Monday, March 30, 2009

Two Views of Internal Improvements

I can't resist juxtaposing these two quotes.
Whatever . . . impedes the intercourse of the extremes with this, the centre of the Republic, weakens the Union. The more enlarged the sphere of commercial circulation, the more extended that of social intercourse; the more strongly are we bound together; the more inseparable are our destinies.

Those who understand the human heart best, know how powerfully distance tends to break the sympathies of our nature. Nothing, not even dissimilarity of language, tends more to estrange man from man. Let us then . . . bind the Republic together with a perfect system of roads and canals. Let us conquer space. . . .

John Caldwell Calhoun, February 4, 1817.
“After all,” said he, . . . “I don’t deny that the steamboat is destined to produce valuable results – but after all, I much question . . . if we are not better without it. I declare, I think it strikes deeper at the supremacy of the states than most persons are willing to allow. This annihilation of space, sir, is not to be desired. Our protection against the evils of consolidation consists in the very obstacles to our intercourse. Splatterthwaite Dubbs of Dinwiddie . . . made a good remark – That the home material of Virginia was never so good as when her roads were at their worst.”

John Pendleton Kennedy, Swallow Barn; or, A Sojourn in the Old Dominion (1832).

Saturday, March 28, 2009

Thrasyboulos, Son of Lykos

In his Ancient Greek History lectures, Donald Kagan urges us to remember the Athenian Thrasyboulos, who defeated the Thirty Tyrants and returned democracy to Athens following the end of the Peloponnesian War. Professor Kagan points out the remarkable reputation that Thrasybulus carried among historians in the ancient world, who probably were relying on sources now lost to us.

Here is the remarkable assessment of 1st Century B.C. Roman biographer Cornelius Nepos:
THRASYBULUS, the son of Lycus, was a native of Athens. If merit is to be valued by itself, without regard to fortune, I doubt whether I ought not to place him first of all the Greek commanders. This I can say without hesitation, that I set no man above him in integrity, firmness, greatness of mind, and love for his country; for while many have wished, and few have been able, to deliver their country from one tyrant, it was his lot to restore his country, oppressed by thirty tyrants, from slavery to freedom. But though no man excelled him in these virtues, many, I know not how, surpassed him in fame.

The 2nd Century A.D. Greek traveler, geographer and historian Pausanias likewise regarded him as "the greatest of all famous Athenians," including Pericles:
Such are their sanctuaries here, and of the graves the first is that of Thrasybulus son of Lycus, in all respects the greatest of all famous Athenians, whether they lived before him or after him. The greater number of his achievements I shall pass by, but the following facts will suffice to bear out my assertion. He put down what is known as the tyranny of the Thirty, setting out from Thebes with a force amounting at first to sixty men; he also persuaded the Athenians, who were torn by factions, to be reconciled, and to abide by their compact. His is the first grave, and after it come those of Pericles, Chabrias and Phormio.

The Potomac Canal and the Constitution

Susan Dunn notes an irony in the fact that, in subsequent years, many of Virginia’s founding fathers disputed that the Constitution authorized the federal government to support “internal improvements,” as they were then known. After all, Prof. Dunn observes,
The Framers of the Constitution had come together in Philadelphia precisely to create a national government with the capacity to plan and support a system of roads and canals. From the very beginning, “internal improvements” – roads, canals, bridges – had been not only the new government’s mission but its raison d’etre.

As Prof. Dunn recounts, the pre-history of the gathering of the Constitutional Convention lay in the possibility of using the Potomac River to develop a Potomac Canal that would funnel trade from Ohio through Virginia. Thomas Jefferson supported the idea, and George Washington was particularly enthusiastic.

Because the Potomac River lay between Virginia and Maryland, Washington organized a “Mount Vernon Conference, at which representatives from Virginia and Maryland would meet in March 1785 to work out commercial and legal issues.” That plan developed into a larger conference, to be held in Annapolis in the fall of 1786, at which “representatives from all thirteen states would gather to consider a ‘uniform system’ for regulating commerce and transportation across the nation.”

The resulting conference, known as the Annapolis Convention, convened at Annapolis, Maryland in September 1786 to consider, in the words of the resulting Report, “how far an uniform system in their [the states’] commercial intercourse and regulations might be necessary to their common interest and permanent harmony.” The Annapolis Convention, however, “proved a disappointment, with delegates from only five states in attendance.” Nonetheless, the delegates issued a Report in which they called for yet another conference, at which, they hoped, delegates would agree to authorize the federal government to initiate and orchestrate infrastructure projects. In the words of the Report:
Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction, that it may essentially tend to advance the interests of the union, if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavours to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.

That proposed conference became the Constitutional Convention. “And so, a direct line of descent can be traced from the Constitutional Convention – at which Benjamin Franklin called for ‘a power to provide for cutting canals where deemed necessary’ – back to George Washington’s Potomac Canal.”

It is perhaps appropriate to give the last word to John Quincy Adams, who during his presidency “called once again for a national plan for internal improvements."
Unlike [James] Madison, [Adams] had not attended the Constitutional Convention, but he did not doubt that the Constitution allowed for such federal undertakings. If it had not, Adams mused, it could be said that the Founders “performed their work in a manner so ineffably stupid as to deny themselves the means of bettering their own condition.”

Leo Kottke

Some guitar videos that Rene Tyree posted on Facebook got me thinking about Leo Kottke. This version of "Louise" is, unfortunately, far inferior to the version that appears on Kottke's second album, Greenhouse. But if I had to pick just one Kottke album to recommend, I'd go for his first, 6- and 12- String Guitar.

Add It to the List

Richard Painter at Volokh recommends Mark R. Killenbeck's M'Culloch v. Maryland: Securing a Nation for a "comprehensive discussion of the First Bank of the United States." The H-Net review does indeed make it look quite interesting.

Although the illustration depicts Chief Justice John Marshall at a later event, it's not entirely irrelevant given Andrew Jackson's attack on the Second Bank. Plus, I love Andy's hair!

Thursday, March 26, 2009

"Strictly, the Southerner had no mind; he had temperament"

Susan Dunn's Dominion of Memories led me to this highly amusing description of Robert E. Lee's son, William Henry Fitzhugh ("Rooney") Lee. Henry Adams, Rooney's classmate at Harvard in the late 1850s, provided this sketch of Rooney and other southerners he encountered at school, in his The Education of Henry Adams:
Lee, known through life as “Roony,” was a Virginian of the eighteenth century, much as Henry Adams was a Bostonian of the same age. Roony Lee had changed little from the type of his grandfather, Light Horse Harry. Tall, largely built, handsome, genial, with liberal Virginian openness towards all he liked, he had also the Virginian habit of command and took leadership as his natural habit. No one cared to contest it. None of the New Englanders wanted command. For a year, at least, Lee was the most popular and prominent young man in his class, but then seemed slowly to drop into the background. The habit of command was not enough, and the Virginian had little else. He was simple beyond analysis; so simple that even the simple New England student could not realize him. No one knew enough to know how ignorant he was; how childlike; how helpless before the relative complexity of a school. As an animal, the Southerner seemed to have every advantage, but even as an animal he steadily lost ground.

