Nathan Clifford

Nathan Clifford
Associate Justice of the Supreme Court of the United States
In office January 12, 1858 – July 25, 1881
Nominated by	James Buchanan
Preceded by	Benjamin Curtis
Succeeded by	Horace Gray
United States Ambassador to Mexico
In office October 2, 1848 – September 6, 1849
President	James Polk Zachary Taylor
Preceded by	John Slidell
Succeeded by	Robert Letcher
United States Attorney General
In office October 17, 1846 – March 17, 1848
President	James Polk
Preceded by	John Mason
Succeeded by	Isaac Toucey
Member of the U.S. House of Representatives from Maine's 1st district
In office March 4, 1839 – March 4, 1843
Preceded by	John Fairfield
Succeeded by	Joshua Herrick
Attorney General of Maine
In office 1834–1837
Governor	Robert Dunlap
Preceded by	Jonathan Rogers
Succeeded by	Daniel Goodenow
Personal details
Born	August 18, 1803 Rumney, New Hampshire, U.S.
Died	July 25, 1881 (aged 77) Cornish, Maine, U.S.
Political party	Democratic
Spouse(s)	Hannah Ayer
Religion	Unitarianism Congregationalism (Formerly)

Nathan Clifford (August 18, 1803 – July 25, 1881) was an American statesman, diplomat and jurist, whose career culminated in a lengthy period of service as an Associate Justice of the Supreme Court of the United States.

Early life and education, and career

Clifford was born of old Yankee stock in Rumney, New Hampshire, to Deacon Nathaniel Clifford and Lydia Simpson Clifford, the eldest and only son of seven children.^[1] (His great-great-grandmother, Ann Smith, wife of Israel Clifford, was an accuser of Goody Cole in 1672, at the age of 10.) He attended the public schools of that town, then the Haverhill Academy in New Hampshire, and finally the New Hampton Literary Institute^[2] (now known as the New Hampton School). After teaching school for a time, he studied law in the offices of Josiah Quincy III and was admitted to the bar in Maine in 1827, establishing his first practice in Newfield, Maine. It was in Newfield where he met his wife, Hannah Ayer. Together they had six children.^[3] He served in the Maine House of Representatives from 1830 to 1834 and served as speaker of that house the last two years. He was then Maine Attorney General from 1834 until 1838, when he entered national politics.

Legislative and executive branch service

Initially, Clifford ran for the Senate and lost.^[4] Then, Clifford was elected as a Democrat to the 26th and 27th Congresses, serving March 4, 1839, through March 3, 1843, and representing the Second and then the Third District. In Washington D.C. he followed the Democratic party line on policies, and was a strong supporter of the Van Buren administration. Clifford was opposed to a high tariff, supported internal improvements, endorsed state banking, and was in favor of federal retrenchment. He also criticized abolition, saying that its supporters were well intentioned but denounced the “mean and incendiary schemes of political Abolitionists.”^[5] Due to re-redistricting and political infighting, Clifford was not a candidate for re-election in 1842.

In 1846, President James K. Polk appointed him 20th Attorney General of the United States after his predecessor, John Y. Mason, returned to being Naval Secretary. Clifford served in Polk's Cabinet from October 17, 1846, to March 17, 1848. Clifford resigned his post with the Justice Department to become the U.S. Envoy Extraordinary and Minister Plenipotentiary to Mexico, serving from March 18, 1848 to September 6, 1849. It was through Clifford that the Treaty of Guadalupe Hidalgo was arranged with Mexico, by which California became a part of the United States.

A Whig Presidential victory meant that Clifford was recalled to the United States.^[6] Following his service in the diplomatic corps, Clifford resumed the practice of law in Portland, Maine.

Judicial service and later life

Nathan Clifford in his elder years.

