Happy Belated Birthday, Mr. President

I failed to mark James Madison's birthday yesterday, but not to worry: over at Millard Fillmore's Bathtub, Ed Darrell noted the occasion with a lengthy post replete with links: March 16, Freedoms Day - How to Celebrate James Madison?

By way of belated celebration, let me one last link.  Harriet Martineau, a Briton touring the United States, arrived at Montpelier on February 18, 1835, remaining several days.  Several years later, she published a two-volume work describing her travels, Retrospect of Western Travel.  Her description of the now elderly Madison, 83 years of age at the time of her visit, which appears in the first volume, is probably my favorite portrait of the former president.  I have added some paragraph breaks:

It was a sweet day of early spring. The patches of snow that were left under the fences and on the rising grounds were melting fast. The road was one continued slough up to the very portico of the house. The dwelling stands on a gentle eminence, and is neat and even handsome in its exterior, with a flight of steps leading up to the portico. A lawn and wood, which must be pleasant in summer, stretch behind; and from the front there is a noble object on the horizon, the mountain-chain which traverses the state, and makes it eminent for its scenery. The shifting lights upon these blue mountains were a delightful refreshment to the eye after so many weeks of city life as we had passed.

We were warmly welcomed by Mrs. Madison and a niece, a young lady who was on a visit to her; and when I left my room I was conducted to the apartment of Mr. Madison. He had, the preceding season, suffered so severely from rheumatism, that, during this winter, he confined himself to one room, rising after breakfast, before nine o'clock, and sitting in his easy-chair till ten at night.

He appeared perfectly well during my visit, and was a wonderful man of eighty-three. He complained of one ear being deaf, and that his sight, which had never been perfect, prevented his reading much, so that his studies "lay in a nutshell;" but he could hear Mrs. Madison read, and I did not perceive that he lost any part of the conversation. He was in his chair, with a pillow behind him, when I first saw him; his little person wrapped in a black silk gown; a warm gray and white cap upon his head, which his lady took care should always sit becomingly; and gray worsted gloves, his hands having been rheumatic. His voice was clear and strong, and his manner of speaking particularly lively, often playful. Except that the face was smaller, and, of course, older, the likeness to the common engraving of him was perfect. He seemed not to have lost any teeth, and the form of the face was therefore preserved, without any striking marks of age. It was an uncommonly pleasant countenance.

His relish for conversation could never have been keener. I was in perpetual fear of his being exhausted; and at the end of every few hours I left my seat by the arm of his chair, and went to the sofa by Mrs. Madison on the other side of the room; but he was sure to follow and sit down between us; so that, when I found the only effect of my moving was to deprive him of the comfort of his chair, I returned to my station, and never left it but for food and sleep, glad enough to make the most of my means of intercourse with one whose political philosophy I deeply venerated.

There is no need to add another to the many eulogies of Madison; I will only mention that the finest of his characteristics appeared to me to be his inexhaustible faith; faith that a well-founded commonwealth may, as our motto declares, be immortal; not only because the people, its constituency, never die, but because the principles of justice in which such a commonwealth originates never die out of the people's heart and mind.

This faith shone brightly through the whole of Mr. Madison's conversation except on one subject. With regard to slavery he owned himself almost to be in despair. He had been quite so till the institution of the Colonization Society. How such a mind as his could derive any alleviation to its anxiety from that source is surprising. I think it must have been from his overflowing faith; for the facts were before him that in eighteen years the Colonization Society had removed only between two and three thousand persons, while the annual increase of the slave population in the United States was upward of sixty thousand.

For a fine book on the older Madison and his legacy, I highly recommend Drew R. McCoy's evocative and thoughtful The Last of the Fathers: James Madison & The Republican Legacy.

Six Answers for Seth Barrett Tillman

I posted recently on Lawprof Seth Barrett Tillman's fun article posing Six Puzzles for Professor Akhil Amar.

