this question, 
 they will settle it promptly, and to their own entire satisfaction. 
 For myself, I would not attempt to put aside this subject. I would 
 meet it fairly, upon such grounds, and in such a spirit, as gave us 
 the Constitution of the United States. 1 would say to our South 
 ern brethren, I admit you have a fair claim to enjoy by your o\vn 
 means, and in your own way, your fair share of any territory owned 
 by the United States. But you must, I think, admit that you are 
 asking for something not a little extraordinary, when you desire us 
 to agree that you shall have every thing which, under any circum 
 stances, and of any extent, and through all time, may be acquired by 
 the United States south of a parallel of latitude, with the consent of a 
 bare majority of those voting in the Houses of Congress. A prudent 
 regard for the future peace of the country forbids us to consent to 
 introduce so fertile a source of agitation. Amend the Constitution, 
 so that no more territory can be acquired without the consent of so 
 large a part of the people that party agitation for this purpose 
 shall be properly guarded against, and the just interests of minori 
 ties protected, and we shall not disagree. For my own part, I con 
 sider such an amendment of the Constitution far transcends in 
 practical importance any matter now in issue between the Northern 
 and the Border States. 
 
 It is the result of such observation and reflection as I have 
 been able to bestow upon the working of the government, and, 
 what is more important, it is the opinion of some of the wisest 
 practical statesmen whom I have known, that the further extension 
 of the United States is fraught with many and great dangers, 
 amongst which is the ever-increasing difficulty of so harmonizing 
 the public counsels as to be able to agree on the measures neces- 
 
1861.] SPEECH IN FANEUIL HALL. 345 
 
 sary for the welfare of the country. I cannot now do more than 
 allude to this subject, great and important as it is. But I can have 
 no hesitation in saying, that, if such an amendment of the Constitu 
 tion as I have indicated should be one of the consequences of 
 the present unhappy difficulties, it would, in my judgment, add one 
 more to the many instances in which the providence of God has 
 brought good out of evil for our hitherto favored land. 
 
 So far as I know, the only other causes of irritation and alarm 
 arise from the constitutional obligation to surrender fugitive slaves. 
 The obligation is admitted. But, on the one side, it is insisted that 
 the Federal legislation on this subject is unnecessarily harsh, irri 
 tating, and capable of being used for purposes of oppression. On 
 the other side, it is replied that the legislation of the Northern 
 States is designed to obstruct the execution of the Federal laws, 
 and is insulting to those States whose citizens claim rights under 
 them. 
 
 In my humble opinion, both complaints have some foundation, 
 and all cause for both ought to be removed without delay. I 
 believe the Fugitive Slave Law ought to be and can be so modified, 
 as to do away with all just cause of complaint, either of harshness 
 or inefficiency. I have not had opportunity to examine the bill 
 recently introduced by Mr. Douglas into the Senate of the United 
 States ; but, from the account I have received of it, there is reason 
 to believe it embodies legislation which will be satisfactory to both 
 sections of the country. 
 
 I know it is insisted by some among us, whose opinions I re 
 spect, that the State laws commonly called Personal Liberty Bills 
 are not in conflict with the Constitution and laws of the United 
 States. I have not been able to bring my mind to that conclusion. 
 This is not a suitable occasion to enter into an argument on the 
 subject. But I find that in 1855, soon after the extradition of a 
 fugitive slave, the two houses of the Legislature of Massachusetts 
 passed an act, commonly called the Personal Liberty Bill. They 
 sent it to the Governor for his signature. He returned it un 
 signed, with a message to the effect that he had taken the opinion 
 of the Supreme Judicial Court upon certain questions, and the 
 opinion of the then Attorney-General Clifford upon the bill itself. 
 He quoted a part of the opinion of the court, showing that the 
 State authorities could not interfere with a person in the custody 
 of the laws of the United States ; and appended the opinion of the 
 
346 MEMOIR OF BENJAMIN BOBBINS CUKTIS [1861. 
 
 Attorney-General, that the bill, if passed and obeyed, must pro 
 duce a conflict between the State and Federal jurisdictions. In 
 stead of inserting any thing to show that it was not the purpose of 
 the Legislature to interfere with fugitive slaves in the custody 
 of the Marshal of the United States, they passed the bill, not 
 withstanding the Governor s veto. And I feel bound to say, that 
 an examination of those provisions of that law, which still re 
 mains on the statute-book, has left no reasonable doubt on my 
 own mind, that it was the intention of the Legislature to require 
 State officers to take fugitive slaves from the custody of the Mar 
 shal, and have the claim of the master tried by a jury in a State 
 court. 
 
 I believe no constitutional lawyer will undertake to maintain the 
 validity or propriety of such a law. But, in my judgment, there 
 is no necessity to settle the abstract question of the validity of these 
 laws. How do they who assert their validity reconcile them with 
 the Constitution ? By denying their applicability to any case which 
 any reasonable man can expect to happen ? In other words, by 
 depriving them of all practical importance ? Shall such laws be 
 kept on the statute-book, when their only fruits are irritation and 
 bad blood between those who ought to live in peace ? Shall they 
 be kept there when proved to be offensive to friendly States ? 
 Shall they be kept there when, to say the least, many persons, 
 here and elsewhere, quite competent to form an opinion on such 
 a subject, have publicly and solemnly declared their deliberate 
 conviction that they are in conflict with the Constitution ? If they 
 are retained, what will cause their retention ? Will it be patriotism 
 and a calm devotion to duty, or blind party spirit ? And what 
 will the people say hereafter, what do you think now, of those who 
 would thus hazard our welfare ? 
 
 Fellow-citizens, I came here to discharge what I believed to be 
 a duty, at a time when our country is in such a condition as to need 
 even the small efforts of one so humble as myself. I thank you 
 for the patience with which you have listened to me. 
 
 I need not recount what followed these and all other 
 efforts to stay the march of Secession, or describe Low, 
 on the one hand, men like Judge Curtis were ridiculed 
 in the North as " Union-savers," and how, on the other 
 hand, the Secessionists of the South derived new strength 
 
1861.] CIVIL WAR. 347 
 
 from the unwillingness of a great majority of those who 
 represented the North in the councils 6f the country, to 
 make any concessions of any kind. When at length a 
 civil war followed, on the great issue of the right of State 
 secession, an issue transferred from the realms of argu 
 ment to the dread arbitrament of battle, Judge Curtis 
 felt it to be his duty to promote every exertion of the au 
 thority of the Federal government which was warranted 
 by the Constitution, and needful for the exigency. Mr. 
 Lincoln was inaugurated as President on the 4th of March, 
 1861. Although no Southern State had participated in 
 his election, he was now the lawful President of the United 
 States ; and such a man as Judge Curtis could not hesitate 
 as to where his duty led him. 
 
 There lies before me a letter written by him in an early 
 stage of the war, from his home in Pittsfield, to a friend in 
 Boston, 1 which expressed very tersely the wdiole duty of 
 good citizens at that crisis : 
 
 In my judgment, there is but one way to avert the peril. Sus 
 tain the established government, and especially the President, so 
 long and so far, and by all ways and means possible to a good 
 citizen. . . . Let all be made to know that the people intend to 
 preserve their government, and not to allow it to be controlled by 
 irresponsible cliques or committees, or by any outside influences 
 whatsoever ; and that the President may confidently rely on the 
 firmness and good sense and patriotic devotion of the people, if he 
 honestly intends to defend and restore the Constitution and laws 
 of the country. 
 
 But later on, when it appeared that " irresponsible cliques 
 or committees " were exercising a control which he deemed 
 most pernicious, and, above all, when the President mani 
 fested a willingness to use powers which Judge Curtis did 
 not believe were warranted by the Constitution, he felt con 
 strained to do what he could for the preservation of prin- 
 
 1 Letter to William W. Greenough, Esq., his brother-in-law. 
 
348 MEMOIR OF BENJAMIN ROBBINS CURTIS. [1862. 
 
 ciples which alone made the struggle for the Union of any 
 value. The Proclamation of the President, issued on the 
 22d of September, 1862, commonly called his Emancipa 
 tion Proclamation, was a measure into which he was com 
 pelled by persons who would have opposed his administration 
 if he had refused it. It was claimed by a very large body 
 of the citizens of the Northern States, that he could not 
 take this step within the limits of the Constitution. The 
 persons who had urged it upon him were indifferent to the 
 question whether it was or was not a step authorized by 
 the Constitution. The President s own idea concerning 
 the source of his power to take it was, that, as commander- 
 in-chief, prosecuting a war, he could " take any measure 
 which might best subdue the enemy." * 
 
 If this idea had been suffered to pass unchallenged, there 
 could have been, in principle, no limit to the exercise of 
 power by the President, not even the limit of the physi 
 cal force at his command. For if the President, in a civil 
 war for the preservation of the Constitution, and the resto 
 ration of its authority in the Southern States, could, by a 
 stroke of his pen, change the State laws which fixed the 
 relation of master and slave in those States, he could by 
 
 1 Aside from the newspapers of the period, I do not know of any author 
 ity to which to refer the reader for an account of Mr. Lincoln s feelings or 
 opinions concerning this Proclamation, excepting Mr. Greeley s " American 
 Conflict." That work contains an account of an interview granted by 
 President Lincoln to a deputation of clergymen from Chicago, in which he 
 said : " Understand, I raise no objections to it on legal or constitutional 
 grounds ; for, as commander-in-chief of the army and navy in time of war, 
 I suppose I have a right to take any measure which may best subdue the 
 enemy : nor do I urge objections of a moral nature, in view of possible 
 consequences of insurrection and massacre at the South. I view this mat 
 ter as a practical war measure, to be decided on according to the advan 
 tages or disadvantages :* may offer to the suppression of the Rebellion." 
 (Vol. II. pp. 251, 252.) At this time, September loth, Mr. Lincoln was 
 unwilling to issue the Proclamation. It was issued, however, on the 22d of 
 the same month, declaring that on the first day of January then next 
 (1863) the Executive would declare all slaves to be free then held in 
 any States or parts of States continuing in rebellion against the United 
 States. 
 
1862.] ARBITRARY ARRESTS. 349 
 
 the same power annihilate their whole political and social 
 fabric, and reduce them in law to the condition of conquered 
 provinces, without even overrunning them. There was 
 either a limitation of his power as commander-in-chief, or 
 there was none. While those who compelled Mr. Lincoln 
 to issue this Proclamation really cared nothing for the 
 source of power to which it was to be referred, and while 
 the majority of the Northern people were perhaps gratified 
 that it had been issued, and thought little of any question 
 of principle involved in it, Judge Curtis felt that he had a 
 duty to fulfil. Nor was that duty made less exigent, when 
 another Proclamation one creating offences unknown to 
 the laws, subjecting persons committing them, or guilty of 
 " any disloyal practice," to martial law, and suspending the 
 writ of habeas corpus burst upon the country as if it were 
 the announcement of a reign of terror ; a reign which the 
 Secretary of War was prompt to inaugurate as effectually as 
 force could do it, by orders establishing a military police all 
 over the land, to act under his directions in making arrests 
 and reporting " treasonable practices." 
 
 No satisfactory reason has ever been given for these acts 
 of Mr. Lincoln s administration. The arbitrary arrests, 
 which so shocked and alarmed men who had deeply at 
 heart the preservation of the existing government, had in 
 most cases no excuse in any necessity of any kind. Some 
 of them were wantonly oppressive ; every one of them, 
 in which the person arrested was not in the military ser 
 vice, was a violation of the constitutional liberty of the 
 citizen. The explanation of this strange phenomenon in 
 our history is to be found partly in the existence and activ 
 ity of a class of men, who were described by Judge Curtis 
 in the private letter above quoted. " The country," he 
 said, "is full of active, ambitious, and unscrupulous men, 
 who are seeking, some of them, their own advancement, 
 some of them to work out their own will, and most of them 
 to accomplish both these objects." Still another explana- 
 
350 MEMOIR OF BENJAMIN BOBBINS CURTIS. 
 
 tion is to be found in the fact, that in an Administration too 
 weak to discover and work out the means of salvation for 
 the country within the just powers of the Constitution, there 
 was a Secretary of War whose energy and executive ability 
 were of the kind that prefers the arbitrary to the lawful, 
 and who was by nature excessively imperious. 
 
 Shocked as Judge Curtis was by the Proclamations and 
 the accompanying Orders of the Secretary of War, he was, 
 as the reader has by this time learned, not a man of im 
 pulses. His large and habitual charity towards the motives 
 of others, and his sense of the extreme gravity of this crisis 
 in the affairs of the country, led him to deliberate carefully 
 before he publicly called in question these acts of the gov 
 ernment. There is extant a record of the feelings with 
 which he approached the performance of what he regarded 
 as a public duty, written just before he published the well- 
 known pamphlet entitled " Executive Power." I quote 
 from a letter to his wife, dated on the eve of that publica 
 tion, and addressed to her at Pittsfield. 1 
 
 BOSTON, Oct. 6, 1862. 
 
 ... I have written a pamphlet on the late Proclamations of the 
 President. I was hard at work on it, internally, while at Pitts- 
 field, and, having completed it since my return, have submitted to 
 
 1 On the 29th of August, 1861, my brother was married to Miss Maria 
 Malleville Allen, of Pittsfield, a granddaughter of the Rev. Thomas Allen, 
 who graduated at Harvard College in 1762, and became the first minister 
 of the town of Pittsfield. He went, with a portion of his people, to the 
 battle of Bennington. One of his sons, the Rev. William Allen, D.D., be 
 came President of Bowdoin College. Another son, Mr. Jonathan Allen, 
 the father of Mrs. Curtis, followed mercantile pursuits in Boston, and made 
 a good fortune. He afterwards returned to Pittsfield and made an un 
 successful investment of his property in a stock farm. On his mother s 
 side, he was descended from Governor Bradford. He died at Pittsfield 
 in 1845. 
 
 Dr. William Allen married Maria Malleville, a daughter of the Rev. 
 Eleazar Wheelock, D.D., the founder and President of Dartmouth College. 
 For this lady Mrs. Curtis was named. 
 
 The descent of Dr. Wheelock from Captain Miles Standish is mentioned 
 ante, p. 48, note. 
 
1862.] EXECUTIVE POWER. 351 
 
 some wise friends here the question of cui bono ? They are far 
 stronger than I am for the bono. I have great reluctance to go 
 into the arena. The strife is bitter, and not altogether safe. But 
 if I know myself, this reluctance has not influenced me. It is a 
 feeling, partly, of doubt, whether any opposition to the President is 
 now useful, and, mainly, whether the sacrifice of feeling and in 
 terest which I shall make will be outweighed by any public good 
 to be effected. My friends have strongly insisted, and I shall 
 yield and publish it. That it will be read and abused, I do not 
 doubt. That it will greatly influence the country, I more than 
 doubt. But I do not feel at liberty to refuse to make any attempt 
 to keep things from being turned over, which I can possibly effect. 
 If you wake up some morning and find your husband has gone to 
 Fort Warren, do not be disturbed, for he will come out one of the 
 martyrs of this revolution. Seriously, however, though there is no 
 danger to me or mine, there is great and pressing danger to the 
 country, danger of the loss of ideas, and this I have tried to 
 encounter or obviate. I cannot help to subdue the enemy abroad, 
 I ought to do what I can to subdue the enemy at home. 
 
 The tone of this pamphlet, calm, serious, unimpassioned, 
 but firm and unshrinking, and the personal authority of its 
 author, made it exceedingly obnoxious to the excited par 
 tisans of the Administration. If an attack had been made 
 upon the Proclamations in any incendiary spirit, or by one 
 who had less weight of character to support, and less of 
 logical power to enforce, the objections to them, there 
 would have been far less of violent denunciation of the 
 writer. But this compact, perspicuous, and reasoned ex 
 hibition of the lawlessness of the Executive acts, in which 
 there was no superfluous word, and no word that could 
 justly irritate, pointing, as it plainly did, to the character 
 of the revolution which those acts were likely to precipi 
 tate, was met in some quarters by cries of " treason," and 
 the like objurgations. 
 
 Yet it would have been well if those who had only op 
 probrious epithets to oppose to such a production had 
 paused upon a single passage, in which the author said: 
 
352 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1862. 
 
 " The war in which we are now engaged is a just and 
 necessary war. It must be prosecuted with the whole 
 force of this government, till the military power of the 
 South is broken, and they submit themselves to their duty 
 to obey, and our right to have obeyed, the Constitution of 
 the United States, as the supreme law of the land. But 
 with what sense of right can we subdue them by arms to 
 obey the Constitution as the supreme law of their part of 
 the land, if we have ceased to obey it, or failed to preserve 
 it, as the supreme law of our part of the land? I am a 
 member of no political party. Duties inconsistent, in my 
 opinion, with the preservation of any attachment to a po 
 litical party caused me to withdraw from all such associa 
 tions many years ago, and they have never been resumed. 
 I have no occasion to listen to the exhortations, now so 
 frequent, to divest myself of party ties, and disregard party 
 objects, and act for my country. I have nothing but my 
 country for which to act in any public affair ; and solely 
 because I have that yet remaining, and know not but it 
 may be possible, from my studies and reflections, to say 
 something to my countrymen which may aid them to 
 form right conclusions in these dark and dangerous times, 
 I now reluctantly address them." 
 
 If one who dealt with momentous public questions in 
 this spirit was to be regarded as a " disloyal citizen,* then 
 the free discussion of public measures was at an end, and the 
 time for an irresponsible despotism, having no basis save in 
 the passions of the multitude and the caprices of rulers, had 
 arrived. But the violence, and, in some good degree, the 
 prejudices, of that period have passed away. It is now 
 apparent that it was to courage such as his, to the refusal 
 of men like him to be silenced by the frowns of power, and 
 to their adhesion to sound principle in times that tried the 
 soul as those who are to come after us may haply never 
 be tried, that we owe it that we still have the Constitution 
 of the United States, with its guaranties of social order and 
 
1862.J CIVIL WAR. 353 
 
 personal freedom. Certainly it will not be denied, that 
 Judge Curtis contributed his part to prevent u the loss of 
 idoas " the preservation of which was essential to our wel 
 fare, in the manner and the spirit that became him. 
 
 After the publication of this pamphlet in Boston, pro 
 fessional duties in the Supreme Court carried him to 
 Washington ; and I make some further extracts from his 
 letters to Mrs. Curtis, written during the winter of 
 1862-63. 
 
 WASHINGTON, Dec. 15, 1862. 
 
 . . . The boys have it now in our field, and while American 
 citizens are slaughtering each other in thousands, the need of them 
 is most evident. Washington was always a fatiguing place to me, 
 even when it was a fresh scene, and the place where I ha8 am 
 bitions ; and now that I have grown wiser, and have none, in the 
 usual acceptation of the word, and most of -my old friends have 
 gone, either to a better world, or to decay here, or run away to 
 Secessia, and with the blackest clouds lowering around our na 
 tional life, this city is very dreary to me. But I have enough 
 to do to keep me from idle thoughts ; and that I am able to work 
 for you and the dear children, in honorable and useful employ 
 ment, is enough to keep me content, if I have not much about me 
 that is pleasant. 
 
 . . . The Administration and its followers are feeling despond 
 ent about General Burnside s army. The loss in Saturday s fight was 
 dreadful. I think it will reach, and probably exceed, ten thousand. 
 1 see no one who has any discernment of probable end. All looks 
 dark to those who have eyes. It cannot be, that such a state of 
 things should long continue. 
 
 WASHINGTON, Dec. 26, 1862. 
 
 ... I called on Mr. Stanton last evening, when I had a right 
 to expect to find him at home. I did not, and was glad not to. I 
 had determined to say, " We will not talk about public affairs." 
 He returned his card the next day. 1 have been urged to go and 
 see the President. I think not. It would do no good, and would 
 give me no pleasure. I suppose he would say the same. My 
 hopes for the Union and the Constitution are nowhere. . . . But 
 I do not know why I should write these things to you. Only my 
 heart and my mind are full of them. 
 VOL. i. 23 
 
854 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1862. 
 
 WASHINGTON, Jan. 6, 1863. 
 
 . . . Speaking of , I have known him a long time, and he 
 
 is a hard, round, dry little Ego, about the size and consistency of a 
 rattan ; and I hope that in some future state of existence he will 
 meet with some Aaron who will make the rod sprout and blossom 
 yet. I ought to add, all I know of him is outside, and he may have 
 a world within yet undiscovered by me. 
 
 I had a long and interesting conversation with Mr. Stanton last 
 night. He is a strange man, and one of the strangest things is, 
 that he manifests a very strong feeling of regard, I might say affec 
 tion, for me. I had written a pamphlet directed against his acts, 
 which, whatever may be its merits, has undoubtedly produced a 
 powerful impression on the country against him and the Admiuis- 
 tratiqp. Loyal certainly, devotedly so, and allowing no man to 
 doubt my devotion to the country, respectful to the President and 
 to himself, not for rhetorical purposes, but actual conviction, 
 still [it was] calculated to excite (as in the mind of the Presi 
 dent it has excited) hostile feeling. 1 But when I saw him [Mr. 
 Stanton] on the 1st of January, he asked me to name some 
 time when he could see me, and last evening I spent two hours 
 with him, discussing these very questions, in part, and when I 
 came away he said he had not had so pleasant an evening since I 
 saw him last February, and begged me to come again. I cannot 
 
 1 Mr. Lincoln, during his famous contest with Mr. Douglas, when they 
 " stumped " the State of Illinois together, and made speeches against 
 each other from the same platforms, carried with him, as a vade mecum, 
 Judge Curtis s dissenting opinion in the Dred Scott case. No doubt it fur 
 nished him with many an argument, which he could use pertinently in the 
 discussion of questions debated by him and his antagonist, in that memora 
 ble contest. But it is strange that he did not recognize in Judge Curtis s 
 pamphlet, " Executive Power," the same devotion to the Constitution, the 
 same high power of contemplating its true meaning as the only guide of 
 public and official action, which he admired in the dissenting opinion. Mr. 
 Lincoln was too sensible a man not to know that as President, either in his 
 civil or his military capacity, he could not promulgate decrees, that would 
 have the force of laws, affecting the domestic relations of the people of any 
 State or States. If the pamphlet on Executive Power excited in his breast, 
 hostile feelings against the writer, it must have been because he considered 
 that, in the circumstances of the country, he had some right to expect any 
 official act of his to pass unchallenged. That he could reasonably expect 
 this, no one probably would now contend. 
 
 I notice that in the records of the Class of 1829, a copy of which, so 
 
1862.] EXECUTIVE POWER. 355 
 
 doubt his sincerity, but I do not quite comprehend his very decided 
 liking. 
 
 Among the arguments or assertions with which the criti 
 cisms on this pamphlet abounded, the dernier resort was al 
 most universally found in the comprehensive position that 
 " rebels have no rights." Judge Curtis was supposed to have 
 overlooked or disregarded a principle, by which a lawful gov 
 ernment, engaged in putting down a rebellion, may resort to 
 any measure or do any act which it deems necessary ; that, 
 as rebellion is the renunciation and destruction of all law, 
 rebels are out of the pale of all law. Private letters from 
 persons whose studies or reflections did not enable them to 
 see the unsoundness of such a doctrine, when applied to a 
 civil war for the salvation of a written Constitution, but 
 who caught at the idea that rebels have no rights as the 
 solution of all difficulties, lie before me in considerable 
 numbers. The partisan press of course echoed this sup 
 posed principle, in all its forms. It received the sanction, 
 among others, of a gentleman occupying the high position 
 of Professor of Law in Harvard University, in a letter 
 written in his own person and published in one of the 
 
 far as they relate to my brother, I have been permitted to see, there is an entry 
 by the Secretary which strongly illustrates how Judge Curtis was by some 
 persons misunderstood. The record speaks at length, and in glowing terms 
 of eulogy, of his dissenting opinion in the Dred Scott case. This is followed 
 by a note, in these words : " Again, and seemingly adverse to the above, in 
 October, 1862, he prepared a legal opinion and argument, which was pub 
 lished in Boston in pamphlet form, to the effect that President Lincoln s 
 Proclamation of prospective emancipation of the slaves in the rebellious 
 States is unconstitutional." It is not a little singular that all could not see, 
 that between the constitutional power of Congress to prohibit the introduc 
 tion of slavery into a Territory of the United States, and the power of 
 the President to abolish slavery in a State by his Proclamation, there was not 
 even a "seeming" analogy. But in those days they only were consistent 
 who desired to see an end of slavery, regardless of the means. The proposal 
 to abolish it by an amendment of the Constitution proves how futile in 
 point of law was the Proclamation of 1862. But the reader will have the 
 dissenting opinion and the pamphlet on Executive Power both before him, 
 and a comparison will disclose the inconsistency, if any there be. (See infra, 
 Vol. II., Index.) 
 
856 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1862. 
 
 public journals. 1 In short, it was the one great and popular 
 answer, in New England, to Judge Curtis s objections to 
 the President s Proclamations. 
 
 He did not deem it needful to enter into a newspaper 
 discussion with any of his critics ; but, as the first edition 
 of his pamphlet was immediately exhausted, the publication 
 of a second gave him an opportunity to insert some para 
 graphs dealing with this assertion that the people of the 
 seceded States were out of the pale of law. 2 So far as I 
 know, these paragraphs constituted the only answer that he 
 made publicly to the criticisms with which his pamphlet 
 was received. 
 
 The strictures and commendations of the public press 
 with which this pamphlet was received in different quar 
 ters of the country were voluminous. But expressions of 
 the feelings and opinions of persons who stood aloof from 
 the press and its various influences are now more valuable, 
 because they came from more impartial sources. From the 
 letters that lie before me I select two, that emanated from 
 that unbiassed observation of public affairs which private 
 station and high intelligence are best calculated to produce. 
 The writer of one was Dr. James Jackson, who was perhaps 
 the acknowledged head of the medical profession in New 
 England for a long period, and who, in every thing that 
 related to the public weal, was a man of singular wis 
 dom. The writer of the other was a gentleman of great 
 eminence at the Boston Bar, who still adorns it, at an 
 advanced age, but in undiminished activity, who had led 
 and still leads only the life of a distinguished lawyer, and 
 who expressed, in a very terse and perspicuous manner, 
 the appropriate answer to a criticism which appeared in 
 the London Times. 
 
 1 See a communication, signed by the Hon. Theophilus Parsons, printed 
 in the Boston Daily Advertiser, October 24, 1862. 
 
 2 The second edition is the one reprinted infra, Vol. II. The new para 
 graph? are enclosed in brackets. 
 
1862.] EXECUTIVE POWER. 357 
 
 DR. JACKSON TO MR. TICKNOR. 
 
 October 20, 1862. 
 
 MY DEAR MR. TICKNOR, Let me thank you for sending me 
 Judge Curtis s pamphlet on Executive Power. I thank you very 
 much for it. I received it last evening, and my son then read it to 
 me. This morning I have read it myself. I cannot tell you how 
 much I have been gratified by the perusal. Many of us thought 
 that the President had taken liberties with the law, which he had 
 not any right to take, within the last eighteen months. But most 
 persons having these thoughts have probably felt, as I have, a reluc 
 tance to complain, because we were aware of the very embarrass 
 ing and very great difficulties under which this officer was placed 
 upon coming into office, and at the same time had thought he was 
 truly seeking the best welfare of the country, and that he had not 
 any wish to arrogate any powers not belonging to him. To me, 
 certainly, the arrest and imprisonment of citizens by military 
 power, without even stating the causes for such arrests, have 
 appeared unjustifiable and alarming. But the late Proclamations, 
 as they took broader grounds, have appeared still more so. Had 
 the President been thought to have been prompted by personal 
 ambition, and to have harbored any improper desires, I think that 
 through our newspapers arid in other ways loud complaints would 
 have been made many months ago. But since the 22d of Septem 
 ber, the fear of evil could not be restrained, and it has been evi 
 dent that an opposition would be made to the course adopted by 
 the commander-in-chief. In this state of affairs, there is great rea 
 son for rejoicing that Judge Curtis has given us this pamphlet. 
 So far as I know, there is not any of our distinguished jurists and 
 statesmen to whom our public would listen more readily than to 
 him, none more fitted, in the general estimation, for the task. 
 This task, so far as I can judge, he has performed with the great 
 est skill and success. He has arranged in the most lucid manner 
 the points to be considered, he has stated all that can be said in 
 the most logical manner ; and he has done this with what may be 
 called true eloquence, if I may use that word in reference to what 
 is written. He has thrown his own feelings into the discussion, 
 and must warm others by the warmth which he shows in regard to 
 the common welfare. In so doing, so far from seeking to find 
 fault with the President, or seeking to alienate his fellow-citizens 
 
358 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1862. 
 
 from him, he has manifested toward him the kindest feelings, and a 
 confidence in his honesty and integrity, which, I believe, is enter 
 tained by the great mass of our people. He has not written a 
 word of which Mr. Lincoln or his friends can complain, while he 
 has not been restrained from describing, in the most distinct and 
 fearless manner, the objections which can be made to the course of 
 conduct under consideration. 
 
 I sat down to write you a short note, and here I am. Per 
 haps my writing is so bad that you have not got here, where I am. 
 Let me add a hope and wish. From the title-page I have a sus 
 picion that the pamphlet is not [yet] published. But it must be 
 spread abroad very freely. It should reach every man who can 
 understand it. I should like to hear that a million of copies were 
 printed. Possibly it would be best to have it printed in half a 
 dozen newspapers of extensive circulation. . . . 
 
 As I trust you will read the end of my note, I here beg your 
 pardon for such a hurried and loose paper, and, with new thanks, 
 assure you of my great regard for you. 
 
 J. JACKSON. 
 
 SIDNEY BARTLETT, ESQ. TO MR. TICKNOR. 
 
 Friday Evening, Nov. 29, 1862. 
 
 DEAR MR. TICKNOR, I return the letter of Sir Edmund 
 Head, and the Times, with my thanks. The Times article is wil 
 fully perverse. The writer could not read the Judge s pamphlet 
 and fail to see that it is wholly based on this proposition, that 
 this government is dealing with a rebellion, and not with an alien 
 enemy ; that, in dealing with such rebellion, it has at all times 
 professed to be governed by a written Constitution, the provisions 
 of which it holds to be constantly applicable to the several States 
 where such rebellion has sway ; and that - the purpose of the pam 
 phlet is to show that, professing, as the Executive does, to be governed 
 by that Constitution, its restraints have ignorantly, or by a gross 
 misconstruction, been wholly disregarded. The whole article in 
 the Times wilfully ignores what constitutes the fundamental propo 
 sition on which the pamphlet rests, and, though smart, is shaped to 
 other issues thnn those raised by the Judge. Pardon me for adher 
 ing to my original view, that, for those who have thought enough 
 to comprehend the pamphlet, an essay to show that in a rebellion 
 
1862.] EXECUTIVE POWER. 359 
 
 rebels have rights is superfluous, and that it would require an essay 
 of a different character, and one of larger proportions^ to deal with 
 the weaker popular delusion as to the effect of the struggle upon 
 our rights and duties. Yours faithfully, 
 
 S. BARTLETT. 
 
 Any one who shall now carefully read this production, 
 " Executive Power," will notice how sedulously the writer 
 abstained from questioning the motives of these executive 
 acts, and how respectfully he treated the President and his 
 Secretary of War ; directing his arguments and comments 
 solely to the constitutional and legal questions. There was 
 great merit and great charity in the adoption of this tone ; 
 for, in all the directness with which the writer judged the 
 conduct of the Administration in reference to its consti 
 tutional powers and duties, he did not charge, as many 
 of the political opponents of the Administration did, that, 
 while the executive department w r as prosecuting the war, 
 it was at the same time aiming to control the elections 
 everywhere in the North, and thus to preserve the party 
 supremacy which was both affirmed and denied to be essen 
 tial to the successful termination of the great struggle. 
 The Emancipation Proclamation was, according to the 
 prevailing belief among the Democrats, conceded to those 
 who demanded it, because it was supposed that it would 
 gain more votes than it would lose. In the same way, it 
 was charged that the Proclamation which suspended the 
 habeas corpus as to all persons confined by military author 
 ity, and the orders of the Secretary of War establishing a 
 military police for the arrest of " all disloyal persons subject 
 to arrest, under the orders of the War Department, . . . 
 and to perform such other duties as may be enjoined upon 
 them by the War Department," were designed as much to 
 intimidate citizens inclined to write, speak, or vote against 
 the party in power, as they were to prevent actual aid from 
 being given to the enemy in the field. It was said that the 
 motive of these measures was largely political ; and that, 
 
360 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1862. 
 
 while Mr. Lincoln s government was fighting Southern 
 armies in the field, it constantly had its eye and its hand on 
 the elections in the North. Yet in his public criticism of 
 " the late desperately bad measures," as he characterized 
 them in a private letter, Judge Curtis omitted all reference 
 to the complaint that the Administration shaped its meas 
 ures as the head of a party quite as much as for military 
 purposes. In fact, the pamphlet had no party character or 
 purpose. 
 
 One of the most elaborate, and from the writer s prem 
 ises most consistent, of the many answers to Judge Curtis s 
 pamphlet was made by the London Times, in an article 
 filling more than two of its editorial columns, in its issue of 
 November 13, 1862. l It is to be remembered that, at this 
 period, nearly the whole force of British opinion leaned 
 strongly in support of the position that the Southern Con 
 federated States were no longer a component part of the 
 United States, but that they were " a foreign power to the 
 North." The adoption of this view by the public men and 
 the writers of Great Britain who embraced it, and its gen 
 eral acceptance by the governing classes of that country, 
 with here and there a notable exception, had almost the 
 effect that might have followed an actual intervention to 
 bring about the final and practical result, which was as 
 sumed to be the existing state of things. It is needless 
 now to speculate upon the causes which produced this 
 opinion in England. All that I am concerned at present to 
 point out is, that the postulates of a complete severance of 
 
 1 It is the article referred to supra, in Mr. Bartlett s note. It was sent 
 from London to Mr. Tieknor, by Sir Edmund Head, accompanied by a letter 
 from which I take the following extract: 
 
 "November 16, 1862. 
 
 "I send you by this mail a copy of the Times, with a notice of Judge Curtis s 
 pamphlet. It is not to me a satisfactory one in any way. As a matter of course, 
 the stand-point of the Times is different from that of the author, and so likewise is 
 my own. But I scarcely think the importance of the matter is properly estimated. 
 I gave DeLane the pamphlet, in order that some notice might he taken of it; but I 
 am in no way responsible for the article." 
 
1862.] EXECUTIVE POWER. 361 
 
 the American Union, and of the alien character of the 
 Southern Confederacy, lay at the foundation of all that 
 this able writer in the London Times had to urge against 
 Judge Curtis s views of the nature of the contest. I am 
 not disposed to insist, although I have remarked it for more 
 than thirty years, that Englishmen, probably in conse 
 quence of the difference between an unwritten and a writ 
 ten Constitution, have generally been peculiarly liable to 
 adopt views of the American Union in which very few 
 Americans would concur. Doubtless there was a radical 
 difference of opinion between the North and the South, re 
 specting the right of State secession from the Union as 
 resulting from the nature of our Constitution ; and it is 
 equally true that, after this supposed right had undergone 
 theoretical discussion in every possible form, and because 
 there was no peaceable solution of it provided for in the 
 Constitution itself, and as the claim would not be surren 
 dered by the people of the Southern States, the practical 
 assertion of the supposed right became a question of physi 
 cal force between the established government of the United 
 States and the people of the South. In this posture of 
 things, the real question for the government of the United 
 States, which denied in toto the existence of any constitu 
 tional right of State secession from the Union was, whether 
 it could, consistently with its own constitutional position, 
 adopt the dogma that the Southern Confederacy was an 
 alien enemy, and proceed against the Confederated States 
 and their people in all respects as alien enemies proceed 
 against each other, to all the consequences of conquest and 
 subjugation. By all theories theretofore maintained by 
 publicists, and accepted by the most enlightened nations, a 
 constitutional government which is obliged to wage a civil 
 war in assertion of its lawful authority over its revolted 
 citizens, may treat the military power of the insurgents, for 
 the time being, as a belligerent, and accord to it the rights 
 and usages of civilized war. This is a principle which has 
 
362 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1862. 
 
 been adopted into the public law of the world, in order to 
 prevent such contests from degenerating into barbarous 
 practices ; and because it is a principle of great practical 
 convenience to the lawful government, which is obliged to 
 use military means to regain its lawful authority over the 
 territory and persons comprehended within the sphere of 
 the insurrection. But between this temporary and limited 
 concession of the belligerent character, and the complete 
 concession of the character and position of an alien enemy, 
 there is a plain distinction. The government of the United 
 States, deriving all its powers from a written Constitution, 
 could not, consistently with its claim that the Southern 
 people were " rebels," proceed to treat them in all respects 
 as if they were " alien enemies." The power to declare 
 war, which the Constitution had vested in Congress, and 
 the power to carry on Avar which it had vested in the Presi 
 dent, must both be interpreted by the nature of the war 
 that is at any time undertaken. A war against an alien 
 enemy cannot be a civil war, prosecuted for the recovery 
 of the lawful authority of a constitutional government. 
 A people cannot be at the same time alien enemies to a 
 government and rebels against the lawful authority of that 
 government ; and although, when they are the latter, they 
 may be conceded to be belligerents, in a limited sense, until 
 the contest is ended, that concession in no way involves the 
 consequence that they are alien enemies, either during the 
 contest or after it has terminated in the success of the legiti 
 mate government. 
 
 The writer in the London Times based all his argu 
 ments against the views of Judge Curtis upon the assump 
 tion that the Southern Confederacy and the people of the 
 Southern States were an alien enemy to the government of 
 the United States. Reasoning from the position that the 
 war was a foreign war, he maintained, in reference to Mr. 
 Lincoln s Emancipation Proclamation, that in a foreign war 
 the commander-in-chief can threaten the enemy with any 
 
1862.] EXECUTIVE POWEK. 863 
 
 thing that he believes will annoy or weaken him. In the 
 same way, he maintained that the fallacy of Judge Curtis s 
 objections that by the other Proclamation the President had 
 undertaken to create offences unknown to the laws of the 
 United States such as discouragement of enlistments, the 
 resistance to drafts, and other disloyal practices lay latent 
 in the assumption that the laws of the United States are to 
 be applied to a foreign war. " In vain," he said, " Judge 
 Curtis attempts to reconcile the uses of martial law with 
 the principles of the Constitution. When the Executive 
 has suspended habeas corpus, quoad Executive, in respect to 
 certain classes, he comes in as commander-in-chief, and deals 
 with these classes as military chief. The whole of the acts 
 of the President, in letter and spirit, are referable to and 
 excusable upon one ground alone, that which the Demo 
 crats will not adopt, and which the Republicans are not 
 bold enough openly to stand upon, that the States of the 
 South are an alien enemy, and that those citizens in the 
 jurisdiction of the [United] States who aid and abet them 
 are amenable to the customs and usages of all governments 
 towards treasonable subjects. Thus considered, Mr. Lin 
 coln becomes a despot, ruling a prostrate people, who, in 
 time of war, to gratify their lust of conquest, have given 
 up every vestige of liberty, and cannot save their enemies 
 from the measure they have accepted for themselves. The 
 most curious fact, perhaps, in connection with this result of 
 majority doctrines, is the perfect submission of the whole 
 people of the Northern States to decrees which have been 
 stigmatized as illegal in the last degree ; that the army of 
 intelligent citizens have yielded to them : that the generals, 
 the most powerful of whom are Democrats, have never 
 dreamt of opposing them. It must be that they feel that 
 the Confederate States have become an independent nation, 
 and are now an alien enemy." 
 
 It is a remarkable coincidence, that this opinion of a 
 British N\ riter, put forth for an obvious purpose, fell in with 
 
364 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1862. 
 
 views which were maintained in this country. There was 
 a large body of opinion in the Northern States which 
 regarded the war as a war for conquest and subjugation, or 
 wished to make it one ; so that the Southern States might, 
 as States of the Union, be obliterated, and be reduced to 
 the condition of Territories, the property of the United 
 States. Practically, this opinion concurred in the dogma 
 of the foreign writer, that the war was, to all intents and 
 purposes, a foreign war ; and thus, while the foreigner 
 wished to produce the belief that the American Union was 
 legally dissevered, the domestic press to a large extent, and 
 a considerable party in the North, called loudly for an un 
 limited prosecution of the war, and a suppression of the 
 political existence of the Southern States. 
 
