This is a semi-sequel to an earlier post that was written in response to the publication of Clare Cushman’s Table For 9: Supreme Court Food Traditions & Recipes. I probably should have put more thought in the title, because while this post does talk about food and recipes, it doesn’t really talk about eating habits that much. And I separated the two posts because I wanted to have one each for Brandeis and Harlan, but now that I have had a chance to reread the source material for this post, it turns out not to involve Harlan very much at all. Oh well…

While Cushman’s book does mention the first John Marshall Harlan a couple times, she doesn’t really mention any foods he was fond of. And I’m afraid I don’t really know what he liked either. (I have heard that he was the last Supreme to use a spittoon while on the bench. However, since you are not supposed to swallow chewing tobacco, I don’t suppose it counts as food.)

However, the newspaper story transcribed below did come to mind while reading Cushman’s book. Years ago, when Justice Ruth Bader Ginsburg visited the Louis D. Brandeis School of Law, I was charged with finding items in our collection of Brandeis and Harlan papers that she might find of interest. Leafing through one of the scrapbooks of newspaper clippings that Harlan’s wife Malvina kept, I stumbled upon a gem of an article from the June 30, 1905 issue of the New York Herald which describes the Supreme Court Justices struggling over the legal issue of whether fish paste was a sauce or not. I had heard that Ginsburg’s husband, Martin, was known for his culinary skill, and so I thought because of that, and the role played by the Justices’ spouses, she might be amused by the story. She did seem to get a kick out of it, and since she wrote the foreword to Table For 9, this seemed like a good opportunity to share it with the world.

The Harlan connection is a bit tenuous. He is not mentioned by name anywhere in the article, but it is in his scrapbook and the article had a nice drawing of Malvina, which I’m including as well.

The case, by the way, was Bogle v. Magone, 152 U.S. 623. And for more food-related decisions, don’t forget about the Great Margarine Controversy of 1898.

THEY UPSET THE SUPREME COURT

THEY UPSET THE SUPREME COURT.

Wives of the Justices Decide That Anchovy Paste Is not a Sauce.

His Dictionary Misled the Court, but Domestic Common Sense Won the Day.

HOW MRS. GRAY ARGUED IT.

WASHINGTON, D. C., June 29, 1895—An important case, involving the question “What is a sauce?,” was decided by the Supreme Court of the United States not long ago in a way satisfactory to a certain New York firm, but the records of the Court fail to explain how the decision was reached. It has just transpired that the Judges had reached an opposite opinion, and Justice Gray was to write their decision that fish paste was a sauce, when he happened to mention the case to his wife and changed his mind. When the other Judges  consulted their wives they also changed their minds, and so the Supreme Court of the United States had to reverse its judgment on sauce. The practical common sense of the household upset the entire judicial Bench, and Justice Gray was instructed to write a decision to the effect that fish paste is not a sauce.

The case was brought by William B. Bogle, Ruluf Lyles, Alexander Scott and William Y. Bogle, plaintiffs in error against the Collector of the Port of New York. The suit was to recover an excess of duties paid upon goods imported as “fish paste.” The Custom House assessed the goods as “sauces.” At the trial in the Circuit Court one of the plaintiffs testified that the goods were imported as “anchovy paste” and “bloater paste.” Webster’s dictionary was quoted to fix the definition of sauce, and in spite of the evidence that anchovy paste and bloater paste were not recognized in trade as sauces, the Circuit Court directed that a verdict be entered for the Collector of the Port, on the ground that the term “sauces of all kinds” in the Tariff act was to be taken in the ordinary meaning and not in its trade meaning.

Then came the hearing before the Supreme Court; the only Justice absent being Justice Jackson.

JUSTICE FIELD’S STORY

Justice Field interrupted the proceedings once to tell a story of which the alleged sauce reminded him.

“There was once a young Irishman, an officer in the English lancers, who had served with Wellington in the Peninsular war,” said the Judge. “Upon his return he attended a dinner and was asked by his neighbor, a burly young English officer, if he would have some of the anchovies.

” ‘Indeed and I will,’ responded the lancer, ‘I have seen them growing in Spain.’