The lesson in education was vital to these young men, who, within ten years, killed each other by scores in the act of testing their college conclusions. Strictly, the Southerner had no mind; he had temperament. He was not a scholar; he had no intellectual training; he could not analyse an idea, and he could not even conceive of admitting two; but in life one could get along very well without ideas, if one had only the social instinct. Dozens of eminent statesmen were men of Lee’s type, and maintained themselves well enough in the legislature, but college was a sharper test.

Wednesday, March 25, 2009

John Taylor of Caroline Says, "Ouch!"

Having spent some time in New Haven myself, I got a particular kick out of this story related by Susan Dunn in Dominion of Memories: Jefferson, Madison & the Decline of Virginia (which I'm enjoying very much).

In 1805, John Taylor of Caroline apparently wrote to Timothy Dwight, then President of Yale College, concerning the admission of his (Taylor's) son to the school. Dwight responded with a cutting letter illustrating "the widening cultural chasm between North and South":
"Permit me to say that I do not think it would forward your design to send your son to this college," . . . Dwight wrote dismissively . . .. As far as Dwight was concerned, young Virginians inhabited another sphere, so unsuited were they for serious study in New Haven. "If I may judge from the Virginia youths who have been here during my presidency," he observed, "I cannot form a rational hope that youths from that country will at all acquire here any portion of the New England manners." Most of the southern students who had attended Yale, Dwight wrote, "despised and hated our manners,morals, industry, and religion. No part of our system or conduct was agreeable to them."

Dunn reports that, to his credit, Taylor for the most part kept to the high road in response to Dwight:
Rather than exacerbating regional differences [Taylor suggested], shouldn't the nation's colleges promote understanding among the states and help obliterate those differences? "Consider, sir, the consequences of academical institutions, which teach local prejudices, State enmities, and individual hatred. What will become of the Union and national happiness, if errors calculated to arm State against State, with the most deadly moral weapons, are inculcated by zeal, rendered doubly dangerous by credulity?"

Dwight's letter strikes me as particularly odd because another southerner, John C. Calhoun, had graduated from Yale just the year before. I don't have my Calhoun biographies with me, but Dwight no doubt admitted him and my recollection is that Calhoun performed brilliantly, despite little prior formal education, and got on famously with Dwight.

Tuesday, March 24, 2009

Jimmy Carter Is Still a Moron, At Least

I'm old enough to remember Jimmy Carter in his original incarnation. The only question is whether he's just an idiot or downright malevolent. He spent most of his term trying to make the country look like "a weak, pitiful giant." His subsequent career, however, suggested that he was more evil than stupid: the incorrigible America bashing, the repeated siding with intolerant theocracies and dictatorships and murderous terrorist groups.

Carter's most recent lunacy swings the needle back toward "just really stupid:" According to Carter, the Civil War was un-Christian:
Here's the latest outrage from Jimmy Carter, the ex-President so many Americans love to hate: He claims the Civil War - which he calls, Southern-style, "The War Between the States" - was un-Christian and could have been avoided.

The comments come in a new book, "In Lincoln's Hand: His Original Manuscripts With Commentary By Distinguished Americans." Carter comments on a passage by Lincoln in which Lincoln writes: "I am almost ready to say this is probably true - that God wills this contest, and wills that it shall not end yet."

Carter writes that he finds the Lincoln writing "very troubling." Continues Carter: "He ignores the fact that the tragic combat might have been avoided altogether, and that the leaders of both sides, overwhelmingly Christian, were violating a basic premise of their belief as followers of the Prince of Peace." He concludes: "A legitimate question for historians is how soon the blight of slavery would have been terminated peacefully in America, as in Great Britain and other civilized societies."

I discussed this a long time ago.

Thanks to LGF for the lead.

Sunday, March 22, 2009

Strapping Swedish Swordsman Pussy Whipped in Brazilian Pine Barrens

I have to note with pride that my hometown paper, the New York Post, has been on a roll lately. On Thursday, the Post ran the front page headline, “PUSSY WHIPPED!”, about a small-time celebrity who had thrown her cat at her sleeping fiancé.

The next day, page 2 of the paper included the headline, “IT’S BUSH COME TO SHOVE IN WAX WAR”. The State of New Jersey, apparently having nothing better to do, was about to outlaw “’Brazilian’ bikini waxes”, and hirsute Garden State women were outraged because “officials have no business legislating what women do with their, uh, Pine Barrens.“

That same day, New Jersey officials dropped the planned Brazilian wax ban. The headline of the resulting Post article wasn’t great (“NJ Scraps Ban on Brazilian Waxing”), but the lead sentence of the article happily announced that “New Jersey is smoothing out differences over a plan to ban bare-it-all bikini waxing.”

But to make up for its somewhat disappointing wax-ban performance, the Post produced “They Made Swede Love: Divorce Countess’ Heart Pierced By Fencer’s Blade”. I particularly like the opening paragraph:
An "off the reservation" countess who complains she can't live on a measly $36 million divorce settlement admitted she had a steamy affair with a strapping Swedish swordsman during her tumultuous marriage.

Jean-Baptiste Lully

I see that Jean-Baptiste Lully died today, March 22, in 1687. If you have never heard a French baroque opera, you owe it to yourself to do so, and I just happen to have a recommendation: Lully's Atys, as performed by William Christie and his group Les Arts Florissants. Simply magnificent.

"When Jackson begins to talk about hanging . . . look out for ropes"

As South Carolina moved toward nullification in November 1832, President Andrew Jackson's rage mounted. He reportedly told one congressman,
Tell them from me that they can talk and write resolutions and print threats to their heart's content. But if one drop of blood be shed there in defiance of the laws of the United States, I will hang the first man of them I can get my hands on to the first tree I can find.

To another, Jackson warned that South Carolina would be "covered with blood." And Jackson told Martin Van Buren that John C. Calhoun "ought to be hung as a traitor."

Washington buzzed with reports of the president's statements and "threatening the gallows." Many felt that Jackson was impulsive enough to carry out his threats. Jackson loyalist Thomas Hart Benton was one of them. Benton knew Jackson well, both as an enemy and, later, a political ally and friend. Benton also knew from personal experience that Jackson was no stranger to violence. In September 1813, Jackson and several companions were involved in a running gunfight with Benton and Benton's brother Jesse in downtown Nashville, during which Jesse was repeatedly stabbed and Jackson was shot twice and nearly killed.

