molded. In this, his favorite science, he had among us no superior, and but few equals. But legal scholarship, however wide and thorough, might, without the addition of his other marked qualities, have limited him to the life of an author and a student; furnishing, through his pen, thoughts and principles the weight and value of which in their practical application must be found and wrought out by others. Had he lacked the power of giving weight to his words by the mode of their utterance, he could hardly have attained distinction at the bar; but he added to his other learning a familiar acquaintance with the beauties and strength of the tongue he spoke, and from them he framed for himself a style of surpassing simplicity and power. The clothing he thus gave his thoughts, striking as it was, would, with the thought itself, have failed of its true effect if he had not added to it a clearness of statement and a rigorous logic that I have rarely known to be equaled. Quick in his perceptions, he had also a power of memory which was almost wonderful."

An examination of his work substantiates all the elements of this eulogy. His learning, in the first place, was accurate and extensive. The standard of acquirement which he set for himself at the outset is well illustrated by a letter that he wrote to his uncle, George Ticknor, explaining his reason for leaving Northfield, where, even as a law student, he had been actively employed. He quoted the reply of an eminent jurist who had been asked whether a certain person was a good lawyer: "No; he has always had too much business to become a good lawyer." In the early years of his practice in Boston the magnitude of his labors severely taxed his strength, but he soon acquired a facility in passing from case to case which equaled, if it did not surpass, that of his celebrated English contemporary, Sir William Follett. The work performed by him during the first fifteen years of his practice in Boston illustrates the extent and variety of his professional experience. From his admission as a counselor, in 1836, when, as a youth of twenty-seven, he delivered his able argument in the case of the slave Med, to the year 1851, when he took his seat as associate justice in the supreme court of the United States, he argued one hundred and thirty-eight cases before the supreme court of Massachusetts. During this time he was also actively engaged in the United States circuit and district courts, and participated in an equally large proportion of nisi prius trials, besides disposing of a very large chamber practice. After his return to practice, in 1857, he argued forty-six cases in the United States supreme court, eighty cases before the state supreme court, and, besides an extensive practice in the United States circuit and district courts, prepared a series of opinions as counsel which fill

118 Pick. to 7 Cush.

nearly one thousand closely-written folio pages. His aggregate professional receipts during these seventeen years were $650,000.

His judicial work during his short service as an associate justice of the United States supreme court will be found in Howard's Reports, from the 12th to the 19th volumes, and in the two volumes of his decisions on circuit. The nature of his first judicial service on circuit will indicate the difficult position to which he had been called. The strong conflict between state and federal authorities over the enforcement of the fugitive slave law, and the excitement and controversy which accompanied every exercise of federal jurisdiction, rendered it exceedingly difficult for him to perform his duty in a manner that would satisfy the community of his impartiality. Two months before he took his seat on the supreme bench, Curtis presided, at circuit, at the trial of the so-called "rescue cases," arising out of the forcible rescue from the custody of the United States marshal of the fugitive slave Shadrach. The success with which he discharged this difficult duty is attested by one of the counsel for the defendants, Richard H. Dana, who said, several years afterwards: "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." The two published volumes of his work on circuit have always been held in high esteem by the profession. Although he had seldom been engaged in criminal cases at the bar, it is noticeable that his judicial opinions display a profound knowledge of this branch of jurisprudence.

In the supreme court of the United States he at once bore his share of the work. At his first term he delivered the opinion of the court in ten cases; during his brief judicial service he wrote fifty-one opinions. These opinions cover a wide range of subjects, with uniform excellence. Probably the most important is in Cooley v. Board of Wardens of Port of Philadelphia, on the constitutionality of local pilotage requirements. His opinions are brief, wellconstructed, and supported by carefully selected authorities. He was usually in accord with the majority; rarely, if ever, did he dissent alone. The evidences of his labors in this tribunal, although meager compared with his work at the bar, are sufficient to justify the expectations which his appointment aroused. Most of Marshall's great opinions were delivered after he had been on the bench many years; and it is safe to say that, if Curtis had spent

12 How. 299.

the remainder of his life on the bench, he would have attained a reputation in federal jurisprudence second only to that great magistrate.

