Curtis, Benjamin R. (1809–1874)

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CURTIS, BENJAMIN R. (1809–1874)

Benjamin Robbins Curtis of Massachusetts generally rates high marks for his six-year tenure on the Supreme Court. His bold dissent in dred scott v. sandford (1857), followed by his dramatic resignation, largely accounts for his reputation. Yet Curtis's contributions to the development of constitutional law transcend that one case.

Curtis's prominence in the Dred Scott case is ironic, considering the fact that he received his appointment in 1851 because he was a northern Whig, acceptable to southern slave interests. By that time, he already was a leading figure in Boston legal circles. He had been selected in 1846 to succeed Justice joseph story as an overseer (trustee) of Harvard College, and he was highly regarded for his promotion of procedure and litigation reforms. In 1851 he represented the Boston school board against the desegregationists in roberts v. city of boston. But most important, Curtis had also endorsed Senator daniel webster's efforts in the compromise of 1850, had advocated strict enforcement of the new Fugitive Slave Act, and had fought abolitionists and free-soilers, even opposing charles sumner's successful Senate campaign in 1851. Shortly afterward, President millard fillmore, following Webster's recommendation, nominated Curtis to succeed Justice levi woodbury. The only criticism came from the abolitionist press. Southern politicians, however, were satisfied and the Democratic Senate quickly confirmed the appointment.

Curtis's first major opinion, in cooley v. board of wardens (1851), reflected both his legal skills and his willingness to follow the middle ground of his patron, Daniel Webster. The case involved the limiting effects of the commerce clause on state regulation, a subject that had divided the taney court since 1837. Southerners feared congressional regulation of interstate traffic in slaves, and consequently sought to interpret the commerce power narrowly. In Cooley Curtis acknowledged broad congressional authority over foreign and interstate commerce, but the case challenged the validity not of congressional action but of local pilotage regulations for the port of Philadelphia. Curtis devised a compromise between the exclusive power and concurrent power views. His doctrine of selective exclusiveness recognized exclusive congressional power over subjects demanding uniform national regulation, but invited state regulation, in cases where Congress had not acted, of subjects admitting of diverse local regulation.

Curtis again demonstrated a shrewd practicality coupled with an ability to make law responsive to new conditions when he upheld federal regulations of steamboat operations. In Steamboat New World v. King (1854) Curtis applied the emerging law of negligence to the rapidly expanding technology of steamboating. In addition, he confirmed that federal admiralty jurisdiction applied to all inland, navigable waters. A year before the Dred Scott controversy over the content of the Fifth Amendment's due process clause, Curtis had discussed the subject in murray ' s lessee v. hoboken land and improvement company (1856) and had followed a traditional procedural interpretation of the clause.

The understanding of Curtis's role in Dred Scott has shifted with historiographical tides. When it was fashionable to view the civil war as a "reconcilable conflict," Curtis was seen as a provocateur; but when the Dred Scott decision is seen as Chief Justice roger taney's attempt to make the nation safe for slavery, Curtis's opinion emerges as a calm, reasoned historical and legal brief properly explicating national authority to regulate slavery in the territories. Curtis's opinion differed from Taney's conclusions in nearly every respect. He demonstrated historically that blacks could be American citizens, and hence could sue in the federal courts. Equally important, he offered constitutional language and long-standing historical precedent to justify congressional regulation of slavery in the territories. Curtis's comments on the need for judicial restraint were pointed: "To engraft on any instrument a substantive exception not found in it must be admitted to be a matter attended with great difficulty.… To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible because judicial tribunals … cannot decide upon political considerations."

Curtis resigned a few months after the Dred Scott decision. He was dissatisfied with his circuit duties and his inadequate salary, and the Dred Scott imbroglio convinced him that he and his colleagues could no longer work together effectively and harmoniously.

During the Civil War, Curtis emerged as an outspoken critic of Lincoln's unprecedented exercise of presidential powers. In good Whig fashion, he leveled constitutional attacks on Lincoln for suspending the writ of habeas corpus and for issuing the emancipation proclamation. Yet, following the war, he endorsed the sentiments of the National Union Convention in 1866 and advocated exclusive presidential control of reconstruction. Two years later, he joined william m. evarts and others to represent President andrew johnson in his impeachment trial. Curtis's defense of the President argued that Johnson was not an "acting President," as some claimed, and that the tenure of office act unduly interfered with the President's constitutional prerogative to remove executive officers—an argument the Supreme Court came to accept half a century later. Finally, he offered a ringing affirmation of the first amendment to defend Johnson against the charge that he had "improperly" spoken of Congress.

In his last years, Curtis had a lucrative law practice and argued more than fifty cases before the Supreme Court. Most noteworthy were his briefs in behalf of federal regulation of the insurance industry in paul v. virginia (1869) and his defense of the legal tender laws in Hepburn v. Griswold (1870).

Curtis's all too brief career on the Supreme Court must exclude him from a short list of truly great jurists. But he displayed uncommon skills, especially a talent for closely reasoned and logical arguments. His defense and understanding of the Constitution, on and off the bench, mark contributions that have been affirmed by the passage of time.

Stanley I. Kutler


Curtis, George Ticknor and Curtis, Benjamin R., eds. 1879 Life and Writings of Benjamin Robbins Curtis. Boston: Little, Brown.

Fehrenbacher, Don E. 1978 The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press.

Leach, Richard H. 1952 Benjamin Robbins Curtis: Judicial Misfit. New England Quarterly 25:507–523.