” ‘Growing?’ repeated the other in surprise.

” ‘Yes, growing,’ returned the Celt, exasperated at the question. ‘I’ve seen whole bushes of them, and picked them, too.’

” ‘You are crazy, man,’ ejaculated the Briton. ‘Anchovies don’t grow on bushes; they swim in the sea.’

“The Irishman, already hot with wine, gave the other the lie, and the inevitable duel was the result. When the principals were placed next morning, the Irishman’s second whispered to him, ‘Shoot low, my boy, and see him cut up the capers.’

“At that word the Irishman cried out: ‘Hold. I was wrong. It was capers, not anchovies, I saw growing in Spain.’ “

This pleasant interlude to the argument was much enjoyed, and the spectators were so much interested in the outcome that they took sides, and several of those who knew what anchovy paste was took the opposition, on the sauce side, down to Chamberlin’s and gave them substantial proof, washed down with the customary sparkle.

WHAT THE JUSTICES DECIDED

After the arguments were concluded, the Judges considered the points, and were a unit in favor of upholding the definition of the lower Court, and the definition of Webster’s Unabridged Dictionary, and making Messrs. Bogle et al. pay thrity -five per cent ad valorem on “sauce.”

Justice Gray was awarded the important duty of writing the decision in accordance with this view, and when he went home that night he mentioned the matter to Mrs. Gray, at the same time telling Justice Field’s story.

When Mrs. Gray learned that the great Supreme Court was going to decide that fish paste was sauce all the domestic vigor in her soul was aroused, and she proceeded to read her distinguished spouse such a lecture upon the cuisine and the constituents entering into it that he began to waver. In a calm and penetrating manner she held up the delicious effects fish paste would have on a tender head of lettuce, and described its palate pulsating delight, when freely embellishing chicken salad.

“Sauce, indeed,” said Mrs. Gray, “so are sardines and smoked red herring, then.”

WHAT THEIR WIVES DECIDED

Next day, when Justice Gray reached the Supreme Court, he called his colleagues together and acquainted them with the feminine view of the sauce question.

“You are all married men like myself,” he said, “and maybe you’d better sound your wives before we make a precedent about anchovy and bloater paste being sauce.”

This was agreed to, and the next day eight Justices of the Supreme Court met and solemnly concurred that the Customs Department of the United States and the Circuit Court of the Southern District of New York and Webster’s Unabridged Dictionary didn’t know anything more about what sauce was than a tomtit did about the Pentateuch. If Justice Jackson had been there he would have acquiesced too.

DID MRS. GRAY HELP?

Accordingly Justice Gray wrote another decision. Of course Supreme Court Justices write their own opinions, but there are hints in some of the paragraphs ensuing of a pair of feminine eyes looking over his shoulder. Here is a part of the interesting document:—

[Editor’s note: the transcription of the opinion here varies quite a bit from the official opinion.] “The word ‘sauce,’ as commonly used, designates a condiment generally, but not always, of liquid form, eaten as an addition to and together with a dish of food, to give it flavor and make it more palatable, and is not applied to anything which is eaten either alone, or with a bit of bread, either for its own  sake only or to stimulate the appetite for other food to be eaten afterward. For instance, cheese eaten with bread, or ham or chicken eaten in a sandwich, or anchovies or herrings, caviar, or shreds of salt fish, eaten, whether with or without bread, as an appetizer before a meal, would hardly be called a sauce.

“In the dictionary of Webster, referred to at the trial, the primary definition of ‘sauce’ is accordingly given as ‘A mixture or composition to be eaten with food, for improving its relish; a relishing condiment; appetizing addition to the principal material of a dish.’

“At the trial, the plaintiffs introduced evidence that the goods in question were manufactured out of anchovies or bloaters, ground up and spiced; were used as food in a distinct form, or as an appetizer, principally in a sandwich, or sometimes with a cracker, and not as a condiment; and were specifically known as ‘anchovy paste’ and ‘bloater paste,’ and that in trade and commerce the word ‘sauces’ was applied to liquids, only, and not to these pastes.