Now I see that at The Originalism Blog Lawprof Michael Ramsey has taken up the challenge: My Answers to Seth Barrett Tillman's Six Questions.

Enjoy!

Founding Golfer?

Over at Concurring Opinions, Lawprof Gerard Magliocca points out that James Wilson "was probably the only Founder to play golf."

The evidence?

1.  Wilson was born in Scotland and lived there until he was 23.

2.  He went to college at St. Andrews, the home of golf.

3.  There is an anecdote about him playing golf as a young man, though that could be apocryphal.

It's possible.  Wilson was born in 1742 and apparently studied at the University of St. Andrews in the early 1760s, later emigrating to Philadelphia in 1766. The predecessor to Royal and Ancient Golf Club of St, Andrews was founded in 1754.

The Three-Fifths Clause In the News!

As you may have heard, Emory University President James Wagner wrote a column earlier this year in which he praised the Three-Fifths Clause as an example of Constitutional compromise:

During a Homecoming program in September, a panel of eminent law school alumni discussed the challenges of governing in a time of political polarization—a time, in other words, like our own. The panel included a former US senator, former and current congressmen, and the attorney general for Georgia.

One of these distinguished public servants observed that candidates for Congress sometimes make what they declare to be two unshakable commitments—a commitment to be guided only by the language of the US Constitution, and a commitment never, ever to compromise their ideals. Yet, as our alumnus pointed out, the language of the Constitution is itself the product of carefully negotiated compromise.

One instance of constitutional compromise was the agreement to count three-fifths of the slave population for purposes of state representation in Congress. Southern delegates wanted to count the whole slave population, which would have given the South greater influence over national policy. Northern delegates argued that slaves should not be counted at all, because they had no vote. As the price for achieving the ultimate aim of the Constitution—“to form a more perfect union”—the two sides compromised on this immediate issue of how to count slaves in the new nation. Pragmatic half-victories kept in view the higher aspiration of drawing the country more closely together.

Some might suggest that the constitutional compromise reached for the lowest common denominator—for the barest minimum value on which both sides could agree. I rather think something different happened. Both sides found a way to temper ideology and continue working toward the highest aspiration they both shared—the aspiration to form a more perfect union. They set their sights higher, not lower, in order to identify their common goal and keep moving toward it.

The usual suspects called for President Wagner's head and he was forced to grovel:

A number of people have raised questions regarding part of my essay in the most recent issue of Emory Magazine. Certainly, I do not consider slavery anything but heinous, repulsive, repugnant, and inhuman. I should have stated that fact clearly in my essay. I am sorry for the hurt caused by not communicating more clearly my own beliefs. To those hurt or confused by my clumsiness and insensitivity, please forgive me.

With this background, and as one who has read a fair amount about the Three-Fifths Clause, I enjoyed running across this column by one brave soul who dared to speak truth to PC power:

Wagner’s travails strike a personal note: In some twenty years of teaching the Introduction to American Government course at the University of Illinois-Urbana I have often made the identical argument, that the three-fifths compromise was a brilliant political compromise to solve a grave political problem. I made that point in front of as many as 1400 students including many African American students (and who knows how many apprentice PC commissars). I informed them that the compromise was about representation of the states—the apportionment of seats in the House of Representatives—and in principle had nothing to do with slavery per se. I explained that anti-slavery New England delegates wanted slaves to count as zero for purposes of representation, while Southern delegates pressed to have each counted as a full person. Without these artful compromises, I said, both the slave states and New England would have left the Union.

And that wasn’t the end of my heresies. My lectures also explained how the Founders cleverly finessed the slavery issues with multiple compromises, including that the word “slave” never appeared in the Constitution.

***

Yes, everybody agrees that while many Founders had a low opinion of slaves, others believed that slavery was a horrible wrong, but the consensus was that all these slave-related constitutional compromises were unavoidable adjustments to an unpleasant political reality if the Union was to survive. Only the most strident ideologue would insist that the Constitutional Convention could have abolished slavery and still kept the Union. 

