Millard Not Dissed!

Over at Millard Fillmore's Bathtub, Ed Darrell has an appreciative post on Millard: Quote of the Moment: Should We Reconsider Millard Fillmore?  He ends:

Historians often offer back-handed criticism to Fillmore for the Compromise of 1850; in retrospect it did not prevent the Civil War. In the circumstances of 1850, in the circumstances of Fillmore’s presidential career, should we expect more? Compared to Buchanan’s presidency and the events accelerating toward war, did Fillmore do so badly?

Have we underestimated Millard Fillmore? Discuss.

You know how I'd answer the question.

About the illustration, entitled Delivery of the President's Letter:

Print shows the American delegation, under the command of Matthew C. Perry, presenting a letter from President Fillmore to the Japanese, requesting the establishment of diplomatic and trade relations.

Millard Dissed Again!

Longtime readers will know I'm a big Millard Fillmore fan and get seriously perturbed when Millard is dissed.  Well, it's happened again.  Over at the Daily Caller they've posted the Top Ten Hottest US Presidents in History and Millard is MIA.  I'm not of the female persuasion, but who would choose the violent and decrepit Andy Jackson or Franklin Pierce with his greasy locks over the dapper Millard?

Six Puzzles for Professor Akhil Amar

The always enjoyable and educational Seth Barrett Tillman has a short and fun (but very dense!) new paper out on SSRN for those of you who enjoy Constitutional puzzles: Six Puzzles for Professor Akhil Amar.  Here's the abstract:

The Constitution of 1787 uses a variety of language in regard to "office" and "officer."

It makes use of several variants on "office under the United States," and it also uses "officer of the United States," "office under the Authority of the United States," and, sometimes, just "officer" without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?

(And what was the Constitution referring to in Article VI's obscure "public trust under the United States" language?)

From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).

I contest their atextual position.

If you are interested in the "officers" dispute, or if you just want to know where the bodies are buried ... this paper is for you. "Six Puzzles for Professor Akhil Amar." Sometimes the title says all you really need to know.

INTRODUCTION: Dear Professor Amar, Here are six constitutional puzzles for your consideration. I would be very pleased if you responded, but I do not expect you to do so. I am sure you are very busy. Still, many, many people have read your books and articles, and heard your lectures and podcasts. And some of them are almost as smart and prolific (at least, collectively) as you are. So, even if you will not, perhaps, one or more of your many colleagues and students, readers and listeners would like to respond to one or more of these challenges.

Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?
Puzzle 2. Does Impeachment Extend to Former “Officers”?
Puzzle 3. Who are the “Officers of the United States”?
Puzzle 4. Is the President an “Officer of the United States”?
Puzzle 5. Is the Presidency an “Office . . . under the United States”?
Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”

Was Thomas Hamer the "adopted son" of Thomas Morris?

After writing Celebrating Thomas Hamer, I decided to check Jonathan H. Earle's fine book Jacksonian Antislavery & the Politics of Free Soil, 1824-1854 to try to get more information on Thomas Morris's election to the Senate in 1833.  The book confirmed that the election was an intra-Democratic affair and that there apparently were other candidates (given the close vote), but did not identify who they were:

After an unsuccessful run for a congressional seat in 1832, Morris returned to his law practice.  The election was a boon for Ohio's other Democrats, however, who won control of the legislature on the coattails of [Andrew] Jackson's reelection.  With Morris temporarily out of public life, some of the state's political leaders decided to back him for the state's vacant U.S. Senate seat.  Not only had Morris been a loyal Jacksonian since 1824, but Ohio's political chieftans saw from his long legislative record that Morris would stand behind the administration in two important areas: the bank war and the nullification crisis.  He was sent to Washington to support the administration.

***

The state's legislators elected [Morris] to the Senate in 1832 by a vote of 54-49.

So maybe Morris and Thomas Hamer had been rivals for the Senate seat in 1832 after all.

But then I read this (emphasis added):

[A]fter some equivocation, Morris decided to support the Tennessean [Andrew Jackson for president in 1824].  At the time Morris was publishing the weekly Benefactor and Georgetown Advocate in Brown County, which was the most populous county in the 5th District and one of the fastest growing in the state.  In January 1824 Morris transferred ownership of the Benefactor to his adopted son Thomas Hamer, who quickly swung the paper into the Jackson camp.  The journal was known as one of Ohio's staunchest Jacksonian papers . . ..

Can it be that Hamer was in fact Morris's "adopted son"?  I can't find much, but it seems so.  Here's a blurb from an old geneology:

. . . The noted Gen. Thomas L. Hamer, in 1818, came to Bethel a poor, friendless boy, and found a home in the family of Thomas Morris, with whom he studied law . . ..