 It was the purpose of Judge Curtis to show that this was 
 not a foreign war, with the rights and powers which one 
 alien enemy can exert against another. He wished to save 
 the government and people of the United States from the 
 deplorable consequences of having on their hands a great 
 collection of conquered provinces, subjugated as an alien 
 enemy is subjugated by a triumphant foe. He saw with 
 perfect distinctness, that, when the line which separates a 
 foreign war and all its incidents from a civil war, that is 
 waged for the recovery of the lawful authority of a constitu 
 tional government, was once crossed, the Constitution of the 
 United States could not be saved, either for the North or 
 the South. He looked forward to the time when, the mili 
 tary power of the Southern Confederacy being broken and 
 dispersed, the Constitution could resume its peaceful sway 
 over the people of the South, and they could be restored to 
 their proper participation in its working, a time which 
 he felt well assured could never come if the Executive were 
 to assume and exercise powers derived from the assumption 
 that he was bound, in prosecuting the war, by no restraints 
 of the fundamental law of his country, and could do any 
 thing that a commanding general may do against an alien 
 
1862.] EXECUTIVE POWER. 365 
 
 enemy. The assertion that Judge Curtis was unable to 
 reconcile the uses of martial law with the principles of the 
 Constitution, was a mere begging of the question. His 
 English and his American critics should have both attended 
 to his distinctions between military law and martial law ; 
 and they should have answered, if they could, his limitation 
 of the latter to the sphere of actual operations in the field. 
 They should not have assumed that the President could ex 
 tend martial law over the whole country and all its citizens, 
 and then have jumped to the conclusion that the uses of 
 martial law and the principles of the Constitution were 
 irreconcilable. They should have begun with the admis 
 sion that the Constitution did not allow of the application 
 of martial law to all the citizens of the Union, and then 
 have inquired how, when, and over whom, martial law can 
 ever be exercised in this country. 
 
 There was yet another aspect of this very important sub 
 ject on which Judge Curtis was at variance with his critics, 
 which he saw, and which they, apparently, did not see. 
 " Judge Curtis s argument," said Professor Parsons, "would 
 give the Constitution and the law to the rebels as their 
 sword to smite with and their shield to save them, and leave 
 it to us only as a fetter." 1 If the people of the Southern 
 States, while the President was seeking to suppress what 
 he and the great mass of his fellow-citizens of the North 
 professed to regard as a rebellion, were to understand that 
 they were waging a foreign war, one which had been made 
 such by the will of the Executive of the United States, with 
 the assent of all the people of the North, one which must 
 be prosecuted to the end of conquest by one party or the 
 other, or, in other words, if the people of the South were 
 to understand that the Constitution and laws of the United 
 States, the supremacy of which over all opposing force was 
 the great professed object of all Federal hostility, afforded no 
 rule for the action of the Federal government, then they 
 1 Boston Daily Advertiser, October 24, 1862. 
 
366 MEMOIR OF BENJAMIN BOBBINS CURTIS. [18Q5 
 
 were under the most powerful motives for resistance that 
 could ever animate a people. Then they were to fight pro 
 aris et focis; and the result must inevitably be, if they 
 were beaten, that they were out of the pale of the Union. 
 What, then, in such an event, would have been our 
 condition ? With the Constitution abrogated, and with a 
 whole group of States subjugated by military power, what 
 rule, what authority, what source of power but an absolute 
 despotism, would have remained for the government of the 
 conquered or the conquerors? 1 
 
 In a copy of the pamphlet, " Executive Power," pre 
 sented by Judge Curtis, soon after its publication, to a 
 gentleman still living, and in whose possession it remains, 
 the following note in Judge Curtis s handwriting appears, 
 referring to the President s Proclamation which suspended 
 the writ of habeas corpus, and subjected persons guilty of 
 certain offences to martial law, and trial and punishment 
 by military tribunals : 
 
 NOTE. I understand that the Proclamation of President Lin 
 coln, a copy of which is on the sixth page, cannot be obtained on 
 application to the Department of State. I have not myself made 
 the application, and the person who had so informs me. All procla 
 mations of the President are required to be published in Little 
 and Brown s edition of the Acts of Congress, &c. This one is not 
 so published. That it was issued there can be no doubt. I took it 
 from the " Intelligencer," which printed it at Washington on the 
 day it was made public. Having been issued, I arn sorry any 
 attempts have been made to suppress it. 2 
 
 B. R. C. 
 
 1 One evening, at a party in Washington, after Mr. Stanton was out of 
 office, he came up to Judge Curtis, and, holding out his hand, said, " Judge, 
 now that I have ceased imprisoning my fellow-citizens without due process 
 of law, will you shake hands with me ? " My brother did not like banter on 
 such a subject, but nevertheless he shook hands with Mr. Stanton. Their 
 intimacy, however, I think was never renewed. 
 
 2 The facts appear to be these. The Proclamation referred to was not 
 published, as it should have been, (if filed in the State Department,) in the 
 12th volume of the Statutes at Large, along with the other Proclamations 
 of 1862. It did not make its appearance until the 13th volume was pub- 
 
1865.] APPOINTED UMPIRE UNDER A TREATY. 367 
 
 In the early part of the year 1865, Judge Curtis was 
 selected as umpire, under a treaty between the British and 
 the American governments. This selection of a private 
 individual, and a citizen of one of the contracting countries, 
 for such a duty, was so creditable to the British authorities, 
 and so honorable to the person named, that I think it worthy 
 of explanation. 
 
 On the 1st of July, 1863, a treaty was concluded be 
 tween the two governments, for the final settlement of the 
 claims of the Hudson s Bay and Puget Sound Agricultural 
 Companies. These claims had arisen under the treaty of 
 June 15, 1846, commonly called the Treaty of Oregon ; by 
 which the landed possessions of these two companies, and 
 of all other subjects of Great Britain within certain limits, 
 might, under certain circumstances, become the property 
 of the United States, at a valuation in money to be agreed 
 upon between the parties. It was now agreed by the 
 treaty of July 1, 1863, that the settlement of all questions 
 relating to these claims should be referred to two commis 
 sioners, one of whom was to be appointed by each govern 
 ment ; and that, if they could not agree on an umpire, 
 whose decision was by the treaty to govern in case of their 
 differing upon any of the claims or questions, the umpire 
 should be appointed by the King of Italy. The commis 
 sioners appointed under the treaty were Mr. Rose of Mon 
 treal (now Sir John Rose), on the part of Great Britain, 
 and the late Judge Alexander S. Johnson, of Utica, in the 
 State of New York, on the part of the United States. Sir 
 Edmund Head, who had been Governor- General of Can 
 ada from 1854 to 1860, had, after his return to England, 
 accepted the position of Governor of the Hudson s Bay 
 Company. Being an intimate friend and correspondent 
 
 lished, which was in 1866. Whether, in this interval of four years, there 
 was an original on file in the Department of State, would seem to be doubt 
 ful. Judge Curtis s manuscript note in reference to it was written after the 
 publication of the 12th volume of the Statutes, which was in 1862. 
 
368 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1865. 
 
 of Mr. Ticknor, and well acquainted with Judge Curtis, he 
 wrote to the former gentleman as follows : 
 
 SIR E. HEAD TO MR. TICKNOR. 
 
 HUDSON S BAY HOUSE, FENCHURCH STREET 
 
 LONDON, Feb. 27, 1865. 
 
 MY DEAR TICKNOR, In July, 1863, there was a convention 
 between the British and United States governments, for the settle 
 ment, by commissioners, of the long standing claims of the Hud 
 son s Bay and Puget Sound Companies (under the Treaty of 
 Oregon). The commissioners (Mr. Rose of Montreal and Judge 
 Johnson) have met, and they will have to name an umpire. If 
 none is named by government, the case goes to the king of Italy. 1 
 Well, the Foreign Office here have asked me, as Governor of the 
 Hudson s Bay Company, if I could suggest any name. I have not 
 hesitated, with the consent of my colleagues in the committee here, 
 to say, that we would feel quite satisfied if the final adjudication of 
 the claims were left to Judge Curtis as umpire. We believe that 
 it would be impossible to find a more honorable or more competent 
 person. I think Lord Russell will probably write out to this 
 effect, and E scarcely see how the American commissioner can 
 object to Judge Curtis, if Rose proposes him. My chief fear is, 
 lest he should decline to accept the office ; but I hope, at any rate, 
 he will feel that his ability and integrity are fully and completely 
 recognized in London. I shall be truly sorry, if it is offered and 
 refused. Yours sincerely, 
 
 EDMUND HEAD. 
 
 To MR. TICKNOR. 
 
 Sunday, P. M. 
 
 DEAR UNCLE, I came home from Hartford with a hoarse 
 cold, which it is highly expedient I should get rid of, as I have 
 
 1 There was apparently a slight inaccuracy in this. The treaty required 
 that, if the commissioners did not agree on an umpire, he was to be named 
 by the King of Italy. This inaccuracy, however, is not material to the 
 point for which Sir E. Head s letter is here quoted, namely, that an inde 
 pendent, if not the first, suggestion of the name of Judge Curtis came from 
 England. Sir Edmund meant, in substance, that if the British government 
 did not instruct Mr. Rose whom to suggest or agree to, there would he a 
 practical disagreement between the Commissioners, and the appointment 
 would have to be made by the King of Italy. 
 
1865.] DEATH OF HIS MOTHER. 369 
 
 two causes to argue this week ; so I have stayed in to-day, and do 
 not like to go out, as your note invites me to do. 
 
 I should desire you to make my acknowledgments to Sir Ed 
 mund for the kind expressions contained in his letter, and indeed 
 for thinking of me at all for such a duty, were it not that, in a 
 matter so purely judicial, it is better for me to have no such in 
 tercourse with either side. You will therefore please say to Sir 
 Edmund, that you read his letter to me, and that there is nothing 
 in the character of the office, or in my own engagements, which 
 would prevent me from assuming its duties, if it should be the wish 
 of both governments that I should do so. 
 
 I was very unwillingly deprived of the dinner on Friday, but I 
 could not reach Boston in season. 
 
 Yours always, B. R. CURTIS. 
 
 So far from there being any objection to Judge Curtis 
 on the part of the American commissioner, I am inclined 
 to believe that Judge Johnson himself had thought of Judge 
 Curtis, previously to the proposal of his name by Mr. Rose, 
 and that, when they again met, each of them found that 
 the other was prepared to name the same person. 1 Judge 
 Curtis was never called upon to act under this appoint 
 ment, as the commissioners agreed upon the award which 
 they were required to make. 
 
 In the autumn of 1865, my mother, then nearly eighty 
 years of age, met with an accident which seemed likely to 
 prove fatal. She recovered from its immediate effects, but 
 died tranquilly on the 7th of February, 1866, in full posses 
 sion of all her faculties and affections. 
 
 To GEORGE T. CURTIS. 
 
 Wednesday, Nov. 20, 1865. 
 
 DEAR BROTHER, I have been absent at Providence all day, 
 and shall be there to-morrow and cannot see mother again till 
 
 1 Judge Johnson informed me, shortly before his death, that he suggested 
 the name of Judge Curtis to Mr. Rose, and he seemed to claim the merit of 
 the selection as belonging originally to himself. The probability is, that 
 there was a coincidence of separate and independent preferences for the same 
 person. 
 
 VOL. i. 24 
 
370 MEMOIR OF BENJAMIN BOBBINS CTJKTIS. [1866. 
 
 Wednesday. The account I have, and this corresponds with ray 
 own observation, is that when not excited she sleeps a great deal ; 
 and the nurse, who is skilful and observing, thinks she may drop 
 away at any time. But I have no doubt she has much vitality and 
 that, without a sudden shock, which of course may come at any 
 moment, she will live through her present state. I wish to give 
 you exactly my own appreciation of her condition, and it is this. 
 
 The shock she has received may be such that her nervous sys 
 tem will sink under it. In that case she will die, probably quietly 
 and without suffering ; and the present indications are that this 
 would be the result with one of less vital power. I doubt if it 
 will be so with her, for she has a great deal. 
 
 My own house has been little better than a hospital. . . . For 
 myself, I have been much pressed by courts and juries, but I shall 
 wind them all up to-morrow, and have some rest. I have kept well 
 and about, the same as always. Give my love to your wife. 
 
 Yours always, B. R. CURTIS. 
 
 To MR. TICKNOR. 
 
 32 HANCOCK ST., Feb. 8, 1866. 
 
 MY DEAR UNCLE, I thank you for your note. I should 
 have come to your house this morning, if my exposure last night 
 had not given me a cold which made it necessary for me to keep 
 in doors to-day. 
 
 You say well, that, when one has come to the end of a great 
 duty, it is a time to look back and see how it has been done. 
 
 Though I have performed neither this nor any other duty so 
 well as I ought, I have tried for forty years to do what my mother 
 would permit me to do for her; and I have the satisfaction of 
 believing that she did not think me wanting in my duty to her. 
 
 Though she had to the last half-hour of her life the same ener- 
 
 O 
 
 getic purpose to do what her physician judged best, which was 
 characteristic of her, yet she wished to be at rest. Now she is at 
 rest. Affectionately yours, 
 
 4 B. R. CURTIS. 
 
 To THE HON. REVERDY JOHNSON. 
 
 BOSTON, July 8, 1866. 
 
 DEAR MR. JOHNSON, I read the report of your argument on 
 the Test Oath, on my journey hither, and am entirely satisfied of 
 
1866.] OPINIONS GIVEN AT THE BAR. 371 
 
 its soundness, and certainly it is put with great clearness and force 
 before the court. 
 
 I hope for the right result, but, in the present condition of things, 
 I do not feel sure of any result of judicial action, where political 
 considerations have, or may have, any place. 1 
 With great regard, I am, dear Sir, 
 
 Yours faithfully, 
 
 B. R. CURTIS. 
 
 The following opinions are selected from a great number 
 given in the year 1866. 
 
 FEDERAL OR STATE JURISDICTION OVER TRUSTS. 
 INVESTMENTS BY TRUSTEES. 
 
 OPINION. 
 
 An executor, guardian, or trustee, appointed by a court of a 
 particular State, is subject to account in a suit in equity, instituted 
 in a court of the United States, between citizens of different States. 
 That the trust has its origin in the action of a State court, and that 
 the trustee is amenable to its jurisdiction, will not exempt him 
 from accountability in a suit in equity in the courts of the United 
 States. But a trustee who has derived his appointment from the 
 act of a State court, and who is bound, by the laws under which he 
 was appointed, to account in the court which appointed him, and 
 who either has there accounted, or is in the process of there ac 
 counting, pursuant to the laws under which his obligations were 
 created, cannot in my judgment be drawn away from this appro 
 priate State tribunal, and forced to account in a court of the 
 United States. The reasons for this opinion may be found stated 
 
 1 A provision inserted in the Constitution of the State of Missouri, during 
 the civil war, required priests and clergymen, as a condition of being allowed 
 to continue to exercise their profession, and to preach and teach, to take a 
 prescribed oath that they had not committed certain designated acts, some of 
 which were at the time offences with heavy penalties attached, and some of 
 which were at the time acts innocent in themselves. The Supreme Court 
 of the United States, in accordance with the arguments of Mr. Johnson and 
 Mr. David Dudley Field, held that this provision constituted both a bill of 
 attainder and an ex post facto law, within the meaning of the clauses of the 
 Federal Constitution which prohibit the States from passing laws of that 
 character. (See Cummings v. The State of Missouri, 4 Wallace s R. 277.) 
 
372 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1866. 
 
 in the case of Mallet v. Dexter, 1 Curtis s C. C. R. 178. I have had 
 frequent occasions to reconsider this subject, but have not been 
 able to arrive at any conclusion more satisfactory than the one 
 therein stated. 
 
 The case states that the investments in question were duly re 
 ported by the trustee to the Chancery Court, and I assume these 
 reports were part of the proceedings in the course of which the 
 trustee had been appointed. It is not stated whether any judicial 
 action was taken thereon, whether the investments were approved 
 and sanctioned by the court, whether, under the practice of the 
 court, such reports, not objected to, are deemed to be sanctioned by 
 the court. 
 
 If judicial sanction of the investments was obtained, in my 
 opinion their propriety cannot now be questioned in the suit 
 brought in the United States court, or in any other court ; upon 
 the plain principle, that the trustee has actually been subjected to 
 a judicial accounting in a tribunal of competent jurisdiction, where 
 the propriety of his investments has been finally settled. If judi 
 cial sanction of the investments has not been obtained, I am strongly 
 inclined to think that their subject-matter should be deemed to be 
 so far in progress before the Court of Chancery which appointed the 
 trustee, that any other court should decline to interpose and assume 
 jurisdiction over the subject. But this state of facts would present 
 a question of some difficulty. I have an impression that Judge 
 Giles of Maryland has had this, or a very similar question, before 
 him ; and that he gave an elaborate opinion on it, refusing to take 
 jurisdiction. A copy of his opinion might be of service. 
 
 As to the validity of the State laws, my opinion is that they pro 
 tect the trustee. I will state briefly the grounds of that opinion. 
 
 I think the following positions should be and will be affirmed by 
 the Supreme Court of the United States. 
 
 1. The State of Alabama continued to exist after its attempted 
 secession from the Union, with all its political capacities un 
 impaired. 
 
 2. Its officers not having been sworn to support the Constitu 
 tion of the United States, and having in fact used the powers of 
 the State to make war on the United States, there was during this 
 war no such government of the State as can be recognized by the 
 government of the United States, in either of its departments, as a 
 lawful government. But it was a government de facto ; and those 
 
1866.] OPINIONS GIVEN AT THE BAR. 373 
 
 acts of the State which would have been de jure, if the officers had 
 been sworn to support the Constitution of the United States, were 
 operative and binding on its citizens who were within the power of 
 the State, as the acts of a government de facto. 
 
 3. The nature of our government does not permit the United 
 States to destroy a State, or acquire its territory by conquest. It 
 may rightfully subdue, by arms, any number of the rebellious peo 
 ple of a State. But when the authority of the United States has 
 been fully restored by arms, the State remains ; and it is both the 
 right and the duty of the people of the State to reconstitute its 
 government so that it will be in harmony with the Constitution of 
 the United States. 
 
 The question, at what time the power of the United States is so 
 restored that the people of a State, whose government has been 
 used to make war on the United States, can safely be called to 
 gether to reorganize its government, is purely a military question, 
 of which the President is the judge, and his action in that capacity 
 is binding on all departments of the government of the United 
 States. 
 
 To apply these principles to the subjects under consideration. 
 
 If the naked question were presented, whether a law of a State 
 enabling trustees to invest in the bonds of a state or country at 
 war with the United States would be a valid law, I should appre 
 hend it would be held to be invalid ; not because of any mere 
 principle of public policy, but because such a law might be deemed 
 in conflict with the law of the United States declaring war, and with 
 the rights of the United States and the duties of its citizens arising 
 from a state of war. 
 
 How far the very peculiar facts of this case would influence 
 or control the decision, if this case rested only on the law passed 
 Nov. 9, 18G1, I do not find it easy to determine. If the bonds 
 were not taken by the trustee from the State, but were purchased 
 in the market, there is certainly much force in the reasoning drawn 
 from Armstrong v. Toler, 1 1 Wheaton, 258, and that class of cases 
 in favor of the validity of the trustee s act. But I have not thought 
 it needful to pursue this inquiry, because I am of opinion that the 
 Ordinance of the Convention and the subsequent act of Feb. 22, 
 1866, are sufficient to protect the trustee. It will be understood from 
 what I have before said, that I consider this Convention to have been 
 the lawful possessors of all the sovereign power of the people of 
 
374 MEMOIR OF BENJAMIN BOBBINS CUETIS. [1866. 
 
 Alabama, and this Legislature to have been de jure in the exercise 
 of the legislative power of the State under its Constitution, and 
 therefore, unless it can be shown that to validate the acts there 
 tofore done by this trustee is in conflict with the Constitution of 
 the United States, or some constitutional law of the United States, 
 his acts are validated. I do not think this can be shown. If the 
 original transaction were a purchase of bonds from the State or 
 the Confederate States, and in conflict with the Constitution and 
 laws of the United States because it gave aid to the war, still that 
 transaction was wholly completed and closed, and cannot be in any 
 manner aifected by this Ordinance or law, and it was a matter of 
 perfect indifference whether the trustee should or should not be 
 held accountable to his cestui que trust as for an illegal investment. 
 This principle is brought out with great force by Mr. Justice 
 Nelson in McBlait v. Gibbs, 17 Howard, 232, and I think it fully 
 supported by the authorities. 
 
 In my judgment this principle ought to be applied, with much 
 liberality, to healing acts of legislation which relate wholly to past 
 transactions, are without political significance or effect, and have 
 for their sole and manifest object to prevent public events from 
 working private injustice. 
 
 If it be conceded that the investment when made was illegal, 
 and the trustee accountable, it was within the power of the State 
 to destroy that accountability ; and I am not able to see how the 
 Constitution of the United States, or any law of the United States, 
 required this legal accountability to be preserved. 
 
 It is not an objection that the law is retroactive, and takes away 
 an existing right, which does not arise from any contract. I 
 attach importance also to the character and the nature of the act 
 in question. The Legislature, as representing the parens patriot, 
 may do many acts for the protection of the rights of minors and 
 of their guardians or trustees, which would not be generally admis 
 sible, and I can perceive nothing inconsistent with sound principles 
 of legislation, in a law protecting trustees and guardians from all 
 consequences of acts done by them in good faith and under color 
 of law, but which subsequent events have proved to be defective 
 or illegal. I think, from my general recollection, that an examina 
 tion of the legislation of the States, and of the judicial decisions 
 thereon, will disclose many such cases. 
 
 It should be remembered what the precise question is. It is 
 
1866.] OPINIONS GIVEN AT THE BAR. 375 
 
 whether a trustee, who has exercised in good faith that discretion 
 in making investments of trust funds which belongs to him, shall 
 be held by a court of equity to have transcended his powers. 
 And, without touching the question whether the particular invest 
 ment did or did not exceed the then existing powers of the trustee, 
 I do not doubt that it is within the legislative power of the State 
 of Alabama to enact, that investments made in good faith by 
 trustees, though not authorized by existing laws, shall be deemed 
 to be in execution of their trusts. And I perceive no sufficient 
 reason why this law enacted by the Legislature on this subject, 
 should not be respected by the courts of the United States. It is 
 true that the courts of the United States, in the exercise of their 
 equity powers, are not controlled by the laws of the State. But 
 what are equitable rights and titles are not only affected, but 
 in many cases must be absolutely controlled, by those local laws 
 which alone can create and regulate them. And I do not suppose 
 any lawyer, instructed in our complicated system of jurisprudence, 
 will undertake to maintain that a trustee, appointed under the laws 
 of a State, and accountable directly to its courts for the execution 
 of his trust, can be held anywhere, or in any court, to account 
 otherwise than in substantial conformity to those laws. And if 
 those laws, either by way of previous authority, or subsequent 
 ratification, justify his conduct, I do not perceive how it can suc 
 cessfully be questioned. 
 
 B. R. CURTIS. 
 
 CONSTITUTIONAL LAW. OBLIGATION OF CONTRACTS. 
 OPINION. 
 
 By Stat. 1827, ch. 32, the Boston Beer Company was made a cor 
 poration " for the purpose of manufacturing malt liquors in all their 
 varieties, in the city of Boston, and for that purpo.-e shall have all 
 the powers and privileges and be subject to all the duties and re 
 quirements contained in an act passed March 3, 1809 (Stat. 1808, 
 ch. Go), "and the corporation was authorized to hold such real estate 
 and personal estate, of limited amounts, as might be found neces 
 sary or convenient for carrying on such manufacture. 
 
 The corporation having been organized, and its capital stock paid 
 in, real and personal estate were purchased, and fitted for, and ap 
 plied to such manufacture. 
 
376 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1866. 
 
 By Gen. Stat., ch. 86, sect. 28, the manufacture of beer for sale 
 is prohibited. By sections 12-15. provision is made for obtaining a 
 license from the mayor and aldermen to manufacture spirituous or 
 intoxicating liquors (which include beer) for export, or use in the 
 arts, or sale to town agents. But a bond with penalties is required 
 to be given to observe all the restrictions of the law. 
 
 By Stat. 1829, ch. 53, sect. 16, the act of 1808 and all acts in 
 addition thereto were repealed, with a qualification. 
 
 By the Revised Statutes this last-mentioned act was repealed ; 
 but this repeal did not revive the act of 1808 (Rev. Stat., ch. 146, 
 sect. 9). 
 
 Upon this legislation the question arises whether the prohibition 
 to manufacture beer for sale, contained in the General Statutes, 
 impaired the obligation of the contract contained in the charter. 
 
 There can be no doubt that the powers granted by the charter 
 itself are materially and substantially abridged by this prohibition. 
 The corporation was empowered by the charter to manufacture 
 beer in the city of Boston ; and there can be no doubt that what 
 they were thus empowered to make they were also empowered to 
 sell, in the city of Boston and elsewhere, according to the usual 
 course of such business. The restriction contained in the General 
 Statutes as to quantity, place, person, and use are manifestly substan 
 tial and material. So much so, that I understand them to render 
 it impracticable to conduct the business with any profit whatever, 
 and if there was no qualification of the grant of powers contained 
 in the charter, there could be no reasonable doubt that the law 
 which imposed such restriction upon the powers granted as ren 
 dered them useless and impracticable, was a law which impaired the 
 obligation of the contract arising from that grant. 
 
 Four questions seem to me to arise. 
 
 1. Is the prohibitory legislation which impairs the powers of this 
 corporation a lawful exercise of the police powers of the State? 
 
 2. Is it within the seventh section of the act of 1808 ? 
 
 3. Has the seventh section of that statute been effectually re 
 pealed ? 
 
 4. Is it competent for the Legislature to re-enact the seventh 
 section of that statute, or in any manner regain the powers over 
 corporations which that section provided for ? 
 
 As to the First Question. I am of opinion that every grant 
 made by the State is under the protection of the Constitution of the 
 
1866.] OPINIONS GIVEN AT THE BAR. 377 
 
 United States, to the full and entire extent of the thing granted. 
 This leaves open the question, in each case, what is the thing 
 granted ; or. more properly, in reference to this topic, what restric 
 tions upon the grant are implied by law from the nature of the 
 thing granted. Within the limits of these implied restrictions, the 
 Legislature may exercise its police powers in regulating the mode 
 or extent of the use of the thing granted. But outside of the lim 
 its of such implied restrictions the Legislature cannot act, for the 
 plain and sufficient reason that its action would derogate from its 
 grant, and thus necessarily impair the obligation of its contract. 
 This distinction between acting within the limits of restriction im 
 plied by law from the nature of the thing granted, and acting with 
 out such limits, will be found to run through the decisions ; and 
 even when it has not been expressly declared, the courts have mani 
 festly upheld the exercise of police powers only by first showing that 
 the nature of the grant was such as to be subject to implied restric 
 tions which allowed the exercise of police powers. (See remarks 
 of the court in People v. Plait, 17 Johnson, 195, upon the case of 
 Stougltton v. Baker, 4 Mass. Rep. 522, and the reasoning of Shaw, 
 C. J. in Commonwealth v. Alger, 1 Gush. 53, passim.} 
 
 But it seems to me not possible to show that the legislation 
 now in question is within the limits of restrictions implied from the 
 nature of the grant. In effect, the restrictions and prohibitions 
 imposed annul the entire grant. That grant was of a right to 
 employ the capital of the company to manufacture beer in the city 
 of Boston for sale. The prohibition is to manufacture at all with 
 out obtaining a license and giving a bond to observe its terms and 
 conditions ; and then, only to manufacture for export and sale to 
 town agents, whose sales are restricted within very narrow limits. 
 And it is stated to be true, that the power so to manufacture and 
 sell is not only substantially different from the power granted by 
 the charter, but includes no part of that power which is of any 
 practical value ivhtitcver. 
 
 That the law of Massachusetts at the date of this grant implied 
 that the grant itself might be revoked, or thus restricted, cannot be 
 maintained. In my opinion there was no implication of any restric 
 tions on the grant substantially and materially inconsistent with 
 the fair meaning of the words of the grant itself. This is deduci- 
 ble, not only from the principles which govern the interpretation 
 and effect of such grants, but from the fact that the Legislature, by the 
 
378 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1866. 
 
 act of 1 808, which is referred to in the charter, has expressly defined 
 the extent of its own power to alter or amend, the grant; so there 
 is no room for any implication on that subject. It is not intended 
 by this to say, that the Legislature retained no power over the cor 
 poration, arising from its general authority to make all manner 
 of wholesome laws, &c. There can be no reasonable doubt that 
 both the real and personal property of this corporation, and its 
 franchises and business, were under the control of the legislative 
 power for many purposes and in many particulars. But I have as 
 little doubt that the power of the Legislature substantially to 
 change, restrict, or destroy its franchise to prosecute the business 
 for which the corporation was created, and to which its capital 
 stock was adapted, on the faith of its charter, must be looked for, 
 not in the police powers of the State, but in the reservation con 
 tained in the act of 1808 referred to in the charter. 
 
 The Second Question. 
 
 The seventh section of the act of 1808 is restricted both by its 
 terms and its subject-matter to action by the Legislature, after 
 notice, upon the charter itself. General legislation had without 
 notice to the corporation, and without any action upon the specific 
 grant made by its charter, is not within this provision. In a some 
 what similar case of People v. Platt, 17 Johnson, 195, it was 
 deemed most respectful to the Legislature to assume that, in enat- 
 ing a general law which would impair a grant if allowed to operate 
 thereon, the Legislature did not have the particular grant in view, 
 and did not intend to impair it. 
 
 But whatever supposition may be resorted to, it seems to me 
 clear that the provisions of the General Statutes now in question 
 cannot be deemed to be either a further regulation for the manage 
 ment of the business of this corporation, or a repeal of its charter 
 " upon due notice to the corporation." 
 
 The Third Question. 
 
 The act of 1829, ch. 53, sect. 16, repealed the whole of the act of 
 1808, subject only to the qualification, " but this repeal shall not 
 affect the existing rights of any persons, or the existing or future 
 liabilities of any corporation, or any members of any corporation, 
 now established, until such corporation shall have adopted this act 
 and complied with the provisions herein contained," In my opin 
 ion the qualification has no reference to the subject-matter of the 
 seventh section of the act of 1808, but relates exclusively to the 
 
1866.] OPINIONS GIVEN AT THE BAB. 379 
 
 rights of persons against the corporation and its members, which it 
 was one object of this act to modify, if it should be accepted and 
 its terms complied with by any existing corporation. Its language 
 is wholly satisfied by such a construction, and its terms can prop 
 erly signify nothing more. " The rights of any person, or the exist 
 ing or future liabilities of any corporation, or any members of any 
 corporation," have a natural and appropriate meaning, when ap 
 plied to the rights of third persons and the corresponding liabili 
 ties to third persons of the corporation and its members ; but 
 certainly do not fitly describe or indicate a power of the Legislature 
 to alter, amend, or repeal a charter. And subsequent legislation 
 tends strongly to confirm this view. 
 
 It should be observed that, by the seventeenth section of this act 
 of 1831, the only power reserved by the Legislature over the char 
 ters of corporations established under or adopting that act was a 
 power to sweep them all out of existence by a repeal of the act 
 itself. There was no power to alter or amend a charter, and no 
 power to repeal any one charter. Doubtless this defect was discov 
 ered ; and March 11, 1831, the Stat. 1830, ch. 31, was passed, which 
 declared that all acts of incorporation passed after that date should 
 be subject to be amended, altered, or repealed at the pleasure of the 
 Legislature. 
 
 When the Revised Statutes were enacted, and subsequently 
 when the General Statutes were enacted, the legislative power 
 over corporations was declared to extend to those created after 
 March 11, 1831 ; and there is no trace of any other claim of author 
 ity, so far as I know, from the time when the act of 1808 was re 
 pealed by the act of 1829, ch. 53, to the present time. It seems to 
 me that these laws in the Revised Statutes and General Statutes 
 must be taken to be well-considered statements of the whole au 
 thority claimed by the Legislature over the alteration or repeal of 
 charters; and when it is expressly limited to those created since 
 March 11, 1831, such limitation shows that it was at that date, and 
 by virtue of the act then passed, that this power was called into 
 existence ; and that as to corporations previously created no such 
 power existed. 
 
 As to the Fourth Question. 
 
 When the grant now in question was originally made, it was 
 subject to a reservation, by force of which it might be revoked or 
 modified after due notice to the corporation. By subsequent legis- 
 
380 MEMOIR OF BENJAMIN 11OBBINS CURTIS. [1866. 
 
 lation this reservation was, I think, extinguished. By this relin- 
 quishment, the grant, which was originally in part or in whole, 
 became absolute arid irrevocable either in part or in whole. The 
 original qualification of the grant, which affected the obligation of 
 the contract arising from it, was removed, the grant became abso 
 lute, and the obligation of the contract arising from it was thence 
 forward unqualified. 
 
 The effect of such a relinquishrnent of a power of revocation, or 
 alteration, in the case of private grants, would not admit of doubt. 
 Once effectually made, the relinquishment of a power over prop 
 erty is a final extinguishment of the power, and it can never be 
 resumed. And after much reflection I am not able to see why the 
 same is not true of the relinquishment of the powers reserved by 
 the legislature in the seventh section of the act of 1808. The subject 
 of the power was private property, whose existence and enjoyment 
 were wholly beyond legislative control save by force of the power 
 reserved. As soon as that power was released, the right to this 
 private property became as absolute as if it had been originally so 
 granted. The reason why the State cannot resume franchises once 
 absolutely granted is that such resumption derogates from its 
 grant, and this impairs the obligation of the contract arising from 
 the grant. But it cannot be material that this contract arises from 
 two acts of the Legislature, instead of one. If the first grant is 
 conditional, and afterwards the condition is released, if the first 
 grant is revocable, and afterwards the power of revocation is re 
 linquished, it would be impossible, I think, to distinguish that 
 case from a grant originally absolute and irrevocable. The ques 
 tion in both cases would be whether the act revoking or changing 
 the grant was in derogation of it, as it existed when attempted to 
 be revoked or changed. If the charter of this corporation had 
 contained a section substantially like the seventh section of the 
 act of 1808, and subsequently the Legislature had repealed that 
 section, I am not able to perceive any sufficient grounds for believ 
 ing that, after such repeal, the grant would be other than it would 
 have been if the charter had not originally contained the repealed 
 section. And the fact that the reserved power was contained in a 
 general law referred to in the charter, does not seem to me to be 
 material. 
 
 I ought to say, that, after careful examination, no decision of this 
 precise question has been found, and that I cannot, therefore, rely 
 
1866.] OPINIONS GIVEN AT THE BAK. 381 
 
 on either the reasoning or authority of any court in answering the 
 question. But my own opinion is, that, when the act of 1808 was 
 repealed, the Legislature finally relinquished the powers reserved 
 in its seventh section. And, as has been already noticed in an 
 other connection, the legislation, both in the Revised and General 
 Statutes, upon this particular subject, has a very strong tendency 
 to confirm this opinion. It can scarcely be doubted that the 24th 
 section of the 44th chapter of the Revised Statutes, and the 41st 
 section of the Gist chapter of the General Statutes, were each 
 intended to set forth and preserve the entire power of the Legis 
 lature to alter, amend, or repeal acts of incorporation ; but that 
 power is there expressly limited to acts passed after March 11, 
 1831. 
 
 In answer to the specific questions proposed, 
 
 1. I am of opinion that debts due to the corporation for malt 
 liquor made and sold in the usual course of its business may be 
 collected. 
 
 2. I am of opinion that beer manufactured by the company 
 under the powers contained in its charter, and consigned to its 
 agents for sale, in the usual course of such business, cannot law 
 fully be seized and condemned. But I do not think the char 
 ter gives the right to become retailers through agents. Such 
 was not the usual course of such business when the charter was 
 granted. 
 
 3. I am of opinion that the corporation has the right to sell to 
 its customers beer manufactured by the corporation pursuant to its 
 charter. 
 
 4. What rights are acquired by the purchasers to use and sell 
 what is thus purchased, it is not so easy to answer. I should wish 
 to know fully the facts of the particular case before giving an 
 opinion on it. Some considerations likely to bear on any such 
 case may be stated. 
 
 1st. It is clear that the right to manufacture malt liquors 
 necessarily gave the right to sell them in the usual course of such 
 business, and that any law which substantially impairs this right of 
 sale is inconsistent with the grant made by the charier. 
 
 2d. It is equally clear, that the right of a manufacturer of this 
 article, generally sold, not to consumers, but to wholesale and retail 
 dealers, is substantially impaired, if those entire and principal classes 
 of his customers can make no use, in their business, of what they 
 
382 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1865. 
 
 buy. A prohibition on wholesale and retail dealers to sell is, in 
 effect, a prohibition to buy. 
 
 If the enactment were, that no wholesale or retail dealer should 
 buy any beer of this corporation, I should not doubt that such a 
 law would impair the right of the corporation to sell it, and it can 
 hardly be material, in reference to the corporate rights or powers, 
 whether the prohibition be to purchase, or to make the only use of 
 the article which the purchaser would buy it for. 
 
 3d. At the same time, I think the Legislature may regulate the 
 sale of beer by purchasers of it from the corporation, and that such 
 powers of regulation would be very liberally construed by the 
 courts. And, for obvious reasons, I should prefer to give no opinion 
 upon the case of a purchaser from the corporation, without having 
 all the facts before me. 
 
 B. R. CURTIS. 
 
1865.] ACCESSION OF PRESIDENT JOHNSON. 383 
 
 CHAPTER XIII. 
 
 1865-1868. 
 
 Accession of Andrew Johnson to the Presidency. Letter to the Philadel 
 phia Convention of August, 1866. Impeachment of President Johnson. 
 Judge Curtis requested to defend the President. His Opening Argu 
 ment. Letters to Mr. Ticknor during the Trial. Acquittal of the Presi 
 dent. Declines the Office of Attorney-General. 
 
 IN consequence of the assassination of Mr. Lincoln, which 
 occurred on the 14th of April, 1865, the office and duties of 
 President of the United States devolved on Andrew John 
 son, the Vice-President. The personal qualities of Mr. 
 Johnson will be found pretty accurately described by. Judge 
 Curtis, in a letter that will be quoted when I reach the 
 period of his impeachment. At the time when he succeeded 
 to the Presidency, but little was known about him, by the 
 people of the United States at large, excepting that he was 
 a man of great honesty of character, and that he had been 
 heroically faithful to the Union, in his own State of Ten 
 nessee. Th<e civil war, when he became President, was 
 virtually ended, but its termination had not been officially 
 proclaimed. One of his earliest official acts as President, 
 looking to the re-establishment of constitutional relations 
 between the people of the lately revolted States and the 
 government of the United States, was a Proclamation of 
 Amnesty and Pardon, issued on the 29th of May, 1865, 
 releasing the inhabitants of those States, who had directly 
 or indirectly aided the rebellion, with certain exceptions 
 and on certain conditions, from all penalties incurred under 
 the laws of the United States. The object of this measure 
 
384 MEMOIR OF BENJAMIN BOBBINS CURTIS. [18G5. 
 
 was to put the people of those States into a condition to 
 re-establish for themselves republican governments, in har 
 mony with the Constitution of the United States. Still 
 farther to promote this object, Proclamations were issued 
 successively between the 29th of May and the 13th of 
 July, appointing Provisional Governors for the States of 
 North Carolina, Mississippi, Georgia, Texas, Alabama, 
 South Carolina, and Florida. 
 
