Thousands of Curiosities from the Harvard Libraries

The Harvard Libraries have created a set of webpages called “CURIOSity Digital Collections” which provide “Curated views that provide specialized search options and unique content.”

That content comes from the university’s own holdings, and since the Harvard system adds up to one of the largest libraries on the planet, there’s a lot of content to choose from.

Some of the topics covered by these pages are:

• the South Sea Bubble of 1720
• France in the Americas
• American Currency over the centuries (watch the quantity of bills explode during the Revolutionary War)
• The Artemas Ward House in Shrewsbury
• English Crime and Execution Broadsides of the 18th and 19th centuries
• Joseph Story, justice on the U.S. Supreme Court from Marblehead

The newest collection looks at Slavery, Abolition, Emancipation, and Freedom. Linking to more than a thousand items related to black history and culture, this collection is the result of a university-wide effort that digital collections program manager Dorothy Berry has led since 2020, as reported in the Harvard Gazette.

Some of the eighteenth-century items to explore in that section are:

• Nathaniel Appleton’s Considerations on Slavery; in a Letter to a Friend, printed by Edes and Gill in 1767.
• James Swan’s A Dissuasion to Great-Britain and the Colonies, from the Slave Trade to Africa, printed by Ezekiel Russell in 1772.
• A Forensic Dispute on the Legality of Enslaving the Africans; held at the Public Commencement in Cambridge, New-England, July 21st, 1773, credited to Theodore Parsons and Eliphalet Pearson and printed by John Boyle for bookseller Thomas Leverett.
• Jupiter Hammon’s An Address to the Negroes in the State of New-York from 1787.
• Prince Hall’s A Charge Delivered to the Brethren of the African Lodge on the 25th of June, 1792, printed by the Thomas and John Fleet.

Plus, there are pamphlets from the same years printed in Philadelphia, London, and other important British cities.

This collection extends into the nineteenth century, so there are many items from the fight for (and against) abolition in the U.S. of A. and around the world. Plus, more to come.

Filling the New England Seat on the U.S. Supreme Court

For more than a century the U.S. Supreme Court had a seat reserved for New Englanders.

The early Presidents had two good reasons for that. First, by appointing justices equally from all regions of the country those Presidents—especially all those Virginians—avoided charges of favoring their home region.

Second, in its early years the Supreme Court justices also rode circuit, hearing federal cases in their districts. So a New Englander covering the northeastern states wasn’t so far away from home.

For the first two decades, that New Englander was William Cushing, formerly chief justice in Massachusetts. In 1795 President George Washington promoted him to be the chief justice, and the Senate confirmed him. But Cushing declined the commission. Being chief justice just wasn’t as prestigious and powerful as the job has become.

Justice Cushing remained on the bench longer than any of the other original court. He was also the last to wear the full judicial wig inherited from the British system. When Cushing died in 1810, President James Madison needed a replacement from New England. He also wanted someone from his own Republican party. Which was difficult because most New England lawyers were Federalists.

Madison’s first choice was Levi Lincoln of Hingham—former U.S. attorney general under Thomas Jefferson, former lieutenant and acting governor of Massachusetts (shown above). The Senate voted its approval. But Lincoln declined, citing bad eyes. Again, being a Supreme Court justice wasn’t that great.

Madison then nominated Alexander Wolcott of Connecticut, mentioned in yesterday’s posting. Wolcott had practiced law, but he was primarily known as the leader of his state’s Republicans. He engaged in harsh political disputes and oversaw patronage appointments. The closest he’d gotten to judicial experience was in his own patronage position as a Customs inspector. The Federalist Columbian Centinel called Wolcott’s nomination “abominable.”

Nonetheless, the Republicans were firmly in charge of the U.S. Senate, 28 votes to 6, and Supreme Court nominees usually got approved within a week. In Wolcott’s case, the Senators referred the court nomination to a committee for the first time. Then they didn’t take a vote until nine whole days later, on 14 Feb 1811.

