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ALLOTMENTS, ETC., OF THE
JUSTICES OF THE SUPREME COURT OF THE UNITED STATES,
AS THEY STOOD DURING THE TERMS OF 1872–73, TOGETHER WITH THE DATES OF THEIR
The Fourth Circuit was vacant from May 7, 1873, to April 1, 1874, when a new allotment was made.
BENJAMIN ROBBINS CURTIS.
The Bar of the Supreme Court of the United States met in the court room in the Capitol, on Monday, October 12th, at 12 o'clock M., to pay respect to the memory of the late Benjamin R. Curtis.
On motion the Hon. John A. Campbell was appointed Chairman, and D. W. MIDDLETON, Clerk of the Court, Secretary.
On motion of Hon. P. Phillips, the chair appointed the following Committee on Resolutions, viz.: Reverdy Johnson, Philip Phillips, William M. Evarts, Benjamin H. Bristow, George H. Williams, John A. J. Cresswell, Richard T. Merrick, T. D. Lincoln and R. M. Corwine.
The committee, through its chairman, reported the following resolutions:
THE BAR OF THE SUPREME COURT OF THE UNITED STATES, assembled upon occasion of the death of their brother CURTIS, in testimony of their great affection and esteem for him in life, and of their sense of the great loss which the courts and the bar of the whole country and the community at large suffer in his death, adopt the following resolutions:
Resolved, That we find in the professional life, labors and honors of Benjamin Robbins Curtis, as displayed in an elevated and extended career of judicial and forensic duty and distinction, 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.
Resolved, That the example presented by his life, of great natural powers faithfully disciplined and completely developed, expanded by large acquirements, and kept vigorous and alert by strenuous exercise, applied to noble uses, and effecting illustrious results upon a conspicuous theater of action and in manifold and diversified opportunities of public service and of public notice, is rare among lawyers as among men, and furnishes a just and assured title to permanent renown in the memory of his countrymen.
the administration of justice and attracted the attention of the profession and of the public.
Resolved, That we commemorate with no less satisfaction and applause the moral qualities which illustrate the whole professional service of our deceased brother-his justice to all, his kindness to associates, his fidelity to the courts and to the law, his scrupulous contribution of his best powers and his complete attention to every cause whose advocacy he assumed-his resolute maintenance of the just limits which separate the duties of an advocate and the duties of an adviser and of a declarer of the law upon professional opinions-his fidelity to society, to government, to religion, to truth-all these traits of duty, as the rule of his life, we present to the living lawyers and to their successors for their sincerest homage.
Resolved, That the Attorney-General be requested to present these resolutions to the Supreme Court, and to move, in our behalf, that they be entered upon its minutes; and that the chairman of this meeting be requested to forward a copy of them to the family of our deceased brother:
Which resolutions were unanimously adopted. After the reading of the resolutions, Mr. Reverdy Johnson said:
MB. CHAIRMAN: Before moving, as I propose to do, the adoption of the report of the committee, I beg leave to trespass for a few moments upon the time of the meeting. The event which has brought us together was a severe blow upon the heart of the entire profession. Of the many bereavements which we have had heretofore to deplore, no one has given us more sincere sorrow than the death of BENJAMIN R. CURTIS. In all respects he was a man to be loved and admired. As a friend he was warm and sincere; as a lawyer, learned and accomplished; as a judge, of transcendent ability. To those who knew him intimately (and I am of that number) his death is a great personal affliction.
