Clifford, Nathan

Clifford, Nathan (b. Rumney, N.H., 18 Aug. 1803; d. Cornish, Maine, 25 July 1881; interred Evergreen Cemetery, Portland, Maine), associate justice, 1858–1881. Clifford is remembered for his role in Hepburn v. Griswold (1870), the decision that declared the Legal Tender Act unconstitutional (see Legal Tender Cases). He should also be recognized, however, for his contributions to technical legal subjects. He edited an influential series of reports (cited by his name) that contained his opinions and those of other federal circuit judges.

Clifford's education was obtained by his own efforts, and his formal schooling was limited. He studied law under Josiah Quincy, a prominent New Hampshire lawyer, and he was admitted to the New Hampshire bar in May 1827. Soon after, he moved to Maine. In 1830 he was elected to the Maine legislature, where he served three two‐year terms, the last as speaker of the House. A Democrat, he then served two terms in the U.S. House of Representatives. In 1846, after an interval of private law practice, Clifford was appointed U.S. attorney general by President James K. Polk. Polk later named him ambassador to Mexico. After Clifford had returned to Portland, Maine, to resume private law practice, President James Buchanan in 1857 nominated him to succeed Justice Benjamin R. Curtis on the U.S. Supreme Court. His nomination to the Court was opposed by Republicans because of his southern sympathies, but the Senate narrowly confirmed him by a vote of 26 to 23.

Clifford wrote no major constitutional opinions during his tenure. On circuit, he held in Collector v. Day (1871) that the federal government could not tax the salary of a state officer—a decision later affirmed by the full Court (see Tax Immunities). His greatest constitutional decision was in Loan Association v. Topeka (1874), where he wrote the majority opinion holding that the Court could declare unconstitutional any statute of Congress on grounds other than a stated constitutional provision (see Judicial Review).

The opinion of Clifford's that caused the most controversy was Johnson v. Dow (1879), involving a judgment by default, rendered by the courts of Louisiana during the federal occupation against a military commander for the taking of property. After the war, the owner brought suit in the federal court of Maine against the former military commander, then a resident of Maine, based on the judgment of the Louisiana court. Under the federal practice of the time, an appeal to the Supreme Court required a split opinion of the two judges on the circuit court. Clifford wrote the opinion supporting the validity of the judgment of the Louisiana court, which the Supreme Court reversed on the grounds that Louisiana was under military occupation when the decision was rendered (see Military Trials and Martial Law).

Clifford's other decisions involved technical subjects. His decision in Leon v. Galceran (1870) held that admiralty jurisdiction was not exclusive where the common law could provide a remedy—a decision of historic importance in that it helped to blur the distinction between the common law and admiralty. His opinion in Lawrence v. Dana (1869) was an important contribution to the law of copyright infringement. Later scholars have described his opinions unflatteringly as “dreary” and “tedious,” but he was usually concise and orderly in his legal arguments (see Opinions, Style of). His contemporaries on the bench recognized his learning and his steady judicial temperament.

In 1877 Clifford chaired the electoral commission established to settle the disputed presidential election of 1876. He vigorously supported the Democratic aspirant, Samuel Tilden, but the commission ultimately decided in favor of the Republican, Rutherford B. Hayes (see Extrajudicial Activities). Clifford suffered a stroke in 1880, but he continued to attempt to perform his duties when it was clear to everyone except himself that he was unable to do so (see Disability of Justices). He died in 1881.

Bibliography

Philip G. Clifford , Nathan Clifford, Democrat (1922).

Erwin C. Surrency