A few months ago I bought an interesting 1865 letter on U.S. Supreme Court stationery:
Here is what it says, as best I can tell:
OFFICE SUPREME COURT U.S.
Washington City Mar 6th 1865Curtis & Scribner, Esqs
Gentlemen,Your favor of the 25th ult, is received.
The case of Sam R. Curtis et. al., applnts v. Mr. D. Brown was reached in the regular call of the docket on the 1st of February, when Mr. Carlisle associated with Mr. Woolworth, for the appellee had the case called under the rule, and dismissed at the costs of the appellents, for want of prosecution.
It is therefore off the docket.
Yours truly,
D.W. Middleton
In this letter, the court clerk responds to a law firm’s inquiry about a case. Specifically, the letter informs the firm that the case was dismissed when the appellants’ lawyers didn’t show up in court. The law firm had inquired about the case in a letter dated February 25th — “25th ult,” shorthand for 25th ultimo, or the 25th day of the previous month.
But what was the case about, and who were the people named in the letter? I did some hunting around, and here’s what I could figure out. The author of the letter is easily identified: D.W. Middleton was the Clerk of the Supreme Court from 1863 to 1880.
The named appellant, “Sam R. Curtis,” was Major General Samuel Ryan Curtis, a Union general who months earlier had led his troops to a decisive victory over the Confederates in The Battle of Westport.
The law firm of Curtis & Scribner was an Ohio law firm, and the “Curtis” in the firm name referred General Curtis’s older brother Henry Barnes Curtis, a very prominent Ohio attorney.
The “Mr. Carlisle” mentioned in the letter was James Mandeveille Carlisle, one of the premier Supreme Court advocates of his day. A Centennial History of Washington DC published in 1892 reports that “for many years [Carlisle's] practice was almost confined to the Supreme Court, and it is not saying too much to say that no lawyer ever more completely won and held the esteem, confidence, and respect of that great court than did Mr. Carlisle.”
The key part of the picture I couldn’t figure out, unfortunately, was the nature of the underlying case. I looked through the “allcases-old” database on Westlaw, and I couldn’t find any references to the case in either state or lower federal courts. Oh well. Still, kind of fun for $10 on eBay.
UPDATE: Andrew Hyman has figured out the mystery about the underlying case: see his comment here. Thanks, Andrew, for the excellent sleuthing.
Andrew says:
Orin, your letter doesn’t say “Mr. D. Brown.” It says “Wm. D. Brown” as in “William D. Brown.” See here.
December 23, 2009, 2:54 amAndrew says:
This seems to be the story:
December 23, 2009, 3:15 amAlanDownunder says:
Here’s how a suburb came to be called Ultimo. The owner of an estate called it Ultimo after his acquittal on the ground that an ult in the charge laid against him should have been an inst.
December 23, 2009, 7:07 amTRE says:
Can you detail the civil procedure involved in getting this case dismissed? “had the case called under the rule?”
December 23, 2009, 8:21 amJay says:
TRE–I make no claims to specific knowledge about this case, or even how the 19th century SCOTUS worked. But old-fashioned civil procedure often involved the court issuing a “rule nisi,” which was in practice like a modern show cause order. That is, it adopted the result requested by the moving party, unless the non-moving party objected and showed why that was inappropriate by a deadline. If no such objection came the rule became “absolute.” (I think some states still use this terminology in divorce cases.) So here, if I had to guess, the court had earlier issued a “rule [nisi]” ordering appellee to show cause why appellant should not win, but then at the docket call the appellee showed up, “had the case called under the rule,” and the appellant was not present to defend the earlier rule, and so appellee prevailed and the case was dismissed.
I may well be missing some important distinction based on the SC being an appellate court, but I think that’s roughly how things worked.
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December 23, 2009, 10:54 amDave N. says:
Great detective work on Andrew’s part.
December 23, 2009, 10:58 amChris Travers says:
The color of the ink looks to me to be faded iron/gall ink. (I.e. iron/tannin ink which was black at first but over time has faded). Does anyone know what condition the underlying paper is in? Iron/gall inks degrade paper substantially.
December 23, 2009, 11:20 amRandy says:
What beautiful handwriting clerks and other people had back then, even if it’s a bit hard to read to modern eyes.
December 23, 2009, 11:22 amChris Travers says:
Randy: Have you ever tried to write with a nibbed quill pen? If you do and get past the substantial learning curve two things you will notice:
1) It takes a LONG time to write anything, and you can’t just move a quill pen like you can a ball point or even a cartridge fountain pen. The old pens require writing SLOWLY.
2) Cursive is often really nice because it keeps the pen nib in a small pool of nk on the page. This is important because this helps more ink be drawn own the nib and thus increases how much you can write between dippings.
(I may be quirky in this but I think learning to write with a nibbed quill pen is an amazing and transformative experience that everyone should have.)