Thus, when Robert Y. Hayne of South Carolina approached Benton to ask, "I don't believe [Jackson] would really hang anybody do you?", Benton warned him not to be so sure:
Well before he invaded Florida on his own hook, few people could have believed that he would hang [Alexander] Arbuthnot and shoot [Robert] Ambrister -- also on his own authority -- could they? I tell you, Hayne, when Jackson begins to talk about hanging, they can begin to look out for ropes.

Saturday, March 21, 2009

James Alley Blues

When I first heard "James Alley Blues" by Richard "Rabbit" Brown I was stunned, and it remains one of my favorite pieces of early music and blues to this day. If you know it, it's probably because it appears on the Harry Smith Anthology. It also shows up on the excellent Times Ain't Like They Used to Be series and on a Document Records disc that Brown shares with Mississippi John Hurt (and which I see has been discontinued).

The Wikipedia entry mentions that many modern musicians have covered the piece. I've heard only a couple, but my advice is -- don't bother. Nothing can approach the original.

Friday, March 20, 2009

Andrew Jackson = Millard Fillmore?

The great historian David M. Potter famously characterized the Compromise of 1850 as an "armistice" rather than a "compromise" because few legislators voted in favor of all of its components. Most historians -- but not all -- have embraced this conclusion.

Harry L. Watson suggests that the same debate might be had concerning the resolution of the Nullification Crisis (emphasis added):
The compromise tariff bill won the support of a coalition of low-tariff supporters and moderately protectionist congressmen, while the Force Bill passed with the votes of National Republicans and Northern Jacksonians. Few congressmen voted for both measures, but Jackson signed the two of them into law on March 2, 1833.

Wednesday, March 18, 2009

Martin Van Buren Says, "Ouch!"

I'm not sure I agree with this, but the first sentence of the quote is too wonderful to pass up:
The one thing missing from the Bucktails' program was a consistent and principled set of state policies. Emphasizing patronage and party discipline, they concentrated on the dead issue of Federalist elitism and evaded the substantive questions of their own times. As good Republicans, for example, the Bucktails were ostensibly opposed to the overwhelming power of banking institutions, but bankers who endorsed the Bucktail faction had no trouble getting what they needed from the legislature. . . . Under Van Buren's leadership, the strength of the Republican Party became synonymous with republicanism itself, and party loyalty alone became the test of the common good.

Harry L. Watson's Liberty and Power: The Politics of Jacksonian America is just wonderful.

About the illustration:
A satire condemning the duplicity and conspiracy of the "Bucktail" faction of New York Democrats in their April 1824 ouster of New York's ex-governor DeWitt Clinton from his post as canal commissioner. The Library's impression of the print has the missing letters in the names of the figures filled in by hand. Twelve men stand in a room, with a platform, table, and lamp on the right. On the left G[ardiner] is about to exit saying, "I will run home and ask the people how they will like it before I give my vote." To the left of the platform P[ierson] says to B[ourne], "I hope we shall give you a united vote for the removal of Mr. Clinton I have long wished an opportunity to have revenge on him for blowing up the old Burr Conspiracy." B[ourne]: "I am delighted with the prospect! Clinton has always been my devil--it will be impossible to pull him down to our level if we do not dishonor him. I recommend secrecy as success depends upon our taking the members by surprise at the moment of adjournment." Others in the room speak (counterclockwise, from the far left): S[eama]n: "I beg of you to pause ere you adopt any more lobby measures--we were sent here for public good--yet all our measures have for their object individual benefit. This base deed will produce a reaction and may make him Governor. The republican party so justly famed for justice and liberality will in their haste to free themselves from this odium forget and forgive everything." M[ors]e: "The North river squad think the Canal a benefit to ourside [sic] of the City and they will therefore disapprove our dishonoring its founder." D[rake]: "I wish I could be excused from voting, my conscience tells me it is wrong my judgment tells me it will dishonor the State--but the lobby requires it and it must be done." H[yatt]: "I vote here against the measure but if a majority of this meeting decide in its favor I will vote for it in the house tomorrow as my creed is the majority must rule." B[enedict]: "It is inconsistant with a Soldiers honor to build up or pull down any man to gratify angry or sordid passions --besides this lobby influence must be check'd or it will ruin the State." [Henry] W[heaton]: "I will support the measure to punish him for the injury he did our profession by recommending the fee bill and extending the jurisdiction of the judges." [Clarkson] C[rolius]: "I will support the measure in hopes of appeasing the wrath of the Bucktails altho' I fear they are too hard baked to be gull'd in this way. Besides My Insurance Co. & the lobby." W[ar]d: "My vote shall be given for this removal because he is the author of all our troubles about the electoral law. When Govr. he recommended to the Legislature the restoration of the peoples rights." T[own]: "It is true he has been my Benefactor and I ought to shudder at the deed but three months tuition in the hands of the lobby does away these squeamish feelings." Above, in a cloud, is Columbia with an American flag and an eagle, saying, "I renounce them and their ways."

"There was something that riveted your attention as with hooks of steel"

John Caldwell Calhoun was born 227 years ago today, on March 18, 1782.
Calhoun's oratorical style was the nearly perfect expression of his character and intellect. It combined "clear analysis, suppressed passion, and lofty earnestness." His only eloquence inhered in his argument. "He spoke as Euclid would have spoken," said [Rufus] Choate, who was himself Ciceronian, believing that the inert argument required the momentum of eloquence to reach its mark. Calhoun spoke with precision, without tropes, figures, analogies, or allusions. He spoke almost always without notes, and excelled in impromptu debate. "His voice was harsh, his gestures stiff, like the motions of pump-handle," a keen observer wrote. "There was no ease, flexibility, grace, or charm in his manner, yet there was something . . . that riveted your attention as with hooks of steel."

For all his machine-like rhetoric, Calhoun was, according to a Washington journalist, the most difficult man to report in the Congress. "He spoke with extraordinary fluency and rapidity, at times uttering short, piquant sentences that had the force of a round shot, and then running into a prolonged and involved sentence that required a sharp man to follow and comprehend." Since there was so little winning in the manner of Calhoun's oratory, one had to be taken in, if taken at all, by the matter.

Merrill D. Peterson, The Great Triumvirate: Webster, Clay, and Calhoun.

Tuesday, March 17, 2009

"A few striking examples"

When he left him this morning, James Buchanan was asserting that, if Section 25 of the Judiciary Act of 1789 were repealed, federal laws “would thus be entirely annulled.” He proceeded to give “a few striking examples” – hypotheticals that illustrated the point.