“The Circuit Court, in directing a verdict for the defendant, ruled, in substance, that, as matter of law, and without regard to commercial usage, these articles came within the words ‘sauces of all kinds’ in the Tariff act. We are unable to concur in that view, or to say, either of our judicial knowledge or in view of the evidence introduced, that these articles are necessarily ‘sauces’ of any kind; still less, that this is so clear as to exclude the usual test of commercial designation.

“On the contrary, we are of opinion that the evidence of the nature and the use of these articles, and of their commercial designation, would have warranted a jury in finding that they were not ‘sauces,’ and were ‘fish, preserved or prepared.’

“Judgment reversed, and case remanded to the circuit court, with directions to set aside the verdict and to order a new trial.”

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Everyone at my library is excited because we just received our copy of Table For 9: Supreme Court Food Traditions & Recipes by Clare Cushman, editor of The Journal of Supreme Court History. It’s a really nice looking book, with lots of photos, recipes and tidbits about the eating habits of the justices, both present and past. Everyone here has been eyeing the book, but they are going to have to wait. Since I’m the one who catalogs books here, I get first dibs on it.

Not surprisingly, there are no recipes in the book from Louis D. Brandeis. There is a page devoted to him though which described how his wife Alice served only ginger snaps and tea at her Monday gatherings, and how he was fond of ice cream and the country hams sent to him by his brother Alfred. Cushman also reports that the dinners held in the Brandeis’s apartment were considered to be Spartan affairs. This is confirmed in an article written by Paul Freund (“Historical Reminiscence,” American Jewish History, vol. 68, no. 1, pp. 7-18, September 1978), who claimed that Julian Mack said that whenever he went to the Brandeises for dinner, he had two meals: one before and another one afterwards.

I have always been curious about what Brandeis liked to eat and whenever I find out about a particular food he liked, I file it away. Here is what I have learned so far:

Cushman is right about the ice cream–I have found many references to his fondness for the dessert. In a Boston Globe article published on January 30, 1916 (“Brandeis Man of Simple Tastes”), it was claimed that “ice cream is his favorite dish no matter what the temperature or even the time of day.” And in an interview with his secretary published the day before in the Boston Post (“Secretary Praises Brandeis”), Alice Grady specified that his favorite flavor of ice cream was chocolate, and she added that he was also fond of gingerbread and baked apples. And in an article published on June 4, 1916 in the Boston American (“Boyhood of Brandeis”), it was revealed that as a child his favorite foods were waffles, poached eggs and hot doughnuts.

Melvin Urofsky and David Levy’s collection The Family Letters of Louis D. Brandeis has a couple letters to Alfred thanking for the country hams (and bourbon!) he sent, while others letters indicate that he enjoyed Budweiser (presumably a taste picked up during the year he spent practicing law in St. Louis) and animal crackers.

This information has impacted life here at the Louis D. Brandeis School of Law in interesting ways. Former dean Laura Rothstein likes to give a lecture to her students every year on Brandeis’s birthday and as a treat she will bring in doughnuts. (My suggestion that she also serve poached eggs and waffles have fallen on deaf ears.) At the end of the lecture, she will give an impromptu trivia quiz on Brandeis and every student who gives a correct answer gets a box of animal crackers. These last items seem to have taken a hold on the students’ imaginations. There has been a long standing tradition here of students placing pennies on Brandeis’s grave out side the school at the end of the semester for good luck on their finals. Now however, there is always one student who adds a box of animal crackers to the offerings.

If you are interested in more information on this topic, you check out a C-SPAN recording of a panel on the Supreme Court and food featuring Ruth Bader Ginsburg, Sonia Sotomayor and Supreme Court curator Catherine Fitts and moderated by Ms. Cushman.


If Brandeis had been “just” a lawyer, or had become an academic like many of his family members wanted, he probably would not be remembered today. But in addition to everything else, Brandeis was a great writer, and his activism and his seat on the Supreme Court gave him a platform to disseminate his philosophy. The fact that he did that so eloquently is illustrated by the many quotes of his that are still in use. People who have never read Other People’s Money or any of his Supreme Court opinions are familiar with quotes like “Sunlight is the best disinfectant” or “Men feared witches and burned women.”