On December 9, 1857, President James Buchanan nominated Clifford to be an Associate Justice of the Supreme Court of the United States, to fill the vacancy created by the resignation of Benjamin R. Curtis, in the aftermath of Dred Scott v. Sandford. Clifford's was a hotly contested nomination. A perennial partisan Democrat, to the opposition Clifford seemed to be a political hack.^[7] Clifford was labeled a “doughface,” a Northern man with Southern sympathies. Especially due to his pro-slavery position, anti-slavery representatives in the Senate fiercely opposed Clifford. They almost blocked his nomination. Rather, they delayed his confirmation for thirty four days, and Clifford was confirmed on January 12, 1858, by a narrow margin of 26 votes to 23 in the United States Senate. If not for the Democratic Party rallying around their candidate, the absence of two of his opponents, and the last minute change in stance by a Democratic Senator, Clifford would have lost.

His specialties were commercial and maritime law, Mexican land grants, and procedure and practice. Though he rarely declared any legal philosophy about the Constitution, Justice Clifford believed in a sharp dividing line between federal and state authority. One of his supporters, United States Senator James Bradbury, said Clifford’s view was that the Constitution was not an “elastic instrument to be enlarged or impaired by construction, but to be fairly interpreted according to its terms, and sacredly maintained in all its provisions and limitations, as the best guaranty for the perpetuity of our republican institutions.”^[8] Clifford supported a mechanical jurisprudence adhering to the strict text of the Constitution. Clifford was a Unionist, but distrusted federal authority. This meant that during the American Civil War he generally supported the government’s policies, although he opposed the use of arbitrary powers. Then during the Reconstruction Era, Clifford ruled to try to limit federal power.

During the Civil War, Clifford remained loyal to the Union. Besides voting with the minority in the Prize Cases, arguing that the blockade of the Confederacy was illegal unless war was declared against them, Clifford generally voted to uphold federal authority so that the North could pursue the war. After the war, Clifford voted to limit federal power, and make it easier for the South to return to the federal union. Clifford joined in the majority in Ex parte Milligan limiting the power of using military tribunals to prosecute citizens when civilian courts were available. He also ruled with the majority in outlawing test oaths as part of the conditions of returning to the Union in Cummings v Missouri and Ex parte Garland.^[9]

During Reconstruction, Clifford voted in ways that limited the reconstruction amendments, which in turn, harmed the newly freed slaves. Clifford ruled with the majority in United States v Reece, which gave a narrow interpretation of the Fifteenth Amendment so that voting could be restricted by any reason which was not race, color, or precious condition of servitude. He also ruled with the majority in the Slaughterhouse Cases, which differentiated between state and federal citizenship and that the Fourteenth Amendment only confers and protects the narrower rights of federal citizenship. In his concurrence in Hall v DeCuir, Justice Clifford coined the phrase “equality is not identity,” when referring to a case where a black woman was refused access to part of a steamship that was for whites only. This phrase would get translated to “separate but equal” in Plessy v Ferguson.^[10]

Clifford came to the Court in a time of Democratic majority. All but one of the justices were affiliated with the Democratic Party. By 1872, Clifford had outlived his Democratic colleagues, and his new Republican colleagues tended to outvote him. Due to being outvoted so frequently, Clifford wrote a large number of dissents, about one-fifth of all of his opinions.^[11] This change in circumstance is especially highlighted in the Legal Tender Cases.

The Legal Tender Cases had to deal with the Union’s ability to issue paper money, and the use of paper money in paying debts. In 1861, the Union was struggling to finance the war. The collected revenue was lower than expected, and war costs were expected to be 320 million, but were actually 475 million.^[12] At first, more money was collected in loan and taxes, but this was insufficient and there was a time delay for implementation. To fill the void, Congress then passed the Legal Tender Act of 1862. It allowed US notes to be used as legal tender, instead of dollars backed by specie.^[13] Even when the act was passed, the Constitutionality of the measure was questioned. However, as then Secretary of the Treasury, and future Chief Justice, Salmon Chase said, “as a temporary measure, it is indispensably necessary.”^[14]