The U.S. Senate rejected Alexander Wolcott’s nomination to the Supreme Court by a vote of 24 to 9. This was the largest percentage against any court nominee ever. Even Republican Senators voted against the nomination by a margin of at least 2:1.

Wolcott went back to Connecticut politics. President Madison looked around for another New Englander to nominate to the high Court. Again, he needed a prominent Republican—but one with a less partisan history.

Madison’s third choice was John Quincy Adams, former Federalist Senator from Massachusetts. Adams had bucked his party’s foreign policy on several issues under President Thomas Jefferson and ended up a politician without party backing. In 1809 Madison appointed him the U.S. minister to Russia, a country Adams had first visited as a teen-aged secretary for the Continental Congress’s envoy, Francis Dana.

As with Lincoln, the Senate gave their advice and consent in favor of President Madison’s nominee. And as with Lincoln, the nominee declined the job. Adams would go on to be U.S. Secretary of State, President, and a long-time Representative from Massachusetts.

Once again President Madison scanned the New England legal landscape. The best candidate he could find was a lawyer from Marblehead, only thirty-two years old, with one term in the U.S. House of Representatives under his belt. This was Joseph Story, still the youngest person ever nominated to the U.S. Supreme Court.

Story was confirmed and served thirty-three years. As an associate justice, law professor, and author, he exercised more influence over the U.S. legal system than anyone else in the early 1800s but Chief Justice John Marshall.

When Story died in 1845, President James K. Polk nominated Levi Woodbury of New Hampshire to succeed him. After Woodbury, the justices in that line were Benjamin Curtis of Watertown; Nathan Clifford of Maine; Horace Gray of Boston; and Oliver Wendell Holmes, Jr., of Boston. The replacement for Holmes was Benjamin Cardozo of New York, though by that time Louis Brandeis—a native of Kentucky who had established his legal career in Boston—was representing New England on the high bench.

The Long Process of Labeling the Bill of Rights

As I noted back here, James Madison used the label “bill of rights” for the first of his proposed amendments to the U.S. Constitution—a proposal that never got out of Congress.

He also proposed a bunch of limitations on the federal government that became the first ten Amendments to the Constitution, but he doesn’t seem to have considered those Amendments to comprise the United States’s own Bill of Rights.

Instead, Madison and his contemporaries continued to use the phrase “bill of rights” to refer to a general statement of the government’s powers and limitations. The one possible exception I’ve found in Founders Online is in a 1792 letter from Thomas Jefferson to George Washington. In one of those internecine squabbles that’s so much more entertaining on the Broadway stage than in your cabinet, Jefferson wrote to the President:

you will there see that my objection to the constitution was that it wanted a bill of rights securing freedom of religion, freedom of the press, freedom from standing armies trial by jury, & a constant Habeas corpus act. Colo. [Alexander] Hamilton’s was that it wanted a king and house of lords. the sense of America has approved my objection & added the bill of rights, not the king and lords.

Jefferson clearly saw the First Amendment as part of his desired “bill of rights.” Whether he thought of all ten Amendments under that label is unclear.

American legal authorities don’t seem to have publicly applied the label “Bill of Rights” to the Amendments for decades. In Barron v. the Mayor and City Council of Baltimore (1833), Chief Justice John Marshall delivered an opinion that Article 1, Section 9 of the Constitution “enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the power of the general [i.e., federal] government…”

You remember the fundamentals laid out in Article 1, Section 9, right? Some are indeed important for individual rights, such as habeas corpus. But that section also protected the transatlantic slave trade until 1808 and tackled the burning issue of noble titles. It was a general list of limitations on Congress.

Incidentally, Marshall’s decision confirmed that those clauses and most other parts of the Constitution applied only to the federal government, not the states. So this decision seems, to modern eyes, to codify a sadly limited conception of a U.S. Bill of Rights.

That same year, however, Marblehead’s own Joseph Story (1779-1845, shown above), who was both an Associate Justice of the U.S. Supreme Court and professor of law at Harvard, started the process of applying the label of the Bill of Rights the way we do today. In his highly influential Commentaries on the Constitution of the United States (1833), Story began a discussion of the Amendments this way:

Let us now enter upon the consideration of the amendments, which, (it will be found,) principally regard subjects properly belonging to a bill of rights.