As the archivist of the Brandeis papers at the University of Louisville, I am asked to verify Brandeis quotes all the time. Most of them are easy to find (although one took me over 10 years to track down) but there always seemed to be new ones that would take some digging. There have been a couple Brandeis quote books published in the past but they were long out of print and they did not include some quotes people were asking about. So, about 15 years ago, I decided to read everything Brandeis wrote and to compile my own collection of quotes. And now that collection has been published by Carolina Academic Press.

The Quotable Brandeis, edited by Peter Scott Campbell

The Quotable Brandeis (ISBN 978-1-53100-413-2) collects all of the quotes that I considered noteworthy from his books, articles, judicial opinions, letters, speeches and interviews. In the course of my research, I uncovered a couple speeches and interviews that had completely eluded researchers. Not only does the book include quotes from them, but I hope to post those items in their entirety online soon. And while the Internet has many Brandeis quotes, this book includes hundreds of quotes not currently online, and it provides full bibliographic citations for each one. Also, while researching this book, I discovered that many quotes on the Internet commonly attributed to Brandeis were not said by him at all. (Sorry tax lawyers, but Brandeis never lived in Alexandria Virginia and he never drove out his way to avoid a toll bridge.)  The book includes a chapter that debunks these quotes, giving the correct attribution for them (when I could find it.) The book also has a foreword by Mel Urofsky, a biographical sketch of Brandeis written by me and an insanely detailed keyword index.

The book is on sale now. If you live in Louisville, you can get a copy from Carmichael’s Bookstore. If you don’t live here, you order it directly from Carolina Academic by calling 919-489-7486. It is also for sale from eCampus.com–in fact you can even rent it from them if that is something you feel inclined to do. The book is been on Amazon as well, but they claim it is out of stock and apparently you have to for a number of weeks to receive your copy.


We haven’t received the Summer 2017 issue of The Green Bag yet here at the Law Library, but it has appeared online, which these days may be the only edition that matters. I’m being stubborn and waiting for my paper copy so I haven’t read the entire thing, but there are two articles I wanted to bring attention to.

While doing some Brandeis-related research, I stumbled across an 1883 speech by Louisville lawyer (and one-time partner of Brandeis’s uncle Lewis Dembitz) Byron Bacon called “How to Explain to Your Client Why You Lost His Case.” Even though the speech was over 130 years old, I thought it was still pretty funny and forwarded it on to Ross Davies at The Green Bag, who decided to publish it along with an introduction and a couple footnotes by yours truly. The humor might be a little dry for some people, but I think it has held up amazingly well.

Like I said, I haven’t read the rest of the issue yet, but I did notice that Brandeis got cited in one of the other articles. Andrew Jensen Kerr’s “The Law According to the Most-Cited Law Review Articles of All Time” attempts to summarize the breadth of American law with points made from the 50 most cited articles from law journals. The result is a delightfully bizarre synopsis that not only includes a citation to Brandeis’s “The Right to Privacy” article, but also one to an article by William Prosser that indulges in some odd speculation about the physical attractiveness of the daughter of Brandeis’s co-author, Samuel Warren. This article is even funnier than Bacon’s.


Contrary to popular belief, the Louis D. Brandeis School of Law is located at the University of Louisville, in Kentucky, and not at Brandeis University. Brandeis was born in Louisville in 1856, and while he never lived there again after he graduated from Harvard Law School, he retained a fondness for his hometown for the rest of his life. Starting in the 1920’s, he began a campaign to improve the quality of the University of Louisville. The Law School ended up being the biggest benefactor of the campaign. He arranged for the school to obtain subscriptions to various law reporters, as well as paper copies of all the briefs submitted to the US Supreme Court. (The law school continues to receive those briefs today, a distinction shared by only nine other libraries.) Brandeis also donated the bulk of his personal papers to the Law School–a collection of about 250,000 items. After their deaths, the remains of Brandeis and his wife were buried under the Law School’s portico.