My acquaintance with him commenced when, Resolved, That in the special qualities which in 1851, upon the recommendation of Mr. Webmark him as a consummate forensic advocate ster, he became one of the Associate Justices of and as an authoritative judge, the structure of the Supreme Court, and this acquaintance soon Mr. CURTIS' mind and its disclipine combined ripened into a close friendship which continued the widest and most circumspect comprehen unbroken to the last. And having been a very sion of all facts of legal import, however multi-constant attendant on the court for the last six tudinous; a luminous and penetrating insight years of his connection with it, and during the into the intricacies and obscurities of the most seventeen years that have elapsed since his rescomplex relations; and an efficacious power of ignation, when, at every session, he appeared reason, which produced the many admirable ex- as counsel, was afforded the best opportunity hibitions of his faculties at the Bar and on the of forming an opinion of him as judge and lawBench, which for forty-two years have served yer. I think, therefore, that I have a just esti
Mr. Johnson was followed by Mr. R. T. Merrick, who said:
MB. CHAIRMAN: Few men in any age, either in this country or in England, have so faithfully oc-illustrated the power, dignity and honor of the legal profession as ME. CURTIS.
His learning was profound and copious; his mind clear, earnest and powerful, and all his faculties were severely disciplined.
mate of him in both characters. As a judge of this high tribunal, it is impossible to imagine one who could be more fully competent to discharge its high and arduous duties. With a wealth of learning always adequate to the casion he was ever felicitous in his application of it to the case before him. His judicial opinions-indeed, all of them-were models of a correct style. It may with perfect truth be said of them, what, upon an occasion like the pres- His arguments at this bar, probably the most ent, he said of the opinions of the late pure and perfect models of forensic debate known to the great judge, Chief Justice Taney, that they profession, rested upon the fundamental prinwere characterized "by purity of style and ciples of the science of law applied and anclearness of thought." His arguments at the alyzed by deep but seemingly easy thought, and bar possessed equally sterling merit. The state- enforced by a logic whose severe features were ment of his case, and the points which it in- never disfigured by enfeebling ornament. volved, were always transparently perspicuous. appreciative listener could not refuse to follow And when his premises were conceded or estab- him in his course of reasoning, for his statelished, his conclusion was a necessary sequence. ment of his case was so plain, simple and perHis analytical and logical powers were remark- suasive, that it commanded attention to the able. In these respects, speaking from the fuller development of his propositions. Howknowledge of the great men whom I have heard ever voluminous the record or complicated the during a very long professional life, I think he nature of the case, a statement easy, clear and was never surpassed. And his manner of speak-concise, though full and comprehensive, dising was excellent. He ever suited "the action closed at once the exact questions at issue, and to the word, the word to the action," and never deeply impressed upon all who heard him the overstepped "the modesty of nature." He was convictions in the mind of the advocate. When, always calm, dignified and impressive, and, in that great trial in which the President of therefore, persuasive. No lawyer who heard the Republic was arraigned before its Senate, him begin an argument ever failed to remain sitting as a High Court of Impeachment, MB. until he had concluded. Were I to select in- CURTIS had concluded his opening statement stances as exhibiting his highest judicial excel- for the defense, there was nothing left of the lence and his highest forensic ability, I would case. point, for the one, to his dissenting opinion in what is known as the "Dred Boott case," and for the other, to his opening argument in the defense of President Johnson in the Impeachment Trial. Able as was the opinion of the majority of the court in that case, delivered by Chief Justice Taney, it was admitted at the time, I believe, by most of the profession, that the dissenting opinion of Judge Curtis was equally powerful. Lawyers may differ, as they have differed, as to which of these two eminent men were right, but they will all concede that the view of each was maintained with extraordinary ability, whilst those who knew thein both will never differ as to the sincerity of their respective convictions.
His convictions were ardent, hearty and earnest, and he clung to them with a firmness and tenacity that nothing could affect save only the proof that they were erroneous.
In the dark hours of our national trouble his voice was heard above the tempest of loosened passions vindicating the supremacy of law; and when the clash of arms had ceased but the storm still raged, he poured forth in this hall his appeal in behalf of a calm and considerate justice which should bear no sign of wrath or passion.
The death of such a man is a severe loss to the country as well as the profession.
ing. I knew him well and was honored by his friendship and a reasonable share of his confidence. I have listened to him with instruction and delight in public, and been greatly benefited by his counsels in private; and as I admired and loved him in life, I would place upon his grave a humble tribute of respect for his memory.