Celebrating Thomas Hamer

Over at Power Line, Paul Mirengoff has a short but delightful post Celebrating Thomas Hamer, the Ohio Congressman who got Hiram Ulysses Grant Ulysses S. Grant into West Point.

I am, however, going to have to go back and check one point that seems amiss in the second paragraph of Paul's post:

Hamer was a lawyer in Grant’s boyhood hometown of Georgetown, Ohio, and a close friend of Jesse Grant, father of Hiram Ulysses Grant.  But Hamer was an ardent Jacksonian and Jesse Grant a strident Whig. Indeed, when Hamer ran unsuccessfully for the U.S. Senate, Grant supported his opponent, Thomas Morris. By the time Hiram Ulysses was a teenager, his father and Hamer were no longer on speaking terms.

Hamer was indeed a Jacksonian Democrat.  But Thomas Morris, whom Jesse the "strident Whig" supposedly supported over Hamer, was no Whig.  Morris was also an ardent - and indeed radical - Jacksonian.  I have written about Morris several times; those posts are collected here.

Morris served a single term in the United States Senate beginning in 1833.  Hamer was first elected to the U.S. House of Representatives that same year.  I suppose it is possible that both sought the Ohio Senate seat in 1833, but if so both did so as Jacksonian Democrats.  I suppose it is possible that Jesse supported Morris's appointment to the Senate that year, but of course Morris's "run" for the office would have focused on persuading the state legislators who appointed Senators at the time.

Did a Convert to Judaism Almost Become Emperor of Rome 200 Years Before Constantine?

95 AD marked the fourteenth year of the reign of the Roman emperor Domitian. At 43 years of age (born in 51 AD), he was hardly an old man, but lifespans were short and death always close in the ancient world.  Domitian himself had ascended the throne in 81 AD when his older brother Titus died unexpectedly of a fever at the age of 41.

Domitian, although married, had no surviving children.  Nor did he have any surviving siblings.  His father, the emperor Vespasian, had had only two children in addition to Domitian: Titus (39 AD - 81 AD) and a daughter, Flavia Domitilla the Younger (c. 45 AD - c. 66 AD).  Domitian's nearest male relative and presumed successor in the event of his early death was Titus Flavius Clemens, the son of Vespasian's brother Titus Flavius Sabinus and thus Domitian's cousin.

Flavius Clemens's date of birth seems to be unknown, but assuming a date around 50 AD, he would have been about the same age as the emperor.  Clemens apparently had his critics - in his Life of Domitian the historian Suetonius (c. 69 AD - c. 122 AD) describes Clemens as "a man of most contemptible laziness."  But whatever his faults, Clemens retained the royal favor.  He was permitted to marry his cousin Flavia Domitilla, the only daughter of Vespasian's deceased daughter Flavia Domitilla the Younger, who was thus Domitian's niece, and in 95 AD Domitian awarded him a prestigious ordinary consulship (that is, one that began at the start of the year) in 95 AD.

There is reason to believe that, in the longer term, Domitian was grooming two of the sons of Flavius Clemens and Flavia Domitilla to succeed him.  Domitian apparently appointed the famed rhetorician Quintilian to tutor the boys, and Suetonius explicitly states that "Domitian had besides openly named [Clemens's] sons, who were then very young, as his successors, changing their former names and calling the one Vespasian and the other Domitian.

All of that ended abruptly at about the time that Clemens's consulship ended on May 1, 95.  Domitian had Clemens executed, and exiled Clemens's widow to Pandateria. Why? Suetonius says only that Clemens was killed "suddenly and on a very slight suspicion," without specifying what the charges were.  However, the historian Cassius Dio (c. 150 AD - 235 AD),  writing some one hundred years later, asserts that Clemens and Domitilla were suspected of having converted to Judaism:

And the same year Domitian slew, along with many others, Flavius Clemens the consul, although he was a cousin and had to wife Flavia Domitilla, who was also a relative of the emperor's.  The charge brought against them both was that of atheism, a charge on which many others who drifted into Jewish ways were condemned. Some of these were put to death, and the rest were at least deprived of their property.  Domitilla was merely banished to Pandateria . . ..