 These Proclamations were based upon -two positions : 
 First, that the Constitution of the United States had guar 
 anteed to every State in the Union a republican form of 
 government, and protection against invasion and domestic 
 violence. Secondly, that the President as military command- 
 er-in-chief, and, as chief executive officer of the United States, 
 bound by his official oath to take care that the laws be faith 
 fully executed, was authorized to make known officially that 
 the rebellion was ended, and to take the preliminary steps 
 necessary to enable the people of the lately revolted States 
 to form for themselves loyal State governments, in place of 
 the disloyal governments which it had been the duty of the 
 Executive to suppress. Accordingly, the Proclamations, be 
 sides providing for the appointment of Provisional Governors, 
 directed them, at the earliest practicable period, to call con 
 ventions of the loyal people of those States respectively, for 
 the purpose of altering or amending their constitutions, in 
 order to form such a republican government, in each of them, 
 as would restore the State to its constitutional relations with 
 the Federal government, and would entitle the State to the 
 guaranty of the Federal Constitution. The sole qualifica 
 tions which the Proclamations prescribed for membership 
 in these conventions, was the having previously taken and 
 subscribed the oath of amnesty, and a right of voting under 
 the Constitution and laws of the State, in force at the time 
 of the adoption of the so-called Ordinance of Secession. It 
 was left to the conventions, or to the new legislatures that 
 might thereafter be assembled, to fix the qualifications of 
 
1865.] PRESIDENT LINCOLN S SUPPOSED POLICY. 385 
 
 electors. The various executive departments of the Fed 
 eral government were directed by the Proclamations to take 
 all necessary measures to execute the laws of the United 
 States in the several States referred to. 
 
 This measure, comprehensive and comparatively free from 
 difficulty, was believed by President Johnson and his offi 
 cial advisers to be substantially in accordance with the 
 policy which Mr. Lincoln would have pursued, if he had 
 lived. But it was the misfortune of Mr. Johnson, that he 
 could be said to have no party to support his measures. 
 The party which had elected both Mr. Lincoln and himself 
 to their respective positions had, as has not infrequently 
 occurred, paid little attention to the personal qualities and 
 political views of their candidate for the Vice-Presidency ; 
 so that when Mr. Johnson became President, and when it 
 appeared that he was a man of very firm convictions in re 
 gard to his constitutional duties, there was great danger of a 
 conflict between him and the dominant party in Congress. 
 
 An occasion was not wanting. The great question of 
 what was to be done with the colored people of the South 
 ern States was looming portentously into view. Mr. Lin 
 coln s Emancipation- Proclamation of September 22d, 1862, 
 was followed only by a practical dissolution of the condi 
 tion of servitude wherever the Federal arms had extended, 
 and it was not felt by him or others to be a safe basis on 
 which to rest the final extinction of slavery. Congress, 
 at its session which terminated early in July, 1864, had 
 passed a bill containing a plan for the restoration of the 
 Southern States to the Union, which Mr. Lincoln had de 
 clined to approve. On the 8th of July, 1864, he issued a 
 Proclamation, calling the attention of the people of the 
 United States to this bill. In this Proclamation he referred 
 to a plan of his own, which he had proposed in December, 
 186-3, of which it is here needful to give some account. 
 
 Mr. Lincoln s plan of restoration comprehended an Exec 
 utive pardon and amnesty, with certain exceptions, and an 
 VOL. i. 25 
 
386 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1865 
 
 oath of fealty to the Constitution of the United States, and 
 to the acts of Congress and Proclamations of the President 
 relating to slaves, so long and so far as they should not be 
 modified or declared void by decision of the Supreme Court. 
 It also contemplated the establishment of a State govern 
 ment, by a certain denned proportion of the legal voters 
 of eacli State, who were qualified to be electors under the 
 old laws of the State ; which government, if republican in 
 form, President Lincoln proposed to recognize as entitled 
 to the guaranty of the Federal Constitution. All that he 
 suggested further, in relation to the colored people, was 
 embraced in the following clause : 
 
 " That any provision which may be adopted by such State gov 
 ernment in relation to the freed people of such State, which shall 
 recognize and declare their permanent freedom, provide for their 
 education, and which may yet be consistent as a temporary arrange 
 ment with their present condition, as a laboring, landless, and home 
 less class, will not be objected to by the national Executive" 
 
 This plan of Mr. Lincoln, like the subsequent one of Mr. 
 Johnson, proceeded upon the idea that it was competent to 
 the Executive to take the preliminary steps necessary to 
 assist the people of those States in forming loyal and re 
 publican governments. It differed from Mr. Johnson s 
 plan chiefly in this, that the latter made no reference at 
 all to the colored race. Neither of these two plans, how 
 ever, contemplated any basis of suffrage other than that 
 which existed before the secession. Mr. Lincoln s plan was 
 much less comprehensive than Mr. Johnson s in respect to 
 the popular basis of the new governments, although neither 
 proposed any suffrage but that of the whites. Nor did 
 the Congressional bill of 1864, which Mr. Lincoln did not 
 approve, embrace negro suffrage, although it contained a 
 provision which undertook to emancipate all slaves and 
 their posterity for ever. 
 
 When President Lincoln, in his Proclamation of July 8, 
 1864, stated his reasons for not approving the Congressional 
 
1866.] PRESIDENT LINCOLN S SUPPOSED POLICY. 387 
 
 plan, but laid it before the people of the country for their 
 consideration, he said, that, while he was not inflexibly 
 committed to his own mode of proceeding, he was unwill 
 ing to have the free constitutions and governments already 
 adopted in Arkansas and Louisiana, set aside, to the dis 
 couragement of the loyal people of those States from fur 
 ther exertions in behalf of the Union ; and that he was also 
 unwilling to affirm a constitutional capacity in Congress to 
 abolish slavery in a State. He hoped, he said, to see this 
 done by an amendment of the Federal Constitution. But 
 he nevertheless declared himself satisfied with the " system 
 for restoration " which the bill contained, " as one very 
 proper plan to be adopted by the loyal people of any State 
 choosing to adopt it " ; and he professed his entire readi 
 ness to aid such people in carrying it out, wherever the 
 rebellion should have ceased, and the people have suffi 
 ciently returned to their obedience to the Constitution and 
 laws of the United States. Wherever this should be the 
 case, he promised to appoint Provisional Governors, and to 
 direct them to proceed according to the provisions of the 
 bill. 
 
 As the bill had not become a law, it is quite apparent 
 that Mr. Lincoln considered that it was competent to the 
 Executive to adopt and follow any feasible plan that would 
 produce the establishment of State governments, republican 
 in form, in ha rmony with the Federal Constitution, and 
 consistent with the inherent right of the loyal white people 
 of every State to shape their own political institutions. If 
 he had lived to act finally upon this subject, it is probable 
 that he would, if not hampered by the interference of 
 Congress, have used his own or the Congressional plan 
 indifferently, according as the particular circumstances of 
 each State rendered either the most practicable. Slavery 
 he meant to leave to be abolished by an amendment of 
 the Federal Constitution. Such an amendment was pro 
 posed by Congress to the States on the 1st of February, 
 
388 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1866. 
 
 1865 ; but it was not finally declared to have been ratified, 
 until the 18th of December, 1865, eight months after Mr. 
 Lincoln s death. 1 
 
 In the mean time, President Johnson s plan for restoring 
 the Southern States to their position in the Union, promul 
 gated in the spring nf 1865, awakened the utmost jealousy 
 among the leaders of the dominant party in Congress. 
 Although it differed in no very important particulars from 
 that of their lamented chief, they determined to oppose it. 
 They claimed that the whole duty and power of restoring 
 the Southern States to the Union, and of imposing the con 
 ditions on which they were to act, belonged to the legislative 
 department ; and that the Executive could do nothing but 
 what he was directed and authorized to do by Congress. 
 
 Thus the executive and the legislative departments were 
 directly at variance in regard to the whole subject of re 
 storing the Southern States to the Union. The executive, 
 ordinarily the most feeble of the two departments in any 
 contest between them, was not well supported by the peo 
 ple of the North. Shortly after President Johnson had 
 announced his plan, an amendment of the Federal Con 
 stitution, making every person born on the soil of any 
 State a citizen of that State and of the United States, was 
 proposed by Congress to the States. 2 No objection could 
 be, and none was, made to this by President Johnson. 
 But the subject absorbed a good deal of the public atten 
 tion, and its consideration tended to prevent the people of 
 the North from interposing effectually in the controversy 
 between the President and the Congress in regard to the 
 mode of restoring the Southern States to the Union. That 
 conflict continued, both on this point and many others, 
 until a portion of the reflecting people of the country be 
 thought themselves of a means for concentrating public 
 
 1 Thirteenth Amendment. 
 
 3 Fourteenth Amendment, proposed June 16, 1866; declared adopted, 
 July 28, 1868. 
 
1866] PHILADELPHIA CONVENTION IN 1866. 389 
 
 opinion, so as to bring about some result by which the 
 people of the Southern States could be rescued from their 
 anomalous and dangerous condition. A national popular 
 convention was invited to assemble at Philadelphia, on the 
 14th of August, 1866. 1 Judge Curtis was strongly urged 
 to become a member of this body. How he acted in regard 
 to it, will be seen from the following private, and the sub 
 joined public letter. 
 
 To MR. TICKNOR. 
 
 MAPLEHURST, July 27, 1866. 
 
 MY DEAR UNCLE, I am afraid you would not have counselled 
 me to do such a thing, but I have written a letter to the managers 
 of the Philadelphia Convention, with liberty to publish it, and it is 
 printed in many papers. But as the country to which I belong 
 does not honor me as a prophet, you will not, or may not, see it, 
 and I therefore send you a copy taken from the Washington In 
 telligencer. So far as it relates to the subject of the reconstruction 
 of governments in the rebellious States, and the action of the 
 executive power of the United States, it has been thought of long 
 arid anxiously, and is the best conclusion I have been able to attain 
 to. It seems to me consistent with our Constitution, and as safe 
 and practical as any thing we can hope for. 
 
 So far as it relates to the spirit and general course of action of 
 the government of the United States, I am satisfied it is right. 
 
 Neither you nor I have much confidence in " conventions " ; but, 
 in the present state of our country, I have hope from all honest 
 expressions of popular feeling, and I do not despair that this may 
 be such an expression. The country is partly, and I think gener 
 ally dissatisfied with the Congress. They have proved wholly 
 unequal to their great task, and I have not felt at liberty, distaste 
 ful as it is, to refrain from saying what I thought. I have many 
 expressions of opinion that it is wisely said ; but they come mostly 
 from persons under some strong bias. 
 
 I am going to Boston on Saturday on professional business. I 
 
 1 This meeting was popularly and derisively called the " arm-in-arm " 
 convention, from the circumstance, that delegates sent from Massachusetts 
 and South Carolina entered the hall on the first day, together, and arm- 
 in-arm. 
 
390 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1866. 
 
 shall s(uy at Beverly with Mr. Bartlett. But during the few days 
 I shall be there, I shall try to come to Brookline and see you. 
 
 We are all well. The heat has been very great, but relieved 
 almost every day by showers, which have wet my hay, but cooled 
 the air, and assisted all of us to equanimity. 
 
 Please give my love to Aunt, and believe me 
 
 Yours always, B. R. CUKTIS. 
 
 To THE HON. 0. H. BROWNING. 
 
 PITTSFIELD, July 25, 1866. 
 
 DEAR SIR, I thank you for sending me a copy of the call for 
 the National Convention to be held at Philadelphia 011 the 14th 
 day of August next. 
 
 In the present unhappy condition of our national affairs, it 
 seems to me fit and important that delegates of the people should 
 come together from all parts of our country, to manifest in an 
 authentic and convincing way the adhesion of their constituents 
 to the fundamental principles of our government, and to that policy 
 and course of action which necessarily result from them. 
 
 In my judgment the propositions contained in the call of the 
 convention are consistent with those principles and that policy. 
 
 The nature of our government does not permit the United 
 States to destroy a State, or acquire its territory by conquest. 
 Neither does it permit the people of a State to destroy the 
 State, or lawfully affect, in any way, any one of its relations to 
 the United States. One is as inconsistent with our Constitution 
 as the other ; while that Constitution remains operative, each is 
 impossible. 
 
 But the government of the United States may, and must in the 
 discharge of constitutional duty, subdue by arms any number of 
 its rebellious citizens into quiet submission to its lawful authority. 
 And if the officers of a State, having the actual control of its gov 
 ernment, have disobeyed the requirements to swear to support the 
 Constitution, and have abused the power of the State by making 
 war on the United States, this presents the case of a usurping and 
 unlawful government of a State, which the United States may 
 rightfully destroy by force ; for undoubtedly the provision of the 
 Constitution that " the United States shall guarantee to every 
 State in this Union a republican form of government," must mean 
 
1866.] PHILADELPHIA CONVENTION IN 1866. 391 
 
 a republican form of government in harmony with the Constitution, 
 and which is so organized as to be in this Union. 
 
 But neither the power and duty of the government of the United 
 States to subdue by arms rebellious people in the territorial limits 
 of one or more States, nor its power and duty to destroy a usurp 
 ing government de facto, can possibly authorize the United States 
 to destroy one of the States of the Union ; or, what must amount 
 to the same thing, to acquire that absolute right over its people 
 and its territory which results from conquest in foreign war. 
 
 There are only two alternatives. One is, that, in subduing re 
 bellion, the United States act rightfully within the limits of powers 
 conferred by the Constitution ; the other is, that they make war on 
 a part of their own people, because it is the will of those who con 
 trol the government for the time being to do so, arid for such 
 objects as they may choose to attain. 
 
 The last of these alternatives has not been asserted by either 
 department of the government of the United States at any time ; 
 and I doubt if any considerable number of persons can be found 
 to sanction it. 
 
 But if the first alternative be adopted, it follows that the Con 
 stitution which authorized the war prescribed the objects which 
 alone can rightfully be accomplished by it; and those objects are, 
 not the destruction of one or more States, but their preservation ; 
 not the destruction of government in a State, but the restoration 
 of its government to a republican form in harmony with the Con 
 stitution ; not the acquisition of the territory of a State, and of 
 that absolute control over the persons and property of its people, 
 which a foreign conqueror would possess, but their submission to 
 the Constitution and laws of the United States. It seems to me a 
 great and fundamental error to confound the case of the conquest 
 of a foreign territory and people with the case of submission to a 
 lawful and established constitutional government, enforced through 
 the powers conferred on that government for that specific purpose. 
 It is quite true that such a civil contest may have, and in our 
 country has had, the proportions of an actual war ; and that hu 
 manity and public law unite in dictating the application of rules 
 designed to mitigate its evils, and regulate the conditions upon 
 which it should be carried on. 
 
 But those rules of public law which concern the rights and 
 powers of a conqueror of foreign territory, reduced by conquest to 
 
392 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1866. 
 
 entire submission, have no relation to the active prosecution of war. 
 Their operation begins when war has ended in submission ; they 
 are the laws of a state of peace, and not of a state of war. 
 
 To suppose that the government of the United States can. in a 
 state of peace, rightfully hold and exercise absolute and unlimited 
 power over a part of its territory and people just as long as it 
 may choose to do so, appears to me to be unwarranted by any rules 
 of public law, abhorrent to right reason, and inconsistent with the 
 nature of our government. 
 
 When war has ceased, when the authority of the Constitution 
 and laws of the United States has been restored and established, 
 the United States are in possession, not under a new title, as con 
 querors, but under their old title, as the lawful government of the 
 country ; and that title has been vindicated, not by the destruction 
 of one or more States, but by their preservation ; and this preserva 
 tion can be worked out practically only by the restoration of repub 
 lican governments, organized in harmony with the Constitution. 
 
 The title of a conqueror is necessarily inconsistent with a 
 republican government, which can be formed only by the people 
 themselves to express and execute their will. 
 
 And if the preservation of the States within the Union was one 
 of the objects of the war, and they can be preserved only by having 
 republican governments organized in harmony with the Constitution, 
 and such governments can be organized only by the people of those 
 States, then, manifestly, it is not only the right, but the constitutional 
 duty, of the people of those States to organize such governments ; 
 and the government of the United States can have no rightful 
 authority to prohibit their organization. 
 
 But this right and duty of the people of the several States can 
 only begin when war has ceased and the authority of the Constitu 
 tion and laws of the United States has been restored arid established. 
 And, from the nature of the case, the government of the United 
 States must determine when that time has come. 
 
 It is a question of great interest, certainly, but not, I think, of 
 great difficulty, how and by whom the government of the United 
 States shall determine when that time has come. 
 
 The question whether de facto governments and hostile popula 
 tions have been completely subdued by arms, and the lawful 
 authority of the United States restored and established, is a mili 
 tary and executive question. It does not require legislative action 
 
1866.] PHILADELPHIA CONVENTION IN 1866. 393 
 
 to ascertain the necessary facts ; and, from the nature of the case, 
 legislative action cannot change or materially affect them. As 
 commander-in-chief of the army and navy, and as the chief execu 
 tive officer, whose constitutional duty it is to see that the laws are 
 faithfully executed, it is the official duty of the President to know 
 whether a rebellion has been suppressed, and whether the authority 
 of the Constitution and the laws of the United States has been 
 completely restored and firmly established. 
 
 The mere organization of a republican government, in harmony 
 with the Union, by the people of one of the existing States of the 
 United States, requires no enabling act of Congress ; and I can 
 find no authority in the Constitution for any interference by Con 
 gress to prohibit or regulate the organization of such a government 
 by the people of an existing State of the Union. On the other 
 hand, it is clearly necessary that the President should act, so far at 
 least as to remove out of the way military restrictions on the power 
 of the people to assemble and to do those acts which are necessary 
 to reorganize their government. This I think he was bound to do 
 as soon as he became satisfied that the right time had come. 
 
 After much reflection, and with no such partiality for executive 
 power as would be likely to lead me astray, I have formed the 
 opinion that the Southern States are now as rightfully, and should 
 be as effectually, in the Union, as they were before the madness 
 of their people attempted to carry them out of it ; and in this 
 opinion I believe a majority of the people of the Northern States 
 agree. 
 
 The work the people are waiting to have done, this convention 
 may greatly help. If it will elevate itself above sectional passions, 
 ignore all party schemes, despise the sordid and petty scramble for 
 offices, and fairly represent the national instinct that the time now 
 is when complete union of all the States is a fact which it is a 
 crime not to accomplish, its action cannot fail to be beneficial to 
 our country. 
 
 The passions generated in a great and divided people by long 
 and bloody civil war are deep and formidable. They are not con 
 fined to one section ; the victors as well as the vanquished are 
 swayed by them. They connect themselves with the purest and 
 tenderest sensibilities of our nature ; with our love of country ; 
 with our love of those who have laid down their lives in the con 
 test ; with the sufferings which war, in multiplied forms, always 
 
394 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1867. 
 
 brings to the homes of men, and still more to the homes of women ; 
 and which civil war, most of all, brings to the homes of all. 
 
 And these passions are the sharp and ready tools of party spirit, 
 of self-interest, perversity, and, most of all, of that fierce infatua 
 tion which finds its best satisfaction in hatred, and its only enjoy 
 ment in revenge. 
 
 No statesman who is acquainted with the nature of man, and the 
 necessities of civil government, can contemplate such passions with 
 out the deepest concern, or fail to do what he fitly may to allay 
 them. Hard enough the work will prove to be, at the best. But 
 a scrupulous regard for the rights of all, and a magnanimous 
 clemency, are twice blessed; they both elevate and soften the 
 powerful, and they reach and subdue what laws and bayonets can 
 not control. 
 
 I believe there is now a general conviction among the people, 
 that this great and difficult work is practicable. That it will long 
 remain so, if the present state of things continues, I have not the 
 hardihood to trust. I look to this convention with hope that it 
 will do much to help onward this instinctive desire of the people of 
 the United States for union and harmony and peace ; that it will 
 assert strongly and clearly those principles which are the founda 
 tions of our government ; that it will exhibit the connection between 
 their violation and the present distracted condition of our country ; 
 that it will rebuke the violence of party spirit, and especially of 
 that spirit of hatred which is as inconsistent with true love of our 
 country as it is with true love of our brethren ; and that it will do 
 much to convince the people of the United States that they must 
 act soon, in the wisest way, or suffer evils which they and their 
 posterity will long deplore. 
 
 With great respect, I am your obedient servant, 
 
 B. R. CURTIS. 
 
 No material effect was produced upon Congress by the 
 proceedings of this meeting. Indeed, so little influence did 
 they have, that on the 2d of March, 1867, although the 
 civil war had been ended for nearly two years, and there 
 was no remaining disaffection to the Union, of any impor 
 tance, Congress, by a vote sufficient to make it a law over 
 the President s veto, passed its first u reconstruction act." 
 
1867.] RECONSTRUCTION MEASURES. 395 
 
 It was claimed and objected by the Democratic party, that 
 this law treated ten States as if they were still in rebellion, 
 and also as if they had been subjugated, as conquered prov 
 inces, to the absolute power of the government of the 
 United States ; that the plan of making the adult negro 
 males voters had already taken hold of the leading spirits 
 in the Republican party ; and that it was now determined 
 that, without waiting for any amendment of the Federal 
 Constitution on the subject of suffrage in the States, negro 
 suffrage should have its first application in the formation 
 of the new constitutions which the Southern States were to 
 be permitted, under great restrictions, to establish. It was 
 not denied by the Republican leaders, that this radical and 
 sweeping change in the whole structure of Southern society 
 could only be carried out by military power. Accordingly, 
 this law, which was entitled " An Act to provide for the 
 more effectual government of the Rebel States" first divided 
 the States of Virginia, North Carolina, South Carolina, 
 Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, 
 and Arkansas into military districts, and made them subject 
 to the military authority of the United States as there 
 inafter prescribed. It then made it the duty of the 
 President to assign an officer of the army to the command 
 of each district, and to detail a sufficient military force to 
 enable such officer to perform his duties and enforce his 
 authority. His duties were made to be to enforce order, 
 and to punish, or cause to be punished, all disturbers of the 
 public peace and criminals ; to which end he was to allow 
 local civil tribunals to try offenders, or, when in his judg 
 ment it might be necessary, he was to organize military 
 commissions or tribunals for the trial of offenders. All in 
 terference, under color of State authority, with the exercise 
 of military authority under this law, was declared null and 
 void. For the formation of State governments and consti 
 tutions, it was provided that the conventions of delegates 
 should be elected by the male citizens of the State, twenty- 
 
396 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1867. 
 
 one years old and upwards, of whatever race, color, or 
 previous condition, who had been resident in the State for 
 one year, and who had not been disfranchised for rebellion, 
 or for felony at common law. It was required that the 
 constitutions, to be framed by the conventions so chosen, 
 should provide that the elective franchise should be enjoyed 
 by all such persons as were qualified by this law to vote for 
 the delegates who were to frame them ; that they should be 
 adopted by a majority of such voters ; that they should be 
 submitted to and approved by Congress ; that, when ap 
 proved, the legislatures elected under them should adopt 
 the Fourteenth Amendment of the Constitution of the 
 United States. 1 When all this had been done, and when 
 the Fourteenth Amendment had become a part of the 
 Federal Constitution, and not before, any State which had 
 complied with these conditions was to be declared entitled to 
 representation in Congress, and the military government was 
 to cease. But until the State had been so admitted to rep 
 resentation in Congress, any civil government which might 
 exist there was declared to be provisional only, and in all 
 respects subject to the paramount authority of the United 
 States at any time to abolish, modify, control, or supersede 
 it ; and all elections to office under such provisional govern 
 ment were required to be made by the same universal adult 
 male suffrage, without distinction of race, color, or previous 
 condition. 
 
 In opposition to the Republican theory of this measure, it 
 was contended by the President, with the concurrence of 
 the Democratic party, that this enforcement of negro suf 
 frage upon the white people of those States was entirely 
 unconstitutional ; that, as a means of compelling ten States 
 to ratify the Fourteenth Amendment of the Federal Consti 
 tution, the " Reconstruction Act " was just as effectual as 
 
 1 This was the amendment making all persons, born or naturalized in 
 any State, citizens. It was not declared to have been ratified until July 28, 
 1868. 
 
1867.] RECONSTRUCTION MEASURES. 397 
 
 any exertion of physical force can be, and no more so. It 
 was contended that this exercise of power could rest upon 
 no legal or political theory but that of a military conquest 
 of the Southern States, such a conquest as gives to the 
 conqueror a power to mould the institutions and the social 
 fabric of the subjugated people at his pleasure. No people 
 in the world, it was said, were ever subjected to a more 
 complete military government. The establishment of mili 
 tary commanders, with power to enforce a prescribed mode 
 of action by a people in framing new civil institutions and 
 a new social polity, coupled with the condition that they 
 are to have no civil government but a provisional one until 
 they have acted as they are required, and that in the mean 
 time such provisional government shall be subject to the 
 will of the power that tolerates it, was, as the opponents of 
 the Congressional majority held, of the essence of military 
 conquest. When brought into the presence of the Con 
 stitution of the United States, or of any rational theory of 
 American institutions, they said that this " reconstruction " 
 scheme would not bear examination. For, it was reasoned, 
 whether there was or was not a right of State secession 
 from the Union, in any constitutional sense, there could be 
 no question that the people of every State, according to the 
 fundamental idea of the American Union, had the sole right 
 to shape their own institutions of government and their own 
 social condition, provided that they conformed them to all 
 actually existing provisions of the Federal Constitution ; 
 and that, for any external power to declare in advance who 
 should constitute a part of the governing people of the 
 State, before the Federal Constitution had spoken on the 
 subject of the right of suffrage, was an act of mere physical 
 force, that could rest on nothing but the assumption that 
 the people of that State, or the State itself, had been con 
 quered in a war. 
 
 It is not strange, therefore, that President Johnson, with 
 his views, could not approve the " reconstruction" measures. 
 
398 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1867. 
 
 He was a man who felt deeply the obligations of his official 
 oath to preserve, protect, and defend the Constitution of 
 the United States. Whatever his opinions might be in re 
 gard to the expediency of negro suffrage, he could not 
 reconcile to his sense of his constitutional duty a scheme 
 by which the Congress before it could be claimed that 
 any amendment of the Federal Constitution had deprived 
 the people of every State of the power to regulate the right 
 of suffrage for themselves was to compel the people of 
 ten States to submit to the formation of a State constitution 
 and government based on the votes of lately emancipated 
 slaves. 1 Nor could he accept a measure founded, as he 
 believed, on the assumption that the war had been a war 
 for conquest and subjugation, and that the entire civil gov 
 ernment of those ten States was subject to the paramount 
 authority of the United States. But Mr. Johnson was in 
 the position of a President who, without any considerable 
 following in the two houses of Congress, can exercise over 
 legislative measures only the power of his constitutional 
 " veto." This he had to exercise against a powerful and 
 triumphant majority, large enough at any time to override 
 all his objections, and who entertained diametrically opposite 
 views in regard to the powers of the legislative department. 
 The idea of securing a large mass of voters in the South 
 ern States, who, from gratitude to the Northern party, which 
 could claim to have bestowed upon them their freedom 
 irom slavery, could be wielded as a political force to coun 
 terbalance Northern opposition to that party, w T as regarded 
 by the Democrats as the chief motive which governed those 
 who had the control of a two-thirds majority in both houses. 
 As statesmen, it was said, they ought to have considered 
 whether it was wise to precipitate upon the Southern States 
 a political antagonism of races ; that as politicians they 
 
 1 It must be remembered that the Fifteenth Amendment was not proposed 
 until February 27, 1869, and was not declared to have been ratified until 
 March 30, 1870. 
 
1867.] RECONSTRUCTION MEASURES. 399 
 
 might, by a little forecast, have taught themselves that, 
 when the negroes had been educated into some political in 
 telligence, leading individuals among them would be as 
 likely as white men to vote according to their convictions 
 upon the political questions of the time, either State or na 
 tional ; and that, as to the great mass of the ignorant, and, 
 as President Lincoln described them, "laboring, landless, 
 and homeless class," liable to be swayed by superior intelli 
 gence and local influences, they were as likely to be politi 
 cally directed by their former masters as by any other body 
 of men, unless a superior force should be kept constantly 
 at hand, to wield the power at the polls which these lately 
 enslaved men of another race were to have put into their 
 hands. While, therefore, in taking military possession of 
 the Southern States, and forcing negro suffrage by military 
 power, the dominant party in Congress were preparing a ma 
 chinery for party uses that might work for a time according 
 to their wishes, it was urged that they were also preparing 
 a condition of things which would entail upon them a long 
 and indefinite political necessity for the presence of a force 
 that would stand between the two races, and prevent the 
 political defection of the blacks from being brought about 
 by the natural influences of old habits, old associations, 
 superior intelligence, and common local interests. 
 
 In other words, it was objected that the Republicans 
 were preparing a political antagonism between the two 
 races, and weaving it into the whole fabric of political 
 action in such a manner and to such an extent that the 
 party objects could nowhere be accomplished without the 
 presence and the exercise of external force. But what this 
 was to lead to, what it was to entail upon the people of the 
 South on the one hand, and upon the people of the North 
 on the other, was not, as the Democratic party contended, 
 sufficiently considered by public men, who looked only to 
 the immediate political advantage which they expected to 
 derive from extending the predominance of their party into 
 
400 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1867. 
 
 the Southern States by means of the votes of negroes. What 
 a broader and wiser humanity might dictate, what might 
 be done, after freedom had been properly established, by 
 leaving the Southern States to concede suffrage to the 
 negroes when the slow process of education had trained 
 them into some degree of fitness for its exercise, was said 
 to have been fatally overlooked ; that the negro vote was 
 wanted for immediate political use, in all its mass of igno 
 rance and degradation ; and that this want led to a fatal dis 
 regard of the constitutional or other objections to the mode 
 of obtaining what was desired. Such were the chief grounds 
 of the opposition to the " reconstruction " measures. 
 
 On the other hand, it was answered by the framers and 
 promoters of the " reconstruction " measures, that slavery 
 must be utterly exterminated before the Southern States 
 could be received back into the Union ; that to leave the 
 negroes, although in the legal condition of freedmen, with 
 out the ballot, would be to leave them without the means 
 of protecting themselves against a practical re-enslavement 
 by their former masters ; that the circumstances under 
 which the war for the Union had been prosecuted, had 
 devolved on the government of the United States an im 
 plied authority to take any steps needful to make its future 
 existence secure; that good faith towards the freedmen 
 would require that they should be made practically, as 
 well as legally, secure in their freedom ; that the question 
 what measures should be adopted to restore the Southern 
 States to the Union was a legislative, and not an executive 
 question ; and that any seeming irregularities in the use 
 of compulsion, whether physical or moral, to bring about 
 the ratification of amendments of the Federal Constitution, 
 would be cured by the general assent and acquiescence of 
 the people both in the North and the South. 
 
 Such were the principal differences of opinion prevail 
 ing, unequally however, throughout the Northern States, in 
 regard to the measures proper to be adopted for the restora- 
 
1867. 1 PRESIDENT JOHNSON S CABINET. 401 
 
 tion of the Southern States to their normal relations in 
 the Union. The Democratic party, although concurring 
 in most of the President s opinions, were in no condition 
 to render him an effectual support in any controversy with 
 the Congress, and they had no strong inclination to adopt 
 Mr. Johnson as a representative of their party, although 
 they were disposed, to the extent of their power, to protect 
 him from what they considered to be encroachments upon 
 his executive functions. 
 
 The antagonism between President Johnson and the 
 dominant party in Congress, which had begun at a very 
 early period of his administration, continued to grow worse 
 after his veto of the first " Reconstruction Act." That 
 law was followed by two others, amending and extending 
 its provisions, each of which the President refused to 
 sign, arid each of which was passed over his veto. 1 This 
 brings the history of the conflict down to the month of 
 July, 1867, in respect to the policy to be pursued towards 
 the Southern States. The breach between the President 
 and the Congress was now irreparable ; and it extended to 
 other matters besides the Southern question, and these were 
 of a personal as well as political nature. 
 
 Mr. Johnson had inherited from Mr. Lincoln a Cabinet, 
 in which there was one man on whom he found that he 
 could not rely for concurrence in his measures and a faith 
 ful support of his policy. This was Mr. Stanton, the Sec 
 retary of War, whose political and personal affinities were 
 with the great Congressional majority, which was opposed 
 to the President. According to previous usage, precedent, 
 and recognized constitutional construction, the President 
 was entitled to remove any executive civil officer, and to 
 appoint in his place any person whom a majority of the 
 Senate would confirm ; and it had never been denied that 
 
 1 One of these supplementary acts became a law, March 23, 1867. It 
 established, among other things, a registration of voters, under military super 
 vision. The other became a law, July 19, 1867. 
 TOL. i. 26 
 
402 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1867 
 
 the President ought to have, as his official advisers, and as 
 his chief agents in the discharge of his executive duties, 
 persons in whom he could place official and personal con 
 fidence. The members of the Cabinet which Mr. Johnson 
 had inherited from Mr. Lincoln were continued in office 
 without any removals ; but there were two voluntary 
 changes, one in the Post-Office Department, and one in the 
 office of Attorney-General. 1 As finally arranged, the Cab 
 inet, with one exception, were in entire harmony with the 
 President. But a breach between the President and Mr. 
 Stanton became inevitable from the first ; and by the time 
 the " reconstruction " measures of the Congress had become 
 laws, over the President s vetoes, this breach between the 
 President and the head of the War Department had like 
 wise become irreparable and notorious. 
 
 In this state of affairs, it became the policy of the party 
 which ruled in the two houses of Congress to restrain the 
 exercise of the President s power of removing executive 
 civil officers, who had been appointed with the consent of 
 the Senate, and to make them dependent upon the Senate 
 
 1 Mr. Stanbery, who became Attorney-General under President Johnson, 
 has recently written to me as follows : 
 
 CINCINNATI, December 30, 1878. 
 
 MY DEAR MR. CURTIS, When upon a telegram from President Johnson, in 
 July, 1866, I was called to Washington, there were two vacancies in his Cabinet: in 
 the Post-Office, by the resignation of Mr. Denison, and in the Attorney-General s 
 office, by the resignation of Mr. Speed, to the last of which I succeeded by nomina 
 tion and confirmation. The remaining five departments were full : the State (Mr. 
 Seward), the Treasury (Mr. McCullough), the War (Mr. Stanton), the Navy (Mr. 
 Welles), and the Interior (Mr Harlan). About a month afterwards, Mr. Ilarlan 
 resigned, and was succeeded by Mr. Browning. The Post-Office Department, upon 
 the resignation of Mr. Denison, was carried on for a short time by Mr. Randall, the 
 Assistant under Mr. Denison, and he was soon elevated to the head of the Depart 
 ment by appointment and confirmation. 
 
 Mr. Johnson took Mr. Lincoln s Cabinet as he found it. He made no removals, 
 but allowed them to hold over; nor did he by new nominations attempt any change, 
 even after a difference upon the policy towards the South was developed. It was 
 upon their own motion, I speak advisedly as to Mr. Denison and Mr. Speed, and 
 without the slightest disturbance of the friendly relations and mutual regard between 
 the President and themselves, that these gentlemen felt that a sense of duty and 
 propriety induced their voluntary retirement. . . . 
 
 Sincerely yours, HENRY STANBERY. 
 
1807.] TENURE OF OFFICE ACT. 403 
 
 as to their tenure of office. To accomplish this, Congress, 
 on the same day on which the first " Reconstruction Act " 
 was passed, over the President s veto, enacted by a con 
 stitutional majority, also over the President s veto, a law 
 to regulate the tenure of certain civil offices. It declared 
 that every person holding any civil office to which he had 
 been appointed by and with the advice and consent of the 
 Senate, and every person who should thereafter be appointed 
 to any such office, and had become qualified to act therein, 
 was and should be entitled to hold the office until a suc 
 cessor should have been in like manner appointed, and duly 
 qualified, with certain exceptions. These exceptions were 
 the heads of the seven Executive Departments, who, it 
 was enacted in a proviso, should hold their offices respect 
 ively for and during the term of the President by whom 
 they had been appointed, and for one month longer, sub 
 ject to be removed by and with the advice and consent of 
 the Senate. 
 
 Such an innovation upon long-established usage of it 
 self marked an open conflict between the President and 
 the legislative department. The innovation was believed 
 by President Johnson, and by many competent judges 
 who were in no way interested in the quarrel, to be 
 contrary to a long-established construction of the Con 
 stitution, as well as highly inexpedient. He therefore 
 refused to give his official approval to the law ; but his 
 refusal was of no avail. In order that the law might seem 
 to obviate the manifest public inconveniences and mischiefs 
 of such a restriction of the President s power of removal, 
 it was provided that the President, on evidence satisfactory 
 to himself, of misconduct in office, or crime, incapacity, or 
 legal disqualification to perform the duties, might suspend 
 an incumbent, and designate some suitable person to perform 
 the duties of the office temporarily, until the next meeting 
 of the Senate ; but that he should, within twenty days after 
 the first day of the next meeting of the Senate, report the 
 
404 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1867. 
 
 case to the Senate, with his reasons for suspending the officer. 
 If the Senate should concur in those reasons, the President 
 might remove the officer, and appoint a successor by and 
 with the advice and consent of the Senate ; otherwise, the 
 suspended officer was to be forthwith reinstated in the office. 
 Severe penalties were enacted for any violations of this law, 
 which were declared to be " high misdemeanors." 
 
 As the Congress which passed this law was about to ex 
 pire, the intent to leave the President incapacitated to make 
 removals from office during a recess of the Senate, and to 
 allow him only to suspend an officer during such recess, 
 and, even after the Senate should be again in session, to 
 have the removal depend upon the pleasure of the Senate, 
 was apparent. Such an encroachment upon functions of 
 the President hitherto supposed to belong to him, and 
 which had been exercised more or less by all of his prede 
 cessors, such a subjection of the President to the will of 
 the Senate in regard to the removal of civil officers, 
 necessarily made President Johnson s position an extremely 
 dangerous one. If he should exercise his honest judgment, 
 and, treating this law as an unconstitutional exercise of 
 legislative power, should remove an officer who was in 
 trenched behind the statute, he would at once come into open 
 collision with the legislative department, and could only 
 prevail by the aid of the judiciary. If he should submit to 
 the provisions of the law, and suspend an officer, assigning 
 his reasons for asking the consent of the Senate to his final 
 removal, he would have to go to a tribunal which might, 
 for purely political or personal objects, refuse to recognize 
 his reasons as valid, and thus compel him to retain an 
 officer who might be animated by a factious purpose to ob 
 struct him in the discharge of his executive duties, or with 
 whom, for personal reasons, it would be impossible for him 
 to hold harmonious official intercourse. 
 
 But when this law came to be applied to the case of Mr. 
 Stanton, two questions arose upon it. First, whether the 
 
1867.] TENURE OF OFFICE ACT. 405 
 
 members of the Cabinet who had been appointed by Mr. 
 Lincoln were within its provisions after Mr. Lincoln s term 
 of office had been terminated by death, and the President 
 who had succeeded him was holding the executive office for 
 a term measured by the unexpired period which was to 
 elapse before the next regular election of a President. The 
 other question was, whether, if Mr. Stan ton was within the 
 law, and could be removed from office only in the mode 
 which it prescribed, Congress had constitutional power to 
 make the removal of civil officers subject to the assent of 
 the Senate. 
 
 But notwithstanding that these questions arose on the face 
 of the law, when it came to be applied to the heads of de 
 partments who had been appointed by Mr. Lincoln, President 
 Johnson was placed in a great and a dangerous dilemma. 
 The people of the United States had not seen fit to interpose 
 and prevent their Executive from being thus subjected to 
 the will of Congress. They held, in general, throughout the 
 States of the North, the same opinions, and were influenced 
 by the same feelings, as the controlling majority of their 
 representatives in both houses of Congress, feelings and 
 opinions which had created the belief that the President 
 was an obstruction to the Republican policy, and that it was 
 necessary to control him. To what hazards this conflict 
 carried the people of this country, and how it endangered 
 the constitutional independence of a co-ordinate department 
 of their government, will presently appear. 
 