His first example took aim directly at South Carolina, the tariff and nullification:
Suppose the Legislature of one of the States, believing the tariff laws to be unconstitutional, should determine that they ought not to be executed within its limits. They accordingly pass a law, imposing the severest penalties upon the collector and other custom-house officers of the United States within their territory, if they should collect the duties on the importation of foreign merchandise. The collector proceeds to discharge the duties of his office under the laws of the United States, and he is condemned and punished before a State court for violating this State law.

Repeal of Section 25, Buchanan asserted, would allow the unnamed state to “nullify” the tariff:
Repeal this section, and the decision of the State court [convicting the collector] would be final and conclusive; and any State could thus nullify any act of Congress which she deemed to be unconstitutional.

Such a result would be disastrous, for the choices would be dissolution or war:
If no such appeal [to the Supreme Court] existed, then, upon the occurrence of cases of this character, the General Government would be compelled to determine whether the Union should be dissolved, or whether there should be a recurrence to force – an awful alternative, which we trust may never be presented. We will not attempt further to portray the evils which might result from the abandonment of the present judicial system. They will strike every reflecting mind.

Thirty years later, then President Buchanan confronted a similar choice between dissolution or war. As I have discussed in the past, he regrettably took the position that, although secession was unauthorized, the federal government lacked the power under the Constitution to employ (in his earlier words) “a recurrence to force” to prevent it.

"These laws would be entirely annulled"

Over the weekend, I referred to a report issued by the House Judiciary Committee on January 24, 1831 endorsing a bill that would have repealed Section 25 of the Judiciary Act of 1789. Section 25 then authorized the United States Supreme Court to review, among other things, final judgments of state supreme courts holding federal statutes to be “invalid”. The proposal had obvious application to the then-simmering Nullification dispute.

The minority “Counter Report” was written by none other than Rep. James Buchanan of Pennsylvania. Since most people (including me) have little good to say about him, I thought I’d take a look at what seems to have been Mr. Buchanan’s finest hour.

The most interesting thing about Buchanan’s report is that it takes on nullification fairly directly. If Section 25 were repealed,
[t]he judiciary of the States might refuse to carry into effect the laws of the United States; and without that appeal to the Supreme Court which the 25th section authorizes, these laws would be entirely annulled, and could not be executed without resort to force.

In the next installment, I’ll look at “a few striking examples” that Buchanan uses to illustrate his point.

Monday, March 16, 2009

Happy Birthday, Jemmy!

James Madison would have been born on March 16, 1751 if he had been born in 1752 instead of 1750. Ralph Ketcham explains:
Because of his birth just before Great Britain's calendar reform in 1752, Madison had two "birthdates," a Julian, or Old Style, one and a Gregorian, or New Style one. A calendar on the wall the night of his birth would have read March 5, 1750, reflecting the eleven-day lag accumulated by the inaccurate Julian calendar, and the designation of March 25 rather than January 1 as the first day of the new year. Adoption of the Gregorian calendar added eleven days to Old Style dates and changed the first of the year date, thus making Madison's birthdate March 16, 1751, New Style, though like many of his contemporaries he sometimes used the Old Style date and/or year in speaking of his birth.

Sunday, March 15, 2009


As soon as Caesar took his seat, the conspirators crowded around him as if to pay their respects. Tillius Cimber, who had assumed the lead, came up close, pretending to ask a question. Caesar made a gesture to put him off until later, but Cimber caught his toga by both shoulders. Then as Caesar cried, "Why, this is violence!" one of the Cascas stabbed him from one side just below the throat. Caesar caught Casca's arm and ran it through with his stylus, but as he tried to leap to his feet, he was stopped by another wound. When he saw that he was beset on every side by drawn daggers, he muffled his head in his robe, and at the same time drew down its lap to his feet with his left hand, in order to fall more decently, with the lower part of his body also covered. And in this wise he was stabbed with three and twenty wounds, uttering not a word, but merely a groan at the first stroke, though some have written that when Marcus Brutus rushed at him, he said, "You too, my son?"

All the conspirators made off, and he lay there lifeless for some time, and finally three common slaves put him on a litter and carried him home, with one arm hanging down. And of so many wounds none turned out to be mortal, in the opinion of the physician Antistius, except the second one in the breast.

Suetonius reports that Caesar's last words were in Greek: kai su, teknon? You, too, my son?

Helen of Troy, to Priam

"Before thy presence, father, I appear,
With conscious shame and reverential fear.
Ah! had I died, ere to these walk I fled,
False to my country, and my nuptial bed;
My brothers, friends, and daughter left behind,
False to them all, to Paris only kind!
For this I mourn, till grief or dire disease
Shall waste the form whose fault it was to please!
The king of kings, Atrides, you survey,
Great in the war, and great in arts of sway:
My brother once, before my days of shame!
And oh! that still he bore a brother's name!"

Saturday, March 14, 2009

"Shall the bill be rejected?"

As I discussed in the last post, on January 15, 1831 John C. Calhoun predicted that the House Judiciary Committee would favorably report on a bill that would repeal Section 25 of the Judiciary Act of 1789. Calhoun further predicted, somewhat more hesitantly, that the House would pass the bill.

The first prediction was correct. Rep. Warren Ransom Davis of South Carolina favorably reported for the Judiciary Committee on January 24, 1831.

Calhoun's second prediction, however, proved woefully misguided. On January 29, 1831, the full House rejected the bill by a lopsided vote of 138 to 51. I'm too lazy to do it, but some poor academic with time on his hands should go through and correlate the members' votes with their subsequent positions on Nullification in 1832-33.

Looking over the names, one vote that shocked me was that of George McDuffie of South Carolina, who voted in favor of killing the bill. What gives?

"If the 25th section did not exist . . each government would have a negative on the other"

Well, in my last post I was right on both counts.

First, the Report issued by the House Judiciary Committee on January 24, 1831 recommending repeal of Section 25 of the Judiciary Act of 1789 was delivered by Rep. Warren Ransom Davis of South Carolina.

Second, David P. Currie makes clear that the attempt to repeal Section 25 had everything to do with nullification. As early as 1827, John C. Calhoun had observed that repeal of Section 25 would effectively provide the states with the ability to "negative" federal law:
If the appellate power from the State courts to the U[nited] States court provided for by the 25th sec[tio]n [of the Judiciary Act] did not exist, the practical consequence would be, that each government would have a negative on the other, and thus possess the most effectual remedy, that can be conceived against encroachment.