Information about the illustration, entitled Abolition of the Slave Trade, or the Man the Master (Britain 1789), may be found at the link.

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.”

The End of the Academy

You may be aware that Plato's Academy in Athens, closed c. AD 529, some 900 years after its establishment c. 387 BC.  The end came after the emperor Justinian issued an edict "permit[ting] only those who are of the orthodox faith to teach and accept a public stipend." (In fact, there is some uncertainty as to the scope and meaning of Justinian's decree and whether it forced the closure of the Academy.  See the article here, which is also the source of the translation of the decree quoted above.)

But what happened to the Academy's last members? What became of them, and were they able to reconstitute the institution in another form and continue their studies and teaching? The sources suggest that there may have been a postscript, in the East.

The historian Agathias (c. 530 - c. 581) tells a delightful story in his Histories in which the last members of the Academy traveled to the Persian court of Chosroes I in search of a "philosopher king," much as Plato himself had voyaged a millenium before to the court of the Syracusan tyrant Dionysius the Younger (see Plato's famous Seventh Letter):

Not long before Damascius of Syria, Simplicius of Cilicia, Eulamius of Phrygia, Priscian of Lydia, Hermes and Diogenes of Phoenicia and Isidore of Gaza, all of them, to use a poetic turn of phrase, the quintessential flower of the philosophers of our age, had come to the conclusion, since the official religion of the Roman empire was not to their liking, that the Persian state was much superior. So they gave a ready hearing to the stories in general circulation according to which Persia was the land of "Plato's philosopher king" in which justice reigned supreme.

Apparently the subjects too were models of decency and good behaviour and there was no such thing as theft, brigandage or any other sort of crime. Even if some valuable object were left in no matter how remote a spot nobody who came across it would make off with it, but it would stay put and, without any one's guarding it, would be virtually kept safe for whoever left it until such time as he should return.

Elated therefore by these reports which they accepted as true, and also because they were forbidden by law to take part in public life with impunity owing to the fact that they did not conform to the established religion, they left immediately and set off for a strange land whose ways were completely foreign to their own, determined to make their homes there.

But in the first place they discovered that those in authority were overbearing and vainglorious and so had nothing but disgust and opprobrium for them. In the second place they realized that there were large numbers of housebreakers and robbers, some of whom were apprehended while others escaped detection, and that every form of crime was committed. The powerful in fact ill-treated the weak outrageously and displayed considerable cruelty and inhumanity in their dealings with one another. But the most extraordinary thing of all was that even though a man could and did have any number of wives people still had the effrontery to commit adultery. The philosophers were disgusted by all these things and blamed themselves for ever having made the move.

The opportunity of conversing with the king proved a further disappointment. It was the monarch's proud boast that he was a student of philosophy but his knowledge of the subject was utterly superficial. There was no common ground either in matters of religion since he observed the practices I have already described. Finally the vicious promiscuity which characterized Persian society was more than the philosophers could stand.

All these factors, then, combined to send them hurrying back home as fast as they could go. So despite the king's affection for them and despite the fact that he invited them to stay they felt that merely to set foot on Roman territory, even if it meant instant death, was preferable to a life of distinction in Persia. Accordingly they resolved to see the last of barbarian hospitality and all returned home.