 On the 5th of August, 1867, the President signified to 
 Mr. Stanton that his resignation would be accepted ; and 
 on the same day Mr. Stanton refused to resign before the 
 next meeting of Congress. On the 12th of August, the 
 President, by an order in writing, suspended Mr. Stanton 
 from the office of Secretary of War, directed him to trans 
 fer to General Grant, as Secretary ad interim, the records, 
 books, papers, and property of the department, and au 
 thorized General Grant to act as Secretary ad interim. To 
 
406 MEMOIK OF BENJAMIN BOBBINS CURTIS. [1868. 
 
 this order Mr. Stanton submitted, under written protest, as 
 an act of u superior force." The order was not designed to 
 effect a suspension from office under the Tenure of Office 
 Act ; but it was issued by the President as an exercise of 
 his power under the Constitution to suspend any civil officer 
 during his pleasure, and indefinitely. On the 12th of 
 December, the President informed the Senate, by message, 
 of what he had done, in the hope that his constitutional 
 powers would be recognized, and also in the hope that it 
 would not be made necessary for him to raise the question 
 judicially whether Mr. Stanton was within the true con 
 struction of the Tenure of Office Act. This hope not having 
 been realized, the President was compelled, either to allow 
 Mr. Stanton to resume the duties of the office, or to make a 
 case for judicial determination by removing him. Accord 
 ingly, on the 21st of February, 1868, the President issued 
 an order removing Mr. Stanton, and appointing General 
 Thomas, the Adjutant-General of the army, Secretary ad 
 interim. Some difficulty was experienced in carrying out 
 this order, in consequence of the refusal of General Grant 
 to surrender the office, according to a promise which the 
 President alleged he had given when he was made Secretary 
 ad interim. These proceedings on the part of the President 
 constituted one of the grounds on which articles of impeach 
 ment were voted against him by the House of Representa 
 tives, on the 24th of February, 1868, charging him with 
 " high crimes and misdemeanors." Another branch of the 
 charges sought to impeach the President, on the ground 
 that he had made certain speeches to popular assemblies, 
 calculated and designed to bring the Congress of the United 
 States* into contempt, arid to impair its just and lawful 
 authority. Still another branch of the charges imputed to 
 the President an intent to obstruct the law " for the better 
 government of the Rebel States." He was also charged Avith 
 a design to get possession of the money appropriated to the 
 military service of the United States. 
 
1868.] IMPEACHMENT OF THE PRESIDENT. 407 
 
 What rendered this proceeding formidable, and full of 
 peril for the President, was that his political enemies were 
 believed to be in a condition to demand his removal from 
 office at the hands of a willing majority of the Senate. It 
 depended entirely upon the construction which two-thirds 
 of the Senate should give to tho Tenure of Office Act, and 
 to their decision on its constitutional validity, whether he 
 was to remain President, or be expelled from his office. 
 The great object to be accomplished by the impeachment 
 was to get rid of the President, and to restore Mr. Stanton 
 to the War Department. All the charges which related to 
 other matters were thrown in to inflame the passions of 
 Senators, and to intensify the hatred with which the Presi 
 dent was regarded, because he was opposed to the policy of 
 " reconstruction " which the dominant party in Congress 
 had adopted. 
 
 As the time for the trial of the impeachment approached, 
 it seemed to the President, his Cabinet, and his friends, 
 that there was one man in the country who might possibly 
 stay what they regarded as an attempt to crush the consti 
 tutional independence of a co-ordinate department of the 
 government. To him they appealed. The Constitution 
 required that the investigation and decision of articles of 
 impeachment should be a " trial" ; that it should therefore 
 be conducted according to the forms of judicature ; that, in 
 the case of an impeachment of the President, the Chief 
 Justice of the United States should preside over the court ; 
 that the Senate should be a court, the members of which 
 should be under the sanction of an oath or affirmation, and 
 that, on whatever principles they might hold official acts to 
 be grounds for impeachment and removal, there should be 
 a " judgment." By the nature of such a proceeding, by 
 constitutional provision, and by established precedents, the 
 accused Avas entitled to " the assistance of counsel for his 
 defence." It was fortunate for the people of the United 
 States that they had recognized and established this 
 
408 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1868. 
 
 privilege, alike for the lowest and the highest of supposed 
 offenders. 
 
 " When the time had come for the selection of counsel 
 to defend the President, the first name suggested was that 
 of Judge Curtis, and no sooner suggested than accepted in 
 full Cabinet, and emphatically by the President himself." 
 These are the words of a gentleman who was present. 1 
 Judge Curtis had no personal acquaintance with Mr. John 
 son, no interest in his political or personal fortunes, and 
 nothing but a* sense of duty to lead him to accept the 
 responsible position of leading counsel for the defence on 
 this great trial. It was positively distasteful to him, on 
 many accounts ; and, in addition to this, it must necessarily 
 involve serious pecuniary sacrifices, for the President was 
 unable to offer the smallest compensation, and Judge Curtis 
 was busily occupied in a very lucrative practice. The 
 President had nothing to which to appeal, in the mind of 
 his advocate, but a consciousness that he might be able to 
 do a service to his country, and this was sufficient. 
 
 My brother left Boston immediately for Washington, as 
 soon as he had received the President s request. He was 
 followed by a letter from one of his friends at the Boston 
 bar, which I cannot refrain from quoting, because it admi 
 rably expressed the feelings of his professional brethren, 
 who best knew the motives which would sustain him, and 
 the character of the efforts which they might expect from 
 him. 
 
 MR. CAUSTEN BROWNK TO JUDGE CURTIS. 
 
 BOSTON, March 1, 1868. 
 
 MY DEAR JUDGE, I cannot deny myself the pleasure of 
 writing you a single word upon the news we find in the morning 
 papers, that you have been offered and have accepted the duty 
 of leading counsel for the President. I know well how much 
 higher than those of personal distinction are the considerations 
 
 1 The Hon. Henry Stanbery, then Attorney-General, writing to* the 
 author, October 31, 1878. 
 
1868.] ENGAGED TO DEFEND THE PRESIDENT. 409 
 
 which have led you to accept the work, and will stimulate you in 
 the performance of it. But, at the same time, you will not fail to 
 recognize, that your taking a place of such supreme professional 
 eminence and responsibility, at such a crisis, must be matter of 
 pride to your brethren at home. None of us doubt, nor do I sup 
 pose anybody else doubts, that the great duty you have undertaken 
 will be discharged in the best manner, in such a manner as, if 
 possible, to increase the admiration and xespect with which our 
 whole profession regard you. 
 
 But if it will lighten the work, or brighten the prospect, to 
 know with what sincere personal interest your " brethren and 
 companions " will follow your course, in this great trial, you can 
 not doubt that you may rely upon them. 
 
 With the most earnest wishes that you may have the health 
 and strength to do yourself and your reputation justice, and that 
 your efforts may be powerful to have law and right upheld in this 
 tremendous public situation, I am, with the greatest respect and 
 
 regard, 
 
 Your friend, CAUSTEN BROWNE. 
 
 I did not see my brother on his way through New York ; 
 but in a day or two I received a letter from him, begging 
 me to come to him. He said, that he was there in Wash 
 ington with " this portentous business " on his " shoulders," 
 and alone. He wished, he said, to confer with me, on some 
 of the constitutional questions which lay at the basis of 
 the case ; that the Attorney-General had been too much 
 occupied with his official duties to give any time as yet to 
 consultations upon the President s answer to the charges. 1 
 I went to Washington immediately, and joined him at 
 Willard s Hotel. He was engaged in making the first 
 draft of the President s answer ; and he did not feel sat 
 isfied with one of the constitutional positions on which he 
 
 1 At this time, the other gentlemen who took part in the President s de 
 fence Messrs. Evarts of New York, Groesbeck of Ohio, and Nelson of 
 Tennessee had not been retained or had not arrived in Washington, and the 
 Attorney-General, Mr. Stanbery, was very busy. To my great and painful 
 regret, my brother s letter to me has been lost. It was a very impressive ex 
 hibition of his feelings in regard to the duty which he had undertaken. 
 
410 MEMOIR OF BENJAMIN BOBBINS CUBTIS. [1868. 
 
 had based a part of it, or with the " traverses " with which 
 he had encountered the charge which he was then consid 
 ering. After we had conversed for some time on the con 
 stitutional question, he desired me to take this particular 
 charge, and, without reading his draft, to draw an answer 
 to it. I consented to do this, as a means of assisting his 
 mind to a third form of the answer which would be more 
 satisfactory to him ; for I saw how his mind was working 
 upon the subject, and that, as soon as he viewed it through 
 the medium of another person s ideas and expressions, the 
 right form and substance of the pleading would at once 
 come to him. There was to be a Cabinet meeting that 
 forenoon, at which he was to be present. It was to be his 
 first introduction to the President. The consultation re 
 lated to the substance of the defence, and to the employ 
 ment of other counsel. On his return to the hotel, he told 
 me how much he had been impressed by the calm, honest 
 sincerity of Mr. Johnson, and spoke of him very much as he 
 did in the letters which will be quoted hereafter. I then 
 gave him the sketch of one part of an answer which he had 
 desired me to make, and in a very few minutes it turned 
 out as I anticipated ; his mind settled at once upon a third 
 and better form than his own first draft, or mine. I did 
 not remain in Washington long, and did not witness any 
 part of the trial. 
 
 After many preliminary proceedings, the trial of the 
 Impeachment began before the Senate, on the 30th of 
 March, 1868, the Chief Justice of the United States pre 
 siding. 
 
 The Managers of the Impeachment were of course first 
 heard. When they had opened their charges and adduced 
 their evidence, there was much cause for anxiety among 
 the friends of the President and the impartial spectators ; 
 for it was believed that a large majority of the Senators 
 were bitterly hostile to him. Judge Curtis was to open the 
 President s defence. lie shared the anxiety that was felt 
 
1868.] ARGUMENT FOR THE PRESIDENT. 411 
 
 by others on account of the political and personal hostility 
 of so many of the Senators to the President ; but when he 
 rose to speak, he manifested no solicitude whatever. He 
 knew that he could place the defence of the President upon 
 unanswerable grounds of law, and that, when this had been 
 done, his acquittal would depend entirely upon there being 
 a sufficient number of the hostile Senators, who were capa 
 ble of rising above party and acting for their country. Of 
 his manner and bearing, and of the effect of his argument 
 upon those who heard it, I should have preferred to adopt 
 the descriptions of others, even if I had been present. As 
 I was not, I have only to quote from what was written by 
 witnesses of the scene. That he rendered a great public 
 service, that when he had concluded his address to the 
 Senators the acquittal of the President was substantially 
 secured, and that, though much was well and ably said after 
 him by his colleagues, nothing needed to be added to an 
 argument which had exhausted the case, is the concurrent 
 testimony of most of those who were present or who have 
 read the trial. So that, all things considered, the great 
 ness of the occasion, the disastrous consequences that must 
 have followed the conviction of the President, the danger 
 that party spirit would be stronger in the breasts of Sena 
 tors than the spirit of justice and obedience to constitutional 
 duty, and the manner in which this great responsibility was 
 borne by him on whom it chiefly rested, and who was per 
 haps best able to reach the judgment and convictions of 
 the most conscientious members of the tribunal who were 
 politically opposed to the accused, this argument may be 
 considered the most interesting forensic effort that is re 
 corded in our annals. 
 
 If I were to indicate those parts of it which are most 
 worthy of study by the ingenuous youth of our country who 
 desire to understand its national institutions, I should point, 
 first, to its exposition of the true meaning and operation of 
 the Tenure of Office Act ; next, to the very skilful and clear 
 
412 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1868. 
 
 manner in which the President s constitutional power to 
 remove civil officers was vindicated, so far as the defence 
 of the President required that it should be ; to the explana 
 tion given of the President s ministerial duty in executing 
 laws, whether passed with or without his assent, and his 
 right and duty to subject any law which he deems to be an 
 encroachment upon his constitutional prerogatives to a ju 
 dicial test ; to the noble answer which was made to the posi 
 tion that the Senate " were a law unto themselves" ; and to 
 the grand commentary which was made upon the nature of 
 that freedom of speech which is secured by the Constitu 
 tion. It was when the President s advocate drew towards 
 the close of this part of his argument, that there burst from 
 him, in unaccustomed warmth, an indignant protest against 
 the standard of judgment by which the managers sought 
 to impeach the President for speaking improperly of the 
 Congress, in the following words : 
 
 So that this prohibition in the Constitution against any legis 
 lation by Congress in restraint of the freedom of speech is neces 
 sarily an absolute prohibition ; and therefore this is a case not 
 only where there is no law made prior to the act to punish the act, 
 but a case where Congress is expressly prohibited from making 
 any law to operate even on subsequent acts. What is the law to 
 be? Suppose it is, as the honorable Managers seem to think it 
 should be, the sense of propriety of each Senator appealed to. 
 What is it to be? The only rule I have heard, the only rule 
 which can be announced, is that you may require the speaker to 
 speak properly. Who are to be the judges whether he speaks 
 properly ? In this case the Senate of the United States, on the 
 presentation of the House of Representatives of the United 
 States ; and that is supposed to be the freedom of speech secured 
 by this absolute prohibition of the Constitution. That is the same 
 freedom of speech, Senators, in consequence of which thousands of 
 men went to the scaffold under the Tudors and the Stuarts. That 
 is the same freedom of speech which caused thousands of heads of 
 men and of women to roll from the guillotine in France. That is 
 the same freedom of speech which has caused in our day, more than 
 
1868.1 ARGUMENT FOR THE PRESIDENT. 
 
 once, " order to reign in Warsaw." The persons did not spea 
 properly in the apprehension of the judges before whom they were 
 brought. Is that the freedom of speech intended to be secured by 
 our Constitution ? 
 
 The following description of the scene when he rose to 
 speak, of his manner and his matter, is taken from one of 
 the public journals of the time : 
 
 The Senate and all the spectators in the Chamber greeted Mr. 
 Curtis with a respectable bustle, that might have passed for a 
 murmur of applause. He stood at the end of the table provided 
 for the President s counsel, nearest the Chief Justice, where he 
 commanded a view of the whole court. He was attired, as usual, 
 in simple black, which set off to advantage his large and shapely 
 proportions. His manner was an incarnation of dignity, self- 
 possession, repose. A more impassive face, with eyes less anxious 
 and inquiring, or more confident, steady, and serene, was never 
 gazed at by an expectant audience. It was the face and massive 
 head of a thoughtful and deliberate jurist. A forehead loftier and 
 rounder than would have been seemly at the peak of any other 
 figure in the Chamber, inspired belief in the quantity of the brains 
 behind it, and something about the firm, calm lips of the man led 
 everybody to anticipate that what they were to utter would be 
 devoid of any thing so uncharacteristic as passion or prejudice, or 
 an appeal to the infirmities of his hearers. His mere presence, 
 standing there during the few seconds which elapsed while the 
 occupants of the floor and galleries were settling themselves to 
 listen, taught to all sensitive observers a lesson. It showed how 
 perfect a self-poise the consciousness of profound attainments, 
 knowledge of the subject of which he is about to treat, and con 
 viction of the justice of his cause give to a speaker. It showed 
 what an ineffable charm, so to speak, exhaled from a man who 
 unites to learning and experience a modesty rather left to be 
 inferred than obtrusive, and which was succeeded by an entire 
 absence of arrogance or airs. Mr. Curtis s voice as he began was 
 so low that it scarcely filled the Chamber, which, however, imme 
 diately became so still that the second sentence was heard in the 
 remotest corner. That sentence was the key-note of his remarks. 
 It indicated their character and foreshadowed the argument. It 
 
414 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1868. 
 
 confirmed the respect with which every member of the Court who 
 might have conceived that his address would have been opened by 
 an accusation, just or unjust, heard him. Within a few moments 
 afterwards he had fairly entered into the merits of the case, and 
 had made one of a series of points against the impeachment which, 
 as they were successively presented in the course of his remarks, 
 excited the admiration, if they did not shake the partisan purpose, 
 of the President s worst enemies. Soon his tones sought a higher 
 level, and his hands, clasped at first behind him or resting on the 
 edge of the table before, were raised to assist the persuasion of 
 what he said, with forceful gestures. It became evident, to those 
 who were not already familiar with his style of delivery, that Mr. 
 Curtis was not, in the highest sense, an orator. He spoke from 
 voluminous notes, and frequently consulted and read from the 
 books of reference beside him. The clearness of his statements, 
 the accuracy of his logic, and the precision and steadiness with 
 which he advanced from every premise he established to conclu 
 sions, needed, in fact, no fiery oratory to enhance the effect. If 
 his tones did not often thrill the heart, they reached the brain. 
 They were earnest, if not eloquent, and there was a certain fasci 
 nation in their monotony. They bore a heavier burden of matter 
 than the chaff blown from the lips of many windv elocutionists, 
 and that is one reason why their equable, repressed accents were 
 tolerable. Two or three times Mr. Curtis indulged a fervor which 
 gave to his aspect an inspiring majesty and glow. Then his voice 
 had the tremor of a water-fall. Then his form shook like a pine; 
 but, as a pine recovers itself after a gust, and stands erect and 
 stately as before, so, in an instant after these noble outbursts, the 
 speaker of to-day was seen composed and motionless, as if every 
 hot impulse in his nature had been thrust back beaten into its lair. 
 After Mr. Curtis had spoken about two hours, a recess of twenty 
 minutes was taken. He then resumed his argument and continued 
 until half-past three, P. M., when the court adjourned. It is gener 
 ally conceded that the speech, of which I have not attempted to give 
 you any synopsis, is so far an original and invincible effort. It has 
 made an immense impression here in Washington, and there are 
 applications by hundreds, who cannot be admitted, to hear the 
 conclusion of it to-morrow. When it is finished, as it is expected 
 to be about two o clock, the President s counsel will begin to sub 
 mit documentary and oral testimony for the defence 
 
 J. B. S. 
 
1868.] ARGUMENT FOK THE PRESIDENT. 415 
 
 This graphic account came from the pen of an accom 
 plished journalist, accustomed to view men and things with 
 a practised eye, and well able to appreciate the intellectual 
 and moral characteristics of such a performance. 1 One 
 other description, from the pen of a lady who was among 
 the audience, is all that I need quote. It was written to 
 Mrs. Curtis, immediately after the close of the speech. 
 
 WASHINGTON, Friday, April 10. 
 
 MY DEAR MRS. CURTIS, I have just returned from the Senate- 
 Chamber, filled with delight and admiration at Mr. Curtis s great 
 argument. For power and condensation of thought, and for dig 
 nity and persuasiveness of delivery, it was indeed a glorious effort. 
 It is so very infrequently that women have such an opportunity, 
 that I cannot tell you how we have enjoyed it. Even political 
 antagonists confess the greatness of the argument: indeed, it seems 
 to bring back the times when " there were giants on the earth." 
 You will have later and more full accounts, but I cannot deny 
 myself the pleasure of being the first female reporter to you. With 
 much sympathy, in which my husband and my daughters unite 
 very cordially, 
 
 I am very hastily and sincerely yours, 
 
 HARRIET B. LORINQ. 
 
 It remains for me now to give two private letters, written 
 by my brother during the trial : 
 
 To MR. TICKNOR. 
 
 WASHINGTON, March 26, 1868. 
 
 MY DEAR UNCLE, I would gladly comply at once with your 
 request for copies of the report of the trial of the President, but at 
 present I cannot. There is a government report, which is fur 
 nished day by day to each of the counsel. This copy I cannot 
 spare, and I know not how to procure others. There will be, of 
 course, one or more authentic editions for sale. The trial has not 
 yet advanced far enough to bring them forth. I will be watchful 
 and supply you if I can. 
 
 1 The writer of this letter was Mr. J. B. Stillson, at that time attached to 
 " The World," as a correspondent. 
 
416 MEMOIR OF BENJAMIN BOBBINS CURTIS. 11868. 
 
 As to the case itself, I have very little to say. There is not a 
 decent pretence that the President has committed an impeachable 
 offence. " The party " are in a condition to demand his removal 
 from power, and do demand it. What the result is to be, you can 
 imagine as well as I can. Do not listen to any rumors about the 
 President s resignation. No one connected with the case has 
 thought of advising it, and, if every one advised it, the President 
 would not listen to such advice. Pie is calm, cheerful, and self- 
 sustained, lie firmly believes he has been and is right, he knows 
 he is honest and true in his devotion to the Constitution. If he is 
 expelled from his office, he will march out with a firm step and a 
 strong heart. 
 
 I feel grateful to Aunt and yourself for your kindness to my 
 wife in my enforced absence. It is very injurious to my interests, 
 and sorely against rny wishes and tastes and feelings, to be here. 
 I cannot help it, and must do what I am able to stand up against 
 this great public wrong. Yours always, 
 
 B. R. CURTIS. 
 
 To THE SAMP:. 
 
 WASHINGTON, April 10, 1868. 
 
 DEAR UNCLE, I concluded my argument to-day at two and 
 a half, P. M., and came to my lodgings, leaving my associates to go 
 on with the evidence for the couple of hours of the session which 
 remained. I had an attentive audience from the Senate, and from 
 the crowded galleries and aisles. How much permanent and useful 
 effect I have produced, I have no means of judging. Washington 
 is full of rumors, most of which are false, and all of so doubtful 
 authority that nothing can be predicated of them. 
 
 Please do not read the very incorrect reports of my argument 
 which are in the newspapers. They mortify me. I will send you 
 in " The Globe " a correct copy, and before I leave here I shall be 
 able to supply you with reports of the trial which are authentic, 
 or rather to cause them to be supplied, for I do not expect to 
 remain here till the case is ended. I shall come home when the 
 evidence is closed and the speeches begin. The case will be 
 effectively and actually settled before that time. There are from 
 twenty-two to twenty-five Senators, who began the trial with a fixed 
 determination to convict. I have no reason to suppose any one of 
 them is shaken, or will be. About twelve to fifteen of the dominant 
 
1868.] THE PRESIDENT ACQUITTED. 417 
 
 party had not abandoned all sense of right, and given themselves over 
 to party at any cost. What will become of them I know not, but 
 the result is with them. The President himself preserves his calm 
 ness, and to a great extent his equanimity. My respect for the moral 
 qualities of the man is greatly enhanced by my knowledge of him. 
 He is a man of few ideas, but they are right and true, and he could 
 suifer death sooner than yield up or violate one of them. He is 
 honest, right-minded, and narrow-minded ; he has no tact, and 
 even lacks discretion and forecast. But he is as firm as a rock ; 
 and if he should be convicted, he will go out with a firm reliance 
 that the time will come when " black lines " will be drawn around 
 that Senatorial record, by the command of the people of the United 
 States. I have so little time to write letters, that T wish you would 
 show this one to my wife. 
 
 Yours always, 
 
 B. R. CURTIS. 
 
 The future necessity for " black lines," to expunge a re 
 cord of conviction did not arise. On the 26th of May, 
 1868, after arguments by the other counsel for the Presi 
 dent, and a reply by the managers, the proceedings were 
 brought to a close. The two principal articles, charging an 
 intent to violate the Constitution and the Tenure of Office 
 Act, by the removal of Mr. Stan ton from the War- Depart 
 ment and the appointment of General Thomas as Secretary 
 ad interim, were alone voted upon. The votes were 35 
 yeas, and 19 nays ; and as the requisite two thirds had 
 not voted " guilty," a judgment of acquittal was entered. 
 Of the twelve or fifteen Republican Senators with whom 
 Judge Curtis said the result rested, seven voted " not 
 guilty." l 
 
 1 The Republican Senators who voted to acquit the . President were 
 Messrs. Fessenden, Fowler, Grimes, Henderson, Ross, Trumbull, and Van 
 Winkle (seven). The Democratic Senators voting for his acquittal (twelve 
 in number) were Messrs. Bayard/ Buckalew, Davis, Dixon, Doolittle, Hcn- 
 dricks, Johnson, McCreery, Norton, Patterson of Tennessee, Saulsbury, 
 and Vickers. One of the Republican Senators said afterwards, when 
 taxed with want of fealty to his party, "Judge Curtis gave us the law, 
 and we followed it." On the day following Judge Curtis s opening 
 VOL. i. 27 
 
418 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1868 
 
 JUDGE THOMAS TO MR. TICKNOR. 
 
 BOSTON, May 13th, [1868.] 
 
 MY DEAR SIR, It will give me very great pleasure to dine 
 with you on Saturday, and to meet Judge Curtis. The Judge has 
 discharged a great public duty with signal fidelity and ability. 
 We owe him a large debt, not only as citizens of the country, but 
 as sons of Massachusetts, that he has saved us from the fathomless 
 infamy into which the course of our Managers and Senators would 
 have otherwise sunk her good name. Our culture, forensic power, 
 and manliness have not all gone. We have an estate at least by 
 the Curtis-y. 
 
 With great respect, very faithfully yours, 
 
 BENJ. F. THOMAS. 
 
 On the 12th of March, Mr. Stanbery resigned the office 
 of Attorney-General, in order to devote his energies exclu 
 sively to the defence of the President. Immediately after 
 his acquittal, the President, of his own motion, renominated 
 Mr. Stanbery for the same office ; but the Senate, with little 
 delay, refused to confirm the nomination. On the 8th of 
 June, Mr. Stanbery left Washington for his home in Ohio. 
 
 On the 5th of June, the President sent a telegraphic 
 despatch to Judge Curtis, asking if he would accept the 
 office of Attorney-General. It was with no purpose of 
 rewarding or compensating him for his great services that 
 the President made this offer. He was really embarrassed 
 in finding a suitable person to whom he could tender this 
 place in his Cabinet, after the Senate had rejected Mr. 
 Stanbery ; and he naturally turned to the man whom he 
 thought the most suitable, and who was among those who 
 could, with political consistency, support the course of his 
 administration. The following was the answer returned, 
 by letter, as soon as Judge Curtis saw the President s 
 despatch : 
 
 argument, another Republican Senator asked a political friend if he had 
 heard it. "No," was the reply, "I was absent; but I have read it, and 
 I wish I hadn t." 
 
1868.] DECLINES OFFICE. 419 
 
 To PRESIDENT JOHNSON. 
 
 BOSTON, June 8, 1868. 
 
 MR. PRESIDENT, On my return to Boston this evening, after 
 an absence of four days in New York, I found your telegram of 
 the 5th instant, asking if I would accept the office of Attorney- 
 General. My family being in the country, no one here had opened 
 the despatch, and it was delivered to me on my arrival at my hotel. 
 The answer, which I immediately sent, you doubtless received. 
 
 Rut I desire to express to you my gratitude for the inquiry you 
 made, and my regret that it is not in my power to accept the hon 
 orable and important office to which it relates. You will not 
 expect me to enter into any detailed reasons for this conclusion ; 
 but I hope you will allow me to say that there is no public office 
 which I shall ever be induced to accept willingly, and that I shall 
 never accept one save from such imperative commands of duty as 
 I cannot resist. And even if my resolve concerning this subject 
 were not fixed, as it is, my duties to my clients who have exten 
 sively trusted and relied on me, and whose interests might mate 
 rially suffer by my withdrawal thus suddenly from their service, and 
 the condition and affairs of my family, would necessarily preclude 
 me from returning an affirmative answer to your question. 
 
 I desire to add, that, though I have had very slight connection 
 with the politics of the country, and they are now in a condition 
 when one would not willingly plunge into them, there has been 
 nothing in your general course of political action which I do not 
 approve of ; that I am not in the least degree influenced to answer 
 your question negatively by any thing which I apprehend in the 
 future policy or measures of your administration. 
 
 With great respect, I am your obedient servant, 
 
 B. R. CURTIS. 
 
420 MEMOIR OF BENJAMIN BOBBINS CURTIS. f!869. 
 
 CHAPTER XIV. 
 
 1869-1874. 
 
 Professional Duties. Letters to Mr. Ticknor and William E. Curtis. 
 Death of Mr. Ticknor. Deaths of Young Children. A Short Tour in 
 Europe. Letter from London to G. T. Curtis. Declines an Appoint 
 ment as Counsel for the United States at the Geneva Arbitration. Let 
 ter to the Hon. Reverdy Johnson concerning the Office of Chief Justice 
 of the United States. Lectures at the Cambridge Law School. Death 
 of his eldest Daughter. Letter to G. T. Curtis. Continued Profes 
 sional Labor. Declining Health. Death at Newport. Independence 
 of Character. 
 
 THE last five years of my brother s life were years of 
 great professional labor, checkered by great domestic sor 
 rows. His engagements in the Supreme Court of the 
 United States, and his occupations at home, were very 
 weighty. In these five years he argued twenty-two causes 
 in the Supreme Court, 1 and twelve at the Law Terms of 
 the Supreme Court of Massachusetts, 2 besides many others 
 in the Circuit Courts of the United States, while he also 
 wrote forty-five opinions, as chamber counsel, on a great 
 variety of important questions. The following letter gives 
 token of the constant demands upon his energies. 
 
 To MR. TICKNOR. 
 
 21 MARLBORO STREET, Feb. 5, 1869. 
 
 DEAR UNCLE, I came home from Washington on Tuesday 
 evening, and hoped to have a little rest ; but I am again summoned, 
 and must leave to-morrow morning. I have not left my house since 
 
 1 Embraced in Wallace s Reports, from the 10th to the 19th volumes 
 inclusive. 
 
 2 Embraced in the Reports of that court, from the 105th to the 112th 
 Massachusetts, inclusive. 
 
1869.] LETTER TO W. E. CURTIS. 421 
 
 my return except in a close carriage, for I have a bad cold ; other 
 wise I should have been to see you. Mr. Gardner was kind 
 enough to take my turn of the Club on the 29th of January. I 
 should have it on the 12th instant. But I doubt if I shall be here 
 in season. I hope I may be, for I think my present call to Wash 
 ington will not detain me through the whole week. Still, if it 
 were certain that I could return in season, I should not like to 
 leave the care of this dinner on my wife, who is far from well, and 
 no longer has Robert to relieve her from all thought about it. 
 May I rely on you to take the Club and fill my place ? In my 
 present roving life, I am not a fit person to be a member of any 
 " stated congregation " ; and another year I will order things 
 differently. 1 
 
 I have passed some weeks at Washington, among the men who 
 .tre supposed to know most of public affairs. As to General 
 Grant, 2 I am satisfied that he has kept his own counsels, whatever 
 they may be. Whether he has the wisdom to know that it de 
 pends on him to submit to, or resist, a merely centralized parlia 
 mentary government, and if he has the wisdom whether he has the 
 power to resist it, I do not know. . . . General Grant knows that it 
 was not the Republican party which has put him in power, but his 
 hold on the country which has retained them in power. But, if 
 he appreciates his position, he also knows that the legislative power, 
 having, with the acquiescence of the country, conquered one Presi 
 dent, and subdued the Supreme Court, and filled all the offices with 
 their creatures dependent on their will, will not subside into that 
 coequal position assigned to them by the Constitution without a 
 desperate struggle. He is a bold President who enters on it. 
 He must have great qualities and the safest and ablest advisers to 
 succeed. I hope he may try it. I need not say I hope he may 
 succeed. Yours always, 
 
 B. R. CURTIS. 
 
 To WILLIAM E. CURTIS, ESQ., OF NEW YORK. 
 
 21 MARLBORO STREET, March 23, 1870. 
 
 MY DEAR MR. CURTIS, Since I received your kind letter 
 with its enclosure, I have been so afflicted with a catarrh, that I 
 
 1 For a brief account of this dinner-club, see Life and Letters of George 
 Ticknor, Vol. II. p. 445. 
 
 2 Elected President in November, 1868, and was to be inaugurated March 
 4, 1869. 
 
422 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1870 
 
 have neither been to my office nor into court except a few times 
 on the most urgent occasions. Latterly I am better, and I hope to 
 go along as usual ; but my correspondence has suffered, and among 
 other things I have not answered your kind letter, for which I 
 thank you much. 
 
 I have no doubt the Connecticut people of our name came from 
 the same William and Sarah Curtis of Roxbury from whom I am 
 descended. I inclose a memorandum of the pedigree, so far as you 
 are interested in it. As for arms and crests, I imagine that they 
 paid very little attention to them, and took no care to use or 
 transmit them, whatever their right may have been. They were 
 farmers at first, upon land granted to the first settler, William, 
 and afterwards his descendants engaged in all usual pursuits ; 
 but I think there has been no generation of them which has not 
 had one or more graduated at Harvard College, and usually more 
 than one. 
 
 They have continued to own parts of the land granted to them 
 in 1632 "on Stony Brook," and would doubtless have continued to 
 own much more, if from farms the land had not become building- 
 lots in a populous neighborhood. So far as I know, what you say 
 of your part of the family is quite applicable to the rest of them. 
 They have been, hereabouts, a sturdy race of people, without any 
 claims to great refinement, but with just claims to honesty, kindli 
 ness, and the most unmistakable determination to have their own 
 way. I should say this, that the first William and Sarah, who 
 came over from the county of Essex in 1632, must have had a 
 great deal of that valuable quality ; for surely their descendants 
 have got from somewhere strong wills. Dr. Walker, in one of his 
 sermons, said, Knowledge is not power, will is power." If so, we 
 are a powerful race of people ; for, right or wrong, all those of our 
 race whom I have known have had enough of it. I may add, that 
 in general, and so far as I know, the descendants here have been 
 useful and respectable people. 
 
 I enclose a memorandum, entirely authentic, as to the earlier 
 genealogy, and am, with great regard, 
 
 Your kinsman and friend, 
 
 B. R. CURTIS. 
 
 P. S. Accidentally, the seal of your letter was destroyed. If 
 you will send me an impression of it, I should like it, and if you 
 
1870.] OPINIONS GIVEN AT THE BAR. 423 
 
 are willing to put your " arms " into the hands of some one who 
 will draw aud color it for a fee which I will pay, my children 
 would be glad to see it. 
 
 B. R. C. 
 
 As belonging to this period, I select some opinions upon 
 interesting subjects, given in the course of his practice. 1 
 
 ILLINOIS TWO PER CENT CLAIM. 
 OPINION. 
 
 I have been requested to examine the claim of the State of 
 Illinois to be paid by the United States two per cent of what has 
 been received by the United States from the sales of public lands 
 within that State made after its admission to the Union. 
 
 This claim grows out of the sixth section of the act of April 18, 
 1818, for the admission of that State to the Union, on an equal 
 footing with the original States. That section is as follows : 
 
 " That five per cent of the net proceeds of the lands lying within 
 such State, and which shall be sold by Congress, from and after the 
 first day of January, one thousand eight hundred aud nineteen, 
 after deducting all expenses incident to the same, shall be reserved 
 for the purposes following, viz. : two fifths to be disbursed, under 
 the direction of Congress, in making roads leading to the State ; 
 the residue to be appropriated by the Legislature of the State, for 
 the encouragement of learning, of which one sixth part shall be 
 exclusively bestowed on a college or university." 
 
 It is stated as matter of fact, that a system of internal improve 
 ments was begun under the authority of Congress, and large ex 
 penditures were made thereon in the States of Ohio and Indiana, 
 which resulted in the creation of roads in those States ; and other 
 large expenditures were made for similar purposes within the State 
 of Illinois, which did not result in the completion of any useful or 
 practicable roads ; and that while matters were in this condition 
 Congress finally abandoned its original intention and policy of 
 creating a national road from Wheeling on the Ohio River to the 
 Mississippi River, and all work thereon was ended, and those parts 
 
 1 It must be understood that the opinions embraced in this and in the 
 tenth and twelfth chapters are but a small proportion of the whole number 
 given between the years 1857 and 1874. 
 
424 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1870. 
 
 of the road which had been built and made practicable in Ohio and 
 Indiana, that is to say, the roads contemplated by the act of 1818 
 to be built out of the reserved two per cent, "leading to the State 
 of Illinois," were by the United States granted to the States in 
 which they lay, upon new contracts and conditions, by which those 
 States became the owners thereof, by which these States were 
 enabled to, and did, in point of fact, impose a toll for the use of the 
 same as being the absolute property of each of them. 
 
 Before considering what is the true meaning and effect of the 
 subsequent legislation of Congress in 1855 and 1857, I think it 
 most material to observe that, when these last-mentioned acts were 
 passed, the United States had clearly failed to keep and perform 
 the compact contained in the sixth section of the act of 1818, ad 
 mitting the State of Illinois to the Union. 
 
 It must be borne in mind that the agreement of the United 
 States to disburse two per cent of receipts from the sales of public 
 lands within the State of Illinois " in making roads leading to the 
 State," had a sufficient and corresponding consideration in the 
 stipulation of the State not to tax the public lands in the hands 
 of purchasers or patentees, until after the lapse of certain fixed 
 periods ; that this agreement to reserve two per cent of the sales 
 of public lands, and expend what was thus reserved in the public 
 works described, had all the elements of a contract ; that it created 
 a trust when the designated moneys were received ; and that be 
 fore the acts in question were passed, the United States had not 
 merely failed to perform that contract and execute the trust, but 
 that Congress had, before the passage of the act of 1857, fixed the 
 fact finally and irrevocably that the contract would not be per 
 formed and the trust would not be executed. 
 
 It is true that what had been done upon the roads in Ohio and 
 Indiana might possibly have been taken as a compliance with the 
 contract and an execution of the trust, if Congress had not by its 
 acts rendered it impossible to consider the construction of these 
 roads in Ohio and Indiana an execution of the trust or a perform 
 ance of the contract. Having caused them to be built, Congress 
 might have permanently dedicated them to a free public use if they 
 really were such roads leading to the State of Illinois as were con 
 templated by the act of 1818, and the United States might have 
 rested in the conclusion that they had thus performed their con 
 tract and executed their trust. But it is also true that Congress 
 
1870.] OPINIONS GIVEN AT THE BAR. 425 
 
 might, from some change in its policy, make such appropriation 
 of these roads as to be wholly inconsistent with their creation 
 being a compliance with the contract, and an execution of the 
 
 & 
 trust. 
 
 After a careful consideration of the action of Congress upon the 
 subject of this road in Ohio and Indiana, the only satisfactory con 
 clusion I can come to is, that when Congress transferred the road 
 to the States of Ohio and Indiana, with power to levy a toll thereon, 
 subject only to certain restrictions in favor of the United States, 
 and abandoned the further prosecution of the work, it did thereby 
 abandon the performance of the contract, and did finally declare 
 that the trust to expend two per cent of the receipts from sales of 
 public lands in the State of Illinois, for the purposes and in com 
 pliance with the contract designated in the act of admission of the 
 State, would not be executed. 
 
 And this I believe to have been the actual state and condition 
 of the relative rights and obligations of the United States and of 
 the State of Illinois at the time of the further legislation now in 
 question, in 1 857. 
 
 The condition of the relative rights and obligations of the State 
 and the United States was this, the United States, for a valuable 
 and adequate consideration, had agreed to expend two per cent of 
 the receipts of the sales of public lands within the State of Illinois 
 " in making roads leading to the State." 
 
 The United States had begun to execute the trust. It had built 
 roads in Ohio and Indiana. But from a change in the public policy 
 of Congress, instead of allowing those roads when built to remain 
 free and open for public use, the United States transferred them to 
 Ohio and Indiana as the several property of each of those States, 
 with power to impose tolls for their use. I cannot think this was 
 a fair and full compliance, or indeed any compliance at all, with 
 the contract and the trust under which the United States received 
 these moneys. 
 
 Under the contract certain moneys, in which the State of Illinois 
 must be deemed to have had an interest, were reserved to build 
 roads leading to that State. Nothing is said, and certainly nothing 
 can be implied, leading to the conclusion that, when built, they could 
 not be used freely, and without charge. The United States reserve 
 no right to themselves to impose a toll for the use of the roads so 
 built out of the moneys which Illinois agrees, for a valuable con- 
 
426 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1870. 
 
 sideration, should be appropriated to build them. Still less do the 
 United States reserve any right to convey the roads to Ohio and 
 Indiana, and enable those States to control, manage, discontinue, 
 and levy tolls on such roads. And when this was done, in my 
 judgment, the United States finally abandoned the contract, arid 
 finally and decisively refused to execute the trust. 
 
 Such seems to me to have been the state of facts, and the rela 
 tions of the State of Illinois to the United States, when the act of 
 March 3, 1857, "An Act to settle certain accounts between the 
 United States and the State of Mississippi and other States," was 
 passed. 
 
 The State of Illinois then had a, just claim on the United States, 
 capable of liquidation in the Land-Office, founded on the fact that 
 the United States had agreed, for an adequate and valuable consid 
 eration, to appropriate two per cent of the receipts from the sales 
 of public lands sold within the State, to make roads leading to the 
 State, and had not performed this contract. 
 
 Now concerning the Act of March 3, 1857, there are certain 
 things undoubtedly true. 
 
 1st. That it relates to the state of the account between the 
 United States and the several States, arising out of the sales of 
 public lands within such several States. 
 
 2d. That it assumes that this account arises out of the stipula 
 tions made by the United States in respect to the reservation of five 
 per cent, for the benefit of such States, from the proceeds of the 
 sales of public lands within such States. 
 
 3d. That it commands the Commissioner of the General Land- 
 Office to state such an account. 
 
 Thus far is clear. The doubts which arise are : 
 
 1st. Whether this legislation had any other scope or effect 
 than this, to direct the Commissioner to include Indian and 
 other reservations. 
 