Rep. Davis was a Nullifier. Moreover, Prof. Currie cites to this January 15, 1831 letter from Calhoun to James Henry Hammond as evidence of "Calhoun's complicity in the project" to repeal Section 25:
In the mean time, much can, and, I hope, will be done here by our members to bring out, in bold relief, all of the circumstances calculated to demonstrate our hopeless condition. With this view among other subjects, I trust, there will be a full discussion of the true nature and character of that most oppressive, most unjust, unconstitutional and dangerous of all projects, the distribution of the surplus revenue. The resolution of Mr Davis will also lead to a very interesting discussion. The Committee will report in favour of a repeal of the 25th Section of the Judiciary act, and, it is thought by many, the report will pass the House. However strange it may seem, there are many Zealously in favour of the repeal, who are violently opposed to what they call Nullification, as if the repeal did not comprehend, and go beyond Nullification. The discussion of the report on the repeal will doubtless strengthen our doctrines, as the occurence in Georgia has done.

James Buchanan, Savior?

Lawrence Solum recommends an article by Mark A. Graber, James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25. Here's a portion of the abstract:
James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25 . . ..

Unfortunately, the full abstract suggests that Prof. Graber (the author of a book on Dred Scott that I haven't read) is somewhat longwinded and given to jargon ("Judicial power, the evidence from 1831 and other times suggests, thrives in a political environment more characterized by intercurrence than realignment.").

Nonetheless, the underlying subject matter looks interesting. For you non-lawyers, the "Section 25" of the title is Section 25 of the Judiciary Act of 1789, passed by the First Congress to set up the federal court system. The text is here. Section 25, in Prof. Graber's words,
authorized the Supreme Court to review state court decisions upholding state laws against federal constitutional attack, declaring federal laws unconstitutional, or rejecting claims of federal constitutional right. Repeal for all practical purposes would have abolished federal judicial review of state laws and severely curtailed federal judicial review of national laws.

Apparently, in 1831, the House Judiciary Committee issued a report recommending the repeal of Section 25. "[James] Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the repeal," and his analysis carried the day.

The topic looks particularly interesting because of the date: 1831 was fewer than two years before the Nullification Crisis. The proposed repeal of Section 25 would have facilitated Nullification tremendously. Or, rather, perhaps it would have made political Nullification unnecessary, because the same end could have been accomplished through the state judiciary. Assume, for example, that the South Carolina Supreme Court held in 1832 that the tariff was unconstitutional and ordered imported goods released without payment of the tariff. No Section 25, no appeal to the U.S. Supreme Court, no remedy.

I haven't looked at the Judiciary Committee Report yet. Who wants to bet there was a South Carolinian or two sitting on the Committee?

Note to self: check David Currie.

Friday, March 13, 2009

Carry On

Repeated word for word from a post by Lawprof Eugene Volokh, just 'cause I think it's great:
A vulture is flying south for the winter, but this year he decides to take an airplane.

The morning of the flight, the vulture shows up to the airport, but knowing that airplane food wouldn't be right for him, he brings a dead armadillo to snack on.

"Do you want me to check that for you?," asks the ticket clerk.

"No need," the vulture says, "it's carrion."

Thursday, March 12, 2009

Tyler Two!

Mark Krikorian at The Corner reports the utterly incredible fact that two of President John Tyler's grandsons remain alive today. Tyler was born in 1790 -- that's 219 years ago -- and became president in 1841 -- that's 168 years ago. John Hinderaker at Power Line adds, "That's what you call good genes, I guess. Amazing."

Monday, March 09, 2009

Oh, the Shame!

I missed not one, but two, important Millard Fillmore anniversaries yesterday. I'm not even going to tell you what they were. Go to Millard Fillmore's Bathtub to find out.

Sunday, March 08, 2009

Add It to the List

For those of you interested in the incorporation debate -- that is, whether some or all of the first eight amendments were intended to be incorporated into the Fourteenth Amendment. and thus applied against the states, this looks like an interesting addition: Bryan H. Wildenthal, Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-73. Here's the abstract:
This Article is part of a Symposium, "The Fourteenth Amendment and the Bill of Rights: What Have We Learned? Why Does It Matter?" (University of San Diego School of Law, Center for the Study of Constitutional Originalism, Jan. 7, 2009). The general topic of the Symposium, and the articles growing out of it, is the so-called "incorporation debate." That debate concerns whether and to what extent the Bill of Rights (originally applicable only to the federal government) has properly been "incorporated," "enforced," "applied," or "nationalized" (pick your terminology) against the states. Everyone agrees that such a goal was embraced by some leading Reconstruction Republicans, such as Rep. John Bingham and Sen. Jacob Howard. But scholars continue to debate whether (or how broadly) the idea was shared in Congress, out in the states during the ratification process, or among the bench, bar, press, and public generally. This issue has become newly current given speculation that the Supreme Court, in the wake of District of Columbia v. Heller, 128 S. Ct. 2783 (2008), may apply to the states the Second Amendment right to bear arms.

The particular focus of this Article is on what may be learned from the scholarly and press commentary on the Amendment from 1867 to 1873 (up to before the Slaughter-House Cases decided in April 1873). How much weight should such commentary (mostly post-ratification) have as a general matter? Does the commentary support the incorporation thesis or undermine it? The writers considered include well-known legal scholars of the era such as Cooley, Bishop, Wharton, Pomeroy, Farrar, and Paschal, and also a less-well-known but arguably significant figure, Samuel Smith Nicholas of Kentucky. Articles in "The Nation," then a leading Republican-oriented newsmagazine (founded in 1865), and some other news articles, are also considered. While this Article has sought to be thorough in assessing relevant scholarly discussions published in book or law review form during the period covered, it does not exhaustively survey all of the archival newspaper or magazine materials that have recently become more readily available. More work remains to be done in future articles.

This Article concludes that, on the whole, the commentary during this period supports the thesis that nationalizing the Bill of Rights was part of the original public meaning of the Amendment, though the evidence is certainly mixed and others may draw different conclusions. The Article offers some cautious and tentative thoughts about the broader theory of originalism, but generally remains focused on the historical details.

Other articles in this Symposium deal with various related historical and theoretical issues. This Article offers a number of responses to the other articles, all of which will be published in Voume 18 of the University of San Diego's Journal of Contemporary Legal Issues. The other articles posted so far on SSRN include: Michael Kent Curtis, "The Bill of Rights and the States: An Overview From One Perspective," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (; Kurt T. Lash, "Beyond Incorporation," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (; and Lawrence B. Solum, "Incorporation and Originalist Theory," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (


While I have Kevin Levin’s attention (hopefully he’ll read this post), I’d like to respond to another thought he expressed in his recent post about Lincoln’s vice presidential choices in 1864. There Kevin stated, “I’m not a big fan of counterfactuals.”

I’ve always wondered why some historians seem so negative about counterfactuals. It’s certainly true that counterfactuals can be silly or stupid – What if the Confederates had an atom bomb at Gettysburg? But I would submit that much historical analysis – and much of what makes history fun – uses counterfactual reasoning.