"Sober Intoxication"

At his most inspired, Philo of Alexandria, also known as Philo Judaeus (c. 10 BCE - c. 50 CE), a Hellenistic Jewish philosopher who merged the Septuagint with Platonism, paints an ecstatic mystical vision of unsurpassed beauty.  Here the human mind, molded in the image of God, aspires with "sober intoxication" to approach the Divine Intellect:

And again, being raised up on wings, and so surveying and contemplating the air, and all the commotions to which it is subject, [the mind that exists in each individual] is borne upwards to the higher firmament, and to the revolutions of the heavenly bodies.  And also being itself involved in the revolutions of the planets and fixed stars according to the perfect laws of music, and being led on by love, which is the guide of wisdom, it proceeds onwards till, having surmounted all essence intelligible by the external senses, it comes to aspire to such as is perceptible only by the intellect: and perceiving in that, the original models and ideas of those things intelligible by the external senses which it saw here full of surpassing beauty, it becomes seized with a sort of sober intoxication like the zealots engaged in the Corybantian festivals, and yields to enthusiasm, becoming filled with another desire, and a more excellent longing, by which it is conducted onwards to the very summit of such things as are perceptible only to the intellect, till it appears to be reaching the great King himself. And while it is eagerly longing to behold him pure and unmingled, rays of divine light are poured forth upon it like a torrent, so as to bewilder the eyes of its intelligence by their splendour.

It's Caturday!

Let's talk turkey (foot).

It's Caturday!

Get up and take a peek outside.

The Deaths of Crispus and Fausta

The emperor Constantine famously had both his eldest son Crispus and his wife Fausta killed in 326.  Mystery has surrounded the events ever since.  There are no contemporary accounts, and the earliest surviving recitations of events are overlaid with polemic.

The most frequently-told story is based upon the version recounted some 175 years later by the pagan Byzantine historian Zosimus (floruit 490s - 510s), who in his New History tied the two deaths together. Constantine had Crispus, the son of his first wife Minervina, killed when he heard allegations that Crispus had assaulted his (Constantine's) second and then current wife Fausta. Constantine then had Fausta killed when he heard the allegation against Crispus had been false, or perhaps simply out of remorse:

Now that the whole empire had fallen into the hands of Constantine, he no longer concealed his evil disposition and vicious inclinations, but acted as he pleased, without controul.  He indeed used the ancient worship of his country; though not so much out of honour or veneration as of necessity. Therefore he believed the soothsayers, who were expert in their art, as men who predicted the truth concerning all the great actions which he ever performed.

But when he came to Rome, he was filled with pride and arrogance. He resolved to begin his impious actions at home. For he put to death his son Crispus, stiled (as I mentioned) Caesar, on suspicion of debauching his [step-mother] Fausta, without any regard to the ties of nature.  And when [Constantine's] own mother Helena expressed much sorrow for this atrocity, lamenting the young man's death with great bitterness, Constantine under pretence of comforting her, applied a remedy worse than the disease.  For causing a bath to be heated to an extraordinary degree, he shut up Fausta in it, and a short time after took her out dead.  Of which his conscience accusing him, as also of violating his oath, he went to the [pagan] priests to be purified from his crimes. But they told him, that there was no kind of lustration that was sufficient to clear him of such enormities.

A Spaniard, named Aegyptius, very familiar with the court-ladies, being at Rome, happened to fall into converse with Constantine, and assured him, that the Christian doctrine would teach him how to cleanse himself from all his offences, and that they who received it were immediately absolved from all their sins.  Constantine had no sooner heard this than he easily believed what was told him, and forsaking the rites of his country, received those which Aegyptius offered him . . ..

Most modern historians point out that the story is unreliable, appearing to have been invented to explain Constantine's conversion to Christianity, but then wind up settling for some version of it, for want of any better alternative.  Discussion then usually turns to speculation about details.  Did Crispus actually "debauch" his step-mother or merely attempt to do so?  Or did Fausta, a la Phaedra or Potiphar's wife, attempt to seduce her step-son and then, when he rejected her blandishments, run to Constantine and accuse Crispus of being the aggressor?  Was it Helena who in fact convinced Constantine of Crispus' innocence and Fausta's guilt (and if so how did she know?), or did she perhaps accuse Fausta of an unrelated crime, such as adultery?