The HON. John A. Campbell, Chairman, then addressed the meeting as follows:
I did not rise for the purpose of pronouncing a eulogy on MB. CURTIS-that I leave to others As to the other-his defense of President-but only to gratify a demand of my own feelJohnson-having listened to it, and having more than once read it carefully, I think I am justified in saying that it covered every question which the case involved, and, although it was afterwards enforced by his able associates, it of itself greatly contributed to the defeat of the impeachment. Nothing could have exceeded the clearness of statement, the knowledge pertinent to the contest, or the power of reasoning by which he maintained his conclusions. It was, I believe, and, having been one of the judges, I think I know, generally thought to be fatal to the prosecution. When such a man, lawyer and judge, in the inscrutable dispensation of Providence, is taken from the profession, they His connection with the distribution of that cannot avoid feeling that it is not only a pri-justice which constitutions and laws define and vate but a public calamity. And it is due to his memory that we should express the sense of our loss and the great regard we entertained for him as a man, a lawyer, and a judge. And this will be accomplished by adopting the report of the committee. I, therefore, move its adoption.
A natural sorrow exists in the judicial tribunals and among the legal profession of the Union by the event of the death of the late Justice CURTIS.
regulate during a period of eventful history, has been so intimate, so useful to the country, and so honorable to himself and to his profession, that its severance occasions a pause and is felt as a calamity. To form and to maintain this connection was the aim of his life, the cherished and continuing aspiration of a mind and
character well composed. To the members of vacancy was supplied by one recommended by the same profession, such a life, such a mind, the Justices Justices Catron and CURTIS bearsuch a character are objects of particular inter-ing their recommendation to the President. est. His aspirations were favored in his birth- The Reports of Howard disclose that during place, by his education and by his associations. his judicial term he was generally in accord The history of Massachusetts just before the | with the majority of the court. He did not disRevolution, during the Revolution, and until sent often, and his dissent was usually with the time that Justice CURTIS received his im- large minority-rarely, if ever, did he stand pressions and impulse, was determined in a alone. They show that in some of the most im great measure by its legal profession. During portant cases, he prepared the opinions of the that period its courts were occupied by men of court. That these opinions embraced intricate extraordinary endowments, and of large and lib-questions of constitutional law, of admiralty jueral culture in law, jurisprudence, philosophy, risdiction, of commercial law, of the law of pat science and literature. The profession of the ents, of common and equity law. The range of law was not misdescribed by the term of a his professional experience in Massachusetts had learned profession. Dane and Parsons and Dex-been wide and comprehensive. His professional ter; Otis and Story and Wilde; Parker and studies had embraced the principies of law and Shaw, had stamped their names and characters the understanding of jurisprudence, and the upon it. The competitors that Justice CURTIS court rested with confidence upon his ability to had to encounter were Webster, Choate, Loring, expound principle and procedure. The opinBartlett and others, whose impulses were the ions show elaboration, a mastery of facts, ausame as his own. The scrutiny his arguments thorities and arguments, and a skillful emhad to experience was that of Story, Parker, ployment of precise and accurate statement and Shaw, Wilde, Putnam, Dewey, Metcalf, Sprague. discussion. But these Reports exhibit an im His first conviction must have been that, to perfect history of the duties actually performed. consummate his purpose, he must need to
"Pitch his project high; sink not in spirit." His first counsel to himself,
"Let thy mind still be bent, still plodding where,
The duties of the Justices of the Supreme Court consist in the hearing of cases; the preparations for the consultations; the consultations in the conference of the judges; the decision of the cause there, and the preparation of the opinion and the judgment of the court. Their most arduous and responsible duty is in the conference.