Historians and history buffs alike routinely do more than simply recite facts: they express judgments about those facts. Some judgments are purely moral – Hitler was evil. But many, and perhaps most, are, in effect, covertly counterfactual. Take, for example, the judgment that the Compromise of 1850 was a Bad Thing (or a Good Thing), or that Robert E. Lee made a mistake in undertaking the Gettysburg campaign.

Both opinions are (or at least should be) judgments that weigh the option taken against other options that might have been taken. If I say that the Compromise of 1850 was a Bad Thing, I am saying, in effect, that there were other options that would have resulted in better outcomes. For example, I might be saying that I do not think that the South would have seceded (or Texas would not have invaded New Mexico territory) even if there had been no compromise. Or I might be saying that it would have been better for war to have come in 1850-51. But either way I am saying something about what might have happened if the Compromise did not occur.

Brian Dirck inadvertently makes precisely this point in his most recent post. He says that he did not pick Lincoln’s selection (or re-selection) of George McClellan as general as one of Lincoln's "worst flubs" because, in Brian’s view, Lincoln really didn’t have any other reasonably available option:
But I'm not sure if it would be fair to do so, because when you get right down to it, what were Lincoln's alternatives? It was painfully clear at that Winfield Scott was past his prime. Henry W. Halleck had his uses, but displayed many of McClellan's same failings. The country likely would not have tolerated elevating McDowell after the Bull Run debacle. As for Grant, Sherman and the other stars of the post-Gettysburg war, they had yet to prove their mettle in combat. McClellan probably was the only viable game in town, so it doesn't seem right to criticize Lincoln here for doing what pretty much any other president would have been compelled to do, given the available personnel.

This is, in effect, a series of counterfactual judgments. If, for example, Lincoln had selected Henry Halleck, he would have been as bad as or worse than McClellan. Fair enough. Based on Halleck’s performance in the posts he wound up actually holding, there is ample basis to agree. But you’re still projecting the outcome of an event – the appointment of Halleck – that never occurred.

Lincoln's 1864 Vice Presidential Possibilities

In a recent post, Kevin Levin was kind enough to link to a question I had raised as a comment to a post at Brian Dirck’s A Lincoln Blog. Prof. Dirck had cited Abraham Lincoln’s "worst flub" as the acceptance of Andrew Johnson as his vice presidential running mate in 1864. I asked, Well who, then, should Lincoln have pushed for the post? I qualified my question by noting that a fair answer required that the basic parameters be retained: basically, a Democrat (or Unionist) or conservative Republican from a border state or the lower reaches of the North.

When I asked the question, I had no answer in mind. My knowledge of available politicians in the specified categories during this period was and is weak. Like many, I suspect, I know more about the radicals on both sides, such as Clement Vallandigham or Charles Sumner, and far less about the moderates or conservative unionists.

It looks like Kevin (and his commenters), as well as Prof. Dirck, may propose some candidates. Despite my ignorance, I thought I’d take a crack at it too. As a first step, I simply consulted a Wikipedia list of the members of the Senate in the 38th Congress to see who, if anyone, looked like a possibility. Understanding full well that it’s not wise to propose vice presidential candidates based on their Wikipedia entries, I nonetheless thought it would be a fun exercise.

Here are my very brief notes on the possibilities. Among Senators, the candidates I’d be most likely to look at more closely are Garrett Davis, Reverdy Johnson (despite his age) and Waitman Willey.

James A. Bayard, Jr. (Democrat, Delaware) – Definitely not, refused to take loyalty oath.

George R. Riddle (Democrat, Delaware) – Maybe?

Willard Saulsbury, Sr. (Democrat, Delaware) – Definitely not, vehement critic, drunk.

Thomas A. Hendricks (Democrat, Indiana) – Maybe?

Henry Smith Lane (Republican, Indiana) – Definitely not, abolitionist.

Lazarus W. Powell (Democrat, Kentucky) – Definitely not, vehement critic.

Garrett Davis (Unionist, Kentucky) – Promising?

Thomas Holliday Hicks (American, Maryland) – No. Was governor in 1861. Too controversial, too anti-immigrant, too old.

Reverdy Johnson (Unionist, Maryland) – Well known Whig, leading legal figure for decades. Other than age, an interesting possibility. But represented defendant in Dred Scott.

John B. Henderson (Unionist, Missouri) – Maybe?

Robert Wilson (Unionist, Missouri) – Maybe?

B. Gratz Brown (Unionist, Missouri) – Too radical?

John C. Ten Eyck (Republican, New Jersey) – Can’t tell. Not enough gravitas?

William Wright (Democrat, New Jersey) – Maybe? Can’t tell.

John S. Carlile (Unionist, Virginia) – Maybe? Interesting. Too conservative?

Peter G. Van Winkle (Unionist, West Virginia) – Maybe? Interesting.

Waitman T. Willey (Unionist, West Virginia) – Leading western Virginian politician. Possibility.

There are, of course, many other groups to review for possible candidates: governors, representatives, possibly political generals. But at least it's a start.

On the Brink of Civil War

I have lavished praise on John C. Waugh's On the Brink of Civil War: The Compromise of 1850 and How it Changed the Course of American History, and I take none of it back. But in fairness I do need to voice one modest criticism: Mr. Waugh provides too little detail concerning the collapse of the Omnibus Bill at the very end of July 1850 and the subsequent resurrection of the Compromise through separate pieces of legislation.

Page numbers alone will give you a feel for the imbalance. Mr. Waugh takes 172 pages to get the reader through the story to the death and burial of Zachary Taylor in mid-July 1850. The rest of the tale unfolds in a mere 11 pages of text. It's as if Mr. Waugh realized that he was approaching the page limit set by the publisher and simply condensed the ending. Mr. Waugh reviews the collapse and resurrection, but omits much of the detail. We certainly do not get the colorful character descriptions and dramatic word paintings that make the first 172 pages such a delight.

This is a significant loss given Mr. Waugh's storytelling abilities. The events of late July and August contain great inherent drama, and I have no doubt that Mr. Waugh could and would have made them compelling.

That said, I suppose I must look at the book as a glass three-quarters full rather than one-quarter empty. I'm grateful that most of the story of the Compromise, at any rate, has benefited from Mr. Waugh's vivid writing.

Saturday, March 07, 2009

The Lost History of the Ninth Amendment

Kurt Lash is one of the country's leading scholars on the Ninth Amendment. I see that Prof. Lash has a book out on the subject, The Lost History of the Ninth Amendment, which Lawrence Solum describes as "magnificent."

