Judge Curtis was a master of the difficult art of Nisi Prius duty. No one could be more courteous, patient and impartial, better equipped with law, more accurate as to fact, or clearer in his rulings and instructions. Any Judge who has spent several of the best years of his life in learning how easy it is to try badly a case with a jury and how hard it is to do it well, will be interested to read the passage which I quote from a private letter written by Judge Curtis to Mr. Webster after he had been on the Bench for about a month:
"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, temper 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."
The great event of his judicial career was his dissenting opinion in the case of Dred Scott v. Sandford, (10 Howard 393, Dec. Term, 1856), in which he asserted the constitutional power of Congress to prohibit slavery in the territories. This was the doctrine of Webster and Mason and of the coming Republican party. Mr. Lincoln, in his debate with Douglas, carried this dissenting opinion with him. There were nine Judges, each of whom filed an opinion. Five Judges were from slave States and were probably themselves slave-holders. Chief Justice Taney wrote an opinion which is called "Opinion of the Court," but may be more accurately described as the opinion of Chief Justice Taney and Judge Wayne, for Judge Wayne, who also filed a separate opinion, was the only one of the six Judges voting with the Chief Justice who concurred in all his points, reasonings and conclusions. Even at this day one cannot read without a shudder the Chief Justice's unflinching declaration as to the helpless and hopeless status of the negro. Judges McLean and Curtis filed dissenting opinions.
There are complexities in the record which make it difficult for even a lawyer to determine just how much of the opinions filed by a majority of the Court is decision and how much is dictum. The Chief Justice withheld from the files the so-called "Opinion of the Court," and made additions and alterations to the extent of eighteen pages, in evident answer to the filed dissenting opinion of Judge Curtis, and instructed the clerk not to furnish a copy of the "Opinion of the Court" to anyone without the permission of the Chief Justice before it was published in Howard's "Reports," so that Judge Curtis, on application to the clerk, was unable to obtain the amplified opinion. There ensued a correspondence between Judge Curtis and the Chief Justice in which Judge Curtis kept his temper admirably and the Chief Justice nearly, if not quite, lost his, and did so, I think, because he felt that he was in the wrong.
Judge Curtis, by leaving office in 1857, at the age of forty-seven, surprised his friends and the country. There were two reasons for it. The state of the Court was such that he did not feel comfortable in it. This does not refer to his controversy with the Chief Justice, to whose memory he afterwards paid a cordial tribute. Indeed, it may be doubted whether he would have felt much more comfortable as a member of the Court under the reign of Lincoln than he was under the reign of Buchanan. He was no party man and did not belong in either camp. His all-sufficient and avowed reason for resigning was that he could not live on a salary of $8,000, and felt bound to secure for himself and his family what Burns calls "the glorious privilege of being independent." This purpose was amply realized. He went at once and inevitably to the front rank of the American Bar and remained there for seventeen years, during which time his professional earnings amounted to about $650,000. This was not in our day of big business, when members of the Bar, who are great men of affairs, but not necessarily great lawyers, receive, or are supposed to receive, rich rewards for services in the organization, manipulation and combination of colossal corporate interests. The annual income of Judge Curtis was not much over $38,000, but, like Mercutio's wound, it was enough, it would serve, and it was fairly earned in the regular practice of his profession, at his office desk, in the trial of cases, and in writing opinions on important questions submitted to him from all parts of the country. He stood so high that his written opinion would often be accepted by both sides of a controversy as the veritable voice of the Law itself.
I first saw and heard Judge Curtis at New Haven in 1864, in the trial of a suit in equity brought in the Circuit Court of the United States for the Second Circuit by the Lowell Manufacturing Company against the Hartford Carpet Company for an injunction and accounting. Judge Curtis led for the complainant, and the special interest of the case was that he had against him an opponent worthy of his steel, a man five years his senior, of different race, creed, politics and temperament, Charles O'Conor, the brilliant leader of the Bar of New York. The two men were evidently no strangers to one another. Judge Curtis had said at a dinner party that he regarded Mr. O'Conor's management of the Forest Divorce Case as the most remarkable exhibition of professional skill ever witnessed in this country. In the case which I heard at New Haven the associate counsel were able men, Mr. Edwin W. Stoughton for the complainant and Mr. George Gifford for the respondent, both prominent patent lawyers of New York. The Judges were Samuel Nelson of the Supreme Court of the United States and William D. Shipman of the District Court.
It was pleasant, after the crudities of county practice, to see the mutual courtesy of the two leaders. I happen to remember a few gracious words of Judge Curtis: "and such rights, as no one knows better than the admirable lawyer on the other side, do not lie in covenant, but do lie in grant." The argument was not fully intelligible to me, for it dealt largely with considerations arising out of written contracts with which I was not familiar, but it was entertaining and instructive to watch the two men. There came on each side a grateful gleam of fun. While Mr. Stoughton was speaking of the terms of a contract, Judge Curtis, who sat near him, interjected the words: "and no longer." Mr. O'Conor in his argument laid hold of this and said: "Why, you might as well say, 'as long as grass grows and water runs,' 'and no longer'." I recall only one precedent for such an expression. It comes from a land from which we get very little law, though it has given us some lawyers. It is a verse of an old Irish song:
"Then Pat was asked would his love last, And the chancel echoed with laughter, O, O yes, said Pat, you may well say that, To the end of the world and after, O."
Mr. Gifford, in his argument, had referred to a certain United States statute which, as he said, the Supreme Court had found difficulty in construing. Mr. Curtis, in his closing argument, said: "That statute reminds me of a story of a learned divine of this State who once preached a sermon upon a difficult text in one of St. Paul's Epistles, and said, finally: 'My brethren, I have now given you the results of my most careful study and reflection upon this passage of Scripture, but I feel that, in justice to myself, I ought to say that I very much wish that the Apostle had not used those words'."
When Mr. O'Conor, who followed his junior, Mr. Gifford, took his seat after speaking for five hours, the afternoon was getting late, and I heard Judge Curtis say to Mr. Stoughton: "I have to answer more than seven hours of solid argument. I cannot do it in two hours, and shall ask that the case go over until to-morrow." It was so ordered. In the evening he said to a friend of mine: "Nothing has been said on the other side which cannot be answered. The question is whether I can do it." He spoke the next day for two hours and twenty minutes and closed the case.