And when, and how the business must be done." After twenty years of labor on this "project" and under this counsel, in 1851 he was selected, It was here that the merits of Justice CURTIS as was the report of that day, by Mr. Webster, were most conspicuous to his associates. The as the fittest person to fill the vacancy, occa- Chief Justice presided, the deliberations were sioned by the death of Justice Woodbury, in the usually frank and candid. It was a rare inci Supreme Court of the United States. Mr. Web- dent in the whole of this period, the slightest ster said he wanted a full term of lifelong serv-disturbance from irritation, excitement, passion ice. He called for Justice CURTIS in the me
ridian of professional life. The appointment came to Justice CURTIS. He was not required to pursue it or to beseech it. It came to him by a divine right-as the fittest.
or impatience. There was habitually courtesy, good breeding, self-control, mutual deference. In Judge CURTIS, invariably so; there was nothing of cabal, combination, or exorbitant desire to carry questions or cases. Their aims were honorable and all the arts employed to attain them were manly arts. The venerable age of the Chief Justice, his gentleness, refinement, and feminine sense of propriety, were felt and realized in the privacy and confidence of these consultations. None felt them more, none has described them so well as Justice CURTIS has done in his graceful tribute to our illustrious Chief Justice since his death, in the Circuit Court of the United States, in Boston.
At the time the court was presided over by Chief Justice Taney, who had established, to the acknowledgment of all, that his commission was held by the same title. He was then seventy-three years of age, bowed by years and infirmity of constitution. In the administration of the order and procedure of the court there was dignity, firmness, stability, exactitude, and with these benignity, gentleness, grace, and right coming. The casual visitor acknowledged that it was the most majestic tribunal of the In these conferences, the Chief Justice usualUnion, and that the Chief Justice was the fit-ly called the case. He stated the pleadings and test to pronounce in it the oracles of justice. Justice CURTIS at the same time met seven associates Justices McLean, Wayne, Catron, McKinley, Daniel, Nelson and Grier.
All of these had passed the meridian of ordinary life before their junior associate had come to the bar. There was much stateliness in their appearance, and, with diversities of character, education, discipline, attainments and experience, all of them had passed through a career of honorable service, were men of strong resolution, large grasp of mind, and of honorable purpose. The reception of Justice CURTIS was cordial and hospitable, and with all of these his judicial career commenced and terminated with a single exception. The death of Justice McKinley made a vacancy, and that
facts that they presented, the arguments and his conclusions in regard to them, and invited discussion. The discussion was free and open among the Justices till all were satisfied.
The question was put, whether the judgment or decree should be reversed, and each Justice, according to his precedence, commencing with the junior judge, was required to give his judg ment and his reasons for his conclusion. The concurring opinions of the majority decided the cause and signified the matter of the opinion to be given. The Chief Justice designated the judge to prepare it. Justice CURTIS always came to the conference with full cognizance of the case, the pleadings, facts, questions, arguments, authorities. He participated in the discussions. His opinion was carefully meditated.
He delivered it with gravity, and uniformly it was compact, clear, searching, and free from all that was irrelevant, impertinent, or extrinsic. As a matter of course, it was weighty in the deliberations of the court. The older judges spoke of this period with great satisfaction. Justice Nelson, in a letter written within the last year, said to me that it was the happiest period of his judicial life, and alludes affectionately to the share of Justice CURTIS in these proceedings. The Chief Justice so regarded it. The reverence of the junior Justices was grate fully felt and recognized by him.
The last event at the spring term of the year 1857, was the delivery of the dissenting opinion of Justice CURTIS, in the case of Dred Scott.
The court adjourned then, and it proved to be the last event in the judicial career of Justice CURTIS. I have never supposed that his resignation had any connection with that or any other occurrence in the court. There was nothing in the deliberations in that cause to distinguish it from any other. Upon the argument in 1856, it was found there was a diversity of opinion upon the matter proper to be decided. A plea in abatement to the jurisdiction, which presented the capacity of a person of African descent to be a citizen, had been demurred to and the plea rejected. There was trial and judgment for the defendant, declaring the plaintiff to be a slave.