I don't mean to deprive Prof. Lash of his royalties, but those of you who are interested in taking advantage of his learning on the cheap may do so by reading several of his articles that are available for free download at SSRN: The Lost Original Meaning of the Ninth Amendment; The Lost Jurisprudence of the Ninth Amendment; A Textual-Historical Theory of the Ninth Amendment; and The Inescapable Federalism of the Ninth Amendment.

"But sure, your Ixellency is only a sicond-hand Prisident!"

I've told you before that John C. Waugh's On the Brink of Civil War is a marvelous book. It's a good introduction to the Compromise of 1850, and it's just chock full of the most wonderful anecdotes. Forgive me, but I've got to relate one more, a humorous tale about none other than Millard Fillmore.

Shortly after Fillmore was elevated to the presidency in July 1850, a story circulated around Washington that Fillmore was looking for a new carriage.
A veteran White House attendant, "Old Edward" Moran, took him to see a bargain being offered by its owner leaving town. "This is all very well, Edward," Fillmore said, "but how would it do for the President of the United States to ride around in a second-hand carriage?" "But sure," Old Edward said, "your Ixellency is only a sicond-hand Prisident!"

"I know of no man who lives in such utter intellectual solitude"

My last post on Daniel Webster brought to mind the Great Triumvirate, and Harriet Martineau's arresting descriptions of them. Here she describes a typical evening affair held during the winter of 1835. I have added paragraph breaks for readability:
Our pleasantest evenings were some spent at home in a society of the highest order. Ladies, literary, fachionable, or domestic, would spend an hour with us on their way from a dinner, or to a ball. Members of Congress would repose themselves by our fire side.

Mr. Clay, sitting upright on the sofa, with his snuff-box ever in his hand, would discourse for many an hour, in his even, soft, deliberate tone, on any one of the great subjects of American policy which we might happen to start, always amazing us with the moderation of estimate and speech which so impetuous a nature has been able to attain. Mr. Webster, leaning back at his case, telling stories, cracking jokes, shaking the sofa with burst after burst of laughter, or smoothly discoursing to the perfect felicity of the logical part of one's constitution, would illuminate an evening now and then.

Mr. Calhoun, the cast-iron man, who looks as if he had never been born, and never could be extinguished, would come in sometimes to keep our understandings upon a painful stretch for a short while, and leave us to take to pieces his close, rapid, theoretical, illustrated talk, and see what we could make of it. We found it usually more worth retaining as a curiosity than as either very just or useful. His speech abounds in figures, turly [truly?] illustrative, if that which they illustrate were but ture [true?] also. But his theories of government, (almost the only subject on which his thoughts are employed,) the squarest and compactest theories that ever were made, are composed out of limited elements, and are not therefore likely to stand service very well.

It is at first extremely interesting to hear Mr. Calhoun talk; and there is a never-failing evidence of power in all he says and does, which commands intellectual reverence: but the admiration is too soon turned into regret,—into absolute melancholy. It is impossible to resist the conviction that all this force can be at best but useless and is but too likely to be very mischievous. His mind has long lost all power of communicating with any other. I know no man who lives in such utter intellectual solitude. He meets men and harangues them, by the fire-side, as in the Senate: he is wrought, like a piece of machinery, set a-going vehemently by a weight, and stops while you answer: he either passes by what you say, or twists it into a suitability with what is in his head, and begins to lecture again. Of course, a mind like this can have little influence in the Senate, except by virtue, perpetually wearing out, of what it did in its less eccentric day: but its influence at home is to be dreaded. There is no hope that an intellect so cast in narrow theories will accommodate itself to varying circumstances: and there is every danger that it will break up all that it can, in order to remould the materials in its own way.

Mr. Calhoun is as full as ever of his Nullification doctrines; and those who know the force that is in him, and his utter incapacity of modification by other minds,(after having gone through as remarkable a revolution of political opinion as perhaps any man ever experiences,) will no more expect repose and self - retention from him than from a volcano in full force. Relaxation is no longer in the power of his will. I never saw any one who so completely gave the idea of possession. Half an hour's conversation with him is enough to make a necessarian of any body. Accordingly, he is more complained of than blamed by his enemies. His moments of softness, in his family, and when recurring to old college days, are hailed by all as a relief to the vehement working of the intellectual machine; a relief equally to himself and others. Those moments are as touching to the observer as tears on the face of a soldier.

About the illustration:
A satire on the surprising alliance, forged early in the presidential campaign of 1840, between the Van Buren administration and southern or "nullification" Whigs in the circle of John Calhoun. At left editor Francis Preston Blair embraces Calhoun saying, "Now we will see if Pikens [i.e., South Carolina Congressman Francis W. Pickens] dare say again that I am a Galvanized Corps &c &c.' I think this will cause Nulification Stock to raise." Calhoun replies, "It gives me great pleasure to say that the best part of the Measures of the present Cheif Magistrate, are approved of by me, and I am happy of the opportunity of making these declarations, and I will stand by them." Van Buren, dancing in the background, exults, "Hurrah for Nullification Stock. I am delighted, what will the D---d Whigs say, who cares for Granny-Harrison." An obese Dixon Hall Lewis (right) adds, "I say Matty, you will find Cataline and myself, of some weight." Calhoun is characterized as a traitor (thus Lewis's reference to the Roman Catiline) because of his shift in allegiance from Whig to Democrat. Weitenkampf tentatively dates this as 1836. Its close similarity to "Expansion & Contraction" (no. 1840-47) and its commentary on the Calhoun-Van Buren alliance make 1840 more likely.

The Seventh of March

Today is the one hundred fifty ninth anniversary of Daniel Webster's Seventh of March Speech.

John C. Waugh sets the scene. On the morning of March 7, 1850, Isaac P. Walker, a Democrat from Wisconsin, was a concluding a speech, begun the day before, in support of the slave-free status of the territories wrested from Mexico. By noon, the Senate was "teeming" and "packed" with spectators in anticipation of the next speaker. "Every seat on the floor and in the gallery was occupied, every space where a human being could stand was filled."

Senator Walker graciously ceded the floor. "Mr. President," he said, "this vast audience has not assembled to hear me, and there is but one man, in my opinion, who can assemble such an audience. They expect to hear him, and I feel it to be my duty, as well as my pleasure, to give the floor to [him]."
Walker sat down and Daniel Webster began to rise. The sight of Webster rising on the floor of the Senate was one of the most riveting images in American politics. One observer explained, "the getting up of Daniel Webster was not a mere act; it was a process. . . . The beholder saw the most wonderful head that his vision ever rested on rising slowly in the air; he saw a lionlike countenance, with great, deep-set, luminous eyes, gazing at him with solemn majesty; in short, he saw the godlike Daniel getting on his feet, and his heart thrilled at the thought of what might be coming.