Both the very unexpectedness of the charge and the fact that it does not fit the stereotyped Roman portrait of Domitian give it credibility.  Roman historians, including both Suetonius and Dio, delighted in portraying Domitian as a jealous tyrant quick to act against any who insulted him or posed a threat, however trivial.  Suetonius, for example, provides a laundry list of such victims, including Clemens's elder brother (and Domitian's cousin) Titus Flavius Sabinus, who was allegedly killed "because on the day of the consular elections the crier had inadvertently announced him to the people as emperor elect instead of consul:"

[Domitian] put to death many senators, among them several ex-consuls, including Civica Cerealis, at the very time when he was proconsul in Asia, Salvidienus Orfitus, Acilius Glabrio while he was in exile — these on the ground of plotting revolution, the rest on any charge, however trivial.  He slew Aelius Lamia for joking remarks, which were reflections on him, it is true, but made long before and harmless. . . .  He put to death Salvius Cocceianus, because he had kept the birthday of the emperor Otho, his paternal uncle; Mettius Pompusianus, because it was commonly reported that he had an imperial nativity and carried about a map of the world on parchment and speeches of the kings and generals from Titus Livius, besides giving two of his slaves the names of Mago and Hannibal; Sallustius Lucullus, governor of Britain, for allowing some lances of a new pattern to be named "Lucullean," after his own name; Junius Rusticus, because he had published eulogies of Paetus Thrasea and Helvidius Priscus and called them the most upright of men; and on the occasion of this charge he banished all the philosophers from the city and from Italy.  He also executed the younger Helvidius, alleging that in a farce composed for the stage he had under the characters of Paris and Oenone censured Domitian's divorce from his wife; Flavius Sabinus too, one of his cousins, because on the day of the consular elections the crier had inadvertently announced him to the people as emperor elect, instead of consul.

The execution of Clemens presented the ancient historians with the perfect opportunity to portray Domitian, yet again, as a paranoid obsessed with uncovering insults and signs of usurpation.  Their failure to do so strongly suggests that the charge was in fact something else.

Domitian's most careful modern biographer, Brian W. Jones, agrees that "Cassius Dio's comment on Clemens's atheism or adoption of Jewish ways should not be rejected out of hand."  In his book The Emperor Domitian, Prof. Jones cites tantalizing hints in Jewish sources that suggest that Clemens may have at least been attracted to Judaism:

In Talmudic and Midrashic sources, reference is made to a Jewish proselyte named Onkelos, described as a son of Kalonikos or Kalonymos and as a nephew of Titus; on three occasions, the emperor tried to arrest him, but failed.  In view of the vague similarity between Clemens and Kalonymos together with the reference to the imperial family, Cassius Dio's comment on Clemens's atheism or adoption of Jewish ways (67.14.2) should not be rejected out of hand.  Furthermore, the Midrash and the Babylonian Talmud refer to a senator named Keti'ah bar Shalom who, converted with his wife to Judaism, was put to death by an emperor.  All this is not hard evidence for the existence or extent of Clemens's sympathy with Judaism; probably it was only slight, but zealous delatores [informants] may well have found it enough to enable them to denounce him to the highly suspicious Domitian.

It remains to consider whether Clemens and Domitilla might have been attracted to Christianity rather than to Judaism.  As you may be aware, Christians later claimed them as martyrs.  Prof. Jones explains:

In the Christian tradition (i.e., the Acta of Saints Nereus and Achilleus), Domitilla and two of her eunuch servants, Nereus and Achilleus, were exiled to Terracina, where her servants were beheaded and she was burned to death.  All three became official martyrs, with a feast day on 12 May (until 1969, when hers was abolished).

Nonetheless, the link to Christianity is doubtful.  Dio, who was writing about 225 AD in Bithynia, "one of the most Christianized provinces of the Empire" (William H.C. Frend, The Early Church), specifically states that Clemens was associated with Judaism, not Christianity (although, as Prof Frend also points out, Dio "never mentions Christianity in his work").  The Roman Catacombs of Domitilla began as grant of land for her freedmen and did not become Christian until the mid to late 2nd Century.  The story of her conversion smacks of legend with different versions of the story in circulation and changing over time.  The Church historian Eusebius of Caesarea, for example, writing in the first third of the fourth century, characterizes Domitilla as Clemens's niece, not his wife, and has her banished to Pontia rather than to Pandateria or Terracina.  ("[I]n the fifteenth year of Domitian Flavia Domitilla, daughter of a sister of Flavius Clement, who at that time was one of the consuls of Rome, was exiled with many others to the island of Pontia in consequence of testimony borne to Christ").  Finally, Prof. Jones reports that Clemens himself - as opposed to his wife - was first hailed as a Christian by George Syncellus (died after 810 AD) in the late 8th Century, some 700 years after Clemens's death.

It's Caturday!

Sallie gives me tongue - twice!