The question was: could he insist upon an error in the sustaining of his own demurrer after trial and judgment?
At that term, Chief Justice Taney, Justices Wayne, Daniel, Nelson and CURTIS, held the affirmative and constituted a majority. A reargument was ordered, and at the next term, Justices McLean, Catron, Nelson, Grier and Campbell held the negative. Justice Nelson doubted at the first argument, and moved for a re-argument, and upon that joined the minority, and so the plea in abatement and the questions arising upon it in the opinion of the majority of the court were not before the court. The case, as reported in 19 Howard, S. C. R., discloses that each member of this majority held to this opinion, and that neither of them in their separate or concurring opinions examined the merits of the plea or passed an opinion on it.
after as a link in the chain of historical events, and justice will be done to all parties connected with them.
I am not aware that there was any hostility or unkindness felt or expressed to Justice CUBTIs by those who did not concur with him. I can speak positively as to some, and shall speak as to myself. Our relations have been cordial and kindly. He informed me by letter of his resignation. I expressed to him my sincere regret for the occurrence, and I testified to the admiration and respect I bore for his ability and integrity and usefulness in the court. These relations remained undisturbed by time, distance, the corroding effects of sectional strife and civil war, until the hour of his lamented death.
My personal intercourse with Justice CURTIS after his resignation was limited, and I had but little contact with his subsequent professional life. During the period of his connection with the court, his ambition seemed to be to associate his name honorably and permanently with the administration of justice in this country, and for this end he sought to understand the whole science of law and procedure, and to have clear conception of a legitimate internal policy for the Union. His ambition imposed a neces sity for labor, continual improvement, habitual intercourse with judicial and public administra tion, and the discussion of constitutional and legal questions, and oversight and counsel in the affairs of individuals and communities.
To reach the eminence to which he aspired and to which he attained he must have realized to himself
"This life of mine,
Must be lived out, and a grave thoroughly earned." His plan was pursued with constancy, and the lives of few show more consistency and symmetry. The prizes of ambition he accepted were within the scope of this aim; those he relinquished or neglected were inconsonant. tasks of real life were determined, and to these tasks he confined his appointed work. In his course he found that the justice a state or a nation can distribute bears a small proportion to the demands of society for justice.
He found, likewise, that justice, though the chief, is not the only virtue-that it is the ministry to reason and the master of human action, but is not all of humanity.
So, in his onward progress to the goal he had set before him, besides virtue and knowledge, public reputation for incorrupt integrity, large and useful endowments of mind, influence with courts and tribunals, he also acquired faith, knowledge of religion, and entered into a close communion with his God; and thereby he earned his grave and his rest from his labors.
The same report shows that each member of this minority did examine the plea and recorded their opinion of it. It was agreed at a day in the term that the questions should be considered and each Justice might deal with them as his judgment dictated. The abstinence of a portion of the court on the one side, and the discussion by the others, was regulated by their own opinion as before expressed. And the facts being understood, no censure was deserved by any. My belief is, that Justice CURTIS misconceived the facts and supposed a portion of the court had concurred in deciding a case which they had before determined was not before the court. I make this statement in justice to him as well as to my other brethren. The state-just." ment I make is confirmed by Justice Nelson in a letter of his published by the biographer of the Chief Justice. In respect to the merits of the respective opinions, I have no design to say a word. They are marked with great ability, and are an honor to the court which was able to produce them. They will be considered here
The tribute which the courts and the members of the legal profession from different States have willingly rendered to his memory, expresses to his family, to his friends, and to the country that "Blessings are on the head of the
The resolutions were thereupon unanimously adopted, and the meeting adjourned.
Mr. Attorney-General Williams moved the court that these proceedings be entered of record on the minutes of the term, and made the following remarks:
MAY IT PLEASE THE COURT: BENJAMIN B