And then the godlike Daniel began:
Mr. President, - I wish to speak to-day, not as a Massachusetts man, nor as a Northern man, but as an American, and a member of the Senate of the United States. It is fortunate that there is a Senate of the United States; a body not yet moved from its propriety, not lost to a just sense of its own dignity and its own high responsibilities, and a body to which the country looks, with confidence, for wise, moderate, patriotic, and healing counsels.

It is not to be denied that we live in the midst of strong agitations, and are surrounded by very considerable dangers to our institutions and our government. The imprisoned winds are let loose. The East, the North, and the stormy South combine to throw the whole sea into commotion, to toss its billows to the skies, and disclose its profoundest depths.

I do not affect to regard myself, Mr. President, as holding, or as fit to hold, the helm in this combat with the political elements; but I have a duty to perform, and I mean to perform it with fidelity, not without a sense of existing dangers, but not without hope. I have a part to act, not for my own security or safety, for I am looking out for no fragment upon which to float away from the wreck, if wreck there must be, but for the good of the whole, and the preservation of all; and there is that which will keep me to my duty during this struggle, whether the sun and the stars shall appear, or shall not appear for many days.

I speak to-day for the preservation of the Union. "Hear me for my cause." I speak to-day, out of a solicitous and anxious heart for the restoration to the country of that quiet and harmonious harmony which make the blessings of this Union so rich, and so dear to us all. These are the topics I propose to myself to discuss; these are the motives, and the sole motives, that influence me in the wish to communicate my opinions to the Senate and the country; and if I can do any thing, however little, for the promotion of these ends, I shall have accomplished all that I expect.

"I mean . . . to protect myself, cost what it may"

Some time ago, I devoted several posts to the events of April 17, 1850, when Henry S. Foote drew a pistol on Thomas Hart Benton on the floor of the Senate. John C. Waugh points out that there was protracted run-up to the incident, which may explain why Senator Foote had that pistol with him.
“There was no man Foote detested more than Thomas Benton.” During the session, Foote had been riding Benton for months, comparing him at one point to “that degenerate Roman Senator,” Catiline.

On March 26, 1850, Foote escalated his rhetoric. He accused Benton of having “certain stains which have most hideously blemished his honor” and, as I read the passage, in effect dared Benton to challenge him to a duel:
I beg Senators to believe me when I assure them, that I never bring accusations against any man, whether he be a public or private individual, which I do not believe myself able to establish by irrefragable evidence, and in maintaining which, I do not feel myself responsible in every way whatever to him who chances to be assailed.

And now, sir, I will formally announce, that there are certain stains which have most hideously blemished the character of the honorable Senator from Missouri, since the days of his early manhood; that the unfavorable anticipations, awakened by the dawn of his career, have been quite strikingly realized by the meridian of development through which the honorable Senator has now passed; that there are incidents in his history, of somewhat recent occurrence, which might well relieve any man of honor from the obligation to recognize him as a fitting antagonist; yet it is, notwithstanding, true, that if the Senator from Missouri will deign to acknowledge himself responsible to the laws of honor, he shall have a very early opportunity of proving his prowess in contest with one over whom I hold perfect control; or, if he feels in the least degree aggrieved at anything which has fallen from me, now or formerly, he shall, on demanding it, have full redress accorded him, according to the said laws of honor.

I do not denounce him as a coward – such language is unfitted for this audience – but if he wishes to patch up his reputation for courage, now greatly on the wane, he will certainly have an opportunity of doing so whenever he makes known his desire in the premises. At present, he is shielded by his age, his open disavowal of the obligatory force of the laws of honor, and his Senatorial privileges.

Benton was understandably outraged. However – and despite his reference to the “the cudgel” -- what is most surprising is that Benton did not attack Foote then and there, or at least directly threaten to do so:
Is a Senator to be blackguarded here in the discharge of his duty, and the culprit go unpunished? Is language to be used here which would not be permitted to be used in the lowest pot-house, tavern, or oyster cellar, and for the use of which he would be turned out of any tavern by a decent landlord?

The VICE PRESIDENT. The Senator is called to order.

Mr. BENTON. If such things are to go on, and he is to persist in such blackguardism here, in a place where the cudgel cannot be applied to him, we must have the public indignation brought upon him, until the public sentiment shall make him behave with the propriety due to the Senate.

The next day, March 26, 1850, Benton was less restrained. In the morning, Benton read reports of Foote’s speech in the newspapers, and those reports apparently set him off again. When the Senate convened, Benton gained the floor. Quoting from Foote’s speech, as reported in the press, he denounced Foote’s accusations as a pack of lies. And this time he indicated that he would “resist” and “protect myself” against any further insults (emphasis added):
“At present he is shielded by his age, his open disavowal of the obligatory force of the laws of honor, and his Senatorial privileges.” Shielded by his age! by his age! Sir, let any person insult me where an appropriate chastisement can be employed, and inflicted upon blackguardism, and he will find out whether I am not young enough to resist; he will find out my age without consulting any calendar at all.

* * *

“His Senatorial privileges!” Sir, I claim no Senatorial privileges – I claim no privilege of attacking any person on this floor – I claim no privilege of insulting anybody here. I have never done it in the thirty years I have been here; I have never begun to insult any one; but if it is begun with me, although I may bear with insults a long time, yet, when once I take notice of it, there shall be an end, one way or the other. And if the Senate does not know that it is a Senate – if this Senate does not protect itself from scenes which would disgrace the veriest brothel – if this Senate permits language to be used here which cannot be used in the filthiest brothel in the Five Points, or in the suburbs of the city – if they permit such language to be used here, and to be used here with respect to me, I mean from this time forth to protect myself, cost what it may.

In the aftermath of the pistol-pulling incident on April 17, Foote protested that he had armed himself because he feared for his own safety. Foote’s reference to a “cudgel” suggests that he was referring back to Benton’s use of the term on March 26 (although admittedly March 26 was not “the other day” as of April 17, and Benton had not “menaced” him with a cudgel):
Mr. FOOTE. I am perfectly cool, and I feel the gravity of the occasion as deeply as others. . . . I have never threatened a human being with personal attacks in my life, and of course I have never executed a threat of that kind in my life. I have never worn arms to make an attack on any person, and have never worn arms at all in the Senate except when menaced, as I was the other day in the Senate with a cudgel. My friends urged upon me that, being diminutive in size and quite feeble in health, I should at least wear arms for my own defence. It was a novel thing to me, for I am not in the habit of doing it, and I put on arms, supposing it possible that I might be attacked after what had occurred, simply for the purpose of defending myself.

Foote surely provoked Benton on purpose on March 26, and Benton’s reactions were predictable and understandable. But even so, under the circumstances, Foote’s fears may not have been unreasonable.
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