 2d. Whether the Commissioner, in stating the account required 
 by this law, should go into the inquiry how far the United States 
 had executed its trust as respected the two per cent by "making 
 roads leading to the State," and should pass on that general ques 
 tion, and in some way arrive at its results. 
 
 Upon the first of these questions, I find myself unable to enter 
 tain any doubt. 
 
 The act in question, by its first section, requires an account to be 
 
1870.] OPINIONS GIVEN AT THE BAR. 427 
 
 stated between the State of Mississippi and the United States for 
 the purpose of ascertaining what sum or sums of money are due to 
 said State, heretofore unsettled, on account of the public lands in 
 said State; and it directs and requires that in stating that account 
 the Commissioner of the General Land-Office, who is commanded 
 to state the same, shall include certain described items. 
 
 I am wholly unable to perceive why the whole of this mandate 
 of the Legislature should not be obeyed. And if the whole is to 
 be obeyed, there must be : 
 
 1st. An account stated of the sum or sums of money due to the 
 State. 
 
 2d. There must be included therein the items designated. 
 
 To state an account of the items specially required to be included 
 therein would not approach so near to compliance with the act, as 
 to state an account of the sums of money due to the State without 
 including these special allowances. The latter would obey the 
 general order of Congress, and disregard one of its details. The 
 former would disregard the general order to state an account, and 
 substitute in its place obedience to a special direction as to particu 
 lar items to be included therein. 
 
 It is every day s practice for courts to order an account to be 
 taken, covering a particular subject-matter, and direct that certain 
 items shall be included in the account. I never supposed any one 
 could believe that such an order would be complied with by taking 
 an account of the items specially directed to be included in the 
 account. 
 
 If the sole object of Congress had been to allow the State of 
 Mississippi and each of the other States two per cent on a fixed 
 valuation of one dollar and a quarter on the lands reserved from 
 sale, why was not this, and this alone, said by Congress ? Why 
 should an account have been directed of the sum or sums of money 
 due to the State on account, not of these reservations, but " of the 
 public lands in the said State " ? The question being whether the 
 account is to be restricted to " reservations," or to include all sales 
 of public lands, how is it possible to escape from the express words 
 of the act, that the account is to be of what is due " on account of 
 the public lands in said State," and that the reservations are to be 
 " included," as one of its items ? If this is true as between the 
 State of Mississippi and the United States, it is equally true as 
 between the State of Illinois and the United States, by force of the 
 
428 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1870. 
 
 second section of the act of March 3, 1857, which applies "the 
 same principles " to each of the other States. 
 
 Upon the second of these questions, namely, whether the Com 
 missioner, in stating the account required by this law, should go into 
 the inquiry how far the United States had executed its trust as 
 respected the two per cent by making roads leading to the State," 
 and should pass on that general question, and in some way arrive 
 at its result, I am of opinion that the act in question neither 
 required nor allowed any such inquiry by the Commissioner. 
 
 1st. The act gives no directions to make such inquiry, or to 
 include in the account any such items. 
 
 2d. The state of facts then existing afforded no foundation for 
 any such inquiry, or any materials whereby the Commissioner of 
 the General Land-Office could state any account including such 
 deductions. There were no accounts in his office, or under his 
 official knowledge, which would enable him to make such deduc 
 tions as matters of account, and no charges had been made any 
 where against the proposed account. 
 
 3d. In point of fact, the United States, instead of complying 
 with its promise to expend the money in building roads " to the 
 State," had long before the date of this law wholly abandoned the 
 execution of the trust, and had made such disposition of the prop 
 erty as was inconsistent with its performance. The assumption 
 that this act of Congress requires the Commissioner to make 
 allowances to the United States for expenditures by the United 
 States in building roads, is an assumption that Congress meant to 
 require allowances under a contract for what was not done in per 
 formance of that contract, and this assumption is made without any 
 expression of the will of Congress to that effect. In my opinion 
 it is unfounded. 
 
 Congress has required an account to be stated respecting a par 
 ticular subject-matter. It gives two directions as to the mode of 
 stating that account : 
 
 1st. " What sum or sums of money are due to the said State, 
 heretofore unsettled, on account of the public lands of the said 
 State ? " 
 
 2d. The other is a direction to " include in said account" certain 
 reservations. 
 
 To suppose that " heretofore unsettled " remitted the State to 
 the Commissioner of the Genera,! Land-Office, to inquire how much 
 
1870.] OPINIONS GIVEN AT THE BAK. 429 
 
 the United States, under its old and abandoned system of public 
 improvements, had spent in " making roads to the State," seems to 
 me wholly inadmissible. 
 
 And there is one among many reasons why it is not admissible, 
 which I may properly state. 
 
 The act of March 2, 1855, had reference to the State of 
 Alabama. The United States had made no expenditures of this 
 character which could be deducted from the account under this 
 act. I understand none were deducted. The first section of the 
 act of March 3, 1857, respects the State of Mississippi. The 
 United States had made no expenditures of this character which 
 could be deducted from the account under this act, and none were 
 deducted. Now the second section of this act of March 3, 1857, 
 which is now in question, requires the Commissioner to state an 
 account between the United States and each of the other States 
 " upon the same principles." How then can the Commissioner state 
 the account upon any different principles ? How can he undertake 
 to say, I insist the United States owes you nothing, not because 
 this account of the title of the State to five per cent of the sales of 
 the public lands has ever been settled, but because I find by inquiry, 
 out of my own department, that the United States undertook to 
 perform the trust for which they reserved this money, and before 
 they voluntarily abandoned its performance, and made what they 
 had done useless to the State of Illinois, they had spent all the 
 money reserved. Who authorized the Commissioner to enter into 
 this inquiry ? In my judgment his jurisdiction to make it was as 
 unfounded as the conclusion at which he arrived. That conclusion 
 seems to have been, that, because the United States spent money to 
 make roads within the State of Illinois, which were abandoned 
 without completion, and are said to have been worthless, their cost 
 should be allowed as coming under the contract to expend the two 
 per cent " in making roads leading to the State. " I am unable to 
 agree to this conclusion. 
 
 In my opinion the act of March 3, 1857, contains a direction, 
 to the Commissioner of the General Land-Office to state an account 
 in which he is to credit the State of Illinois with five per cent 
 of the sales of public lands made within that State ; and is to 
 charge that State with the moneys which" have been paid by the 
 United States towards a settlement of that account. And under 
 that act, in my opinion, he has no authority to include in that 
 
430 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1870. 
 
 account any other item, except what he is expressly directed to 
 include, namely, the reservations at their fixed valuation. 
 
 B. R. CURTIS. 
 BOSTOX, Oct. 25, 1870. 
 
 CHANGES IN THE USE OF PUBLIC PROPERTY, WHICH 
 AFFECT PRIVATE RIGHTS. 
 
 OPINION. 
 
 I have read and considered the bill of the United States against 
 the Illinois Central Railroad and others, and the answer of the 
 defendants thereto ; I have also examined the statutes of the State 
 of Illinois submitted to me, and I have considered the questions 
 which I apprehend are raised and involved by the said bill and by 
 the subject-matter on which it is founded. And my opinion is, 
 
 1st. That if the Secretary of War had power to make the dedi 
 cation in question (and I strongly incline to think he had, as an 
 incident to the power of sale conferred by the act of March 3, 1819), 
 the United States have no remaining interest which can enable them 
 to maintain this bill. 
 
 2d. If the Secretary had authority to make the dedication, 
 there was . an effectual dedication of the land in question for the 
 purposes expressed on the plat, " that it should be public ground, 
 for ever to remain vacant of buildings." 
 
 3d. Its dedication as public ground vested the fee of the land 
 in the municipal corporation, subject to the controlling power of the 
 State, which might change the use so far as the use was merely public. 
 
 4th. This dedication, and the accompanying sales of the lots im 
 mediately adjacent, and which were purchased with some reference 
 to it, conferred private rights upon the owners of those lots to have 
 the dedication continued ; how many of these lots thus obtained some 
 right arising from the dedication, it is not necessary now to consider. 
 
 5th. Though owners of lands take their titles subject to such 
 injurious changes as the Legislature may see fit to make in adjacent 
 lands or waters belonging to the public, yet this subjection of private 
 to public rights cannot be extended to such a case as that now pre 
 sented. The rule is to have a fair and reasonable application to 
 cases where it was obvious to the private owner when he acquired 
 his title that changes injurious to him might be required to enable the 
 public more completely or effectually to enjoy the particular public 
 
1870.] OPINIONS GIVEN AT THE BAR. 431 
 
 use for which the property in question was held by the public ; or, 
 at furthest, some similar or analogous use capable of being there 
 contemplated. And a diversion of the adjacent public property to 
 another public use, wholly different from that to which it was specially 
 and specifically dedicated, though made by the authority of the 
 Legislature, cannot be considered as made in conformity with private 
 right, but in derogation thereof. 
 
 6th. But this existence of private rights is no restraint on the 
 power of the Legislature to change the use of public property. It 
 merely secures to the owners of those private rights compensation 
 for their destruction, to the extent of the actual injury they may suf 
 fer by the change. And if the injury worked by the change, viewed 
 as a whole, is nothing, the damages recoverable are nothing. 
 
 7th. The act of the Legislature of Illinois granting to the three 
 railroad corporations the fee of the land in question for the erection 
 of a passenger depot thereon, and other business purposes of those 
 corporations, has effectually changed the public use, without, how 
 ever, depriving the private persons, having &. vested interest in the 
 former use, of their claim to compensation. 
 
 8th. This new appropriation of property has been made by the 
 State, not by an exercise of its rights of eminent domain to take 
 private property for public use, but by virtue of its power to change 
 the uses of property held for the public. But when such a change 
 is made by the State, if any vested private rights are taken away 
 by mere force of that act of the State, it is required that some reason 
 able provision should be made by the Legislature for compensation 
 for the destruction of such vested private rights. 
 
 9th. In this case there is no such destruction of vested private 
 rights by force of the act of the Legislature : it only conveys the 
 right and title of the State. If there are vested private rights, (and 
 I think there are,) they remain unaffected by the act of the Legis 
 lature ; and so there was no necessity for the Legislature by this 
 act to make provision for compensation. 
 
 10th. How these private rights can be condemned, by force of 
 the existing charters of either of the three roads, " for the erection 
 of a passenger depot, and for such other purposes as the business of 
 the said companies may require," must depend on the true construc 
 tion of their charters, and the general laws on which they are 
 engrafted. As they stand, the condemnation must be of the land. 
 This would necessarily carry with it all opposing rights and inter- 
 
432 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1871. 
 
 ests. The question is, whether either of the corporations has 
 power to condemn land for these purposes of depot accommodations, 
 &c. I have examined the charters and the general laws, and see no 
 reason to doubt the existence of the power. But it is so peculiarly 
 a question of local law that I think the opinion of gentlemen of the 
 bar of the State far more important than my own. 
 
 llth. My advice would be to proceed to condemnation. If the 
 owners of these rights appear and claim damages, their rights will 
 be thereby extinguished. If they do not appear, the condemnation 
 can be set up by a supplemental cross-bill as a bar. 
 
 12th. The suit by the United States seems to me founded on no 
 title whatever. 
 
 The suit by one or more of the owners of lots I think may be 
 maintained as an assertion of their private rights until they shall be 
 extinguished by a condemnation. When that condemnation shall be 
 had in due course of law, I think their title will be extinguished. 
 
 B. R. CURTIS. 
 BOSTON, Nov. 5, 1870. 
 
 MINNESOTA STATE BONDS. QUESTION OF LIEN UPON THE 
 PROPERTY MORTGAGED TO THE STATE TO SECURE THEM. 
 
 OPINION. 
 
 I have examined the case stated by Messrs. M. and B. for an 
 opinion of counsel respecting the rights of holders of bonds of the 
 State of Minnesota upon property conveyed by the several railroad 
 corporations therein mentioned to the State of Minnesota, as security 
 for the payment of the said bonds. I will now state my answers to 
 each of the questions proposed, and indicate the grounds and reasons 
 upon which they seem to me to be correct. 
 
 The Jirst question is : Would the State, having granted away 
 the property free of all claim, be a necessary party, if suable ? 
 
 In my opinion, the State, if suable, would be a necessary party. 
 The foundation of the suit is alleged claims against the State, and 
 an equitable right to have certain property in the hands of the 
 present corporations affected by a trust, and appropriated to pay 
 those claims. In my judgment, a court of equity would in ordinary 
 cases require the debtor to be made a party, that a just and final 
 account might be taken of the amount of the debt, and thus the 
 whole matter be finally concluded as between all the parties. 
 
1871.1 OPINIONS GIVEN AT THE BAR. 433 
 
 But in this case the State cannot be made a party, and is under 
 no responsibility, directly or indirectly, to the present railroad 
 corporations, and has no interest whatever which can be affected 
 by a decree. 
 
 The question is in substance this : If a State holds property 
 affected by a trust, and conveys it to a third person with notice of 
 the trust, is the cestui que trust without remedy against the third 
 person, whom be can sue, because that person holds under the State, 
 which he cannot sue ? I do not think a court of equity would take 
 that view ; and the reasoning of the Supreme Court of the United 
 States in Osborn v. Bank of United States, 9 Wheaton, 738, respect 
 ing the relation of a State to a suit against one claiming under its 
 authority, confirms my opinion. 
 
 The second question is : Do the public acts, mortgage deed, and 
 foreclosure proceedings, and their recitals, affect all parties who 
 have dealt with the State, its grantees and assigns, in respect to 
 this property, with sufficient notice of the beneficial interests of the 
 bond-holders, so as to charge the property therewith in the hands of 
 the new organizations ? 
 
 I answer the question in the affirmative. The public laws of 
 the State, and the trust and mortgage deeds and their foreclosures, 
 form the title of the grantors, of which the grantees of the State 
 are presumed to have had notice. It was only under and by virtue 
 of these laws, which clearly show the title of the State and the 
 trusts attaching to that title, that any conveyance could be made 
 by the State. 
 
 The third question is : Will equity compel the application of the 
 property or its proceeds, or any and what part of it, mortgaged to 
 secure the State liability, to the payment of the State bonds ? 
 i. e. make each new organization account for the property it re 
 ceived to the extent of the State bonds issued to its route, convert 
 ing them severally by construction into trustees to this end? 
 
 When one for whose accommodation negotiable paper is issued 
 by a third person, conveys property either to such third person to 
 indemnify him, or conveys it to a trustee for that end, equity treats 
 the property as set apart for the payment of the debt; and any 
 party interested in its payment may have the aid of a court of equity 
 to compel the application of the property to make such payment. 
 And the obligation so to apply it attaches upon the property, and 
 follows it into the hands of any third person who takes it with 
 VOL. i. 28 
 
434 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1871. 
 
 notice of the obligation. The leading case on this subject is 
 Maure v. Harrison, 1 Eq. Ab. 93, K. 5, and it has been followed 
 by many others. In Moses v. Muryetroyd, 1 Johns. Ch. R. 119, 129, 
 Chancellor Kent said : " I shall, then, consider this fact as well 
 made out; viz. that the assignment of the 12th of February, 1806, 
 though absolute on the face of it, was intended by the parties to it 
 to be a security only to the intestate for his indorsement of the 
 notes in question. This being the case, the plaintiffs, as holders of 
 the notes, are entitled to the benefit of this collateral security given 
 by their principal debtor to his surety ; and the case of Maure 
 v. Harrison is directly to this point. These collateral securities 
 are, in fact, trusts created for the better protection of the debt ; 
 and it is the duty of this court to see that they fulfil the design. 
 And whether the plaintiffs were apprised, at the time, of the creation 
 of this security, is not material. The trust was created for their 
 benefit, or for the better security of their debt ; and when it came 
 to their knowledge, they were entitled to affirm the trust, and 
 to enforce its performance." See also Phillips v. Thompson, 
 2 Johns. Ch. 418 ; Clark v. Ely, 2 Sand. Ch. 1GG; Wright v. Morley, 
 11 Ves. 22. 
 
 The only difficulty I have found in answering the question has 
 been in ascertaining what property can be considered as having 
 been effectually set apart for the payment of these bonds. After 
 careful consideration, I am of opinion that the following-named 
 property was so set apart : 
 
 The railroad corporations were, by what is called in the case the 
 loan amendment, required to provide for the payment of the prin 
 cipal and interest of the State bonds delivered to them for their 
 accommodation, and, to this end, they were required to convey to 
 the State their title to the first two hundred and forty sections 
 of land, which were to be disposed of in such manner as to have 
 application made of their proceeds to pay the interest and sink the 
 principal of the State bonds. I understand from the " Case," that 
 this was done. If so, it is clear that, whatever title the railroad 
 corporations had to these lands (two hundred and forty sections), 
 or any part of them, was thereby effectually set apart and appro 
 priated for the payment of the principal and interest of the State 
 bonds ; and each taker of a State bond acquired an equitable right 
 to have the same so applied. I do not think the facts that each 
 railroad corporation also, as part of the same transaction, delivered 
 
1871.] OPINIONS GIVEN AT THE BAR. 435 
 
 to the State its own bonds, and secured them by mortgage of the 
 same and other property, and that the State foreclosed these mort 
 gages for non-payment of the bonds of the mortgagors, in any 
 degree varies the rights of the parties ; because these bonds of the 
 railroad corporations, and the mortgages to secure them, were given 
 to indemnify the State, and if the trust-deeds had not been 
 executed, all title acquired by the State under foreclosure must 
 necessarily be affected by the same trust, and bound by the same 
 obligation to holders of bonds of the State to appropriate the prop 
 erty acquired by the foreclosure to the payment of the principal 
 and interest of the bonds of the State, to secure the payment of 
 which the bonds, by force of which the foreclosure took place, were 
 given to the State. 
 
 The entire security, in the different forms in which it was given, 
 was designed and appropriated to the payment of the principal and 
 interest of the bonds of the State ; arid it was not in the power of 
 the State, by any contrivances, to take away from the holders of 
 its bonds the benefit of securities which the State itself held for 
 the payment of its bonds, so as to prevent a court of equity from 
 following out the trusts which actually existed, if such a court could 
 obtain jurisdiction over the subject-matter. And when any third 
 person, who could be sued in a court of equity, obtained title to the 
 property thus charged with a trust, with notice of the trust, I see 
 no reason to doubt that the trust could be, and ought to be, enforced. 
 Looking more particularly at the several mortgage transactions, 
 they appear to have differed in some details. The mortgage to the 
 State of two hundred and forty sections of land was required by 
 " the loan amendment " to be made by absolute conveyances to the 
 State of those lands, upon the trusts declared in that amendment. 
 These conveyances are stated to have been made. And in my 
 opinion these lands, so far as the companies had title, were held 
 by the State upon the trusts thus declared, which set apart this 
 property for the payment of the bonds, and the mortgages have no 
 reference to these particular lands. What is hereafter said about 
 the foreclosure of these mortgages must be understood as not 
 referring to the title to these lands, which was fixed by the loan 
 amendment and the laws enacted to carry it into effect. 
 
 As to the mortgages, the Minneapolis and Cedar Valley Railroad 
 Company issued no mortgage bonds beyond those delivered to the 
 State. The other three railroad corporations issued mortgage 
 
436 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1871. 
 
 bonds to other persons. In some cases the foreclosure was made 
 by the Governor, acting as attorney, in fact, of the mortgagees ; in 
 others, the trustees acted. In my opinion, it is not material by 
 what lawful agency the foreclosure was made. The title held by 
 the State was held to secure the payment of the principal and 
 interest of the State bonds-. Each holder of those bonds had a 
 vested interest in that application and use of the title, and a clear 
 equitable right to have it so applied ; and the particular forms the 
 State went through to perfect the title, and make it available to the 
 end for which it was created, could not change or defeat the essen 
 tial purpose for which it was created, or deprive those who had a 
 fixed equitable interest in it of their respective rights. 
 
 If the State held its mortgage title affected by a trust in favor 
 of the holders of the bonds which that mortgage title was given to 
 secure, it would be monstrous to hold that the State, by a fore 
 closure of that mortgage title, could put an end to the trust. What 
 ever the State did to perfect that mortgage title, by extinguishing 
 the equity of redemption, must be deemed to have been done in its 
 capacity of a trustee ; and it would be contrary to the plainest 
 principles of equity to allow the trustee to set up that title, acquired 
 by foreclosure, as overriding the trust. It is true, that if a third 
 person, wholly unaffected by any trust, or by any previous connec 
 tion with the title, had purchased at the foreclosure sale, he might 
 have held the. property free from any trust. But the State, as has 
 been seen, stood in a fiduciary relation to the property and to the 
 holders of the State bonds, and could not divest itself of that 
 fiduciary character by turning a mortgage title into an absolute 
 title. But it was conveyed to other trustees to secure bonds held 
 by the State as part of its security for the payment of its own 
 bonds by the companies ; and when the State acquired the legal 
 title by the foreclosures, in my opinion it held it upon the same 
 trusts as it had previously held the bonds of the companies. 
 
 The fourth question is : Will the claims of parties who have 
 advanced to the new organizations secured by mortgage liens on 
 the property be postponed to the equitable lien of the State bond 
 holders ? The answer must depend upon whether such parties had 
 actual or constructive notice of the trust ; and as all the material 
 facts on which the title of the State bond-holders depends are upon 
 the face of the laws of the State, and the title deeds to and from 
 the State under which the new organizations claim, I am of opinion 
 
1871.] OPINIONS GIVEN AT THE BAR. 437 
 
 that notice is to be imputed to parties who have taken mortgages 
 of the property from the present organizations. 
 
 The fifth question, as I understand it, has been already answered. 
 The lands conveyed by the railroad companies to the State have 
 passed from the State to the present organizations, but affected by 
 a trust in favor of the holders of bonds of the State. 
 
 The sixth question is : Were these contracts between the State 
 and the bond-holders iu respect to these two hundred and forty 
 sections, and between the trustees in the trust deeds and the bond 
 holders in respect to the rest of the Congressional grant, or any 
 part of it, impaired by the Minnesota Legislature, in violation of 
 the Constitution of the United States ? 
 
 As respects the two hundred and forty sections, I answer in the 
 affirmative, as to the residue, in the negative. 
 
 Though there is no separate question proposed concerning the 
 effect of lapse of time, that inquiry is implied in the third question. 
 
 It has already appeared that, in my opinion, a trust was created 
 in favor of the holders of bonds of the State, and I think this was 
 an express, in contradistinction to a constructive trust. If the 
 deeds to the State had in words declared the interest of the bond 
 holders in the property, their legal effect would have been pre 
 cisely the same as without such an express declaration. And so, 
 if the amendment of the Constitution and the laws which provided 
 for the security of the bonds of the State had, in terms, declared 
 that, in case of default of the State and the corporation to pay the 
 interest or principal of the State bonds, their holders would have 
 a right to have the security deposited with the State by the corpo 
 rations applied to pay the State bonds, this express declaration 
 would have amounted to no more than the necessary legal effect 
 of the transaction without such declaration. Of course, if an ex 
 press trust arose out of these transactions, that trust has not been 
 affected by lapse of time. 
 
 If it should be held to be only a constructive trust, there is no 
 rule in equity which fixes any precise time as a bar. It must 
 depend on the circumstances of the case. Michoud v. Girod, 
 4 Howard, 503. 
 
 Assuming that these trusts were in effect denied by the State, 
 by the acts of March, 1862, I do not think a court of equity would 
 treat the lapse of time as a bar. Considering that the bonds of the 
 State have been held by a numerous class of persons, no one of 
 
438 MEMOIR OF BENJAMIN EOBBINS CURTIS. [1874. 
 
 whom could reasonably be expected to act alone, and that it was 
 not legal laches to hope that a returning sense of justice would 
 relieve the State from repudiation by payment of the bonds, I 
 think it would be harsh and inequitable to hold lapse of time to 
 be an effectual bar. 
 
 B. R. CURTIS. 
 December, 1871. 
 
 OPINION ON THE CITIZENSHIP OF C. W. A. 
 
 Temporary allegiance to a foreign country is not a renuncia 
 tion of native citizenship. 
 
 CASE. 
 
 In the latter part of the year 1861, C. W. A., who was a native 
 born citizen of the United States, and owner of several vessels 
 then being in English ports, became apprehensive of war between 
 the United States and Great Britain. 
 
 He and his family were then in England. He went to the city 
 of Hamburg for the purpose of placing his vessels under the Hani- 
 burg flag, and in order to do so, he took before the proper office of 
 the city, the following oath: 
 
 EXTRACT FROM THE JOURNAL OF THE LICENSE OFFICE. 
 
 According to the journal kept at the License Office, No. 57, it appears 
 that C. W. A., on the 17th of January, 1862, has taken the oath, of which 
 a copy is affixed below, and by so doing has acquired the position and the 
 privileges of upper-citizenship of the city of Hamburg. 
 
 Hamburg, Jan. 17, 1862. Att. Claussen Dr., 1st Officer License Office, 
 Citizen s Oath. I vow and swear to God, the Almighty, that I will be true 
 and faithful to the Free and Hanseatic Town of Hamburg and to the Sen 
 ate, that I will strive for the best of the city, and try and protect it from 
 injury as much as may be in my power, that I will conscientiously observe 
 the constitution and the laws, that I will honestly and without cavil pay 
 all duties and taxes as now ordained, or as they may hereafter be agreed 
 upon between the senate and the common council, and that I will never seek 
 my advantage to the disadvantage of the city. So help me God. 
 
 (Signature of the holder,) C. W. A- 
 
 He had no intention of remaining permanently in the city of 
 Hamburg, or of making that the home of himself and family, none 
 of whom went there, and he himself was only in the city about 
 three weeks. 
 
 The question is, whether Mr. A. ceased to be an American citizen 
 by reason of the facts above stated. 
 
1874.] OPINIONS GIVEN AT THE BAR. 439 
 
 OPINION. 
 
 I am of opinion he did not. 
 
 1st. So far as I know, it is universally agreed by all courts and 
 writers on the subject of change of allegiance, that it cannot be 
 effected without an actual change of domicile, which certainly did 
 not take place in this instance. 
 
 So the Supreme Court held in Blight s Lessee v. Rochester, 
 7 Wheaton, 535. 
 
 In the several opinions given by the heads of Departments to 
 the President of the United States, in response to his letter of 
 August 6, 1873, this requirement of a change of domicile is fully 
 admitted. And it is upon this principle that the treaties between 
 the United States and foreign countries concerning naturalization 
 have uniformly required, in addition to the act of naturalization, a 
 defined period of continued residence in the adopted country, of 
 sufficient duration, when accompanied by the act of naturalization, 
 to show an intention permanently to remain there. 
 
 2d. The act done by Mr. A., in taking the oath in the form 
 above mentioned, does not amount to a renunciation of his native 
 allegiance, or to a declaration of a determination permanently to 
 remain in Hamburg. It is consistent with its just meaning to hold 
 that his purpose was to require such commercial privileges as the 
 laws of Hamburg bestowed on those who, while resident there, would 
 engage to be true and faithful to the city and its government. 
 
 I do not profess to know with certainty what the laws of Ham 
 burg were in this particular, but on page 121 of the volume pub 
 lished by executive authority in 1873 containing papers relating to 
 change of allegiance, I find the following statement : " Hamburg. 
 . . . Aliens can become naturalized after six months residence on 
 payment of a small fee. The law of Hamburg is said to recognize 
 a double allegiance in persons thus naturalized, and does not 
 require any renunciation of native allegiance." This statement is 
 taken from the report of the British Commissioners, whose high 
 character leaves no doubt in my mind of its correctness. And it 
 is to be observed, that the form of the oath taken by Mr. A. is 
 entirely consistent with this statement. 
 
 There is another ground upon which I rest my opinion. In 
 May, 18G8, a treaty was concluded between the United States and 
 the King of Prussia, in the name of the North German Confedera- 
 
440 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1870, 
 
 tion, which embraced the city of Hamburg. Although this treaty 
 does not expressly relate to the past, nor in terms to the future, 
 my opinion is that the governments of the two countries must 
 consider and treat it as applicable to then existing cases, as well as 
 to those which might be wholly created in the future. In other 
 words, that the terms of this treaty furnish the rules for the 
 decision of every case which might come in question after it was 
 concluded and ratified. If this be so, it is quite certain that 
 Mr. A. does not come within its requirements, and is not a citizen 
 or subject of any North German State. 
 
 I cannot doubt that, if the Emperor of Germany were applied to 
 to protect the rights of Mr. A. from aggression by the authorities of 
 the United States, his answer would be, and must be, "Mr. A. is a 
 citizen of the United States, and not of North Germany." 
 
 B. R. CUKTIS. 
 
 April 13, 1874. 
 
 In January, 1870, we lost the dear kinsman who was so 
 eminent in the world of letters, and of whom my brother 
 said that nothing could measure what lie owed to him. 1 
 I do not, however, reckon tbe death of Mr. Ticknor among 
 the deeply afflicting sorrows of my brother s last years. 
 True, the withdrawal of that remarkable intellect left a 
 great void in the lives of all who had lived in close com 
 munion with it ; and the cessation of his daily manifesta 
 tions of affection and interest was the cessation of that 
 which seemed for a time, to all who dwelt within their 
 influence, a necessity of existence. But Mr. Ticknor died 
 in a ripe old age, in what we feel to be the natural order 
 of Providence ; and after he had, with characteristic punc 
 tuality and method, arranged every thing in reference to 
 the close of life. Calmly, minutely, and wisely, with a 
 business-like regularity, he made himself and all bis affairs 
 ready for the summons; and then cheerfully awaited it, 
 happy and making others happy, and grateful for tbe 
 extraordinary felicity that had been his lot. There was 
 
 i Life of Mr. Ticknor, Vol. II. p. 402, note. 
 
1871.] A SHORT VISIT TO EUROPE. 441 
 
 not, therefore, in his death, cause for a more poignant 
 feeling, than the tender regret with which we part from 
 those who are appointed to leave us after life s duties have 
 been all discharged and its blessings all enjoyed. 
 
 But in the spring of 1871 the deaths of two young 
 children brought to my brother an affliction of another 
 character. As a needed relief from its exhausting and 
 depressing influences, both parents were advised to go 
 abroad. My brother had never been in Europe before ; 
 but of course the circumstances under which he made this 
 brief tour of four months precluded his acceptance of social 
 engagements. The following letter to me is all the record 
 of his visit to London that I have. 
 
 To GEORGE T. CURTIS. 
 
 LONDON, June 25, 1871. 
 
 DEAR BROTHER, We have now been a month in England, 
 and half that time in London. We have seen and enjoyed much, 
 and both Mallie and I are better than when we left home. We 
 have received much kind attention from those whose attentions are 
 gratifying, and I have regretted that Mallie could not more enjoy 
 it. Mr. Denison, 1 to whom Mr. Adams gave me a letter, has been 
 extremely kind and useful to me. Through him I have seen and 
 heard all of the House of Commons I desired, and many other 
 things besides. The Attorney-General, 2 and Sir Roundell and 
 Lady Palmer, 3 have also been very kind, as have many others. 
 
 We shall leave London the last of this week for Oxford, &c., 
 &c., and, after seeing the Lakes and Scotland, return here, and go 
 to the Continent about the 1st of August. We have taken passage 
 home for October 21st, per Russia. 
 
 Neither the courts nor the Houses of Parliament have produced 
 just the impressions I expected. But both are eminently practical, 
 
 1 The Rt. Hon. John Evelyn Denison, at that time Speaker of the House 
 of Commons. After his retirement from that office, lie received a peerage, 
 with the title of Lord Ossington. He was a descendant of the distinguished 
 John Evelyn, of the reign of Charles II. He died March 8, 1873. 
 
 2 Sir Robert Pollett Collier. 
 
 3 Sir Roundell Palmer afterwards became Lord Chancellor, with the title 
 of Lord Selborne. 
 
442 MEMOIR OF BENJAMIN BOBBINS CUIITIS. [1871. 
 
 and manliness and good temper are pleasant things to see, even if 
 somewhat mixed with dulness. I have sat part of a night to hear 
 a debate on the ballot, and Mr. Denison was here this afternoon to 
 say that the debate would go on to-morrow night, and some of the 
 best speakers would address the House ; so I shall go again to 
 morrow. I have seen the Tichborne trial, the House of Lords as 
 a Court and as a House, all the Courts of Common Law, and on 
 Tuesday am to go to the Courts of Chancery. As to the * sights," 
 we have done many, though many remain. 
 
 Mr. Denison said he had received your Life of Mr. "Webster, 
 and if the proper acknowledgment had not been made he was very 
 sorry, and he directed his secretary to take a note of it. 1 
 
 Mai lie and I send love to Louise, and I am, as ever, 
 
 Yours affectionately, 
 
 B. R. CURTIS. 
 
 This letter really gives no adequate idea of the attentions 
 which lie received in London from persons of the highest 
 distinction. But their invitations were necessarily declined, 
 and lie could only see them at his lodgings, or when he met 
 them in such public places as he visited. But I am told 
 that the concourse of his visitors fully marked the estima 
 tion in which he was held in England. On the Continent, 
 he and bis wife travelled, in a very private manner, through 
 Holland, Germany, Austria, Switzerland, and France. He 
 found bis greatest pleasure in the churches and galleries, 
 which afforded him opportunities of studying works of art 
 that he had never before enjoyed. The journey was of 
 some benefit to his health, and he brought borne a rich 
 fund of recollections. But, loving his own fireside better 
 than all other places or scenes in the world, be cared less 
 than most persons do for the changes and varied interests 
 of travel. 
 
 1 Mr. Denison was an intimate friend and correspondent of Mr. Webster 
 for more than thirty years. Judge Curtis, after his return, mentioned a 
 very gratifying and distinguished attention shown to him by Mr. Deni 
 son, who took him by the arm, led him across the floor of the House of 
 Commons, and placed him in a special seat on the right of the Speaker s 
 chair. 
 
1873.] LECTURES AT THE LAW SCHOOL. 443 
 
 On landing at New York, in the latter part of October, 
 1871, he was met by the intelligence that he had been 
 selected as one of the counsel for the government of the 
 United States, to prosecute its claims before the Board 
 of Arbitration that was soon to sit at Geneva, under the 
 Treaty of Washington. His private affairs, and his en 
 gagements already made, might perhaps have been ar 
 ranged so as to admit of his accepting this appointment. 
 But he scarcely felt equal, in strength and spirits, to the 
 encounter of another voyage across the Atlantic, immedi 
 ately after his return home, without some urgent call of 
 duty. In truth, it was his constant habit to regard all 
 such things in the light of duty. He did not covet dis 
 tinctions, or need them ; and, not feeling that his services 
 on this occasion were necessary to the country, its conspic 
 uous character did not tempt him. If, however, news of 
 the appointment had reached him before he left Europe, he 
 would doubtless have remained, and taken part in the pro 
 ceedings at Geneva. 
 
 In the autumn of 1872 and the spring of 1873, at the 
 request of the Corporation of the University at Cambridge, 
 Judge Curtis delivered a course of lectures at the Law 
 School, on the Jurisdiction and Practice of the Federal 
 Courts. 1 No compensation was proposed or stipulated for 
 this service. At a subsequent time, a pecuniary compen 
 sation was offered. Its disposal will be seen from the 
 following note : 
 
 To PRESIDENT ELIOT. 
 
 WASHINGTON, October 11, 1873. 
 
 MY DEAR SIR, Your letter of the llth instant, enclosing check 
 for $500, voted by the Corporation by reason of my lectures at the 
 Law School, was forwarded to me here. It was not my intention 
 
 1 The lectures were wholly oral ; but Judge Curtis s son, the late Mr. 
 Walter Curtis, caused them to be phonographically reported, and the manu 
 script reports are extant. It is to be hoped that they may at some time be 
 published, with the necessary annotations. 
 
444 MEMOIR OF BENJAMIN" BOBBINS CURTIS. [1873. 
 
 to accept any pecuniary compensation for that service. I did not 
 say so, because I wished not to make that difference between my 
 self and other lecturers, to whom this compensation was important. 
 I therefore receive [the check] and return for the Treasurer the 
 necessary formal receipt; but I enclose the check indorsed to 
 your order, requesting you to take the needful measures to have 
 the amount expended in the purchase of books for the library 
 of the Law School, relating to the Constitution and laws of the 
 United States, and the practice of the national courts ; such pur 
 chase to be made under the direction of those charged with the 
 purchase of books for that library. 
 
 I remain, with great respect, your obedient servant, 
 
 B. R. CURTIS. 
 CHARLES W. ELIOT, ESQ., President, Harvard College. 
 
 In 1873, after the death of Chief Justice Chase, there 
 were many important persons who desired that the office 
 should be tendered to Judge Curtis. There was, however, 
 very little probability that their wishes would be gratified. 
 Expressions of such wishes reached him from many quar 
 ters, and he spoke to me freely concerning them. He said 
 that, if the offer were made to him, it would oblige him to 
 decide a very embarrassing question, one which he hoped 
 he should never have to consider. The following note Avas 
 entirely in accordance with the private expression of his 
 feelings to me and others. 
 
 To THE HON. REVERDY JOHNSON. 
 
 BOSTON, May 23, 1873. 
 
 MY DE\R MR. JOHNSON, I thank you for your kind letter. 
 If I am to consult and be governed by my own personal wishes, 
 I can say that I do not want the office of Chief Justice, and shall 
 be better pleased to have it offered to another than to myself. 
 At the same time, if it should be tendered to me, I should be put 
 to the decision of a very grave question, which I do not see that 
 I am now, or probably shall be, required to decide. 
 
 For your own kind appreciation, I beg you to believe I am 
 grateful. There is no man living who knows better than yourself 
 what that place requires and involves ; and as you have known me 
 
1874.] DEATH OF HIS DAUGHTER. 445 
 
 as a judge and as a member of our profession for a long time, and 
 under changing and difficult circumstances, I value very highly 
 your estimation of my fitness for this great office. 
 With great respect and regard, I am, dear Sir, 
 
 Your obedient servant, 
 
 B. R. CURTIS. 
 
 In the month of February, 1874, another sorrow came to 
 weigh heavily on his energies, and to tax his paternal sym 
 pathies. His second daughter, a married woman and mother 
 of young children, died in Pittsfield at this time. 1 
 
 To GEORGE T. CURTIS. 
 
 BOSTON, March 2, 1874. 
 
 DEAR BROTHER, I thank you for your kind and consoling 
 letter. It was very pleasant to me. I returned from Pittsfield 
 depressed, not only in mind, but body; but have been gradually 
 gaining strength, though I am in the doctor s hands. I keep em 
 ployed in small ways, well knowing this is best, and if called to 
 Washington shall go, as both Mallie and I think it will be useful 
 to me. Of course she will go with me. Do not suppose I am 
 really ill, but for the time I am not as well as usual. I will en 
 deavor to let you know when I pass through New York. Give 
 my love to Louise. 
 
 Yours always, B. R. CURTIS. 
 
 When I saw him in New York, a short time after this 
 note was written, I observed a considerable change in him. 
 There was the same calmness of spirit, the same clear and 
 well-poised intellect, the same determination to do the duty 
 of the passing day, and the same mental power to do it. 
 But it was evident that the sorrows which I have men 
 tioned, and others which have needed no mention, had 
 told upon his physical system. He was greatly depressed. 
 Perhaps it would have been better for him if he had now 
 refrained from work. But it had always been his rule 
 
 1 Elizabeth Ticknor Curtis, born in Boston, June 15, 1836; married to 
 John Proudfit Brown, of Pittsfield, January 15, 1862; died at Pittsfield, 
 February 21, 1874. 
 
446 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1874. 
 
 one of his habitual methods for preserving his submission to 
 the will of God to be constantly employed. He knew 
 his own nature best ; and I therefore think it was a wise de 
 termination for him, not to withdraw from the active duties 
 of his profession. They demanded great efforts ; but, with 
 his experience and his familiarity with the subjects that 
 came before him, he could make all the efforts that were 
 required. They involved, undoubtedly, a very high class of 
 professional studies and exertions ; but he had long walked, 
 with a free and firm step, upon the loftiest ranges of the 
 law, and, notwithstanding his depression of spirits and some 
 loss of physical strength, his step did not now falter. 
 
