Curtis, Benjamin Robbins.

(b. Watertown, Mass., 4 Nov. 1809; d. Newport, R.I., 15 Sept. 1874; interred Mt. Auburn Cemetery, Cambridge, Mass.), associate justice, 1851–1857. Curtis was the son of a Massachusetts ship captain who died on a sea voyage when Curtis was a child. Curtis graduated from Harvard in 1829 and from the law school there in 1832. Shortly thereafter he established a law practice in Boston and became a Whig in politics. It was on the recommendation of then Secretary of State Daniel Webster that President Millard Fillmore appointed Curtis to the high court in 1851.

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Benjamin Robbins Curtis

On the Court, Curtis became known for his participation in two major cases. The first was *Cooley v. Board of Wardens (1852), in which he enunciated the doctrine of *selective exclusiveness (see commerce power). In this commerce clause case, Curtis held for the Court that where the object of regulation is such as to require a uniform national rule, the power to legislate is reserved exclusively to Congress; but where a uniform national rule is not required, the states are constitutionally free to enact their own regulation, unless and until Congress legislates.

Curtis’s other major opinion was a dissent in Dred *Scott v. Sandford (1857). Curtis repudiated Chief Justice Roger B. *Taney’s opinion for the Court by relying upon facts to show that at the (p. 243) time of the ratification of the Constitution, there were African-American citizens in several states, Northern and Southern (see race and racism). There being no federal *citizenship clause in the Constitution, Curtis reasoned, the states must have created federal citizens automatically by having conferred state citizenship. Thus, Scott, despite being of African ancestry, could be a citizen within the meaning of *Article III of the Constitution.

With respect to congressional control of *slavery in federal territories, Curtis cited no fewer than fourteen separate instances in which Congress had legislated with respect to slavery in the territories prior to the Missouri Compromise. Thus, he concluded that by settled practice Congress had had the power to enact the Compromise, and Scott’s residence in the areas governed by that congressional legislation had made him a free man.

The rancor engendered by the Dred Scott decision so strained Curtis’s relations with his fellow justices that he resigned. He returned to his Boston law practice and, after the Civil War, argued several significant cases before the Court.

His greatest legal contribution, however, came as one of the defense counsels in the impeachment trial of President Andrew Johnson. In that case—and perhaps contrary to the intent of the founders—Curtis was able to convince the Senate that impeachment was exclusively a judicial, not a political, proceeding, a trial of and not a vote of confidence in the president.

Curtis died at the age of sixty-four; having been married three times, he was the father of twelve children. In his short tenure on the Supreme Court he gave promise of being a great justice. Whether he would have realized that potential had he remained on the Court will never be known. But today the Cooley Rule is the law of the land, and Dred Scott is not.

Richard H. Leach, Benjamin R. Curtis: Case Study of a Supreme Court Justice (Ph.D. diss., Princeton University, 1951).

Richard Y. Funston