December 23, 2009, 11:42 amOrin Kerr says:
Chris,
The paper is in excellent condition: It seems like it is 10 years old, not well over 100.
December 23, 2009, 11:50 amASlyJD says:
Randy, check this out: Jun 1, 1572
Hand writing has changed a wee bit since 1572.
December 23, 2009, 11:52 amChrisIowa says:
Now that you know what it’s about you can probably sell it for double.
December 23, 2009, 12:01 pmChris Travers says:
Then I wonder what kind of paper it is. Cotton papers were often used for printing, but are almost impossible to write with. My immediate thinking is that the paper is probably made from hemp fibers but I could be wrong.
December 23, 2009, 12:13 pmRandy says:
Chris: “Randy: Have you ever tried to write with a nibbed quill pen?”
Yup, and I’m NOT good at it, which is why I am in awe of those who were able to do so.
I taught myself basic calligraphy a long time ago, and use it for place names and whatnot once in a while. It’s fun, because my normal handwriting is pretty lousy.
December 23, 2009, 12:47 pmOrin Kerr says:
Now that you know what it’s about you can probably sell it for double.
Maybe, but given that I bought it for only $10, I don’t expect to give up my day job.
December 23, 2009, 1:43 pmChris Travers says:
It just takes some time and effort to master. Also every pen has its own learning curve. Finally the ink used is critical as well. Get good ink designed for quill pens, a good pen, and a few hours in order to practice and at the end of a few hours, you may find you can use it competently.
There is a very substantial learning curve though and it takes both concentration and patience. For this reason it is one of the regular training measures I use to keep my attention-deficit disorder in check.
December 23, 2009, 1:52 pmAssistant Village Idiot says:
Randy, as one who goes through genealogical documents in beautiful cursive script by town clerks, with each cursive artist taking his own liberties as to forms for letters, I would say that it is not only modern eyes which find it hard to read. I have read family records from the 1890′s which reference town documents from the 1820′s and get the basic data flat wrong. When Rune, MA – a town the author was unable to locate – turns out to be Keene, NH, I would say that elegance of presentation has interfered with the only real purpose of writing.
Similarly, if one reads old handwritten correspondence, the charm of such elegant script pales rapidly. Adjusting to the “purfuit of happineffs” is fun and easy. But when 30% of the letters require such adjustments it’s just a headache.
December 23, 2009, 2:05 pmChrisIowa says:
You didn’t notice my tongue in my cheek.
A couple more serious questions, would a clerk have done a draft before writing the final copy, or was the procedure slow enough that they would compose as they went?
Were there other ink writing utensils in more common use? I’ve got the monthly minutes for an organization starting in 1876, a few and only a few of the pages are as ornately done as this example. Many are poorly written. Style and readability depend on the secretary at the time, but most pages are written in a constant width (or nearly so) line weight.
December 23, 2009, 2:09 pmChris Travers says:
If you write with a quill pen for any length of time, the reason for such forms becomes quite clear quickly and consequently reading it becomes far easier.
For example, quill pens show a bias in direction written. It is rather difficult to draw a circle, but a modern letter ‘s’ is very challenging without either spattering ink on the page or digging a whole through it trying to get the ink to start. The old-style s (that looks like an f) is far easer to write.
December 23, 2009, 3:03 pmAndrew says:
I should mention, if you didn’t notice already, that a wonderful quote is attributed to William D. Brown: “Failure is an event, never a person” (or equivalently, “Failure is an event, not a person”).
Something to keep in mind if you’re ever down in the dumps about a plan gone wrong.
December 23, 2009, 3:34 pmChris Travers says:
That’s right up there with a quote attributed to some Spartan prince by Plutarch (not sure which Spartan prince at the moment and too lazy to check):
On being assigned an obscure part in a vocal performance, he said, “That’s alright. I will show you that men elevate positions, not the other way around.”
December 23, 2009, 7:40 pmRandy says:
Chris et al: I did try a quill pen, but I figured I used up my patience on italic calligraphy. Quills rather quickly ‘bum out’ and it’s hard to find replacements. But I do understand that circles and s’s are difficult, and you see why things were done a certain way back when. Agreed that sometimes they can be very difficult to read, as in the above case. It’s just makes it more like a mystery….
December 23, 2009, 11:18 pmThursday round-up | SCOTUSblog says:
[...] at the Volokh Conspiracy, Orin Kerr shares a scan of his latest eBay purchase: an 1865 letter from the Clerk of the U.S. [...]
December 24, 2009, 9:26 amThe Volokh Conspiracy » Blog Archive » A 1788 Dublin Copy of Pleas of the Crown — And A Possible Supreme Court Connection? says:
[...] mention all of this in the spirit of my recent post on the 19th Century Supreme Court letter because I found some intriguing markings in and on the book. Inside the front cover, I found two [...]
January 3, 2010, 1:56 am