 There are recorded in his Opinion Books, between the 
 months of April, 1873, and June, 1874, some of the ablest 
 and most elaborate of this class of productions that he ever 
 wrote; 1 and one of the most striking arguments that he ever 
 made was delivered in the Circuit Court of the United States 
 at Hartford, on the 19th of September, 1873. It related to 
 the constitutional validity of an act of Congress, which had 
 authorized a suit in equity to be brought, in the name of 
 the United States, against the Union Pacific Railroad Com 
 pany, its stockholders and bond-holders, in any Circuit. 
 Judge Curtis s argument on this entirely new and very 
 important question could not have occupied in the delivery 
 more than half an hour, such was its condensation and 
 its rejection of all superfluous matter. It is placed in the 
 second volume of this work. 2 
 
 In the latter part of June, 1874, he went with his family 
 
 1 Two of these opinions, signed respectively on the 24th of April and the 
 30th of June, 1874, related to the constitutional validity of acts of the Legis 
 latures of Wisconsin and Iowa, each of which affected vitally the interests 
 of important railroad companies and their bond-holders. 
 
 2 I have been requested by a professional friend who was concerned in 
 this case to have this argument included in the present collection of Judge 
 Curtis s productions, as a model forensic speech, and an admirable specimen 
 of his manner. The last cause which he argued in the Supreme Court of the 
 United States was that of The Do/far Sanwjs /3uk v. The United States, 
 reported in 19 Wallace, 227. It was argued January 22, 1874. 
 
1874.] LAST ILLNESS. 447 
 
 to pass the summer months in Newport, having rented a 
 commodious house situated 011 the highest ground of that 
 city of villas. After the 1st of July, his health began to 
 fail, and he went very little abroad, unless it was to drive 
 in a carriage. He passed the greater part of every day 
 sitting or walking upon the piazza of his house, in the fine 
 air of that region, and reading light books. He performed 
 no labor, and saw no one on business. Towards August, 
 he became seriously ill, and remained in his chamber. 
 Early in that month, lie desired that I should be informed 
 of his illness. I went to him at once. On the morning 
 of my arrival, I passed several hours with him alone. He 
 was dressed, but did not leave his couch. He conversed 
 naturally, and not without cheerfulness, seemed to be in 
 terested in what was going on in the world, and did not 
 intimate that he did not expect to be again well. Indeed, 
 I was so much reassured by my private conference with 
 the attending physician, who had been exceedingly watch 
 ful of the case, and who attributed the symptoms to general 
 debility rather than to any organic disease, that I returned 
 to my home, believing that a nourishing diet, rest, and the 
 sea air would restore him. When I left him he took leave 
 of me without emotion, and with kind messages to my 
 family. Neither of us thought that we were never to meet 
 again. 
 
 In a short time after my visit alarming symptoms began 
 to appear. Dr. Gray, of Utica, a very eminent practitioner, 
 happening to be in Newport, was called in consultation. 
 The following letter informed me that, although the case 
 had become very grave, there was still great hope. 
 
 NEWPORT, Sept. 1. 
 
 In answer to your kind letter this morning, I was only too 
 happy to telegraph you the joyful hope the doctors left with us 
 this morning. We esteem it a special providence that Dr. Gray 
 has been here, and able to give the most careful attention to the 
 Judge s case. . . . There was every threatening of hemorrhage of 
 
448 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1874. 
 
 the brain ; but under the treatment of Dr. Gray such quiet, restful 
 sleep has been obtained, and the other symptoms so controlled, 
 that they say this morning they feel the crisis to have passed, 
 and that the Judge will get well. On Thursday last they felt the 
 greatest anxiety ; . . . but he yielded to the medicines wonderfully, 
 and all his conditions are more natural. I have a trained nurse, 
 as I found after six weeks of watching I gave out. We keep the 
 utmost quiet, the doctors not wishing the Judge to use his mind 
 in the least, and he lies on his bed, with an occasional change to 
 the couch for relief. There must still be weeks of care and rest 
 before a complete cure. 
 
 I hope Dr. Metcalfe will not come here especially to see the 
 Judge, unless, after Dr. Gray leaves, there should be a recurrence 
 of unfavorable symptoms, when I would telegraph either for him 
 or for our own physician, Dr. Clarke, in whose opinion the Judge 
 has great faith. I can say nothing upon this subject, or any other, 
 to the Judge in his present condition, but in a few days we hope he 
 will be able to make " decisions " for himself. 
 
 Resting easy under these assurances, I waited for further 
 intelligence from my friend, Dr. John T. Metcalfe, of New 
 York, who, I knew, had gone to Newport. On the 15th 
 of September, I received the following note, written on the 
 previous day : 
 
 NEWPORT, Sept. 14, 1874. 
 
 MY DEAR CURTIS, T have been here since Thursday evening 
 last. Every day I have seen your brother, with Dr. Sands. The 
 Judge has for a long time been in such a condition as to make his 
 medical advisers uneasy with regard to his future health ; but since 
 yesterday his condition has grown much worse. . . . 
 
 I see no reasonable hope for any amendment. . . . 
 
 I shall probably remain here several days longer, and will tele 
 graph you, in case any very alarming symptoms arise. 
 In haste, very sincerely yours, 
 
 JOHN T. METCALFE. 
 
 After the receipt of this note, I prepared to leave imme 
 diately for Newport, on the 16th ; but in the morning of 
 that day, while I was on my way from my summer resi 
 dence on Long Island to the city of New York, I met the 
 
1874.] A WELL-SPENT LIFE. 449 
 
 public news that my brother had died on the 15th. I could 
 only reach Boston in season to join with others in following 
 his remains to their last resting-place in Mt. Auburn. 
 There we laid what was mortal, u looking for the general 
 resurrection in the last day." 
 
 When the golden bowl is broken, what boots it to know 
 why its charmed circle did not longer remain intact? 
 " The days of our age are threescore years and ten ; and 
 though men be so strong that they come to fourscore years, 
 yet is their strength then but labor and sorrow ; so soon 
 passeth it away, and we are gone." 
 
 It was not given to this man to attain even the shorter 
 period which the Psalmist allots as the measure of our days. 
 Yet his was a complete and rounded life. Its whole dura 
 tion was a little less than sixty-five years ; its term of 
 activity, after the time of education had passed, was but 
 forty-two. Without the stimulus of ambition, as that pas 
 sion is commonly felt and manifested, and with the sense of 
 duty as its habitual guide, freed from the love of applause 
 which weakens and from the fear of man which betrays, 
 his life was a greater blessing to its possessor, and to those 
 whom it most nearly touched, than are the lives of many 
 who seek and win what are called the prizes of the world. 
 Of him, it might be said, in the quaint words of Wotton s 
 hymn : 
 
 " How happy is he born or taught, 
 
 That serveth not another s will ; 
 Whose armor is his honest thought, 
 And simple truth his utmost skill! " 
 
 I have seen discussions in which it has been debated 
 whether he was a great man ; and have read what has been 
 said upon either side of that very unimportant question. I 
 can concur with one who has said : " It does not admit of 
 denial that Mr. Curtis s character bore that genuine stamp 
 of greatness which cannot be counterfeited or disputed, the 
 test of which is the spontaneous recognition and homage of 
 VOL. i. 29 
 
450 MEMOIR OF BENJAMIN BOBBINS CUKTIS. [1874. 
 
 men. Everywhere and at all times, on the bench, at the 
 bar, in every assembly, whether large or small, in the most 
 select company and in general society, his presence was 
 impressive and commanding. No man, however great, 
 could look down upon him. Very few could feel them 
 selves to be his peers. Most men, even those of a high 
 order of mind and character, intuitively acknowledged his 
 supremacy." : 
 
 I have quoted these words, because I suppose they will 
 be ratified by the general testimony of those who knew 
 him ; and because the reverend author, when he referred 
 to the supremacy that w r as acknowledged, meant that it 
 was acknowledged without being claimed. But if the ques 
 tion of his greatness must be raised, and I were to record 
 that which best expresses my own sense of his rank among 
 men, I should add a little to old Wotton s idea of human 
 felicity, and should suggest, that, as the "honest thought " 
 was in this case the thought of an intellect of the highest 
 order, as the " simple truth " was drawn from the deep 
 fountains of reason, and made useful in human affairs by all 
 that learning and experience could do for them, there was 
 enough for greatness, upon any rational test of that grade 
 of character. In one thing, surely, it will be allowed that 
 he was great ; for, throughout life, he had been mindful of 
 the prayer, and had received its answer, " So teach us to 
 number our days, that w^e may apply our hearts unto 
 wisdom." 
 
 It is a common observation, that the fame of lawyers, 
 even when they have been very distinguished in their day 
 and generation, is an evanescent fame. It is not often that 
 the most brilliant abilities of the advocate, or the most pro 
 found learning of the judge, produce impressions upon 
 society which cause them to be long personally remem 
 bered. But there have been lawyers and judges whose 
 
 1 Dr. Robbins s Memoir, read before the Massachusetts Historical So 
 ciety. 
 
1874] INDEPENDENCE OF CHARACTER. 451 
 
 fame lias been lasting, and of whom liberal minds in after 
 ages seek to have all the knowledge that can be attained, 
 even if they have left nothing but what was uttered at the 
 bar, or delivered from the bench. He whose life I have 
 now traced was of the highest rank, in both capacities. It 
 may be, that his name will be enrolled among the few 
 great lawyers of whom the world perpetually takes notice. 
 But if what I have said of him shall prove to be only for 
 those who knew and loved or honored him, it may not have 
 been written in vain. 
 
 After his death, the members of that bar into whose 
 crowded competitions he came at the age of twenty-five, 
 who had known him as advocate, judge, citizen, and friend, 
 as no others could have known him, assembled to pay their 
 tributes to his character. They were men who could not 
 have stood over his grave to utter an unmeasured or an 
 unmerited word ; and when they had expressed what they 
 felt to the tribunal over which he had once presided, there 
 came from his successor an elaborate portraiture of his pro 
 fessional and public character, in which the tenderness of the 
 friend mingled with the judgment of the magistrate. 1 Sim 
 ilar proceedings took place at the bar of the Supreme Court 
 of the United States. 2 These honorable tributes are on the 
 public records of the country. 
 
 For me, it has seemed enough to allow the course of his 
 life, his actions, his motives, and his aims, to describe what 
 he was. When this has been done faithfully, readers of 
 biography do not need an extended and formal portrayal of 
 character. 
 
 Still there is one trait on which I may dwell, because it 
 marked his whole life, and gave singular force to all his 
 actions, I mean his peculiar independence. 
 
 1 The reply of Mr. Justice Clifford to the address of the bar of the Cir-. 
 cuit Court, together with the other proceedings, was published in a pamphlet; 
 but the whole is of too great extent to be repeated in this work. 
 
 2 These proceedings are contained in the 20th volume of Wallace s Ee- 
 ports, pp. i.-xiv. They occurred on the 13th of October, 1874. 
 
452 MEMOIR OF BENJAMIN BOBBINS CURTIS. [1874. 
 
 In speaking in a former chapter of the change in his 
 religious sentiments, I have observed that it was not fol 
 lowed by any change in his religious life. The indepen 
 dence of thought, feeling, and action, of which I am about 
 to speak, if not derived from, was strongly tinctured by, the 
 religious feelings which were always a part of his character 
 from his earliest days. Independence is a quality which, 
 when not sustained by a religious faith, may lead its posses 
 sor into too great a disregard of the opinions of his fellow- 
 men. When it is united with any tendency to religious 
 fanaticism, it may do great mischief in the w r oiid. When 
 it exists along with a sober, rational, and moderated faith, 
 it substitutes in the place of human applause, as the guide 
 or aim of life, the highest standard by which life can be 
 regulated. 
 
 It will be admitted by all who knew the man of whom I 
 speak, that they have rarely known any one, constantly en 
 gaged in the affairs of a conspicuous profession, and having 
 great power to attain worldly distinction, who yet cared so 
 little for the praise of men. " Trahimur . omnes studio 
 laudis et optimus quisque maxime gloria ducitur." These 
 were the words of one who never knew the superior force 
 of that sense of duty, which another civilization than the 
 Roman has substituted for the love of glory. Cicero for 
 it is he who declares that human applause is with the best 
 men the main-spring of good actions tells uu that virtue 
 itself can desire no greater reward for labors and perils, 
 than the reward of praise and glory. If this is withdrawn, 
 what is there, he asks, for which, in such a narrow and 
 brief course of existence as ours, we should occupy ourselves 
 with such labors? 1 The great Roman lawyer understood 
 himself, and he understood the men among whom he lived 
 and acted. But perhaps he did not know that, because the 
 
 1 "Nullam enim virtus aliam mercedem laborum periculoruinque desi- 
 derat praeter hanc laudis et gloriae; quae quidem detracta, judices, quid est 
 quod in hoc tarn exiguo vitae curriculo et tarn brevi tantis nos laboribus 
 exerceamus." 
 
1874.] INDIFFEKENCE TO APPLAUSE. 458 
 
 pursuit of what lie called glory was, in the best life of his 
 age and country, the chief object and the strongest motive 
 of individual action, the state had no deep foundation in 
 the noblest forms of human character. It had institutions, 
 jurisprudence, power, wealth, culture, letters, arts ; but in 
 all that splendid civilization there was no higher individual 
 motive than the love of personal distinction. It is true 
 that Cicero, in that love of fame which he makes the strong 
 principle of our nature, comprehends the desire to stand 
 high in the estimation of posterity ; and he puts posthu 
 mous fame as the one great object which enables the soul 
 to endure the exertions of this life. But it is, after all, the 
 hope of making our own names illustrious, which he assigns 
 as the grand stimulus of our labors, and which he considers 
 as alone adequate to render them endurable. 
 
 Certainly it is not to be claimed that what we call the 
 Christian civilization has eradicated the love of glory from 
 the human heart ; or that the desire for distinction is incon 
 sistent with the religious character. We know, sometimes 
 to our cost, that, both in great and little men, ambition is 
 still a most powerful incentive. But that which may be 
 claimed for modern society is, that it can and does produce 
 men, in whom there is another principle of action ; and 
 who, though they may have begun life with the ordinary 
 desire for worldly distinction, learn, as they grow older, that 
 there is a better and safer principle to sustain their exer 
 tions than the love of applause. It is because there are 
 men who come to learn this, that modern society is some 
 times saved from the mischiefs which would otherwise be 
 brought upon it by those who never do learn it. 
 
 In the case of the person whom I have endeavored to 
 describe, the indifference to praise arose from no contempt 
 for mankind, and from no disposition to reject human sym 
 pathy. It arose from a naturally elevated temperament, 
 which had been cultivated into a fixed moral condition ; one 
 which made his desire and intention to do his duty, " in that 
 
454 - MEMOIR OF BENJAMIN BOBBINS CURTIS. [1874. 
 
 state of life to which it had pleased God to call him," so 
 superior to the dictates of ambition that the conviction that 
 he had done his duty was always his sufficient reward. To 
 do what he considered to be right, to do it bravely, disin 
 terestedly, when he was called upon to make sacrifices, and 
 without the smallest regard to the opinions of men when 
 the thought of their opinions might have deterred him from 
 doing it, became the habit of his life. His was a large and 
 grand nature, in which nothing petty or narrow mingled. 
 He never sought honors of any kind ; and those which 
 came to him unsought never seemed to stir his pride to 
 any weak manifestation that he had gained a coveted 
 distinction. He was glad to have a national reputation . 
 but lie spoke of it, when to those nearest and dearest to 
 him he spoke of it at all, with a kind of childlike sim 
 plicity and humility. 
 
 The world at large did not know the gentleness and 
 sweetness of his nature ; for these are things that are not 
 revealed by such a man, save in his domestic circle, or 
 among his most intimate friends ; and one whom the world 
 has been accustomed to regard as only grave and cold or 
 stern, it does not expect to learn was tender, ever thoughtful 
 of the feelings of others, and habitually charitable in his 
 judgments. Yet that this was true of him, his contempo 
 raries who knew it have abundantly testified. It some 
 times happened to him, as it will happen to all men in 
 important positions, that he w r as made the object of foul 
 and unjust aspersions. But even against the authors of such 
 calumnies he never allowed his indignation to carry him be 
 yond a just exposure or rebuke of the injury which they were 
 doing to the best interests of society, by their assaults upon 
 one who for the time had those interests in his keeping. 
 Any injury which they could do to his reputation as a 
 magistrate, when he held a high judicial place, or that the 
 public would permit them to try to do, was a matter, as he 
 once expressed it, of far greater concern to the public itself 
 
1874.] FINAL ESTIMATE. 455 
 
 than it was to him ; and at all periods of his life he was 
 content to leave his motives to be judged by his acts. 
 
 For the rest, for the measure of his intellect, for the 
 true position that should be assigned to him as a jurist, 
 and for the estimate of his rank among the important men 
 of his time, I leave what is here written to the decisions 
 of the present, and to the correcting review of future gen 
 erations, who may take notice of his character, or cherish 
 his name. 
 
APPENDIX. 
 
 I. 
 
 WALTER CURTIS. 
 
 WALTER CURTIS, second son of Judge Curtis, and the 
 oldest of his sons who grew to manhood, was born in Boston, 
 February 3, 1838. He entered Harvard College in 1856, 
 but in consequence of ill-health he left that institution in 
 159, without taking a degree. He first engaged in a 
 banking business in Iowa, in which he was not successful. 
 On the breaking out of the civil war, he received a commis 
 sion in one of the Massachusetts Regiments of Volunteers. 
 In November, 1862, he was detailed and commissioned as 
 Assistant Quartermaster of Volunteers, with the rank of 
 Captain. He served in that capacity at Washington, until 
 the 1st of January, 1864, when he resigned. Such were 
 his accuracy and method, that, on the settlement of his 
 accounts at the War Office, involving very large sums of 
 money, they were found to be correctly balanced to within 
 a fraction of a dollar. 
 
 He returned to Boston, studied law, was admitted to the 
 bar in 1866, and immediately took a high rank. In intellect 
 he strongly resembled his father. He had the same power 
 of clear statement, the same logical and concise method of 
 reasoning, and the same habit of simple, strong, and direct 
 presentation of a case. It was a common remark at the 
 Boston bar, that, in listening to Mr. Walter Curtis, if one 
 
458 APPENDIX. 
 
 did not look at him it was difficult to believe that it was 
 not his father who was speaking. Yet the son was not an 
 imitator of the father. They resembled each other because 
 nature had cast their intellects in the same mould. 
 
 After a successful practice of ten years, failing health 
 rendered it expedient for him to make an overland journey 
 to the Pacific coast. On his return, he was seized with 
 pneumonia, and died at Omaha on the 31st of August, 
 1876, at the age of thirty-eight, leaving a widow and three 
 children. Competent judges, who had every opportunity 
 to appreciate this young man, regarded him as capable of 
 rivalling his father ; and there can be no more severe ordeal 
 for any man than that which he must encounter by such a 
 comparison. I might have spoken of my brother s estimate 
 -of his son ; but remembering the cases of the elder and the 
 younger Burke, and what paternal partiality is, 1 have here 
 recorded of my nephew the judgments of others only, as I 
 have received them. 
 
 Judge Curtis s eldest son and eldest daughter died in 
 childhood, in 1842. The second daughter, who lived to 
 womanhood, died, as has been mentioned, in 1874. Three 
 young children, a son and two daughters, died in 18G7 and 
 1871. Two sons and three daughters survive. 
 
SUSPENSION OF THE HABEAS CORPUS. 459 
 
 II. 
 
 NOTE ON PRESIDENT LINCOLN S PROCLAMATION SUSPEND 
 ING THE WRIT OF HABEAS CORPUS, ETC. 
 
 SINCE the text and note on page 366, in regard to this 
 Proclamation, were printed, it has been ascertained, at the 
 State Department, that an original of the Proclamation is 
 now on file, but it bears no mark indicating the time when 
 it was deposited. The proclamation, when printed in the 
 " National Intelligencer," at Washington, bore date Sept. 24, 
 18152, and purported to be under the seal of the United 
 States, and to be in due form signed by the President and 
 countersigned by the Secretary of State. Where the origi 
 nal was during the interval between the publication of the 
 twelfth volume of the Statutes at Large (1862), and the 
 publication of the thirteenth volume (1866), or whether 
 there was an original during that period, I have not been 
 able to ascertain. 
 
 President Lincoln had, previously to the date of this 
 proclamation, acted upon the assumption, in particular 
 cases, that he could suspend the writ of habeas corpus in 
 the case of persons who had been arrested and were in con 
 finement by any military authority, although they were 
 merely citizens. Thus, in the case of John Merryman, 
 which occurred at Baltimore, in May, 1861, the commander 
 of Fort McHenry, in making return on Chief Justice 
 Taney s writ for the production of the body of the prisoner, 
 informed the Chief Justice that he was " duly authorized 
 by the President of the United States, in such cases, to sus 
 pend the writ of habeas corpus for public safety." The 
 Chief Justice issued an attachment against the command 
 ing officer for a contempt in not obeying the writ ; but 
 as the Marshal had not the necessary means to execute 
 the attachment against a superior military force, the Chief 
 
460 APPENDIX. 
 
 Justice excused him from the performance of that duty, 
 and put on file, and sent to the President, his written 
 opinion that u the President, under the Constitution of the 
 United States, cannot suspend the privilege of the writ of 
 habeas corpus, nor authorize a military officer to do it." 
 This elaborate opinion exhausted the whole subject of the 
 President s supposed power to suspend the writ, or to ar 
 rest and confine persons not subject to the rules and arti 
 cles of war, for any offence against the United States, 
 except in aid of the judicial authority and subject to its 
 control. u No official notice," said the Chief Justice, " has 
 been given to the courts of justice, or to the public, by 
 proclamation or otherwise, that the President claimed this 
 power, and had exercised it in the manner stated in the 
 return. And I certainly listened to it with some surprise, 
 for I had supposed it to be one of those points of constitu 
 tional law upon which there was no difference of opinion, 
 and that it was admitted on all hands that the privilege 
 of the writ could not be suspended except by act of Con 
 gress." He concluded his very dignified and forcible dis 
 cussion of this subject as follows: 
 
 " In such a case my duty was too plain to be mistaken. I have 
 exercised all the power which the Constitution and laws confer 
 upon me, but that power has been resisted by a force too strong 
 for me to overcome. It is possible that the officer who has in 
 curred this grave responsibility may have misunderstood his instruc 
 tions, and exceeded the authority intended to be given him. I 
 shall, therefore, order all the proceedings in this case, with my 
 opinion, to be filed and recorded in the Circuit Court of the United 
 States for the District of Maryland, and direct the Clerk to trans 
 mit a copy, under seal, to the President of the United States. It 
 will then remain for that high officer, in fulfilment of his constitu 
 tional obligation, to take care that the laws be faithfully executed, 
 to determine what measures he will take to cause the civil process 
 of the United States to be respected and enforced. 
 
 " 11. B. TANEY, 
 
 Chief Justice of the Supreme Court of the U. S." 
 
SUSPENSION OF THE HABEAS CORPUS. 461 
 
 Nevertheless, arbitrary arrests of persons not subject to 
 the rules and articles of Avar continued to be made in places 
 where the courts of the United States were in the full exer 
 cise of their authority, sometimes by the order of the Sec 
 retary of State, and sometimes by the order of the War 
 Department; and on the 24th of September, 1862, as if to 
 give some color of legality to this exercise of power, the 
 Proclamation was published, on which Judge Curtis com 
 mented in his pamphlet entitled " Executive Power." An 
 account of the whole proceedings in Merryman s case, 
 and a full copy of the opinion of the Chief Justice, may 
 be found in tho Appendix to his Memoir by Mr. Tyler, 
 pp. 640-659. 
 
 There is no parallel case, that I am aware of, of a refusal 
 of the Executive to be governed by a decision of the judi 
 cial department of the government on a question relating 
 to the executive powers. Many Presidents have differed 
 from the constitutional views of Congress, and have refused 
 to sign bills on which they have held that the measures 
 proposed were not warranted by the Constitution. The 
 most notable instance, perhaps, is that of General Jack 
 son s refusal to sign a bill rechartering the Bank of the 
 United States, because he held that Congress had no con 
 stitutional authority to grant the original charter, although 
 the Supreme Court of the United States had decided that 
 Congress had full constitutional power to do so. Mr. Web 
 ster s powerful argument in opposition to the President s 
 veto message, while it admitted that each branch of the 
 legislature has an undoubted right, in the exercise of its 
 functions, to consider the constitutionality of a law pro 
 posed to be passed, yet maintained that, when a law lias 
 once been passed, and signed by the President, and its con 
 stitutional validity has been affirmed by a judgment of the 
 Supreme Court, neither the same President nor his succes 
 sors is or are at liberty to say whether it is constitutional 
 or not. Whatever may be thought of this doctrine, as ap- 
 
462 APPENDIX. 
 
 plied to the President s participation in legislation, there is 
 an obvious reason why, in the exercise of executive powers, 
 the President is bound by a decision of the judicial depart 
 ment on the existence or non-existence of the power which 
 he claims. That reason is, that the citizen has nothing but 
 the judiciary to which to appeal against executive acts. If 
 it be true that the judiciary was created to act upon the 
 constitutional validity of laws, when they affect the rights 
 of the citizen, it must, a fortiori, be true that its decision 
 that an executive act which affects a citizen is unconstitu 
 tional, is binding upon the President. Otherwise, the Presi 
 dent is the sole judge of the extent of his powers ; and if 
 he will not submit to judicial decision, there is no limit to 
 the powers which he may practically exercise. 
 
DEATH OF MH. WEBSTER. 463 
 
 m. 
 
 DEATH OF ME. WEBSTER. 
 
 WHILE Chapter VI. of this volume was passing through 
 the press, I had not access to the proceedings which took 
 place in the Circuit Court of the United States for the 
 First Circuit, on the 28th of October, 1852, on the occa 
 sion of Mr. Webster s death. I have since obtained a copy 
 of the remarks of Judge Curtis in reply to the resolutions 
 of the Bar, and insert them here : 
 
 I receive with deep sensibility the resolutions of the Bar, and 
 the remarks of yourself, Mr. Attorney, and of the other gentlemen 
 who have addressed us. The death of this illustrious statesman 
 and jurist has produced a profound impression everywhere in the 
 country to whose service he devoted his life, and will be felt as an 
 event not unimportant in the civilized world. 
 
 Among the gentlemen of this Bar, of which he was a member, 
 with very many of whom he held relations of private friendship, 
 and for whom, as a body, he was ever ready to manifest a frater 
 nal regard, and in this Court, which, for more than thirty years, he 
 has enlightened and assisted by his labors, a deep feeling of pri 
 vate grief mingles itself with our sense of the public loss. How 
 great this loss is cannot be described, for it cannot now be even 
 known. The darkness of the future covers the dangers which the 
 Providence of God may permit our country to encounter, and 
 hides from view our needs for the patriotism and surpassing men 
 tal power of Mr. Webster. In a government depending for its 
 existence on opinion, the withdrawal of a mind which exercised so 
 great an influence for the preservation and stability of our country, 
 not only in the public councils, but among the people themselves, 
 is a loss indeed. 
 
 We submit ourselves to it as inevitable, as having come at the 
 time appointed by the will of Him in whose hand is the destiny of 
 nations and of men. and with gratitude that so much has been 
 accomplished by him, and so much left for the instruction of this 
 
464 APPENDIX. 
 
 and future times. Of his services and works as a statesman, I can 
 say nothing after what others have said. 
 
 But receiving these communications from his brethren of the 
 Bar, I am strongly reminded of the importance to them of the 
 memory and fame of this great lawyer. The illustrious names 
 and great deeds which centuries have gathered are the richest 
 treasures of a nation. The masterpieces of literature and art 
 dignify the pursuits in which they were produced. 
 
 We may claim Daniel Webster as an American lawyer. Born 
 during the war of the Revolution, in a family which took an 
 honorable part in that great struggle, he was imbued from his 
 infancy with American ideas and principles. He was reared in 
 the simple habits of a New England home. He was forced early 
 into the rough and invigorating contact with nature among the 
 mountains where he had his birthplace. He was trained in the 
 college of his native State. He studied our common law ; for 
 although it was painfully wrought out from age to age in another 
 land, yet it was by our ancestors, and I thank God that, by as 
 good a title as can be shown under its rules, it is our healthy and 
 manly intellectual, as well as political inheritance. He knew it as 
 it is in Littleton, in his great commentator, and in Plowden and 
 Saunders, as well as in its more modern sources. His mind was 
 imbued with its logic, and its peculiar style was as familiar to him 
 as that of Taylor or Milton. Its fundamental principles had become 
 a part of the structure of his mind, and under these new skies he 
 maintained and advanced those great principles of personal liberty 
 under the law and by the law, and the absolute security of private 
 property, which constitute the vital power of the common law. 
 But it must not be forgotten, for the honor of American jurispru 
 dence, and for his honor, that he entered a field such as has existed 
 nowhere else in any age. 
 
 It was and is one of the excellences of the Constitution of the 
 United States, that it did not attempt too much, that it is neither a 
 treatise nor a code, but a simple enumeration of the great powers 
 and principles necessary to constitute the government of our coun 
 try. When this government was put into operation in the same 
 territory and over the same people, having distinct State govern 
 ments of their own, questions of the last importance to the tran 
 quillity and peace of the country, and to the efficiency and success 
 of the new government, necessarily arose. Few men whose atteii- 
 
DEATH OF MR. WEBSTER. 465 
 
 tion has not been particularly directed to this subject, are aware 
 of the number, the importance, or the difficulty of these questions. 
 A country, already vast in extent, and whose resources, in a rapid 
 course of development, were incalculable, whose people, after 
 great suffering, had, by their own acts, become a nation, had cre 
 ated a court of justice, and delegated to it the power, and imposed 
 upon it, under the most solemn sanctions, the duty of declaring 
 void all legislative acts not in conformity with the Constitution, and 
 of restraining within their appropriate limits of power the State 
 sovereignties under which the people lived. 
 
 Questions which elsewhere could have been settled only by mere 
 force, or by diplomatic negotiations, which force influences, were 
 here to be brought to an arbitrament, according to the staid, settled, 
 and regular course of judicial procedure. 
 
 Into these contests Mr. Webster entered, and for them he was 
 fitted, I think, as no other man has been. He brought to these 
 great debates extensive and accurate historical learning, especially 
 concerning the Constitution itself ; a clearness of conception, com 
 prehensiveness of grasp, and logical power never surpassed ; and 
 to all these was added a command of the English tongue, which, 
 for demonstrative oratory, has, I think, not been equalled. 
 
 We may all conceive, what many yet know, that he was able to 
 render, and did render to his country, and to the cause of justice 
 and peace, the most eminent service, in this unobtrusive but impor 
 tant scene of action. And we shall make but poor use of his great 
 example if we do not borrow from it higher conceptions and 
 broader views of the capacities and duties of his and our profession. 
 Of even the most prominent causes of great and permanent public 
 importance in which Mr. Webster was engaged, there is not time 
 here to speak, but it may be said generally, without doing any 
 injustice to the great magistrates by whom they were determined, 
 what indeed they were ever ready to acknowledge, th.it they 
 derived most important assistance from the labors of Mr. Webster. 
 
 It is the general destiny of lawyers to leave behind them but 
 few traces, and no monuments, of their intellectual labor. Elo 
 quence and learning, and devotion to duty, and strenuous effort, 
 and high courage, serve their uses of the day, and doubtless find 
 their regard in the breast of their possessor, but with him often 
 dies even their memory. How little do we know of the forensic 
 arguments of Ames, or Dexter, or Otis. Vague impressions of 
 VOL. i. 30 
 
466 APPENDIX. 
 
 their power still linger on the fleeting recollections of a few living 
 men, to depart, when they go home, arid leave no trace behind. 
 
 To a very considerable extent Mr. Webster will probably not 
 partake of this ordinary lot of his brethren. Many of his forensic 
 arguments have been made in causes of such great and permanent 
 importance, they are so admirable in themselves, and in genera] 
 have been so well preserved, that they may be expected to be 
 recurred to and studied while the Constitution shall endure. 
 
 What estimate posterity may form of the importance to them of 
 this part of his labors, it would be presumptuous in us to attempt 
 to decide. But for ourselves we can declare, that he who has 
 strengthened the foundations of the Constitution, and shielded it 
 from hostile attack, and made apparent to the affections of the 
 people, the strength and beauty of its proportions and the peace 
 and safety which are to be found only within its walls, has ren 
 dered to us a service not lightly to be esteemed or soon forgotten. 
 
 That in this I do but feebly express what this nation now feels, 
 no man can doubt. To what has been so eloquently said at the 
 Bar concerning his life and his death, it cannot be necessary that I 
 should express iny assent. But I desire to say, what I strongly 
 feel and what it must gratify every man who loves his country to 
 feel, that the death of Mr. Webster has given us a new and affect 
 ing proof that we are indeed one people, united by a common 
 attachment to our country and to its great institutions and princi 
 ples, and to the men who represent and uphold them ; that undei 
 neath the strife of parties and the more miserable contests of sec 
 tions and factions, deep in the American heart is a love of the 
 whole country, and therefore it is that from that heart has come 
 the utterances of grief, which arise everywhere over this broad 
 land ; grief for the loss of the man whose heart was large enough, 
 and whose mind was comprehensive enough, to include this Union, 
 with all its interests, and dependencies, and opinions, and obliga 
 tions, and rights. And the great principles which he had so 
 powerfully taught in his life, receive from his death a new sanc 
 tion by his countrymen. 
 
CASES AKGUED FEOM 1836 TO 1851. 467 
 
 IV. 
 
 CASES ARGUED BEFORE THE SUPREME JUDICIAL COURT 
 OF MASSACHUSETTS, FROM 1836 TO 1851. 
 
 GREENLEAF v. FRANCIS, 18 Pickering, 117. Trespass on the case 
 for diverting water. 
 
 CLAPP v. LEATHERBEE, 18 Pick. 131. Writ of entry to recover 
 certain mortgaged premises. 
 
 WIGGIN v. SUFFOLK INS. Co., 18 Pick. 145. Assumpsit to re 
 cover insurance on property on board a brig. 
 
 WIGGIN v. AMERICAN INS. Co., 18 Pick. 158. Same. 
 
 TUCKER v. BOSTON, 18 Pick. 162. Writ of entry. 
 
 STURTEVANT v. ROBINSON, 18 Pick. 175. Scire facias. 
 
 COMMONWEALTH v. AVES, lb Pick. 193. The slave Med. 
 
 CURL v. LOWELL, 19 Pick. 25. Trespass for breaking and en 
 tering. 
 
 COREY v. COREY, 19 Pick. 29. Assumpsit for work and labor. 
 
 HODGES v. HOLLAND, 19 Pick. 43. Promissory note. 
 
 EMERSON v. BAYLIES, 19 Pick 5o. Assumpsit. Partner. 
 
 WHITWELL v. BRIGHAM, 19 Pick. 117. Assumpsit. Bill of Ex 
 change. 
 
 WILLIAMS v. RUSSELL, 19 Pick. 162. Bill in equity. 
 
 SALE v. PRATT, 19 Pick. 191. Trespass for entering close and 
 removing sea*weed. 
 
 STARBUCK v. NEW ENG. MARINE INS. Co., 19 Pick. 198. Insur 
 ance. 
 
 PARK MAN v. WELCH, 19 Pick. 231. Bill in equity to redeem 
 certain parcels of land. 
 
 JELLISON r. LAFONTA, 19 Pick. 244. Principal and Agent. 
 
 TISDALE v. HARRIS, 20 Pick. 9. Statute of Frauds. 
 
 MILLS v. GORE, 20 Pick. 28. Bill in equity to compel redelivery 
 of a deed. 
 
 OVERSEERS OF THE POOR OF BOSTON v. OTIS, 20 Pick. 38. Writ 
 of right. 
 
 HEWES v. PARKMAN, 20 Pick. 90. Trover against an officer for 
 an attachment of the goods of a firm. 
 
 HEWES v. BAYLEY, 20 Pick. 96. Partner. 
 
468 APPENDIX. 
 
 TRASK v. VINSON, 20 Pick. 105. Promissory notes. 
 
 ADAMS v. HAFFARDS, 20 Pick. 127. Trespass for assaulting and 
 
 beating. 
 SALISBURY v. BIGELOW, 20 Pick. 174. Bill in equity to compel 
 
 the specific performance of an agreement for the purchase of 
 
 land. 
 
 HALL v. JACKSON AND TR., 20 Pick. 194. Trustee process. 
 CLAPP v. TIRRELL, 20 Pick. 247. Writ of entry to recover 
 
 lands. 
 HOLLAND v. CRUFT, 20 Pick. 321. Bill in equity to set aside a 
 
 fraudulent assignment. 
 WHITAKER v. SUMNER, 20 Pick. 899. Trover against a sheriff for 
 
 merchandise. 
 
 GODDAKD v. CITY OF BOSTON, 20 Pick. 407. Petition for assess 
 ment of value of land taken for a street. 
 LORING v. NEPTUNE Ixs. Co., 20 Pick. 411. Insurance. 
 COMMONWEALTH v. FARMERS AND MECHANICS BANK, 21 Pick. 
 
 542. Bill in equity by Bank Commissioners to enjoin bank. 
 BOSTON MANUF. Co. v. INHABITANTS OF NEWTON, 22 Pick. 22. 
 
 Taxation of water power. 
 TAUNTON COPPER Co. v. MERCHANTS INSURANCE Co., 22 Pick. 
 
 108. Insurance. 
 
 STONE v. FOWLE, 22 Pick. 166. Promissory note. 
 REYNOLDS v. OCEAN INS. Co., 22 Pick. 191. Insurance. 
 LOWELL, APPELLANT, ETC., 22 Pick. 215. Appeal from a decree 
 
 of the Judge of Probate. 
 
 HOOPER v. JELLISON AND TRS., 22 Pick. 250. Trustee process. 
 M GAW v. OCEAN INS. Co., 2:3 Pick. 405. Insurance. 
 JACKSON v. MASS. MUTUAL FIRE INS. Co., 23 Pick. 418. Insur 
 ance. 
 
 WIGGIN v. TUDOR, 23 Pick. 434. Action for rent. 
 HENSIIAAV v. SUMNER, 23 Pick. 446. Trespass against a sheriff 
 
 for taking and carrying away certain merchandise. 
 ALL EX v. KIMBALL, 23 Pick. 473. Promissory note. 
 BISHOP v. SHEPHERD, 23 Pick. 492. Assumpsit for the services of 
 
 minor son. 
 BRYANT v. RUSSELL, 23 Pick. 510. Bill in equity to enforce the 
 
 execution of a trust. 
 
 WHITWELL v. WELLS, 24 Pick. 25. Replevin for goods. 
 WHITE v. PATTEN, 24 Pick. 324. Writ of entry. 
 
CASES ABGUED FROM 1836 TO 1851. 469 
 
 WHITWELL ET ALS. v. BURNSIDE, 1 Metcalf, 39. Bond. 
 
 REYNOLDS v. OCEAN INS. Co., 1 Met. 160. Insurance abandon 
 ment. 
 
 WHITWELL ET ALS. v. WILLARD, 1 Met. 21 G. Auditor. 
 
 JOHNSON v. JORDAN, 2 Met. 234. Trespass for breaking and enter 
 ing close, &c. 
 
 BROOKS ET AL. v. WHITE, 2 Met. 283. Promissory note. 
 
 CARNEGIH ET AL. v. MORRISON ET AL., 2 Met. 381. Assumpsit 
 founded on a letter of credit. 
 
 ORIENTAL BANK v. HAWKINS, 3 Met. 332. Writ of entry. 
 
 STEVENSON ET ALS. AXD PKUIT ET ALS. v. AUSTIN ET ALS., 3 Met. 
 474. Bill in equity to determine title to certain goods. 
 
 GRAY v. BENNETT, 3 Met. 522. Bill in equity to recover usurious 
 interest. 
 
 RICHARDSON v. SUFFOLK INS. Co., 3 Met. 573. Insurance. 
 
 ATLAS BANK v. NAIIANT BANK, 3 Met. 581. Insolvent Bank. 
 
 ORIENTAL BANK v. TREMONT INS. Co., 4 Met. 1. Insurance. 
 
 MAC!VAY v. HOLLAND, 4 Met. 69. Promissory note. 
 
 WINSOR ET AL. v. DILLAWAY, 4 Met. 221. Action for a commission 
 for sale of a brig. 
 
 JACKMAN v. BOWKER, 4 Met. 235. Order. 
 
 CARTER v. SIBLEY, 4 Met. 298. Trespass for taking and carrying 
 away goods. 
 