Edmund Randoph's Opinion on the Recess Appointments Clause

As you may have heard, the United States Circuit Court for the District of Columbia recently used originalist analysis to hold that recess appointments that President Obama made to the NLRB violated the Recess Appointments Clause of the Constitution.  All three of the judges on the panel held that the Clause permitted the president to make recess appointments only during inter-session recesses of the Senate.  Two of the three judges also held that the president had the power to make recess appointments only when the vacancy arose during that recess (the third judge found it unnecessary to reach that issue).

For those of you interested in the subject - which should reach the Supremes fairly soon, I would think - I heartily recommend (in addition to the court's opinion), Lawprof Michael B. Rappaport's article The Original Meaning of the Recess Appointments Clause, which discusses both issues at length.

Both the D.C. Circuit and Prof. Rappaport discuss a July 7, 1792 opinion that Attorney General Edmund Randolph delivered to Secretary of State Thomas Jefferson, in which Randolph opined that both the text and the "Spirit" of the Constitution led to the conclusion that the president could not issue a commission during a recess unless the vacancy "happened" - that is, arose - during that recess.  Because I like to see things for myself, I looked around and found that the printed text of Randolph's opinion does not appear to be readily available on the internet.

I did, however, discover that the Library of Congress site does have a copy of Randolph's original handwritten letter to Jefferson.  Because the letter does not seem be available in easily readable form, I have transcribed it (as best I can) for your reading pleasure.  The statute at issue in the opinion is An Act establishing a Mint, and regulating the Coins of the United States, enacted April 2, 1792.  Section 1 of the Act established a "mint for the purpose of national coinage," and provided "that for the well conducting of the business of the said mint" there would be among other officers a "Chief Coiner."

As the opinion explains, no Chief Coiner was nominated by the president or approved by the Senate before the Senate recessed on May 8, 1792.  In July Jefferson asked Randolph to provide an opinion on whether President Washington could make a recess appointment to the position.

Although the opinion indicates that there were good reasons why a Chief Coiner could not be nominated before the Senate recessed, it does not explain what those reasons were.  My guess - and it is just a guess - is that the difficulty lay in finding a qualified candidate who could comply with Section 5 of the Act, which required the Chief Coiner to post a bond with the Secretary of the Treasury in the amount of $10,000, "with condition for the faithful and diligent performance of the duties of his office."

Here then is Randolph's opinion.  Emphases are in the original:

The answer of the attorney general of the United States to the question propounded to him by the Secretary of State on the following case

By the constitution, the President shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors, &c, and all other officers of the United States whose appointments are not therein otherwise provided, and which shall be established by law.  He has also power to fill up vacancies, that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

The act establishing a mint directs, that for the well conducting of the business there shall be among other officers a chief Coiner.

This act passed on the 2nd of April 1792 and the Senate which concurred was sitting daily from thence until the 8th of May following.  But the chief Coiner was not nominated during their then sitting, tho' a Director was appointed.

The question is, whether the President can, constitutionally, during  the now recess of the Senate grant to a chief Coiner a Commission which shall expire at the end of their next session

Is there a vacancy in the office of chief Coiner?  An ofice is vacant when no officer is in the exercise of it.  So that it is no less vacant when it has never been filled up, than it is upon the death or resignation of an Incumbent.  The office of Chief Coiner is therefore vacant.

But is it a vacancy which has happened during the recess of the Senate?  It is now the same and no other vacancy, than that, which existed on the 2nd of April 1792.  It commenced therefore on that day or may be said to have happened on that day.

The Spirit of the Constitution favors the participation of the Senate in all appointments.  But as it may be necessary oftentimes to fill up vacancies, when it may be inconvenient to summon the senate a temporary commission may be granted by the President.  This power then is to be considered as an exception to the general participation of the Senate.  It ought too to be interpreted strictly.  For altho' I am well aware, that a chief Coiner for satisfactory reasons could not have been nominated during the last session of the Senate; yet every possible delicacy ought to be observed in transferring power from one order in government to another.  It is true that the Senate may finally disapprove.  But they are not left to a judgment absolutely free, when they are to condemn the appointment of a man actually in Office.  In some instances indeed this must be the case; but it is in them a case of necessity only; as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess.

It may well be asked in what the power of now for the first time granting a temporary commission for this new office is distinguishable in principle from granting a commission to one person in consequence of another who has been approved by the Senate, refusing to accept the first appointment to a new office?  Is not the Vacancy under these circumstances once which has never been filled up and therefore in the same predicament, as the Office of Coiner?  However a refined construction may make the cases approach each other, they are different in their relation to the constitution.  In the one, the Senate have had a full opportunity to shew their sense.  In the other not.  In the one the vacancy was filled up, as far as the President and Senate could go; and the Vacancy may be said to have happened during the Recess in consequence of the Refusal.  In the other, not.