The next year, Story revised that book for use in classrooms as The Constitutional Class Book, and this time he wrote:

When the Constitution was before the People for adoption several of the State Conventions suggested amendments for the consideration of Congress, some of the most important of which were afterwards acted upon by that body at its first organization; and having been since ratified, are now incorporated into the Constitution. They are mainly clauses, in the nature of a Bill of Rights, which more effectually guard certain rights already provided for in the Constitution, or prohibit certain exercises of authority supposed to be dangerous to the public interests.

Finally, in 1840 Story revised his textbook again as A Familiar Exposition of the Constitution of the United States, including a rewrite of the above paragraph and following it with:

Before, however, proceeding to the consideration of them, it may be proper to say a few words, as to the origin and objects of the first ten amendments, which may be considered as a Bill of Rights, and were proposed by the first Congress, and were immediately adopted by the people of the United States.

Thus, over the course of seven years Justice Story went from saying that the first ten Amendments covered what a bill of rights should to saying that we might as well think of them as a Bill of Rights (with capital letters).

According to legal historian Akil Reed Amar, Story’s label remained unofficial and qualified until well past the U.S. Civil War. Rep. John Bingham of Ohio tried to write the Fourteenth Amendment so that it applied the federal “Bill of Rights” to the states. The Supreme Court resisted both the doctrine and the phrasing for decades. Finally, a 1900 dissent by Justice John Marshall Harlan retroactively declared that “These [first ten] amendments have ever since [ratification] been regarded as the National Bill of Rights.”

“When the senate should have had an opportunity to act”

Joseph Story was only a boy in Marblehead when the Constitution was written. However, he became a Supreme Court justice and a Harvard law professor and thus a very influential commenter on that document. This is how he interpreted the recess appointment clause in 1833:

the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject. . . . [This course] combines convenience, promptitude of action, and general security.

The appointments so made, by the very language of the constitution, expire at the next session of the senate; and the commissions given by him have the same duration. When the senate is assembled, if the president nominates the same officer to the office, this is to all intents and purposes a new nomination to office; and, if approved by the senate, the appointment is a new appointment, and not a mere continuation of the old appointment.

Story clearly believed that a recess appointment “should expire, when the senate should have had an opportunity to act on the subject.” He even wrote that such appointments “expire at the next session” of the Senate, not “at the End of their next Session,” which is the Constitution’s language (with my emphasis).

Story wrote only a few years after a conflict over appointments between President Andrew Jackson and the Senate. During an 1829 Senate recess, Jackson named many political supporters to federal offices, particularly newspaper editors. The Senate eventually got to vote on those men and rejected at least nine. Though the administration later renominated those supporters or found new posts for them, that conflict appears to fit within Justice Story’s interpretation of the recess appointments clause: such appointments should last only until the Senate has a chance to vote on them.

In 1884 and afterwards, however, the U.S. courts ruled that the Senate could not remove an official named by recess appointment from office. Those decisions have their roots in Justice Department documents from the Jackson administration back in 1830, but they disagree with Story’s understanding and, I suspect, the Constitutional Convention’s expectations.

Since then, Presidents of both parties have expanded the use of the recess appointment. They have filled positions not just between formal Senate sessions but also in shorter recesses during those sessions. Presidents have argued that such appointments become necessary as the Senate increasingly refuses to vote on nominees, even when a majority is ready to; such filibusters also seem like a distortion of what the Constitutional Convention imagined, and unproductive for the country as well.

Nevertheless, our legal system isn’t based just on what Alexander Hamilton wrote in 1788 or Joseph Story wrote in 1833, but on the whole line of precedents. Courts have considered many aspects of recess appointments and generally found the practice constitutional. This week a U.S. Circuit Court panel ruled the other way, saying President Barack Obama overstepped that authority and imposing limits not applied to recent past Presidents. The issue seems headed for the Supreme Court.