 HEARD v. PROPRIETORS OF MIDDLESEX CANAL, 5 Met. 81. Land 
 damage. 
 
 GARY v. DANIELS, 5 Met. 236. Trespass on the case for the ob 
 struction of a stream. 
 
 GOULD v. GOULD ET AL., 5 Met. 274. Bill in equity. Mistake. 
 
 BLANCIIARD v. STEARNS ET ALS., 5 Met. 298. Action against 
 selectmen for refusing to put name on voting list. 
 
 WRIGHT v. DAME ET ALS., 5 Met. 485. Bill in equity to charge 
 with execution of a trust. 
 
 TALBOT v. CAINS, 5 Met. 520. Trespass on the case. 
 
 COFFIN v. HEATH ET AL., 6 Met. 76. Bill in equity. Lien on 
 land. 
 
 DENNY ET AL. v. CABOT ET ALS., 6 Met. 82. Assumpsit for goods 
 sold and delivered. 
 
 STEDMAN v. EVELETH, 6 Met. 114. Trespass against a sheriff for 
 selling certain stocks. 
 
 ATKINS v. CIIILSON ET ALS., 7 Met. 398. Bill in equity. Ease 
 ment. 
 
470 APPENDIX. 
 
 PROPRIETORS OF HOLLTS STREET MEETING HOUSE v. PIER PONT, 
 7 Met. 495. Bill of discovery. 
 
 AUSTIN v. CHARLESTOWN FEMALE SEMINARY, 8 Met. 19G. Writ 
 of entry. 
 
 GARY v. DANIELS, 8 Met. 466. Trespass on the case. Obstruc 
 tion of water privilege. 
 
 HOWARD v. BATES ET AL., 8 Met. 484. Complaint for flowing 
 land. 
 
 DAVIS ET ALS. v. SIGOURNEY, 8 Met. 487. Will. 
 
 ST. Louis PERPETUAL INS. Co. v. HOMER, 9 Met. 39. Promissory 
 note. 
 
 PIPER v. RICHARDSON, 9 Met. 155. Writ of entry. 
 
 BAKER ET ALS. v. ATLAS BANK ET ALS., 9 Met. 182. Bill in 
 equity. Bank. 
 
 GREENE ET ALS. v. GODDARD, 9 Met. 212. Breach of con 
 tract. 
 
 KINGSBURY ET ALS. v, GOULD, EXECUTOR, 9 Met. 282. Trust. 
 
 WINSOR v. SAVAGE, 9 Met. 346. Assumpsit to recover balance of 
 account. 
 
 LEWIS ET AL. v. BROOKS, 9 Met. 367. Promissory note. 
 
 BARING ET ALS. v. CRAFTS, 9 Met. 380. Assurnpsit to recover 
 balance of account. 
 
 BATES v. WILLARD, 10 Met. 62. Trespass on the case against a 
 sheriff for alleged default of his deputy. 
 
 GREW v. BREED ET ALS., 10 Met. 569. Bill in equity. Bank. 
 
 MURDOCK ET ALS. V. MlLLS ET ALS., 11 Met. 5. Bills of CX- 
 
 change. 
 
 GUILDS ET ALS. v. RUSSELL ET AL., 11 Met. 16. Will. 
 
 COMMONWEALTH v. PHCENIX BANK, 11 Met. 129. Bank. 
 
 DESHON v. MERCHANTS INS. Co., 11 Met. 199. Insurance. 
 
 PYNCIION v. STEARNS, 11 Met. 304. Waste. 
 
 PYNCHON v. STEARNS, 11 Met. 312. Writ of entry. 
 
 LEWIS ET AL. v. BROOKS, 12 Met. 304. Promissory note. 
 
 GREW ET ALS. v. BREED KT ALS., 12 Met. 363. Bank. 
 
 SMITH r. HURD ET ALS., 12 Met. 371. Action on the case for 
 nonfeasance and misfeasance. 
 
 TREMONT BANK v. CITY OF BOSTON, 1 Gush. 142. Taxation of 
 real estate of bank. 
 
 WHEELER v. STONE ET ALS., 1 Gush. 313. Suit to recover a cer 
 tain wharf and flats. 
 
CASES ARGUED FROM 1836 TO 1851. 471 
 
 DRAKE v. CURTIS, 1 Gush. 395. Same. 
 
 CODMAN AND WIFE v. COFFIN, 2 Cush. 365. Specific performance 
 
 of contract. 
 
 MEIGS v. THE MUTUAL MARINE INS. Co., 2 Cush. 439. Insurance. 
 VINCENT v. SPOONER, 2 Cush. 467. Action to recover dower. 
 NELSON, DISTRICT ATTORNEY, v. GUSHING ET ALS., 2 Cush. 519. 
 
 Will. 
 
 PIERCE v. INHABITANTS OF CAMBRIDGE, 2 Cush. fill. Taxation. 
 COMMONWEALTH v. BOSTON AND MAINE R. II., 3 Cush. 25. 
 
 Land damage. 
 FITCHBURG R. R. Co. v. BOSTON AND MAINE R. R., 3 Cush. 58. 
 
 Land damage. 
 
 STEVENS v. BLANCHARD ET AL., 3 Cush. 169. Promissory note. 
 HAYES v. THE WESTERN RAILROAD CORPORATION, 3 Cush. 270. 
 
 Action by a brakeman to recover for injuries received. 
 SH ELTON v. CODMAN ET AL., 3 Cush. 318. Covenant of peaceable 
 
 possession. 
 
 CARTER v. HOLBROOK ET ALS., 3 Cush. 331. Partnership. 
 BROWN ET AL v. LAWRENCE ET ALS., 3 Cush. 390. Writ of entry. 
 CASCO MANUFACTURING Co. v. DIXON ET AL., 3 Cush. 407. Ac 
 tion on the case by a buyer of cotton for false and fraudulent 
 packing thereof. 
 
 CORNELL v. JACKSON, 3 Cush. 506. Action for covenant broken. 
 CHASE v. THE SUTTON MANUFACTURING Co., 4 Cush. 152. Com 
 plaint for flowing land. 
 BOWERS v. SUFFOLK MANUFACTURING Co., 4 Cush. 332. Action 
 
 on the case for the disturbance of a right of way. 
 EDWARDS v. SUMNER, 4 Cush. 393. Assumpsit for money had and 
 
 received. 
 TOWLE v. KETTKLL ET AL., 5 Cush. 18. Assumpsit to recover 
 
 for the charter or freight of a vessel. 
 CHACE ET ALS. v. BROOKS, 5 Cush. 43. Assumpsit on a contract 
 
 of guaranty. 
 BAKER v. ADAMS, 5 Cush. 99. Writ of entry to recover possession 
 
 of a dwelling-house. 
 FORBES v. APPLETON, 5 Cush. 115. Voluntary payment under 
 
 a claim of right. 
 
 ROBINSON v. BAKER, 5 Cush. 137. Replevin. 
 MELLEDGE v. THE BOSTON IRON Co., 5 Cush. 158. Assumpsit 
 for goods sold and delivered. 
 
472 APPENDIX. 
 
 TALLMAN v. TALLMAN, 5 Cush. 325. Action on an award. 
 
 PARKER v. MAY ET ALS., 5 Cush. 336. Information for the pur 
 pose of preventing the misapplication of certain funds. 
 
 BOSTON AND LOWELL R. R. Co. v. BOSTON AND MAINK R. R., 5 
 Cush. 375. Trespass on the case. 
 
 CITY OF ROXBURY v. BOSTON AND PROVIDENCE R. R. CORPO 
 RATION, 6 Cush. 424. Bill in equity to compel defendants to 
 raise a highway. 
 
 HUNNEWELL v. TAYLOR ET ALS., 6 Cush. 472. Partition. 
 
 BROWN v. WEBBER AND TRUSTEE, 6 Cush. 560. Trustee process. 
 
 COMMONWEALTH v. ALGER, 7 Cush. 53. Constitutional law. 
 Harbor. 
 
 BOSTON v. CAPEN, 7 Cush. 116. Bond. 
 
 HOLBROOK v. JACKSON ET AL., 7 Cush. 136. Assumpsit for goods 
 sold and delivered. 
 
 REGGIO ET AL. v. BRAGGIOTTI ET AL., 7 Cush. 166. Trespass on 
 the case for breach of warranty. 
 
 MASSACHUSETTS IRON Co. v. HOOPER ET ALS, 7 Cush. 183. 
 Lien. 
 
 SALTONSTALL ET ALS. v. PROPRIETORS OF LONG WHARF, 7 Cush. 
 195. Writs of right. 
 
 SMITH v. CITY OF BOSTON, 7 Cush. 254. Land damage. 
 
 BAKER ET ALS. v. MANUFACTURERS INS. Co., 7 Cush. Appendix. 
 Insurance. 
 
 ADAM ET ALS. v. BRIGGS IRON Co., 7 Cush. 361. Bill in Equity. 
 Mining land. 
 
 OPIXIOXS OF THE SUPREME COURT OF THE UXITED 
 STATES DELIVERED BY JUDGE CURTIS, FROM 1851 
 TO 1857. 
 
 NEILSON v. LAGOW ET AL., 12 Howard, 98. Courts of the United 
 
 States. 
 
 RUSSELL v. SOUTHARD ET ALS., 12 How. 139. Mortgage. 
 WILBUR v. ALMY, 12 How. 180. Mortgage. Trust. 
 ACHISON v. HUDDLESON, 12 How. 293. Taxes. Cumberland 
 
 Road. 
 
OPINIONS IN THE SUPREME COURT OF THE U. S. 473 
 
 COOLEY v. THE BOARD OF WARDENS OF THE PORT OF PHILA 
 DELPHIA, ETC., 12 How. 299. Constitutional law. Pilots and 
 pilotage. 
 
 McCORMiCK v. GRAY, 13 How. 26. Partnership. 
 
 BUCKINGHAM v. McLEAN, 13 How. 150. Bankrupt. 
 
 NEVES v. SCOTT, 13 How. 268. Courts of the United States. 
 
 PHIL., AViL., & BAL. R. R. Co. v. HOWARD, 13 How. 307. Cove 
 nant. 
 
 VERY v. LEVY, 13 How. 345. Equity. 
 
 HAGAN v. WALKER, 14 How. 29. Equity. 
 
 SILSBY v. FOOTE, 14 How. 218. Patent. Juror. 
 
 CHRISTY v. SCOTT, 14 How. 282. Ejectment. 
 
 CHRISTY v. FINDLEY, 14 How. 296. Same. 
 
 CHRISTY r. YOUNG, 14 How. 296. Same. 
 
 CHRISTY v. HENLEY, 14 How. 297. Same. 
 
 GENERAL MUTUAL INS. Co. v. SHERWOOD, 14 How. 351. In 
 surance. 
 
 WEBSTER v. COOPER, 14 How. 488. Devise. 
 
 KANOUSE v. MARTIN, 15 How. 198. Courts of the United States. 
 
 GARROW v. DAVIS, 15 How. 272. Equity. 
 
 CURRAN v. STATE OF ARKANSAS, 15 How. 304. Constitutional 
 law. 
 
 WINANS v. DENMEAD, 15 How. 330. Patent. 
 
 TURNER v. YATF.S, 16 How. 14. Writ of error. 
 
 STUART v. MAXWKLL, 16 How. 150. Revenue law. 
 
 CARROLL v. CARROLL S LESSEE, 16 How. 275. Will. 
 
 STEAMBOAT NEW WORLD v. KING, 16 How. 469. Master and 
 servant. 
 
 LAWRENCE v. MINTURN, 17 How. 100. Ships and shipping. 
 
 SHIELDS v. BARROW, 17 How. 130. Equity. 
 
 RING v. MAXWELL, 17 How. 147. Revenue law. 
 
 UNITED STATES v. NICKERSON, 17 How. 204. Fisheries. 
 
 HENDRICKSON v. HINCKLEY, 17 How. 443. Equity. 
 
 STEVENS v. GLADDING, 17 How. 447. Equity. 
 
 CHRISTY v. ALFORD, ADMR., 17 How. 601. Limitation. 
 
 SMITH v. STATE OF MARYLAND, 18 How. 71. Constitutional 
 law. 
 
 BUSH v. COOPER S ADMINISTRATOR, 18 How. 82. Bankrupt 
 act. 
 
 RICHARDS ET AL. v. HOLMES ET AL., 18 How. 143. Trusts. 
 
474 APPENDIX. 
 
 SCHOONER FREEMAN, ETC. v. BUCKINGHAM ET AL., 18 How. 182. 
 
 Admiralty ]aw. 
 
 MCLAUGHLIN v. SWANN ET AL., 18 How. 217. Attachment. 
 MURRAY S LESSEE ET AL. v. HOBOKEN LAND AND IMPROVEMENT 
 
 Co., 18 How. 272. Constitutional law. 
 
 KINSMAN ET AL. v. PABKIIURST, 18 How. 289. Patent rights. 
 LAFAYETTE INS. Co. v. FRENCH ET AL., 18 How. 404. Corpora 
 tion law. 
 
 CROCKETT ET AL. v. NEWTON, 18 How. 581. Collision. 
 CONNER ET AL. v. ELLIOTT ET AL., 18 How. 591. Constitutional 
 
 law. 
 
 THOMAS ET AL. v. OSBORN, 19 How. 22. Commercial law. 
 BETTS v. LEWIS AND WIFE, 19 How. 72. Practice. 
 UNITED STATES v. LE BARON, 19 How. 73. Bond. Deed. 
 DUPONT DE NEMOURS & Co. v. VANCE ET AL., 19 How. 162. 
 
 Commercial law. 
 COMMERCIAL MUTUAL MARINE INS. Co. v. UNION MUTUAL INS. 
 
 Co., 19 How. 318. Contract. 
 McREA ET AL. v. BRANCH BANK OF ALABAMA, 19 How. 376. 
 
 Practice. 
 
 BULKLEY v. HONOLD, 19 How. 390. Vessels. 
 STURGIS, PLFF. IN ERROR, v. HONOLD, 19 How. 393. Same. 
 
 CASES ARGUED BEFORE THE SUPREME JUDICIAL COURT 
 OF MASSACHUSETTS, FROM 1857 TO 1874. 
 
 MERCHANTS BANK OF NEWBURYPOET v. STEVENSON ET ALS., 
 10 Gray, 232. Corporation law. 
 
 BOSTON AND MAINE R. R. v. BARTLETT ET AL., 10 Gray, 384. 
 Equity. 
 
 HENSHAW ET AL. v. BANK OF BELLOWS FALLS, 10 Gray, 568. 
 Railroad. 
 
 WHITTENTON MILLS v. UPTON ET ALS., 10 Gray, 582. Corpora 
 tion law. 
 
 BANGS v. LINCOLN ET AL., 10 Gray, 600. Insolvent debtors. 
 
 ROGERS ET AL v. JACKMAN ET AL., 12 Gray, 144. Assignee in 
 insolvency. 
 
CASES ARGUED FKOM 1857 TO 1874. 475 
 
 RUSSELL v. HOWE, 12 Gray, 147. Constitutional law. 
 
 PINGREE v. COFFIN ET ALS. 12 Gray, 288. Equity. 
 
 COLE ET ALS. v. UNION MUTUAL INS. Co., 12 Gray, 501. Ma 
 rine insurance. 
 
 BAKER ET ALS. v. MANUFACTURERS INS. Co., 12 Gray, 603. 
 Marine Insurance. 
 
 ROGERS ET AL. v. CURRIER ET ALS., 13 Gray, 129. Ship lien. 
 
 RICH v. ROGERS ET ALS., 14 Gray, 174. Will. 
 
 ELLICOTT ET ALS. v. ALLIANCE INS. Co., 14 Gray, 318. Marine 
 insurance. 
 
 BIGELOW v. INHABITANTS OF RANDOLPH, 14 Gray, 541. Town. 
 
 GRAND JUNCTION RAILROAD AND DEPOT Co. ET AL. v. COUNTY 
 COMMISSIONERS OF MIDDLESEX, 14 Gray, 553. Railroad. 
 
 ERICKSON ET ALS. v. NESMITH, 15 Gray, 221. Action. 
 
 HARTSHORN ET AL. v. SHOE AND LEATHER DEALERS INS. Co., 
 15 Gray, 240. Marine Insurance. 
 
 MOTTE v. ALGER ET AL., 15 Gray, 322. Disseisin. 
 
 MICHIGAN STATE BANK v. GARDNER ET ALS., 15 GRAY, 362. 
 Equity. Principal and agent. 
 
 CUNNINGHAM ET ALS. v. MUNROE, ADMINISTRATOR, 15 Gray, 471. 
 Payment. Partnership. 
 
 SHAW ET ALS. v. NORFOLK COUNTY R. R. Co. ET ALS., 16 Gray, 
 407. Railroad. Equity pleading. 
 
 FAY v. ALLIANCE INS. Co., 16 Gray, 455. Marine insurance. 
 
 PARSONS ET AL. v. MANUFACTURERS INS. Co., 16 Gray, 463. 
 Marine insurance. 
 
 MIDDLESEX MANUFACTURING Co. v. LAWRENCE ET ALS., EXEC 
 UTORS. 1 Allen, 339. Bond. 
 
 PADDOCK AND FIELD v. COMMERCIAL INS. Co., 2 Allen, 93. Ma 
 rine insurance. 
 
 MERRILL v. BOYLSTON FIRE AND MARINE INS. Co., 3 Allen, 247. 
 Marine insurance. 
 
 WILLIAMS ET AL. v. BRADLEY ET ALS., 3 Allen, 270. Will. 
 
 COMMONWEALTH v. BANK OF MUTUAL REDEMPTION, 4 Allen, 1. 
 Bank. 
 
 ERICKSON ET ALS. v. NESMITH ET ALS., 4 Allen, 233. Corpora 
 tion law. 
 
 CUNNINGHAM ET ALS. v. HALL, 4 Allen, 268. Warranty. 
 
 COMMONWEALTH v. TOWNSEND, 5 Allen, 216. Practice. 
 
 BAYLIES ET ALS. v. PAYSON, 5 Allen, 473. Equity. 
 
476 APPENDIX. 
 
 SMITH v. BOSTON AND MAINE R. R., 6 Allen, 262. Contract. 
 
 DOLE ET AL. v. NEW ENGLAND MUTUAL MARINE INS. Co., 6 
 Allen. 373. Insurance. 
 
 INHABITANTS OF PLYMOUTH v. RUSSELL MILLS, 7 Allen, 438. 
 Equity. 
 
 MERCHANTS BANK OF NEWBURYPORT v. STEVENSON ET ALS. 
 7 Allen, 489. Equity. 
 
 BARNARD ET AL^. v. VERMONT AND MASSACHUSETTS R. R. Co., 
 7 Allen, 512 Corporation law. 
 
 CITIZENS MUTUAL FIRE INS. Co. v. SORTWELL ET ALS., 8 Allen, 
 217. Insurance. 
 
 WALES ET ALS. v. CHINA MUTUAL INS. Co., 8 Allen, 380. Insur 
 ance. 
 
 THAYER v. WELLINGTON ET ALS., 9 Allen, 283. Will. 
 
 CHASE v. ALLIANCE INS. Co., 9 Allen, 311. Ship. 
 
 ATTORNEY-GENERAL v. RECTOR AND CHURCHWARDENS OF TRIN 
 ITY CHURCH ET ALS., 9 Allen, 422. Charitable uses. 
 
 BODMAN ET AL. V. AMERICAN TRACT SOCIETY ET ALS., 9 Allen 
 
 447. Will. 
 
 GARDNER v. BOSTON WATER POWER Co. ET AL., 9 Allen, 466. 
 Contract. 
 
 UNION RAILWAY Co. v. MAYOR, &c. OF CAMBRIDGE ET AL., 11 
 Allen, 287. Railroad. 
 
 ELY ET AL. v. Me KAY ET ALS., 12 Allen, 323. Specific perform 
 ance. 
 
 WALLACE v. BEEBE ET ALS., 12 Allen, 354. Contract. 
 
 PENNIMAN ET AL. v. SANDERSON ET ALS., 13 Allen, 193. Trustees. 
 
 DABNEY v. NEW ENGLAND MUTUAL MARINE INS. Co., 14 Allen, 
 300. Insurance. 
 
 SMITH v. MUTUAL LIFE INS. Co. OF NEW YORK, 14 Allen, 336. 
 Equity. 
 
 ESSEX Co. v. PACIFIC MILLS, 14 Allen, 389. Currency. 
 
 BOSTON GAS-LIGHT Co. v. OLD COLONY AND NEWPORT RAIL 
 WAY Co., 14 Allen, 444. Railroad. 
 
 RYDER ET AL. v. PHCENIX INS. Co., 98 Mass. 185. Marine Insur 
 ance. 
 
 SHAW v. SPENCER ET ALS., 100 Mass. 382. Trust. 
 
 PALMER, ADMINISTRATOR, v. STEVENS, 100 Mass. 461. Equity. 
 
 OLIVER v. LIVERPOOL AND LONDON LIFE AND FIRE INS. Co., 
 100 Mass. 531. Tax. 
 
CASES ARGUED FROM 1857 TO 1874. 477 
 
 MASSACHUSETTS GENERAL HOSPITAL v. INHABITANTS OF SOMER- 
 
 VILLE, 101 Mass. 319. Tax. 
 
 RYDER ET AL. v. PHCENIX INS. Co., 101 Mass. 458. Review. 
 STOCKBRIDGE IRON Co. v. HUDSON IRON Co., 102 Mass 45. 
 
 Equity pleading and practice. 
 POLLOCK v. LEARNED, 102 Mass. 49. Widow. 
 COOMBS v. NEW BEDFORD CORDAGE Co., 102 Mass. 572. Master 
 
 and servant. 
 
 COMMONWEALTH v. EASTERN R. R. Co., 103 Mass. 254. Railroad. 
 KEENE v. EASTERN R. R. Co., 103 Mass. 259. Same. 
 THWING v. GREAT WESTERN INS. Co., 103 Mass. 401. Marine 
 
 insurance. 
 BREWER v. BOSTON THEATRE, 104 Mass. 378. Corporation. 
 
 Equity. 
 PADDOCK AND FIELD v. COMMERCIAL INS. Co., 104 Mass. 521. 
 
 Marine insurance. 
 
 BACON v. POMEROY ET ALS., 104 Mass. 577. Partnership. 
 ROTCH v. MORGAN, 105 Mass. 426. Executor. 
 ELLIS v. BOSTON, HARTFORD, AND ERIE R. R. Co., 107 Mass. 1. 
 
 Mortgage. 
 
 EMERY v. PARROTT, 107 Mass., 95. Insane person. Equity. 
 MERRIMACK MANUFACTURING Co. v. QUINTARD ET ALS., 107 
 
 Mass. 127. Damages. 
 
 CORY v. BOYLSTON INS. Co., 107 Mass. 140. Marine insurance. 
 STOCKBRIDGE IRON Co. v. HUDSON IRON Co., 107 Mass. 290. 
 
 Equity. Deed. 
 
 SOHIER v. TRINITY CHURCH, 109 Mass. 1. Trust. 
 HOWARD v. GREAT WESTERN INSURANCE Co., 109 Mass. 384. 
 
 Marine insurance. 
 
 FLORENCE SEWING MACHINE Co. v. GROVER AND BAKER SEW 
 ING MACHINE Co., 110 Mass. 1. Injunction. 
 WORCESTER GAS LIGHT Co. v. CITY or WORCESTER, 111 Mass. 
 
 353. Contract. 
 LOWELL v. BOSTON, 111 Mass. 454. City. Constitutionality of 
 
 a certain statute. 
 COMMONWEALTH v. SHOE AND LEATHER DEALERS INS. Co., 112 
 
 Mass. 131. Insurance. 
 
478 APPENDIX. 
 
 CASES AllGUED BEFORE THE SUPREME COURT OF THE 
 UNITED STATES, FROM 1857 TO 1874. 
 
 DEAN v. MASON ET AL., 20 How. 198. Patent rights. 
 
 LAWRENCE v. TUCKER, 23 How. 14. Mortgage. 
 
 THE ISLAND CITY, 1 Black. 121. Salvage. 
 
 THE SHIP MARCELLUS, 1 Black. 414. Practice. 
 
 THE UNITED STATES v. ANDRES CASTILLERO, 2 Black. 17. Land 
 law. 
 
 CALAIS STEAMBOAT Co. v. VAN PELT S ADMINISTRATOR, 2 Black. 
 372. Principal and agent. 
 
 PARKER v. WINNIPISEOGEE LAKE COTTON AND WOOLLEN COM 
 PANY, 2 Black. 545. Chancery. 
 
 CROSS v. DE VALLE, 1 Wallace, 1. Alien. Devise. Equity. 
 Pleading. 
 
 TURRILL v. THE MICHIGAN SOUTHERN ETC. R. R. Co., 1 Wall. 
 491. Patent. 
 
 HAWTHORNE v. CALEF, 2 Wall. 10. Constitutional law. 
 
 LOWBER v. BANGS, 2 Wall. 728. Charter-party. 
 
 THE KIMBALL, 3 Wall. 37. Lien. 
 
 STANLEY v. COLT, 5 Wall. 119. Legislative power. 
 
 MAURAN v. INSURANCE COMPANY, 6 Wall. 1. Insurance. 
 
 THE AMELIE, 6 Wall. 18. Commercial law. Lien. 
 
 RUBBER COMPANY v. GOODYEAR, 6 Wall. 153. Practice. 
 
 LORINGS v. MARSH, G Wall. 337. Will. 
 
 UNITED STATES v. ADAMS, 7 Wall. 4G3. Heads of departments. 
 Government contracts. 
 
 AGAWAM COMPANY v. JORDAN. 7 Wall. 583. Patent. Evidence. 
 
 THE FLOYD ACCEPTANCES, 7 Wall. 666. Bills of exchange. 
 
 EURMAN v. NICHOL, 8 Wall. 44. Jurisdiction. Constitutional 
 law. Bank. 
 
 PAUL v. VIRGINIA, 8 Wall. 168. Constitutional laws. 
 
 MOREY v. LOCKWOOD, 8 Wall. 230. Patent. 
 
 HOME OF THE FRIENDLESS v. ROUSE, 8 Wall. 430. Constitu 
 tional law. 
 
 THE WASHINGTON UNIVERSITY v. ROUSE, 8 Wall. 439. Con 
 stitutional law. 
 
 WILLARD v. TAYLOE, 8 Wall. 557. Equity. 
 
 THE POTOMAC, 8 Wall. 590. Admiralty. Collision. 
 
CASES ARGUED FROM 1857 TO 1874. 479 
 
 HEPBURN v. GRISWOLD, 8 Wall. 603. Legal tender. 
 
 MAGUIRE v. TYLER, 8 Wall. 650. Public lands. 
 
 THE HARRIMAN, 9 Wall. 161. Charter-party. 
 
 UNITED STATES v. ADAMS, 9 Wall. 554. Court of Claims. Practice. 
 
 WALKER v. WALKER S EXECUTOR, 9 Wall. 743. Trustee. Hus 
 band and wife. 
 
 STIMPSON v. WOODMAN, 10 Wall. 117. Patent. 
 
 MARBLE COMPANY r. RIPLEY, 10 Wall. 339. Equity. Entry for 
 condition broken. Corporeal interest. 
 
 LIVERPOOL INS. Co. v. MASSACHUSETTS, 10 Wall. 566. Consti 
 tutional law. Corporations. 
 
 MERCHANT S BANK v. STATE BANK, 10 Wall. 604. National 
 banks. Principal and agent. 
 
 VIRGINIA v. WEST VIRGINIA, 11 Wall. 39. Constitutional law. 
 Jurisdiction. 
 
 GARNETT v. UNITED STATES, 11 Wall. 256. Jurisdiction. 
 
 MCVEIGH v. UNITED STATES, 11 Wall. 259. Confiscation acts. 
 
 GALVESTON RAILROAD v. COWDREY, 11 Wall. 459. Mortgage. 
 
 Mo WRY v. WHITNEY, 14 Wall. 620. Patent. 
 
 MADDOX v. UNITED STATES, 15 Wall. 58. The Rebellion. Pur 
 chasing agents. 
 
 THE NITKO-GLYCERINE CASE, 15 Wall. 524. Common carriers. 
 
 DAVIS v. GRAY, 16 Wall. 203. Condition. Practice. Conflict 
 of jurisdiction. 
 
 OSBORNE v. MOBILE, 16 Wall. 479. Constitutional law. 
 
 WILLIAMS v. BAKER, 17 Wall. 144. Des Moines river grants. 
 
 HOLDEN v. JAY, 17 Wall. 211. Breach of condition. Indian tribes. 
 
 STATE v. STOLL, 17 Wall. 425. Construction. 
 
 CARLTON v. BOKEE, 17 Wall. 463. Patent. 
 
 UNITED STATES v. Buzzo, 18 Wall. 125. Internal revenue. 
 Practice. 
 
 TRASK v. MAGUIRE, 18 Wall. 391. Taxation. 
 
 CASE OF THE SEWING MACHINE COMPANIES, 18 Wall. 553. Juris 
 diction. 
 
 BULLARD v. BANK, 18 Wall. 589. Lien. Bank stock. 
 
 THE DOLLAR SAVINGS BANK v. UNITED STATES, 19 Wall. 227. 
 Internal revenue. 
 
INDEX TO VOLUME 1. 
 
 ABBOT, JOSEPH, third master of Water- 
 town Academy, 13. 
 
 Abbot, J. G., 33*5. 
 
 Abolitionists See Antislavery Society. 
 
 Adams, Samuel, 131. 
 
 Address to the People of Mass., on the 
 Coalition, 138 et seq. ; in 1860, 329 et 
 seq. 
 
 Admiralty, process in, does not extend 
 to land, 275 et seq. 
 
 Admiralty Practice, regulation of, 276. 
 
 Aiken, David, 335. 
 
 Aiken, John, 335. 
 
 Alabama, validity of its domestic legis 
 lation during the civil war, 371 et seq. 
 
 Alien Enemy, the Southern Confederacy 
 was not an, 360-366. 
 
 Allegiance. See Citizenship. 
 
 Allen, Jonathan, father of Mrs. M. Malle- 
 ville Curtis, 350, note. 
 
 Allen, Miss M. M. See Curtis, Mrs. M. 
 M. 
 
 Allen, Mrs. Maria Malleville, aunt of 
 Mrs. M. Malleville Curtis, 350, note. 
 
 Allen, Rev. Thomas, first minister of 
 Pittsfield, 350, note. 
 
 Allen, Kev. William, President of Bow- 
 doin College, 350, note. 
 
 Alvord, James C., intimate friend of 
 Judge Curtis, 47, 57; death and char 
 acter of, 90- J4. 
 
 Alvord, Mrs. James C.. 91, note. 
 
 Amendment of the Constitution, XIII., 
 proposed and declared to have been 
 ratified, 387, 388; XIV., proposed and 
 declared to have been ratified, 388, 396 ; 
 XV., proposed and declared to have 
 been ratified, 398. 
 
 Angier, John, his school at Medford, 14. 
 
 Antislaverv Societv, excitement pro 
 duced by, in 1835, 72 
 
 Appleton, John, teacher of Judge Cur 
 tis, 13. note. 
 
 Appleton, Wm. H., Representative in 
 Congress, 164, 167. 
 
 Appointing Power. See Office, Re 
 moval, &c. 
 
 Arbitrary Arrests. See Habeas Corpus. 
 
 Ashmun, John Hooker, Itovall Professor 
 of Law, 42. 
 
 Attorney-General. See Black, and 
 Stanbery. 
 
 Augusta (in Maine), City of. See Mu 
 nicipal Corporation. 
 
 BACON. LORD, Works of, studied by 
 
 Judge Curtis, 40. 
 Badger, George N., 241. 
 Bancroft, George, appointed Collector of 
 
 the Port of Boston, 81. 
 Bank, Commonwealth, failure of, 79. 
 Bank Paper, illegal in Missouri, of less 
 
 denomination than $5, 277. 
 Banks. See Specie Pavments. 
 Banks, failure of, 81. 
 Banks, National, restrictions on, in mak 
 ing loans, 318 et seq. 
 Barristers, Eng ish, compared with 
 
 American lawyers, 96. 
 Bartlett. Homer^ 335. 
 Bartlett, Sidney, 321, 335; on Judge 
 
 Curtis s Executive Power," 358. 
 Bates, Wm. G., 335. 
 Baylies, William, 335. 
 Beebe, James M., 335. 
 Beer, regulations of sale of. See Vested 
 
 Rights. 
 
 Benjamin, J. P., 179, 180 and note. 
 Bible, the, a book for lawyers, 326. 
 Bigelow, Geo. Tyler, classmate of Judge 
 
 Curtis, Chief justice of Mass., 11, note ; 
 
 his excellent judicial style, 34, note. 
 Bill of Exchange, general promise to 
 
 accept, 289. 
 Billings, Elixabeth. See Ticknor, Mrs. 
 
 Elizabeth. 
 
 Binnev, Horace, 8, note. 
 Bishop, Henry W., 335. 
 Black, Jeremiah H., Attorney-General 
 
 official letter from, 250. 
 
 31 
 
482 
 
 INDEX TO VOLUME I. 
 
 Blair, Montgomery, counsel in the 
 Dred Scott case, 240. 
 
 Bonds. See Coupons. 
 
 Border States, efforts to retain them in 
 the Union, 330. 
 
 Boutwell, George S., his first election as 
 Governor of Mass., 138 et seq. 
 
 Bowdoin Prizes at Harvard, gained bv 
 J udge Curtis, 38, 44. 
 
 Brown, Mrs. Elizabeth Ticknor (nee 
 Curtis), 445. 
 
 Browne, Causten, remarks of, concern 
 ing Judge Curtis, 109-171; letter of, 
 to Judge Curtis, 408. 
 
 Browning, O. H., presides at a conven 
 tion in Philadelphia, 390. 
 
 Buchanan, James, President, 230; his 
 administration, 192, 193; official letter 
 to, 249. 
 
 Burke, Edmund, his skill in farming, 
 184. 
 
 Burnley, Albert S., (of Kentucky,) 108. 
 
 Burns, Anthony, case of, 173. 
 
 Burton, Warren, first master of the Wa- 
 tertown Academy, 12. 
 
 CABLES. Sea Telegraphic Cables. 
 
 Canada, disturbances in, in 1838, 80. 
 
 Campbell, Judge, 179; on Judge Curtis s 
 resignation, 250. 
 
 Campbell, St. George Tucker, on Judge 
 Curtis s resignation, 202. 
 
 Caroline, the steamer, destruction of, 80. 
 
 Carroll, Wm. Thomas, Clerk of the Su 
 preme Court of U. S., 212, 213, 210. 
 
 Catron, Judge, 104; on Judge Curtis s 
 resignation, 255. 
 
 Cavuga Indians, annuity of. pledged bv 
 the State of N. Y., 281 et seq. 
 
 Channing, Edward T., Professor of Rhet 
 oric, merits of, as a teacher, 33, note. 
 
 Charter, forfeiture of, in Missouri, 278 
 et seq. ; in New York, 279 ; in Eng 
 land, ib. See Corporation. 
 
 Charters of Corporations. See Consti 
 tutional Law. 
 
 Chase, Chief Justice, declines to act as 
 an arbitrator, 311. 
 
 Cherokee Nation. See Indians. 
 
 Child, Linus, 335. 
 
 Child, Mrs. Lydia Maria, her first novel, 
 14, note. 
 
 Choate, Ruf us, consulted on the appoint 
 ment of Mr. Curtis as Judge, 154, 155, 
 150. 
 
 Cicero, his view of the objects of life, 
 452/453. 
 
 Citizens, privileges and immunities of, 
 in the several "States, 294 et seq., 301. 
 
 Citizenship. See Dred Scott Case. 
 
 Citizenship, native, not renounced by a 
 temporary allegiance, 438 et seq. 
 
 Civil War, beginning of, 347; distin 
 guished from foreign war, 3GO-3GG. 
 
 Clapp, Henry W., 335. 
 
 Clarke, Samuel C. and Sarah, descend 
 ants of William Curtis of Roxbury 
 5, note. 
 
 " Class of 1829." disturbances in Fresh 
 man year, 28 ; its record in regard to 
 Judge Curtis, 354, note. 
 
 Class Orator. Ste Devereux. 
 
 Clay, Henry, position of, in regard to 
 slavery, 80. 
 
 Clifford,"John H., Attorney-General of 
 Mass., 321, 335, 345. 
 
 Clifford, Judge, his notice of the death 
 of Judge Curtis, 451. 
 
 Club, The " Friday Evening," in Bos 
 ton, 421 and n< te. 
 
 Coalition, in Mass., between two parties, 
 130 et seq. 
 
 College Societies, Judge Curtis a mem 
 ber of. 34 and note. 
 
 Collier, Sir Robert Pollett, 441, note. 
 
 Comity, as between the States of the 
 Union, 87 et seq. 
 
 Commander-in-Chief. See Lincoln, 
 Abraham. 
 
 "Commerce," includes Fire and Marine 
 Insurance, 290 et seq. ; regulation of, 
 between the States, and with foreign 
 countries, 297 et seq.; what inter-state 
 is, 299 ; telegraphic intercourse is, 310. 
 
 Commercial power, extent and limits of, 
 312 et seq. 
 
 Commissioners of Knox Co. v. Aspin- 
 wall, case of, explained, 285. 
 
 Common Law, objections to codification 
 of, 74. 75; adaptation of its rules to 
 existing state of society, 2:)2. 
 
 Commonwealth v. Aves. See Med. 
 
 Compromise measures of 1850, 112 et 
 seq. 
 
 Conant, Edwin, classmate of Judge 
 Curtis, 40. 
 
 Condition, public grants made upon, 
 278 et seq. 
 
 Confederation, Articles of. See Citizens. 
 
 Conflict of Laws. See Slavery. 
 
 Congregationalism. See Unftarianism. 
 
 Conrad. Secretary of War, 107. 
 
 Constitution of Missouri construed, 277 
 et seq. 
 
 Constitution of U. S., binding force of, 
 122; construction of, by the Judici 
 ary, 401; character of, 404. 
 
 Constitutional Law, opinions given on 
 topics of, 209; Foreign Insurance 
 Companies, 293 et seq.; freedom of 
 trade, 297 et seq.; ex post facto legis 
 lation, 304 et seq. ; obligation of con 
 tracts, 308 et seq., 375 et seq. 
 
 Contracts, illegal, 318 et seq. 
 
 Convention held at Philadelphia in 1800, 
 letter to, 389, 390 et seq. 
 
 Convention of Mass., to ratify Constitu 
 tion of U. S., 131. 
 
INDEX TO VOLUME I. 
 
 483 
 
 Convicts, foreign, forbidden to land in 
 Mass., 130. 
 
 Corporation, breach of condition in its 
 charter, 279. 
 
 Coupons for payment of interest, 284 et 
 seq. 
 
 Crittenden, John J., Senator from Ken 
 tucky, 167 ; liking for Judge Curtis, 
 ib., 241 ; his proposed compromise, 
 336 et seq. 
 
 Crocker, Samuel L., 335. 
 
 Crown of Great Britain, petition to, 284. 
 
 Crow s-feet, badge on the coat-sleeve of 
 Harvard students, 23, note. 
 
 Currency, state of, in 1838, 81. See 
 Bank Paper. 
 
 Curtis, Mrs. Anna Wroe (Scollay), ill 
 ness and death of, 107-109. 
 
 Curtis, Mrs. Anna W., second wife of 
 Judge Curtis, 108, note; death of, 265, 
 note. 
 
 Curtis Arms, 2, note. 
 