The great historian of the later Roman Empire, Arnold Hugh Martin Jones, presents an alternate hypothesis in his book Constantine and the Conversion of Europe.  Prof. Jones concedes that we can never be sure as to what happened:

All we know for certain is that the Caesar Crispus, Constantine's brilliant eldest son, who had recently distinguished himself in the campaign against Licinius, was without warning, as he was accompanying his father to the Vicennalia celebrations at Rome, executed at Pola, and that shortly afterwards the Empress Fausta, recently proclaimed Augusta, was mysteriously put to death - rumour said by suffocation in the hot chamber of her bath.

However, Prof. Jones concludes that "it would seem unlikely that the melodramatic story recounted by later writers is true" and the two deaths "were unconnected, despite their coincidence in time."  He believes that "a clue to Crispus' offense is perhaps to be found in an extraordinary edict which Constantine issued from Aquileia on" on April 1, 326 entitled "On the Abduction of Virgins or Unmarried Women" (De raptu virginum vel viduarum, found at Theodosian Code IX.24.1 et seq.). In it Constantine

imposes "most savage penalties" (they are not on record, having been reduced later to capital punishment) on abduction, and this whether the girl was willing or unwilling; in the former case she is to suffer the same penalty as her paramour, in the latter she is still to be penalized by the loss of her rights of inheritance, because she could have roused the neighbors by her cries.  The girl's parents, if they condone the offence, are to be deported.  Servants who acted as go-betweens are to have their mouths closed with molten lead.

The timing of the edict "and its violent, almost hysterical, tone, strongly suggest," Prof. Jones believes, "that it was provoked by Crispus' case."  If so, "Crispus' offence cannot have been that alleged by later popular report."  Instead, Prof. Jones suggests that Crispus may have

abducted some unknown girl, and that she had acquiesced and the parents had been willing to compromise the case.  Crispus' offense was the graver, in that he was already married to a certain Helena [not Constantine's mother, obviously], and had a child by her - born in 322.  He can thus have offered satisfaction to the unknown girl only by making her his concubine; and that this what he had done is suggested by another law, issued about this time and perhaps forming part of the edict on abduction, prohibiting married men from keeping concubines.

What then of Fausta?  If her death was unrelated to that of Crispus, why was she killed?  Prof. Jones finds a hint in another law promulgated by Constantine at Nicomedia on April 25, 326 as an amendment to Lex Iulia concerning adultery (Ad legem Iuliam de adulteriis, Theodosian Code IX.7.2):

Although adultery is considered a public crime, the accusation for which is granted to everyone alike, without any limitation of law, still, in order that marriages may not be disgraced at pleasure, only the nearest relatives shall have the right to bring such accusation, that is to say, father, brother, paternal and maternal uncle, who are incited to do so by reason of true grief.

1. But we give permission to these persons to dismiss the accusation, if they wish.

2. The husband, above all, should be the avenger of the marriage bed, who may indeed accuse his wife on suspicion, though he may keep her with him if he only suspects her.  And the emperors of the past consented that he should not incur the peril (frequently) arising from filing a written information, since he may accuse under his right as husband.

3. We direct that outsiders shall be kept from making any accusation; for although the necessity of a written complaint exists in every kind of accusation, some persons nevertheless make such complaints rashly, and seek to cast disgrace on marriages by false slander.

4. Violators of marriage-chastity should be punished by the sword.

Prof. Jones believes that the promulgation of this law suggests that Fausta was accused of adultery:

That Fausta was charged with adultery is suggested by a constitution, posted at Nicomedia on 25th April, 326.  In this Constantine limits the right of accusation in case of adultery to the near relatives of the erring wife, and in the first place to her husband - in Roman law adultery was a crime, and a common informer had hitherto been able to accuse.

And what was Helena's involvement, if any?