An analogy has been suggested to one between a Minister to foreign court and the appointment now under consideration.  With much strength it has contended that a Minister may be appointed who, or whose mission was never mentioned to the Senate.  But, mark the peculiar condition of Minister.  The President is allowed by law to spend a limited sum on diplomatic appointments.  No particular courts are designated; but they are consigned [?] by the Constitution to his [?].  The truth then is that independently of congress, or either house the President may at any time during the Recess declare the court and the grade.  But this power would nugatory during the Recess if he could not also name the Person.  How unlike is this example to that of the Coiner, in which the office can be created by congress alone; and in the appointment to which the Senate might have an opportunity, of concurring  at the Session when the law was passed creating it?

My opinion upon the whole is, that the President cannot now grant a temporary commission to a Chief Coiner.

/s/ Edm. Randolph
July 7 1792

Why Didn't Constantius II Eat Fruit?

It is a terrible irony that, days after the tragic suicide of Aaron Swartz, JSTOR for the first time made articles from its catalog of academic journals available to the general public, at least on a limited basis.  In brief, members of the public not affiliated with colleges and universities (as I am not) can now go to the JSTOR site, fill out a form and obtain a user name and password that allows them to search for and store articles on a personal “bookshelf” without charge.  Access is limited in that you can store only up to three articles on your “bookshelf”, and each article must remain there for thirteen days.  In other words, you can access no more than three articles over a two-week period. In addition, you cannot download articles without paying a ridiculous per-article fee. (I do note that, since the pages appear as GIF images, it should be possible to download images page-by-page without paying a fee.)

Having heard that JSTOR was now available, I promptly signed up and, as a test, located an article I had previously complained I was unable to access: Why Didn’t Constantius II Eat Fruit? Having done so, I now report on what I have learned.

By way of background, in his obituary of the emperor Constantius II, the Roman historian Ammianus Marcellinus oddly mentions that one of the late emperor’s virtues was “that so long as he lived he never ate fruit.”  Why on earth not?  And why would Ammianus consider this to be a virtue?  In my prior post, I admitted that I was stumped and expressed frustration at my inability to read the article, which appeared to squarely address the issue.

I am pleased to report that my confusion was well founded.  The author of the article, one David Rohrbacher of the New College of Florida, offers, as we shall see, an answer that is ingenious but obscure and based on a chain tenuous inferences.  I certainly didn't miss anything obvious.

Prof. Rohrbacher begins by eliminating possibilities suggested by other academics. Was the reference intended to highlight, for example, Constantius’ lack of gluttony?  Not likely.  After reviewing the literature the author concludes that “complete abstinence from fruit would be a most unusual way of demonstrating a lack of gluttony.”

Nor does Christian asceticism seem to be a likely source.  Even extreme ascetics who abstained from certain foods (meat and wine are the most common) ate fruit when available and in season. There is no reason to think that Constantius was trying to out-renounce them.

“There was, however, [one] contemporary religion in which fruit-eating was problematic: Manichaeism.”  As Prof. Rohrbacher describes it, Manichees apparently believed that plucking fruit injured the divinity within them.  “In fact, fruit, vegetables, and grains were all forbidden to be plucked or harvested by the Manichean Elect, because Mani had preached that harvesting was injurious to the suffering, captive divinity.”  Whatever the details of Manichaean practice, pro-Nicene Christians such as Augustine “frequently mock[ed] . . . Manichean opponents for abstaining from fruit.”

But what has this to do with Constantius, who was an Arian Christian, but no Manichee?  Prof. Rohrbacher asserts that, however unfairly, orthodox anti-Arian Christians such as Athanasius associated the two beliefs, accusing Arians of being Manichees or suggesting that Arianism leads to Manichaeism. Based upon this association, Rohrbacher speculates that unpreserved “polemics written against the emperor’s Arianism [may] likewise have associated him with Manichaeism, and with the more extravagant practices, such as fruit abstinence, associated with that sect.”

Ammianus Marcellinus, a pagan, may have seen or heard of some of these polemics and, “from ignorance or guile or a combination of the two,” conflated Constantius’ Arianism with Mancheaism. Out of dislike for the emperor, he then catalogued the fruit-abstention slur as a purported virtue to highlight the “pleasing irony” of using “Christian lies to blacken a Christian emperor.”