 Curtis, Benjamin Robbins, birth of, 5 ; 
 early reading of, 7-10; schools at 
 tended by, 11 et seq. ; early religious 
 impressions, 18-21 ; boyish traits and 
 pursuits, 21-22; going to Harvard, 
 23; first written production, 24; en 
 ters Harvard, 26-28 ; anecdote of his 
 Freshman year, 28, 29; his steady 
 progress, 30 et seq. ; acquisitions, ib. ; 
 College friendships, 36, 37 ; early se- 
 dateness of manner, 36, 37; univer 
 sally called " Ben," 37, note ; gains a 
 Bowdoin prize, 38; graduates second 
 scholar, 39; oration at Commence 
 ment not delivered, 39, 40; appointed 
 Proctor, 40 ; enters the Law School, 
 41; steady progress, 42, 43; argues 
 in moot courts, 43 ; gains another 
 Bowdoin prize, 44; letter to G. W. 
 Phillips from Hanover, 45; leaves the 
 Law School for the country, 46 ; rea 
 sons for the change, 46-49, 51; letters 
 to G. W. Phillips, 51-55; engaged to 
 be married, 53; professional prospects 
 at Northfield, 54; rejoins the Law 
 School, 56; admitted as an attorney 
 of the common pleas, 58 ; marriage, 
 ib. ; trial of a shingle case, 60 ; famil 
 iarity with special pleading, 61; ad 
 vantages of residence in Northfield, 
 62 ; looks for a wider field, 63 ; plan 
 of a city and country partnership with 
 J. C. Alvord, 64; invited to join Mr. 
 C. P. Curtis, 66; admitted as an at 
 torney of Supreme Court of Mass., 
 69 ; removes to Boston, 70, 71 ; new 
 arrangements with Mr. C. P. Curtis, 
 77 ; practice in Boston from 1834 to 
 1851, 82 et seq. ; character as an ad 
 vocate, ib. ; argues the case of the 
 slave Med, 85 ; anecdote of, when 
 opposed to Mr. Wel)ster, 89; com 
 
 pared to Sir Wm. Follet, 96 ; rule of 
 life in regard to public affairs, 97-99 ; 
 writes on the Repudiation of State 
 Debts, 99 et seq. ; made a member of 
 the Corporation of Harvard College, 
 106, 109 ; letters to Mr. Ticknor, 107, 
 109, 110, 111; second marriage, 108; 
 welcomes Mr. Webster in a public 
 address, 112-116; opinions on the ex 
 tradition of fugitive slaves, 121-136 ; 
 speech of, on the duty of obeying the 
 Constitution, 123 et seq. ; becomes a 
 member of the legislature, 137; de 
 nounces the Coalition of 1851, in an 
 Address to the People, 138 et seq. ; 
 his reticence on ordinary subjects of 
 party contest, 150 et seq. ; appointed a 
 Justice of Supreme Court of U. S., 
 153 et seq. ; nominated to and con 
 firmed by the Senate, 156, note; his 
 letter to President Fillmore, on re 
 ceiving his commission, 156; takes 
 the oath of office as Judge, 157; let 
 ter to Mr. Webster on the judicial 
 duties, ib. ; how his character was 
 tried on his accession to the bench, 
 158 et seq. ; his judicial impartiality, 
 162; rules that the jury must take the 
 law from the court, 161, 162; takes 
 his seat on the bench of the Supreme 
 Court, 163 ; welcomed by his breth 
 ren, ib. ; letters to Mr. Ticknor, 
 163 ; his college days, 166 ; appear 
 ance and manners at the age of forty- 
 two, 167; readiness to give others 
 their due, ib.; opinions written by. 
 in the Supreme Court, 169; his de 
 meanor as a circuit judge, 160-171; 
 letters to Mr. Ticknor, 172; charge 
 of, to the Grand Jury, 174; advises 
 on books for the Public Library, 179, 
 180 ; his opinion of the French com 
 mercial jurists, 179 ; purchases an es 
 tate at Pittsfield, 182, 183; anecdote 
 of, 184; letters to Mr. Ticknor, 185, 
 187, 190; projects and executes his 
 edition of Supreme Court Decisions, 
 388-191; last attendance as a mem 
 ber of the Supreme Court, 192 et seq. ; 
 foreshadows the sectional conflict, 
 192-194 ; coi respondence with Chief 
 Justice Taney, 212 et seq.; remarks 
 on the character of Judge Taney, 230, 
 231 and note ; resignation from the 
 bench, 243 et seq. ; returns to the bar, 
 264; national reputation, 264 et seq.; 
 opinions sought for, 265 et seq. ; pro 
 fessional income from 1857-1874, 267, 
 268 ; opposes usurpation, 347 et seq. , 
 supports the President s just powers, 
 347 et seq.; speech in Faneuil Hall, 
 on the Crittenden Compromise, 337 et 
 seq. ; efforts to produce a conciliatory 
 spirit in Mass., 327 et seq.; change 
 
484 
 
 INDEX TO VOLUME I. 
 
 of religious sentiments, 322 et seq. ; 
 religious character, 324 et seq. ; his 
 course in regard to the Civil War, 346 
 et seq.; publishes his pamphlet on 
 Executive Power, 350 et seq.; his 
 motives for that publication, 350-353 ; 
 his feelings about the war, in 1862, 
 353 ; his distrust of Mr. Stanton, 353, 
 354 ; appointed umpire under a treaty, 
 367-369; death of his mother, 370; 
 opinions given at the bar, 371 et seq. ; 
 his letter to the Philadelphia Conven 
 tion of 1866, 389, 390; requested to 
 defend President Johnson on the im 
 peachment trial, 407, 408; repairs to 
 Washington, 408 et seq. ; opening ar 
 gument on the trial, 410 et seq.; de 
 scription of his manner and bearing, 
 413-415 ; letters to Mr. Ticknor dur 
 ing the trial, 415, 416; effect of his 
 argument, 416, 417 and note ; declines 
 office of Attorney-General, 418, 419; 
 constant professional labors from 1869 
 to 1874, 420; last five years of his 
 life, 420 et seq. ; loses two young 
 children, 441 ; goes abroad for a few 
 months, 441 et seq.; returns home, 
 443 ; declines an appointment as coun 
 sel for the U. S. at Geneva, ib.; de 
 livers lectures at Harvard Law School, 
 443 ; his feelings in regard to the office 
 of Chief Justice of the U. S., 444; 
 death of his eldest daughter, 445 ; de 
 pression caused by domestic sorrows, 
 445, 446 ; argument in the Union Pa 
 cific case, 446; last argument in the 
 Supreme Court of the U. S., 446, note ; 
 goes to Newport in June, 1874, 446; 
 failing health, last illness, and death, 
 446 et seq.; character of, 449 et seq. 
 
 Curtis, Benjamin (2d), grandfather of 
 Judge Curtis, 4. 
 
 Curtis, Benjamin (3d), father of Judge 
 Curtis, 5. 
 
 Curtis, Catharine P., her account of the 
 family, 5, note. 
 
 Curtis, Charles Pelham, character and 
 professional standing, 67 ; pedigree of, 
 67, note; partnership with B. K. Cur 
 tis, 68 ; new arrangements with, 77, 
 214, 215, 217, 218. 
 
 Curtis, Connecticut family of, 2, note, 
 422; general traits of the descendants 
 of William, of Koxbury, ib. 
 
 Curtis, Eliza. See Woodward. 
 
 Curtis, Mrs. Eliza Maria, first wife of 
 Judge Curtis, 48, 58; death of, 103- 
 105. 
 
 Curtis, Mrs. Elizabeth, grandmother of 
 Judge Curtis, 4 and note. See Tick 
 nor. 
 
 Curtis, Elizabeth Ticknor. See Brown, 
 Mrs. E. T. 
 
 Curtis, family name of, 1-3. 
 
 Curtis families in England, 3, note. 
 
 Curtis, George Ticknor, birth of, 5 ; let 
 ter of, to Judge Curtis, on his proposed 
 resignation, 245, 246. 
 
 Curtis House, in Koxbury, 2, 5, note. 
 
 Curtis, Isaac, 2. 
 
 Curtis, Mrs. Lois, mother of Judge Cur 
 tis, 5, 6 ; early widowhood of, 6, 7 ; 
 opens a circulating library, 7 ; keeps 
 a shop, 10 ; her self-devotion, 14-17 ; 
 her tenderness in old age, 17, note ; 
 her religious character, 21 ; residence 
 of, in Cambridge, 49 ; relieved of the 
 cares of housekeeping, 78; death of, 
 369, 370. 
 
 Curtis, Mrs. Maria Malleville (nee 
 Allen), marriage of, 350, note. 
 
 Curtis, Mrs. Mary Oliver (nee Story), 
 109, 110. 
 
 Curtis, Philip, married Amy Washing 
 ton, 2, note. 
 
 Curtis, Rev. Philip, minister of Sharon, 
 4 and note. 
 
 Curtis, Sarah, wife of William, of Rox- 
 bury, 1. 
 
 Curtis, Thomas B., 72, 75. 
 
 Curtis, Walter, son of Judge Curtis, 187, 
 190; ill health in college, 248; notice 
 of, 457. 
 
 Curtis, William, of Roxbury, progenitor 
 of the Curtis family in Massachusetts, 
 1-4. 
 
 Curtis, William E., Judge of N. Y. Su 
 perior Court, 4, note; letter to, 421. 
 
 DANA, RICHARD H., Jr., commends 
 
 Judge Curtis s judicial fairness, 162. 
 Daniel, Judge, afflicting death of his 
 
 wife, 193. 
 Davis, Isaac, 335. 
 Decisions of the Supreme Court of U. S., 
 
 188 et seq. 
 
 Dedication. See Public Property. 
 Deerfield, address at, on Washington s 
 
 birthday, 55. 
 Deming, Charles, early friend of Judge 
 
 Curtis, 53 ; death of, 68. 
 Denison, Rt. Hon. John Evelyn, 441, 
 
 442. 
 
 Devereux, Geo. H., class orator, 35, note. 
 Dexter, Mrs. Win. S., marriage of, 180, 
 
 246. 
 Dickerson, Edw. N., 210, note; on 
 
 Judge Curtis s resignation, 257. 
 Dickinson, Edward, 335. 
 Dodge, John C., 321. 
 Dred Scott Case, history and conse 
 quences of, 192; dissenting opinion 
 
 in, 204. 
 
 ELDON, LORD, 85, note. 
 
 Eliot, John, Apostle to the Indians," 
 
 brother of Mrs. Sarah Curtis, 1. 
 Eliot, T. D.,321. 
 
INDEX TO VOLUME I. 
 
 485 
 
 Eminent Domain, exercise of the power 
 
 of, 3J.5. 
 Emmanuel Parish, in Boston, organized, 
 
 323. 
 Episcopal Church, feeble condition of, in 
 
 New England, 18 ; confirmation in, 
 
 323. 
 Evarts, Wm. M., retained as one of the 
 
 counsel for President Johnson, 409, 
 
 note. 
 Evelyn, John, ancestor of Lord Ossing- 
 
 ton, 441, note. 
 Everett, Edward, Governor of Mass., 
 
 75 ; inauguration as President of Har 
 vard, 110. 
 Evil, Origin of, a boy s essay on the, 24 
 
 et seq. 
 Ex Post Facto Legislation, what is, 304 
 
 et seq. 
 
 Executions. See Admiralty. 
 Executive Power, Judge Curtis s pam 
 phlet on, 350 et seq. 
 Executors, when accountable or not, in 
 
 the Federal courts, 371 et seq. See 
 
 Trustees. 
 Extremists, Northern and Southern, 
 
 158-160. 
 
 FAME, the love of, 452 et seq. 
 
 Faneuil Hall, peculiarities of its audi 
 ences, 123 ; meeting at, in 1850, ib. 
 
 Farm School in Mass., 108. 
 
 Fearing, Albert, 335. 
 
 Field, David Dudley, his argument 
 against the "Test Oath," 371, note. 
 
 Fillmore, Millard, President, his public 
 character, 153 ; his early preference 
 for Mr. Curtis as Judge, 166 ; letters 
 of, to Mr. Webster, 154, 155; letter 
 to, as ex-President, 250; his reply, 
 251. 
 
 Fines and Forfeitures. See Pardoning 
 Power. 
 
 Fish, Hamilton, 167. 
 
 Florida, escape of slaves into, in 1789, 
 135. 
 
 Follet, Sir William, compared with B. 
 K. Curtis, 96. 
 
 Foreign Corporations may be excluded 
 from doing business in a State, 294. 
 
 Foreign Sovereign, right of, to act as 
 trustee for claims of his subjects on a 
 State of this Union, 283, 284. 
 
 "Foreign State," meaning of, in the 
 Constitution of U. S., 281 et seq. 
 
 Foreign Trading Companies, rights of, 
 in States where not created, 293 et 
 ^ seq. 
 
 Forfeitures, different kinds of, 278 et 
 seq. 
 
 Francis, Rev. Convers, minister of Wa- 
 tertown, instructs Judge Curtis, 14, 
 15. 
 
 Francis, Lydia Maria. See Child. 
 
 Franchises. See Vested Rights, Obliga 
 tion of Contracts. 
 
 Free Soil Party forms a coalition with 
 the Democrats, 137 et seq. ; origin of, 
 in Mass., 113. 
 
 Freedom of Speech, constitutional guar 
 anty of, 412 et seq. 
 
 French Spoliation Bill, passage of, 176. 
 
 Fugitive servants, Colonial agreement, 
 in 1643, for surrender of, 134. 
 
 Fugitive Slave Law, amendment of, pro 
 posed, 345. 
 
 Fugitive Slaves, extradition of, 113, 119, 
 120, 122-136; trials, 173, 174. 
 
 GAINES, MRS., her celebrated litigation, 
 168. 
 
 Gardner, Henry J., 335. 
 
 General Average, case of, 271 et seq. 
 
 Gerrish, Miss, schoolmistress, 11, note. 
 
 Gilchrist, John James, school-fellow of 
 Judge Curtis, 27, note. 
 
 Goodrich, Charles B., 335. 
 
 Government, de facto, and de jure, 
 372. 
 
 Governor of Mass., limited power of re 
 moval, 269 et seq. 
 
 Governor of Missouri, pardoning power 
 of, 277 et seq. 
 
 Grant, Ulysses S., President, 421. 
 
 Grants, legislative. See Obligation of 
 Contracts. 
 
 Gray, Dr., of Utica, 447. 
 
 Greeley, Horace. See Tribune. 
 
 Greenough, William W., 187. 
 
 Greenwood, Rev. Dr., minister of King s 
 Chapel, 322. 
 
 Grier, Judge, his fondness for Judge 
 Curtis, 163; course of, in Dred Scott 
 case, 209, note. 
 
 Grinnell, Joseph, 335. 
 
 Groesbeck, retained as one of the coun 
 sel for President Johnson, 409, note. 
 
 Grotius, 129. 
 
 Guaranty, when not addressed to any 
 particular person, 289. 
 
 Guardians. See Trustees. 
 
 HABEAS CORPUS, vindication of, by 
 Chief Justice Taney, 240 ; suspension 
 of, by an Executive proclamation, 349 
 et seq. 
 
 Hale, John P., his views respecting the 
 rights of juries to judge the law, 161, 
 162 ; lecture by, 174. 
 
 Hamburg, free town of, temporary alle 
 giance to, 438. 
 
 Hancock, Charles L., classmate of Judge 
 Curtis, 70, note. 
 
 Hardwicke, Lord, clerk to an attorney, 
 41, note. 
 
 Harvard College, obsolete customs at, 
 23. note; hostility to, in Western 
 Mass , 49, 50 ; Corporation of, 106. 
 
486 
 
 INDEX TO VOLUME I. 
 
 Havard, Charles, grantee of a cable 
 right, 311. 
 
 Hawkers and Pedlers. See Commerce. 
 
 Head, Sir Edmund, Governor-General of 
 Canada, 187, 188 ; on Judge Curtis s 
 "Executive Power," 360, note; sug 
 gests the appointment of Judge Curtis 
 as umpire under a treaty, 368, 369, 
 and note. 
 
 Hedge, Isaac L., 335. 
 
 Hill, Clement Hugh, letter of, to the 
 editor, 23-i. 
 
 Hill, Isaac, Governor of New Hamp 
 shire, 80. 
 
 Hillard, George S., graduates from Har 
 vard, 27, note; anecdote of, at the 
 Law School, 45, note, 321. 
 
 Hobomok, Mrs. L. M. Child s first work, 
 14, note. 
 
 Holmes, Oliver Wendell, classmate of 
 Judge Curtis, 34 ; his account of him, 
 ib. ; his Phi Beta Kappa poem, 35, 
 note. 
 
 Hubbard, Samuel, 79. 
 
 Hudson s Bay Company. See Treaty of 
 Oregon. 
 
 Huntington, F. D., Bishop, formerly a 
 Unitarian clergyman, 322 et seq.; 
 letter of, to the author, 323. 
 
 ILLINOIS, two per cent claim, 423 et seq. ; 
 
 condemnation of lands in, for use of 
 
 certain railroads, 430 et seq. 
 Impeachment. See Johnson, Andrew. 
 Indian Wars, 73. 
 Indians, position of, in the U. S., 281 
 
 et seq.; in the British dominions, 
 
 283. 
 Insurance, business of, is commerce, 
 
 296. 
 Insurance Companies. See Foreign 
 
 Trading Companies. 
 
 Insurance, Marine. See General Aver 
 age. Fire, valuation of thing insured, 
 
 274, 275. 
 
 Inspection Laws, what are not, 302. 
 Intercourse is commerce, 297. 
 
 JACKSON, DR. JAMES, 335; on Judge 
 Curtis s "Executive Power," 356, 
 357. 
 
 Johnson, Alexander S., Judge, com 
 missioner under treaty for settlement 
 of claims, 367, 368. 
 
 Johnson, Andrew, President, accession 
 of, 383; his plan for restoring the 
 seceded States to the Union, 383 et 
 seq. ; his proclamation of amnesty 
 and pardon, ib. ; proclamation for ap 
 pointment of Provisional Governors, 
 384; conflict with Congress, 388 et 
 seq. ; vetoes the Reconstruction Acts, 
 397 et seq.; opposed by the majority 
 of Congress, 401 et seq. ; continues 
 
 Mr. Lincoln s Cabinet in office, 402; 
 impeachment of, 406 et seq. ; trial of. 
 407 et seq. ; his bearing at the time of 
 the impeachment, 410 : character of, 
 described by Judge Curtis, 415-417; 
 acquittal of, 417. 
 
 Johnson, Reverdy, on Judge Curtis s 
 resignation, 260-262; letter of, to a 
 meeting in Baltimore, 237, 238 ; his 
 argument against the "Test Oath." 
 370 ; letter to, concerning the office of 
 Chief Justice, 444. 
 
 Jurv Trial, test of a judge s capacitv, 
 157. 
 
 Jus Publicum, the, defined, 314. 
 
 KENDALL, MR., second master of Water- 
 town Academy, 13. 
 
 Kent, Chancellor, 69, note. 
 
 Kent, Governor of Maine, 89. 
 
 Kent, William, becomes Dane Professor 
 at Cambridge Law School, 107, 110, 
 111 ; resignation of, 107, note. 
 
 King s Chapel, liturgy used at, 322. 
 
 LAND OFFICE. See Illinois, Missis 
 sippi. 
 
 Lapse of time, when a bar in equitv, 
 437. 
 
 Latin School, in Boston, 11. 
 
 Latrobe, John H. B., 102. 
 
 Law, effect of the practice of, 78. 
 
 Law School, Harvard, revival of, 42 ; 
 moot courts at, 43, 44. note. 
 
 Lawyers in England and America com 
 pared, 96. 
 
 Leigh, C. C., grantee of a cable right, 
 311. 
 
 Lieber, Francis, 31, 129. 
 
 Lincoln, Abraham, President, election 
 of, 328; his use of unconstitutional 
 powers, 347 et seq. ; his Emancipation 
 Proclamation, 348 ; his interview with 
 Chicago clergymen, 348, note; his 
 suspension of the habeas corpus, 349 ; 
 his political contest with Mr. Douglas, 
 354, note; his feeling toward Judge 
 Curtis, ib. ; proclamation of 1862, how 
 regarded by the Democrats, 359, 360 
 his Habeas Corpus and Martial Law 
 Proclamation not filed in the State 
 Department, 366 and note ; assassina 
 tion, 383; plan for restoring the se 
 ceded States to the Union, 385 et seq. ; 
 his proclamation suspending the ha 
 beas corpus, 459 et seq. 
 
 Lincoln, Levi, 335. 
 
 Liverpool and London and Globe Com 
 pany. See Foreign Trading Com 
 panies. 
 
 Loans by National Banks, 318 et seq. 
 
 Local Law, binding force of, in the Fed 
 eral courts, 203/204, 209, 210. 
 
INDEX TO VOLUME I. 
 
 487 
 
 Loring, Charles G., 321. 
 
 Loring, Ellis Gray, argues the case of 
 
 the slave Med, 88, note. 
 Loring, Mrs. Harriet B., letter to Mrs. 
 
 Curtis, 415. 
 Low, Mrs. Wm. G., daughter of Judge 
 
 Curtis, 248. 
 Lunt, Geo. r 321. 
 
 MACFARLAND, W. W., 312, note. 
 
 Maine, law of hawkers and pedlers in. 
 See Commerce. 
 
 Mansfield, Lord. See Somerset s Case. 
 
 Marshal, U. S., murder of an officer of 
 the, 173. 
 
 Marshall, Chief Justice, 69, note, 164. 
 
 Martial Law, limitations of, 363-365. 
 
 Massachusetts, law of, inconsistent with 
 slavery, 88. 
 
 McLean, Judge, when appointed to the 
 bench, 155, 164; supposed to be a 
 candidate for the Presidency, 180; on 
 Judge Curtis s resignation, 258-260. 
 
 Med, the slave . child, case of, 85 et 
 seq. 
 
 "Melmoth the Wanderer," Maturin s 
 novel, 9, note. 
 
 Member of the General Convention of 
 the Episcopal Church, 324. 
 
 Merrick, Pliny, his reputation as an ad 
 vocate, 59." 
 
 Merryman, John, case of, 240, note, 459 
 et seq. See Habeas Corpus. 
 
 Merwin, Elias, contemplated business 
 arrangements with, 185. 
 
 Metcalfe, Dr. John T., of New York, 
 448. 
 
 Michigan, bountv of, on production of 
 salt, 308. 
 
 Milburn, W. H., lectures in Boston, 
 176. 
 
 Minnesota State Bonds, secured by mort 
 gage of certain property, 432 et seq. 
 
 Mississippi, public lands in, 426 et seq. 
 
 Missouri Compromise, 196. 
 
 Missouri Compromise Line, 241. See 
 Dred Scott Case. 
 
 Moot Courts. See Law School. 
 
 Morris, Robert, indictment of, for a mis 
 demeanor, 160 et seq.; his acquittal. 
 See Index, vol. ii., verb. Morris. 
 
 Motley, John Lothrop, 74. 
 
 Mbuntford, Ann, wife of Rev. John 
 Eliot, 2, note. 
 
 Municipal Corporation, scrip of, payable 
 to bearer, 284 et seq. ; presumption 
 that it means to observe its charter, 
 287, 288. 
 
 NATIONAL, BANKS. See Banks. 
 Negotiable Instruments. See Scrip, 
 
 Coupons. 
 Negotiable Paper, property conveyed as 
 
 security for, 433. 
 
 Nelson, retained as one of the counsel 
 for President Johnson, 409, note. 
 
 Nelson, Judge, 69, note; on Judge 
 Curtis s resignation, 254; opinion of, 
 prepared for "the Dred Scott case, 202, 
 203; dissenting opinion delivered in 
 the case, 235, 236. 
 
 Nevers, John, lawyer in Northfield, 46 ; 
 Sheriff of Franklin County, 47; his 
 associations with Judge Curtis, 55. 
 
 New England, people of, disposed to be 
 law-abiding, 122. 
 
 Newton, Edward A., 335. 
 
 New York, State of, its proprietary right 
 to lands under water, 311 et seq. 
 
 Niagara Falls, journey to, on horseback, 
 37. 
 
 North American Review. See State 
 Debts. 
 
 North German Confederation, treaty 
 with, in 1868, 439. 
 
 "OBITER DICTA," meaning of, 198, 
 
 note. 
 
 Obligation of Contracts, when not im 
 paired, 308 et seq.; when impaired, 
 
 375 et seq. 
 O Conor, Charles, his management of 
 
 the Forrest Divorce Case, 167. 
 Office, tenure of, in Mass., 269 et seq. ; 
 
 statutory in England, 270. 
 Officer, appointment of, in Mass., 269 ; 
 
 under Constitution of United States, 
 
 269, 270. 
 Ohio and Mississippi Railroad. See 
 
 Coupons. 
 
 Olmsted, Asa, disbarred, 59, 60. 
 Opinions of Judge Curtis, given at the 
 
 bar, 371-382, 423 et seq. 
 Opinions of the Supreme Court of the 
 
 U. S. are public property, 220. 
 Opinions written from April, 1873, to 
 
 June, 1874, 446. 
 Ossington, Lord. See Denison. 
 
 PAINE, H. W., 321, 335. 
 
 Palmer, Sir Roundell, 441. 
 
 Pardoning Power, scope of the, 277 et 
 seq. 
 
 Parens Patrue, Legislature of a State 
 represents the, 374. 
 
 Parker, Joel, 335. 
 
 Parker, Theodore, his " Sermon of Con 
 science," 125, 126; indictment of, 173- 
 175; indictment declared to be fatally 
 defective, 177, 178; his libel on Judge 
 Curtis, 178, note. 
 
 Parkman, Dr. Samuel, death of, 174. 
 
 Parsons, Theophilus, Chief Justice, 131. 
 
 Parsons, Theophilus. Professor, 335 ; on 
 Judge Curtis s "Executive Power," 
 355, 356. note, 365. 
 
 Partnership, when composed of citizens 
 and alien friends, 294 et seq. 
 
488 
 
 INDEX TO VOLUME I. 
 
 Paupers. Foreign, excluded from Mass., 
 130. 
 
 Peabody, Rev. Dr., minister of King s 
 Chapel, 322. 
 
 Peabody, George, 335. 
 
 Pease v. Peck, case of, 209, 210. 
 
 Penalties and Forfeitures, when barred, 
 cannot be revived, 304 et seq. 
 
 Perkins, Mrs. Edward, 8, note. 
 
 Personal Liberty Law, unconstitutional 
 character of, 345, 346; in Massachu 
 setts, efforts to repeal, 328 et seq. 
 
 Pettigru, J. L., on the Dred Scott case, 
 233. 
 
 Phillips, George Wm., anecdote related 
 by, 34, note; classmate and college 
 friend of Judge Curtis, 36; his ac 
 count of horseback journeys in col 
 lege, 37, 38 ; letters to, from North- 
 field, 51 et seq. 
 
 Phillips, S. H., 321. 
 
 Phillips, Wendell, his attitude in regard 
 to the surrender of fugitive slaves, 
 122; indictment of, 174, 175; indict 
 ment declared to be fatally defective, 
 177, 178. 
 
 Pitman, Judge, 154; on Judge Curtis s 
 resignation, 252. 
 
 Pittsh eld, country residence at, 182 et 
 seq. 
 
 Plunkett, William C., 335. 
 
 Police Powers, limits of, in reference to 
 vested rights, 377. 
 
 Pothier, Works of, 79, 81. 
 
 Prayer, reasonableness of, 325, 326. 
 
 President of the U. S., when bound by 
 the action of the Judiciary, 459 et 
 seq. 
 
 Private Property, when affected by 
 changes of use in public, 430 et seq. 
 
 Proclamations. See Lincoln, Abraham; 
 Johnson, Andrew. 
 
 Prohibition distinguished from Regula 
 tion, 300. 
 
 Promissory Note, distinguished from cer 
 tain forms of scrip, 285 et seq. 
 
 Public Lands. See Illinois, Mississippi. 
 
 Public Law, characteristics of the great 
 writers on. 129. 
 
 Public Library of Boston, enlargement 
 of, 178-180. 
 
 Public Property, changes in use of, 430 
 et seq. 
 
 Puget Sound Agricultural Company. 
 See Treaty of Oregon. 
 
 Putnam, George, 335. 
 
 Pyne, Rev. Dr., 167. 
 
 QUEEN OF GKEAT BRITAIN. See For 
 eign Sovereign. 
 
 Quincy, Josiah, President of Harvard, 
 anecdote of, 40, note; later years of 
 his administration, 110. 
 
 Quo Warranto in Missouri, 279. 
 
 RANTOUL, ROBERT, how chosen to the 
 Senate, 145. 
 
 Rebellion, the, when ended, is a mili 
 tary question for the President to de 
 termine, 373. 
 
 Reconstruction Act of March 2, 1867, 
 394 et seq. ; supplements to, 401. 
 
 Removal from office, when officer ap 
 pointed for a term, 269 et seq. ; Presi 
 dent s power of, 402 et seq. 
 
 Repudiation. See State Debts. 
 
 Rescue Cases. See Fugitive Slaves. 
 
 Reserved Power. See Obligation of 
 Contracts. 
 
 Resignation of office, letters occasioned 
 by, 249-263. 
 
 Retrospective legislation, 304-307. 
 
 Reward, promise to pay, 289. 
 
 Rhode Island, law of, declared uncon 
 stitutional. 171. 
 
 Rice, George T., 335. 
 
 Ripley, Rev. Samuel and Mrs., teach 
 ers of Judge Curtis, 11, 12. 
 
 Roads, Public, in Ohio, Indiana, and 
 Illinois, 423 et seq. 
 
 Robbins, Rev. Chandler, classmate of 
 Judge Curtis, 36 ; memoir read by, 
 before Massachusetts Historical So 
 ciety, 36, note; on Judge Curtis s 
 resignation, 244; on the religious 
 character of Judge Curtis, 325, 326. 
 
 Robbins, James, maternal grandfather 
 of Judge Curtis, 5. 
 
 Robbins, Mrs. James, maternal grand 
 mother of Judge Curtis, sudden death 
 of, 10, note. 
 
 Robbins, Lois. See Curtis, Mrs. Lois. 
 
 Robbins, Martha, aunt of Judge Curtis, 
 7. 
 
 Rose, Sir John, Commissioner under 
 treaty for settlement of claims, &c., 
 
 O7 " 
 
 Rush, Lieut. U. S. Army, 167. 
 Russell, Charles Theodore, 335. 
 
 SALE, right to make, included in right to 
 manufacture, 381, 382. 
 
 Sales, Francis, teacher of French and 
 Spanish in Harvard College, 72. 
 
 Sands, Dr., 448. 
 
 Sargent, John 0., letter of, to the au 
 thor, 166, 167. 
 
 Savage, James, 335. 
 
 Scott, John. See Eldon. 
 
 Scott, Sir Walter, his dealings Avith 
 the supernatural, 9, note. 
 
 Scrip. See Municipal Corporation; Au 
 gusta. City of. 
 
 Seceded States, authority of, over do 
 mestic concerns, 372 et seq. 
 
 Secession, peaceable, is incomprehensi 
 ble, 134; threatenings of, 327 et seq.; 
 six States pass ordinances of, 336 ; 
 Judge Curtis s view of, 339. 
 
INDEX TO VOLUME I. 
 
 489 
 
 Sectional party, dangers of, 193. 
 
 Sedgwick, Judge, 131. 
 
 Selborne, Lord. See Palmer. 
 
 Shaw, Lemuel, Chief Justice of Mass., 
 character of, 69, note ; decision in the 
 case of Med, 88, 335. 
 
 Shays s Rebellion, 132. 
 
 Silliman, Benj. D., 107, note. 
 
 Slavery, probable discussion of, in Con 
 gress, 80 ; limitations of the law of, 
 85 et seq. ; power of Congress to ex 
 clude from Territories, 194; exclu 
 sively a local matter, 341 ; President 
 Lincoln s attempt to abolish by proc 
 lamation, 348 et seq. ; not abolished 
 effectually, 385, 387, 388; 13th amend 
 ment of the Constitution proposed and 
 declared to have been adopted, 387, 
 388. 
 
 Sohier, Edward D., classmate and col 
 lege friend of Judge Curtis, 36. 
 
 Somers, Lord, clerk to his father, 41 , note. 
 
 Somersett s Case, Lord Mansfield s de 
 cision in, 87. 
 
 Sparks, Jared, 335. 
 
 Specie payments, suspension of, in 1837, 
 76. 
 
 Sprague, Judge, 154, 161; address to, on 
 his retirement, 320, 321; his remarka 
 ble memory, 321, note. 
 
 Spring, Dr., father of Marshall Binney, 
 8, note. 
 
 Spring, Marshall Binney, kindness of, 
 to Mrs. Lois Curtis, 8, note. 
 
 Stackpole, Lewis, 74. 
 
 Stanbery, Henry, letter of, in relation 
 to President Johnson s Cabinet, 402, 
 note ; letter of, 408 ; resigns office of 
 Attorney-General, 418. 
 
 Standish, Josiah, 48, note. 
 
 Standish, Mary, 48, note. 
 
 Standish, Miles, the Puritan captain, 48, 
 note ; ancestor of Mrs. Eliza M. Cur 
 tis, ib. 
 
 Stanton, Edwin M., Secretary of War, 
 conversations of, with Judge Curtis, 
 353, 354 ; anecdote of, 366, note ; breach 
 between, and President Johnson, 401 
 et seq. ; refuses to resign, 405 ; meas 
 ures taken to remove him, 406. 
 
 Sbir of Hope, the ship, 271. 
 
 State, sacredness of its compacts, 133 ; 
 its right to make them, 129 et seq. 
 
 State Debts, article on, in the North 
 American Review, 99 et seq. 
 
 State Pilot Laws, constitutional validity 
 of, 168. 
 
 States of the Union, rights of, to land 
 underwater, 311 et seq. 
 
 Stillson, J. B., letter of, to The World, 
 413 et seq. ; his description of Judge 
 Curtis at the Impeachment trial, 413 
 and note. 
 
 Storrow, Charles S., classmate of Judge 
 
 Curtis, graduates first scholar, 39, 
 
 note, 335. 
 Story, Judge, conversation of, 7, note ; 
 
 discourse at inauguration as Professor, 
 
 42. note; letter from, 102; death of, 
 
 106, 109. 
 Story, Mary Oliver. See Curtis, Mrs. 
 
 M. 0. 
 
 Story, Mrs. Sarah W., 109. 
 Stranding. See General Average. 
 Suffrage. See Reconstruction Act. 
 Sumner, Charles, his first election to the 
 
 Senate, 138 et seq. 
 Sumner, Increase, 335. 
 Supreme Court of the U. S., position of, 
 
 in public estimation, 196 et seq.; 
 
 Judges composing it in 1857, 201; 
 
 constitutional function of, 231, 232. 
 Supreme Judicial Court of Mass., 69. 
 Surplus Revenue, distribution of, 73. 
 
 TANEY, CHIEF JUSTICE, mental activity 
 of, at the age of eighty, 193 ; letters 
 of, to Judge Curtis, 212 et seq. ; his 
 fragment of an autobiography, 239; 
 vindicates the writ of habeas corpus, 
 240 and note, 459 et seq. ; letter of, on 
 Judge Curtis s resignation, 254. 
 
 Taxation, exemption from, 308 et seq. 
 
 Taxes, equality of, 295 et seq. 
 
 Telegraphic Cables, right to land, 311 
 et seq. 
 
 Tenure of Office Act, 402 et seq. ; whether 
 it applied to the members of the Cab 
 inet, 404 et seq. 
 
 " Test Oath," under Constitution of 
 Missouri, 370. 371 and note. 
 
 Thomas, Judge Benj. F , on the Dred 
 Scott Case, 233; letter to Mr. Ticknor, 
 418. 
 
 Ticknor, Mrs. Anna, letter of, to Judge 
 Curtis on his resignation, 249. 
 
 Ticknor, Anna E., 57, note, 111 and note. 
 
 Ticknor, Elisha, marries the widow 
 of Dr. Benjamin Curtis, 4; his kind 
 ness to Mrs. Lois Curtis, 14-16; com 
 memorated, 17. 
 
 Ticknor, Eli/a Sullivan. See Dexter, 
 Mrs. W. S. 
 
 Ticknor, Mrs. Elizabeth, grandmother 
 of Judge Curtis, 4, note ; death of, 15, 
 note. 
 
 Ticknor, George, half-uncle of Judge 
 Curtis, 4 and note ; kindness of, to 
 Mrs. Lois Curtis, 8, note; tribute to 
 his memory, 17 and note ; his lec 
 tures at Harvard, 31, 32 and note; 
 letters to, 49, 56, 63, 66, 68, 71-82, 
 102, 246, 335 ; death of, 440. 
 
 Times, the London, on Judge Curtis s 
 " Executive Power," 358. 360-365. 
 
 " Trade or Commerce." See Commerce. 
 
 Treaties, commercial, between U. S. and 
 Great Britain, 296. 
 
490 
 
 INDEX TO VOLUME I. 
 
 Treaty of Oregon (1846), claims arising 
 under, to he settled under Convention 
 of July 1, 1863, 367 ; Judge Curtis 
 selected as umpire, 367 et seq. 
 
 Tribune, the, attacks Judge Curtis s de 
 cision on a R. I. Law, 172. 
 
 Trinity, doctrine of the, why denied, 19, 
 
 Trustees, in what courts accountable, 
 and when, 371 et seq.; protected by 
 laws passed by a seceded State, 372 
 et seq. ; discretion of, in making in 
 vestments, 371-375. 
 
 UNION, the. what loyalty to, required in 
 1850-51, 159. 
 
 Unitarianism, early character of, in New 
 England, 18-21." 
 
 United States v. Robert Morris, case of, 
 160-16-3. 
 
 Usage, general, when admissible to in 
 terpret a writing, 291, 292. 
 
 VESTED RIGHTS, when become abso 
 lute, 375-382. See Ex Post Facto and 
 Retrospective Laws. 
 
 WAPSWOKTH. WM. TV., 112. 
 
 Walker, James, 335. 
 
 War. See Civil War. 
 
 War Power, President Lincoln s idea of 
 the. 348, note. 
 
 Ware. Judge, on Judge Curtis s resig 
 nation, 253. 
 
 Warren, Winslow. 335. 
 
 Washburn, Emory, 335. 
 
 Washington, Amy. See Curtis, Philip. 
 
 Washington, President, requires surren 
 der of slaves escaping into Florida, 135. 
 
 Watertown. birthplace of Judge Curtis, 
 5; poor public schools in, 11; academy 
 established, 12; Watertown Dam, an 
 cient water-power, 22. 
 
 Wavne. Judge. 164; his course in Dred 
 Scott Case, 206 et seq., 234, 235. 
 
 Waverley Novels, read in boyhood, 9, 
 note ; commended, ib. 
 
 Webster, Daniel, mistake concerning, 
 36 ; his speech on the Greek Revolu 
 tion, 39; candidate for the Presidency 
 in 1836, 75; as an opponent of B. R. 
 Curtis at the bar. 89; his feeling of 
 nationality, 95, note; political course 
 in 1850, 112 et seq. ; reception of, in 
 Boston, April 29, 1856, 114; his speech, 
 117 et seq.; advises the appointment of 
 Mr. Curtis to the Supreme Court. 154, 
 155 ; letter of, to President Fillmore, 
 154: his prospects for the Presidency 
 in 1851, 164, 169; death of, 463; re 
 marks of Judge Curtis upon, 463 et seq. 
 
 Wells, Daniel, of Greenfield, 59; sued 
 for a libel by Olmsted, 59, 60. 
 
 TVeston, Ezra, classmate of Judge Cur 
 tis, 37. 
 
 Wharton, Mrs. TV. C., 8, note. 
 
 Wheaton, Henry, 129. 
 
 Wheeling Bridge, case of, 165. 
 
 Wheelock, Eleazar, Rev. Dr., founder of 
 Dartmouth College, 48, note ; ancestor 
 of Mrs. Eliza Curtis, ib. 
 
 Wheelock, Maria Malleville. See Allen, 
 Mrs. M. M. 
 
 Whig Party in Mass., 113. 
 
 Wigglesworth, Edward. 31. 
 
 Williams, John M., Chief Justice of the 
 Mass. Common Pleas, 59. 
 
 Wilson, Henry, avows the Coalition, 
 148. note. 
 
 TVinthrop. Robert C., graduates from 
 Harvard, 27, note. 
 
 Wood, Nathaniel, 335. 
 
 Woodbury, Charles Levi, 321; anecdote 
 related by. 267. 
 
 Woodbury, Judge, death of. 153. 
 
 Woodward. Eliza Maria. Ste Curtis, 
 Mrs. E. M. 
 
 Woodward, Wm. G., brother-in-law of 
 Judge Curtis, 68. 
 
 Woodward, Wm. H., Treasurer of Dart 
 mouth College, descent of, 48, note; 
 marries Eliza Curtis, ib. 
 
 Worcester, Samuel, school of, attended 
 by Judge Curtis, 11. 
 
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