It may be, too, that Helena played some part in [Fausta's] fall.  It is, at any rate, odd that Helena was proclaimed Augusta - thus emerging from an eclipse of over thirty years - only a year or two before Fausta's death, and it is perhaps significant that immediately after she made a pilgrimage to Palestine - she had been converted to Christianity by her son, Eusebius tells us - where she contributed lavishly to the new churches at the Holy Places.  She died not long after in the odour of sanctity.

For what it's worth, I find the connection between Fausta's alleged offense and the adultery law less convincing.  The emendation of the law promulgated by Constantine limited the categories of persons who could bring charges of adultery.  But why would this amendment have been relevant to Fausta's case, where the complainant was presumably Constantine himself?  Perhaps Prof. Jones means to find relevance in the fact that the amendment appears also to eliminate the requirement of a "written information," legalizing Constantine's precipitous action.  But if so he does not say.

The arguments concerning Helena are even less persuasive, I think.  I simply don't understand why it is relevant that Helena was proclaimed Augusta several years earlier, or that she subsequently visited Palestine.  As to the former, it is inconceivable that Constantine received information from Helena years before he acted on it.  And as to the latter, is Prof. Jones suggesting that she was atoning because her information led to Fausta's execution?  Or was she doing penance on behalf of a remorseful Constantine?  Again, Prof. Jones does not exactly say.

The Dark Side of Thomas Jefferson

It looks like Thomas Jefferson is about to take a well-deserved beating over slavery.  A new article at Smithsonian.com, The Dark Side of Thomas Jefferson, previews a book by Henry Wiencek scheduled for release on October 16th entitled Master of the Mountain: Thomas Jefferson and His Slaves.  I haven't read the book and don't know the reputation of Mr. Wiencek, but if his conclusions are accurate they are pretty devastating.

And if the article and book are accurate, Jefferson isn't going to be alone in the woodshed.  At least one historian allegedly omitted the ugly details when editing Jefferson's writings, and others then credulously relied on the sanitized results to paint Jefferson in rosy hues:

It was during the 1950s, when historian Edwin Betts was editing one of Colonel [Thomas Mann] Randolph’s plantation reports for Jefferson’s Farm Book, that he confronted a taboo subject and made his fateful deletion. Randolph reported to Jefferson that the nailery was functioning very well because “the small ones” were being whipped. The youngsters did not take willingly to being forced to show up in the icy midwinter hour before dawn at the master’s nail forge. And so the overseer, Gabriel Lilly, was whipping them “for truancy.”

Betts decided that the image of children being beaten at Monticello had to be suppressed, omitting this document from his edition. He had an entirely different image in his head; the introduction to the book declared, “Jefferson came close to creating on his own plantations the ideal rural community.” Betts couldn’t do anything about the original letter, but no one would see it, tucked away in the archives of the Massachusetts Historical Society. The full text did not emerge in print until 2005.

Betts’ omission was important in shaping the scholarly consensus that Jefferson managed his plantations with a lenient hand. Relying on Betts’ editing, the historian Jack McLaughlin noted that Lilly “resorted to the whip during Jefferson’s absence, but Jefferson put a stop to it.”

“Slavery was an evil he had to live with,” historian Merrill Peterson wrote, “and he managed it with what little dosings of humanity a diabolical system permitted.” Peterson echoed Jefferson’s complaints about the work force, alluding to “the slackness of slave labor,” and emphasized Jefferson’s benevolence: “In the management of his slaves Jefferson encouraged diligence but was instinctively too lenient to demand it. By all accounts he was a kind and generous master. His conviction of the injustice of the institution strengthened his sense of obligation toward its victims.”

Joseph Ellis observed that only “on rare occasions, and as a last resort, he ordered overseers to use the lash.” Dumas Malone stated, “Jefferson was kind to his servants to the point of indulgence, and within the framework of an institution he disliked he saw that they were well provided for. His ‘people’ were devoted to him.”

H/T Boing Boing: Thomas Jefferson, enthusiastic, brutal slaver

Never Forget

I will not forget that day, or who our enemies are.