From 1863 to 1869, fifteen courts of last resort upheld the Legal Tender Act as valid. The first court that held otherwise was the Court of Appeals of Kentucky in 1865 in Griswold v Hepburn. The facts in this case center on a debtor whose note was made prior to the passage of the Legal Tender Act, and whether she could be paid back in US notes, or greenbacks. This case went to the Supreme Court on a writ of error. Hepburn v Griswold came before the Supreme Court five years later in 1870.^[15] In a 5-3 decision written by Chief Justice Chase, along with Justices Clifford, Nelson, Field, and Grier, the Supreme Court held that the Legal Tender Act was unconstitutional as it applied to preexisting debts. The Court delivered its opinion on January 29, 1870.^[16]

Almost immediately after this decision, the composition of the Supreme Court changed. On February 7th, 1870, President Ulysses S. Grant nominated Joseph Bradley and William Strong to the Supreme Court, and they were both confirmed in the next month and a half. They replaced Justices Grier who voted for the majority in Hepburn v Griswold (1870) and filled a recreated ninth seat on the bench.^[17]

This change had an immediate impact on the next legal tender case, Knox v Lee (1871). The case had to deal with Mrs. Lee, who was a citizen of Pennsylvania, suing Mr. Knox for a flock of sheep in Texas which the Confederate Army confiscated and sold to Mr. Knox, under the Confederacy’s Sequestration Act. There are two reasons the case deals with the Legal Tender Act. First, when the lower court found for Mrs. Lee, they ordered Mr. Know to repay her in greenbacks. Second, the lower court ruled that the defendant had to pay the difference in the valuation of the sheep in gold to greenbacks, yet the Legal Tender Act made them equal in the law.^[18]

Justice Clifford was angered that the Supreme Court was even hearing cases about the Legal Tender Act again. When making an announcement for the Court on April 10th, 1871, he said, "Mr Potter and the Attorney General will be heard in these cases on the twelfth instant upon the following questions. 1st. Is the act of Congress known as the legal tender act constitutional as to contracts made before its passage? 2nd. Is it valid as applicable to transactions since its passage? Mr Potter will open. The Attorney General will reply, and Mr Potter will close."^[19]

Clifford went on to add a statement of personal opinion, "I dissent from the order of the Court in these cases, especially from that part of it which opens for re-argument the question whether the act of Congress, known as the legal tender act is constitutional as to contracts made before its passage-as I hold that the question is conclusively settled by the case of Hepburn v Griswold, 8 Wall. 603, in which the opinion was given by the Chief Justice. And I am requested to say that Mr Justice Nelson, and Mr Justice Field concur in this dissent."^[20]

On May 1st, 1871, the Court ruled 5-4 to overturn Hepburn v Griswold (1870), and to find the Legal Tender Act Constitutional, for both pre-existing debt and in the general concept that the US federal government could not only mint coin, but print money. The remaining members on the Court from the majority in Hepburn were the four dissenters in Knox v Lee (1871). The two new justices appointed by President Grant were the deciding factor.^[21]

Justice Clifford was angered that the Court would reverse its opinion in such a short amount of time. Additionally, he felt that upholding the Legal Tender Act in any regard was in violation of the Constitution. In his 18,000 word dissent, Justice Clifford used arguments drawn from constitutional history to show that only gold and silver coin, with intrinsic value, could be legal tender.^[22]

Justice Clifford wrote, “Money, in the constitutional sense, means coins of gold and silver fabricated and stamped by authority of law as a measure of value, pursuant to the power vested in Congress by the Constitution,” and that, “Intrinsic value exists in gold and silver.”^[23] As to the fact that the Court ruled differently on the same question a year prior Justice Clifford said, “it is admitted by the majority of the court that the first question, that is the question whether the acts under consideration are constitutional as to contracts made before their passage, was fully presented in the case of Hepburn v. Griswold, and that the court decided that an act of Congress making mere paper promises to pay dollars a legal tender in payment of debts previously contracted is unconstitutional and void.”^[24] Ultimately, Clifford argued that if the people want to have paper money they can pass an amendment, but to expand powers by any other mean perverts the government, "Delegated power ought never to be enlarged beyond the fair scope of its terms, and that rule is emphatically applicable in the construction of the Constitution. Restrictions may at times be inconvenient, or even embarrassing, but the power to remove the difficulty by amendment is vested in the people, and if they do not exercise it the presumption is that the inconvenience is a less evil than the mischief to be apprehended if the restriction should be removed and the power extended, or that the existing inconvenience is the least of the two evils; and it should never be forgotten that the government ordained and established by the Constitution is a government 'of limited and enumerated powers,' and that to depart from the true import and meaning of those powers is to establish a new Constitution or to do for the people what they have not chosen to do for themselves, and to usurp the functions of a legislator and desert those of an expounder of the law."^[25]

