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Curtis, George Ticknorlocked

(28 November 1812–28 March 1894)
  • Mark V. Tushnet

Curtis, George Ticknor (28 November 1812–28 March 1894), lawyer and historian, was born in Watertown, Massachusetts, the son of Benjamin Curtis, a master in the merchant marine, and Lois Robbins. After his father died abroad, his mother raised him and his brother Benjamin Robbins Curtis, later a U.S. Supreme Court justice, in her parents’ house. George graduated from Harvard College in 1832, then attended Harvard Law School and read law in the Boston office of Charles Pelham Curtis, a distant cousin. He was admitted to the bar in 1836 and immediately established a Boston practice. In 1844 Curtis married Mary Oliver Story, the daughter of Supreme Court Justice Joseph Story; they had two children. Mary Curtis died in 1848, and in 1851 Curtis married Louise A. Nyström; they had six children.

Curtis served as a Whig in the Massachusetts House from 1840 to 1843. His views on constitutional law were shaped by the nullification controversy of the early 1830s; he believed that southern challenges to the assertion of national authority in an area clearly committed to Congress—foreign trade—were a threat to the Constitution’s premises. In 1852, as a United States commissioner, Curtis presided over the fugitive slave hearing for Thomas Sims of Georgia; his decision against Sims was one of the first upholding the constitutionality of the 1850 Fugitive Slave Law that significantly reduced the burdens placed on slaveowners attempting to reclaim slaves who had fled to northern states.

Like Daniel Webster, whose political leadership and constitutional theories he admired, Curtis believed that the Constitution conferred a limited range of powers on the national government but that those powers were plenary within that range. On this ground he defended the Missouri Compromise by representing Dred Scott before the Supreme Court in 1856–1857. Although the Court rejected Curtis’s argument that Congress had complete power to determine what property relationships would be allowed in the territories, Curtis remained committed to the view that national power under the Constitution was extensive. Also, like Webster, Curtis believed that Congress would be imprudent to exercise all the power the Constitution conferred on it. In criticizing expansive theories of national power that emerged during the Civil War, Curtis’s 1862 Fourth of July oration nonetheless defended the use of arms against the South, whose rebellion rested on what he regarded as an erroneous theory of the relationship between the states and the Union.

In 1862 Curtis moved to New York where he participated behind the scenes in Democratic party politics, urging the party to insist on reunification as a war aim, while he renounced Republican efforts to make slavery’s abolition a condition of reunification. He became a leading patent lawyer, defending the interests of major inventors such as Samuel F. B. Morse and Cyrus McCormick. Shortly before retiring from active practice in 1888, Curtis delivered an eloquent plea for religious liberty on behalf of Utah’s Mormons in a case designed to test how severely the national laws against polygamy and cohabitation would be applied (Snow v. United States [1886]; Ex parte Snow [1887]). After dismissing one appeal on jurisdictional grounds, the Supreme Court limited the statute’s reach by holding that cohabitation was a continuous act. This defeated the government’s effort to multiply the punishments it could impose on Mormons by prosecuting them for each year (or even day) of cohabitation.

Curtis published treatises on admiralty, patents, copyrights, and the jurisdiction of the federal courts, and numerous legal pamphlets. He dabbled in literature, writing a novel of the Civil War, and he wrote a philosophical examination of evolution. He also wrote a Memoir of Benjamin Robbins Curtis (1879) and two important biographies, the Life of Daniel Webster (1870) and the Life of James Buchanan (1883). Written on the nineteenth-century model of biographies of public figures and concentrating on their activities in political life, these works are useful presentations of the Old Whig interpretation of antebellum history, arguing that the most valuable achievement of antebellum politicians was establishing that national power could be exercised broadly while maintaining in practice a prudent balance between the states and the nation.

Curtis’s most enduring work, Constitutional History of the United States (1854–1858), was based on his Lowell Lectures, delivered in Boston. In 1889 Curtis revised Constitutional History’s treatment of the period up to independence and was working on another volume dealing with the period after 1789 at the time of his death in New York; the volume was edited by J. C. Clayton and published in 1896. The second edition of Constitutional History remained focused on the constitutional theories underlying the Civil War. Curtis believed that because abolitionist constitutional theories defended the actual exercise of expansive power by the national government, abolitionists bore responsibility for the Civil War. For Curtis, more prudent leaders like Webster understood better that the Union southerners were moving to challenge had to have extensive constitutional power to meet the demands placed on a powerful nation but needed to exercise that power only in the most urgent cases. Following Webster even after the Civil War, Curtis rejected the southern defense of secession as an act within the Constitution, seeing it instead as a repudiation of the agreement made on entering the Union. To Curtis, if the South believed that the national government had exceeded the limits the Constitution placed on its power, the only remedies were constitutional amendment or the exercise of the natural right of revolution in the face of intolerable oppression.

Curtis’s works are clear and competent. The first edition of Constitutional History presents a view of the Constitution that had become outdated when the second edition appeared; the Reconstruction amendments had complicated American federalism in ways that Curtis’s views could not explain. Curtis criticized Reconstruction as a betrayal of the war aim of preserving the Union. Some passing phrases in his works suggest that Curtis glimpsed the transformation in constitutional theory occasioned by the Civil War and Reconstruction, which made extensive assertions of national power common although still contested, but he never grappled with that transformation. The war’s legacy was the revitalization of Jacksonian constitutionalism, with its focus on individual rights and anti-monopoly secured through vigorous assertions of government power.

The states’ rights controversies that shaped Curtis’s vision of the Constitution took a new shape. Curtis did not understand that the new issues were whether the national government should override states’ rights to protect individual rights, not whether it should override them to advance national unity and commercial power. Significantly, the second edition draft of Constitutional History contained a chapter heading for “judicial construction” of the Reconstruction amendments, which presumably would have dealt with those amendments’ proper interpretation, but Curtis left no notes for that chapter. Within a generation, theories like Curtis’s, which combined claims for national power with a desire for its prudent exercise, were displaced by theories defending extensive exercise of national power, either by courts defending individual rights of property and contract or by legislatures defending individual rights against the economically powerful.

Bibliography

Some letters are reprinted in Curtis’s Memoir of Benjamin Robbins Curtis (1879), which also describes the family’s background; a few other letters are in the George McClellan Papers at the Library of Congress. Curtis’s involvement in the Dred Scott case is described briefly in Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978). The Snow case and its importance are discussed in Edwin B. Firmage and Richard C. Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints, 1830–1900 (1988).