Nothing illustrates more clearly the legal cast of his mind than his edition of the reports of the supreme court of the United States. The then fifty-seven volumes of decisions had been reported by five different reporters, with varying degrees of care and skill. Curtis edited them in a series of twenty-two volumes. His labors were directed toward a short, but clear, statement of the case disincumbered from useless quotations of pleadings, an abstract of the arguments of counsel which should exhibit the points actually presented to the court, and a syllabus or headnote which should embody the actual decision. This laborious and exacting task was performed with an accuracy and discrimination which have long served as a model.

In form and expression, as well as in weight and cogency, his work closely resembles that of Marshall. He always addressed his lucid and unimpassioned argument to the reason, and, without the least exaggeration or straining for effect, placed his whole reliance upon the solid merits of his cause. And his manner, according to Reverdy Johnson, his frequent associate, was always in accord: "He ever 'suited the action to the word, the word to the action,' and never 'overstepped the modesty of nature.' He was always calm, dignified, and impressive, and therefore persuasive."

The clearness and accuracy of his style was thus described by Dr. Robbins in his memorial address before the Massachusetts Historical Society:

"Vigorous, but not impassioned; massive without ruggedness; devoid of ornament, but distinguished for that purity of taste, and that perfect propriety, which nothing but a familiarity with the classics can impart,his choice and suggestive words had the force of illustrations, and rendered figures unnecessary. He never overlaid an argument with superfluous words, or stretched it beyond its strength, or weakened it by exaggeration, or made it subservient to the parade of his own learning and ingenuity; but, having clearly and forcibly presented it, was content to leave it to stand on its own merits. Though a lover of poetry, and often in conversation referring to and sometimes repeating a favorite verse or line from the best authors, ancient and modern, he never quoted it in a public speech, and very rarely in any published writings. He kept his object in full view, advancing towards its accomplishment with single aim, a steady step, and by the most direct road. The fairness, calmness, and sober earnestness with which he presented his case gave weight to his arguments, and helped to produce conviction. He never condescended to any small devices; never appealed to the passions or prejudices of the jury; never lost his temper; and never indulged in personalities."

Webster said of him that "his great mental characteristic was clearness"; and in this respect he has probably never been surpassed at the bar. "Whenever I have heard Judge Curtis state his proposition on a subject which I had myself made a matter of study," said Richard Henry Dana, "I listened to it with something of that surprise and delight with which one who has labored. through the slow and repetitious process of arithmetic sees his work done before his face by the methods and signs of algebra." To this capacity for perspicuous statement he added a rigorous logic. His sinewy arguments are masterpieces of judicial reasoning. When, by the exercise of rare analytical power, he had stated his premises, his conclusion was a necessary sequence. His propositions followed one another in appropriate order, and enforced a method of reasoning which, while avoiding unnecessary accumulation of ideas, was always ample in furnishing whatever the proper presentation of the case required. With a clear perception of the point at issue, he invariably confined himself rigidly to it. Without imagination, he was never tempted away from the precise issue.

When, therefore, one considers how, in a mind always vigilant, calm, and ready, he combined a comprehensive and exact knowledge of the law with such a marvelous power of legal reasoning, illustration, and expression, there is much to be said for Justice Miller's opinion that Curtis was "the first lawyer of America, of the past or the present time."

The extraordinary judicial sense which characterized Curtis' intellect carried with it certain limitations. Even within the sphere of the law he was thoroughly imbued with the intense conservatism of a mind molded by the common law. While resembling Marshall so closely in character and intellect, it may be doubted whether, in Marshall's position, he would have displayed the originality and breadth of mind necessary to create a new department of jurisprudence. He was deprived of the forecast of the statesman. The momentous political and social problems of the time received very slight impressions from his powerful mind. By the very cast of his mind, it was impossible that he should be a partisan; but his feeble participation in public controversies which foreshadowed the Civil War was sufficient to indicate a singular lack of appreciation of the crisis. His ablest public utterance, a pamphlet on the executive power, published in 1861, advocated, with characteristic conservatism, the total subordination of the instinct and necessity of self-defense on the part of the government in a tremendous and unprecedented emergency to the strict legal

rules of peaceful times. However, a man who has administered the law in judicial position, and applied its principles in advocacy at the bar, in such a manner as to strengthen the foundations of society, and to illustrate the value of absolute justice, has surely earned a title to the gratitude of posterity. And in the elevated and extended professional career of Judge Curtis we find, in the language of the resolutions of his brethren who met to commemorate his services, "the imposing traits and qualities of intellect and character which, in concurrence, make up the true and permanent fame among men of a great lawyer and a great judge."