His major constitutional contribution may have been his dissent in Loan Association vs. Topeka (20 Wallace 655) in which he rejected "natural law", or any ground other than clear constitutional provision, as a basis for the Court to use to strike down legislative acts. Justice Clifford's opinions were comprehensive essays on law, and have sometimes been criticized as overly lengthy and digressive. Justice Clifford wrote the majority opinion of the Supreme Court in 398 cases.^[26] He served on the Court for 23 years, beginning on January 28, 1858, and continuing until his death from the complications of a stroke.

Clifford was president of the Electoral Commission convened in 1877 to determine the outcome of the 1876 presidential election. Clifford voted for Samuel Tilden (a fellow Democrat), but Rutherford B. Hayes famously won by a single vote in the Compromise of 1877. He believed that the commission acted incorrectly in nullifying Tilden's apparent victory at the polls and never accepted Hayes as the lawful president.^[27] Still, he signed off on Hayes' order for inauguration. In this instance Clifford put the country before his strong party beliefs, and his personal hope of having a Democratic president chose his successor.^[28] Instead, when he died in 1881, Republican President Chester Arthur chose his replacement.^[29]

Clifford was one of a handful of persons who have served in all three branches of the United States federal government. He died in Cornish, Maine, in 1881; he was interred in Evergreen Cemetery, in Portland, Maine. The Nathan Clifford Elementary School in Portland is named for him.

Clifford's son, William Henry Clifford, was a successful lawyer and an unsuccessful candidate for the Maine State House of Representatives; his grandson, also named Nathan Clifford, was also a lawyer and briefly president of the Maine State Senate.

Further reading

• Clifford, Philip G., Nathan Clifford, Democrat from 1803 to 1881, New York: G. P. Putnam's Sons, 1922.

References

1. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 963
2. A Small Gore of Land, Merrill, Gowan et al. 1977
3. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 963-4
4. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 964
5. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 964
6. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 966
7. Bosch, William. The Supreme Court Justices, A Biographical Dictionary. Edited by Melvin I. Urofsky. New York: Garland Publishing, 1994. 123
8. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 968
9. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 968-672
10. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 968-672
11. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 968
12. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 678
13. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 685
14. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 686
15. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 698-700
16. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 716-17
17. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 717
18. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 753
19. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 755-56
20. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 756
21. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 758
22. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 762-3
23. Knox v. Lee, 79 U.S. 457, 588 (12 Wall. 457, 20 L.Ed. 287) (1871).
24. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 599-600
25. Fairman, Charles. History of the Supreme Court of the United States. Vol. VI. New York: Macmillan Company, 1971. 633
26. A Few New Hampshire Notables USDC - District of New Hampshire
27. William DeGregorio, The Complete Book of U.S. Presidents, Gramercy 1997
28. Gillette, William. The Justices of the United States Supreme Court, 1789-1969, Their Lives and Major Opinions. Edited by Leon Friedman and Fred L. Israel. Vol. II. New York: Chelsea House in Association with Bowker, 1969. 974
29. Huebner, Timothy S. The Taney Court Justices, Rulings, and Legacy. Santa Barbara, California: ABC-CLIO, 2003. 103

External links

Nathan Clifford Historic Marker

• Nathan Clifford at the Biographical Directory of the United States Congress

• Nathan Clifford at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.