Mr. Dana was qualified by nature and training to become a leading figure in the public life of this country, and his ambition was that way, but the cards ran against him. As Goldsmith said of Burke, he was "too nice for a statesman, too proud for a wit," high-strung and sensitive as a race-horse, well bred and distinguished in bearing, a clear, graceful and forcible speaker, an admirable advocate, and an accomplished jurist. One of his greatest professional efforts and triumphs was his argument before the Supreme Court of the United States in the Consolidated Prize Cases, when he had to make it clear to the Court how it was that the stupendous struggle in which the country was engaged could be a-war with belligerent rights as between ourselves and other nations, and a local insurrection as between ourselves and the South.
It may be remembered that, at the centennial anniversary of the battle of Lexington, Mr. Dana delivered the oration. It begins with the words, "How mysterious is the touch of fate which gives immortality to a spot of earth, to a name." It is a noble commemorative address. Concord has always plumed itself because it had a real fight, while the Lexington men only stood up to be shot at and did not damage the English. As the anniversaries were approaching and good-natured rivalry was in the air, Concord issued a prospectus of some kind, which did not suit Mr. Dana's fastidious taste, and he said to Judge Hoar, of Concord: "How is it, Judge, that you folks at Concord have sent out such a shabby, badly-written paper? It is positively ungrammatical." "O," said the Judge, "you know, Dana, at Concord we always did murder the King's English."
While Mr. Dana was United States District Attorney he tried the last slave-trading case. The vessel was the "Margaret Scott," which was fitted out, I think, at New Bedford, but did not actually embark on the voyage. The trial was before Mr. Justice Nathan Clifford, of the Supreme Court of the United States. I heard Mr. Dana's summing up and the charge to the jury. Judge Clifford was a tall man of great girth. He stood throughout his admirable charge, which took him an hour to deliver. After about half an hour he told the jury that they might be seated.
Governor Hoadley, of Ohio, who was a friend of Judge Swayne of the United States Supreme Court, once told me this story, which he got from Judge Swayne. Judge Grier, when on the Bench sat next to Judge Swayne and, during the latter part of his service, was crippled and dozed a good deal, and sometimes used to annoy Judge Swayne by speaking to him in a stage whisper. A prize case was on trial and there was discussion about belligerent rights, which one of the counsel pronounced belligerent. The novelty of the pronunciation roused Judge Grier, who said to Judge Swayne quite audibly: "Brother Swayne, Brother Swayne, Judge Clifford is the belliggrent member of this Court."
In 1868, while at Boston, I heard part of the argument in the remarkable case of Hetty H. Robinson v. Thomas Mandell, Executor and others. The case was tried before Judge Clifford in the Circuit Court of the United States. Sidney Bartlett and Benjamin R. Curtis (who was then an ex-Judge of the Supreme Court of the United States), were leading counsel for the complainant, and Benjamin F. Thomas, an ex-Judge of the Supreme Court of Massachusetts, was leading counsel for the respondents. The complainant, who is better known to us by her married name of Hetty Green, had filed her bill setting up a special contract between herself and her aunt, Sylvia Ann Howland, for an exchange of mutual wills, and that neither should make any other will without notice to the other and a return of the other's will. Miss Howland had died, leaving a will not in favor of Hetty, but largely to charity. The respondent, Mandell, was her executor. The case is reported in 3 Clifford's Circuit Court Reports, page 169. Judgment was for the respondents, Judge Clifford saying, in his decision: "In this case there was no competent evidence to show that there was any agreement as to the making of mutual wills, and there was nothing on the face of the instruments to warrant any such conclusion."
Mrs. Green, whom I saw for the first time, was in Court with her husband, a large, dressy man, looking like an English guardsman. Much testimony had been taken. There was a question of forgery, and enlarged photographs of signatures were standing about. Judge Curtis spoke for two days, one day on the facts and one day on the law, a length unusual for him, for he was generally brief. I heard Mr. Bartlett's opening and part of Judge Curtis's discussion of the facts. Mr. Bartlett was a great lawyer, but not, I should say, a very good speaker. His reputation was for condensation and concentration; for making a direct thrust at the central point, with small regard for introductory and collateral matters. Someone, I think a Judge of the Massachusetts Supreme Court, said that Mr. Bartlett's mental operations on matters of law bore about the same relation to those of the average lawyer that a book of logarithms does to a common school arithmetic. He continued in active practice until about the age of ninety, made a large fortune, and was famous for his high charges. He was no recluse, but a club man and citizen of the world.
This was not the first time that I heard Judge Curtis. To follow any argument of his was an ever fresh delight. I remember as though it were yesterday the neatness and felicity with which, in the case just mentioned, he dismissed one of several propositions submitted by his adversary, saying, with his usual dignity and composure: "I now come to another of this series, I believe it is the ninth. Like all of them, it is not pleaded; like most of them, it is not proved; and, like each and all of them, it would be totally immaterial if it were both pleaded and proved." And then, in his last sentence, with exquisite tact, he lightly touched a certain string: "On one side of this case stands the complainant, with a large fortune; on the other side is a charity; but this Court observes the divine injunction, 'Thou shalt not respect the person of the poor, nor honor the person of the mighty, but in righteousness shalt thou judge thy neighbor!'"
My friend, Mr. Frank E. Bradner, of the Essex Bar, has referred me to some lines in "The Professor At The Breakfast Table" which speak of Judge Curtis, who was a classmate of Dr. Holmes:
"There's a boy--we pretend--with a three-decker brain, That could harness a team with a logical chain; When he spoke for our manhood in syllabled fire, We called him 'The Justice,' but now he's 'The Squire'."
He who runs may read. The class of '29 had its twenty-five years meeting, always a great event, in 1854. Judge Curtis was then on the Bench and it was probably then that he spoke for the manhood of the class. He resigned his office in September, 1857, and became a "Squire."