Two short articles recently published online by the University of Louisville reflect upon the relationship between the University and Brandeis. The first one is about former Dean Don Burnett and his efforts to align the Law School with Brandeis’s ideals. His efforts culminated with the institution of a mandatory pro bono graduation requirement and the renaming of the school after Brandeis. (His successor, Laura Rothstein, would carry on the tradition of the school’s identification with Brandeis even further.)

The University of Louisville’s University Libraries department publishes a newsletter called The Owl. The latest issue of The Owl features an article written by myself that outlines Brandeis’s campaign to improve the University and its effect on the campus’s libraries. It turns out Brandeis’s fingerprints are all over the place here if you know where to look.


There have been many summations of Brandeis’s philosophy over the years, but there is always room for new looks at his life’s work. The latest overview is an article by Joel K. Goldstein and Charles A. Miller called “Brandeis: The Legacy of a Justice” (100 Marquette Law Review 461-495).

Their article actually comes out of research they have done on former Brandeis law clerk, Paul Freund. Taking Freund’s comment that Brandeis was “the most most moral teacher ever to have sat on our highest court” as their starting point, they look at Brandeis’s discretionary opinions and the impact they have had on the Supreme Court and US presidents in the years after his death.

In describing the moral center of Brandeis’s judicial philosophy, they divide his dissents and concurrences into five threads: the rights of the individual, the duties of citizenship vs. the infringement of rights, bigness in both business and government, the inappropriate use of government power, and the necessity of government regulation. (They make the interesting point that with the exception of Ashwander, almost none of Brandeis’s majority opinions have had much historical impact.)  After describing how Brandeis’s opinions support these threads of his thought, they go on to show how they have influenced later Supreme Court justices on both sides of the political spectrum.

People looking for a concise introduction to Brandeis’s Supreme Court legacy, or for examples of how morality can shape American jurisprudence are encouraged to read this excellent article.


While going through the John Marshall Harlan papers here at the University of Louisville, I stumbled across a typewritten transcript of an old Kentucky newspaper article describing a debate between Harlan and William Elliott Simms as they competed for the Congressional seat for the Ashland district in Kentucky. Harlan described his campaign against Simms in his political memoir, but this article goes into more detail as to what the issues that concerned Harlan the politician. Harlan was 26 years old at the time and young Harlan the slaveholder was quite a different man than Harlan the author of the Plessy v. Ferguson dissent. In fact, one of the first things that struck me while reading the article, is how the two opponents strive to prove how much more pro-slavery they are. 19th century Kentucky was indeed a different place.

The article is not, unfortunately, a transcription of the debate. But the writer has a cutting wit that adds an additional level of enjoyment to the piece. I should probably explain a couple things. William Simms was a former state representative who was the candidate of the Democratic Party, which is sometimes referred to as the Democracy here. The Opposition Party only existed for a couple years before collapsing into historical obscurity. Harlan had been a member of the Whig and Know Nothing Parties before joining the Opposition. I have been unable to determine who the unfortunate Mr. Trabue is. The fact that Harlan neglected to mention him in his memoir suggests that maybe he really was the nonentity that the writer of article claimed.

Editorial published in the Western Citizen of Paris, Kentucky, Friday morning, June 10, 1859, commenting upon the views expressed by Harlan and Simms, candidates for Congress, in joint debate.

THE DISCUSSION ON THURSDAY

The candidates for Congress in this district had their first formal meeting, in this place, on Thursday last. The courtroom was crowded, to its utmost capacity, by citizens from all parts of the county, indicating the deep interest which pervades the public mind upon political subjects.

By agreement, Mr. HARLAN, the Opposition candidate, opened the debate. He commenced by a brief but appropriate allusion to himself as the candidate of his party and to the manner in which he had been presented to the people of the District by the large and intelligent convention which met at Lexington on the 18th of May. He said that as he was a candidate for the suffrages of the people, they had a right to know his political opinions,–these he intended to state freely and frankly, and he also intended to call upon his competitor to do the same.

Mr. HARLAN first addressed himself to the slavery question, in the interesting aspect in which it now presents itself to the people of Kentucky. He gave a short, but clear and lucid review of the history of the slavery agitation, bringing it down to the decision of the U.S. Supreme Court in the DRED SCOTT case, by which the much mooted question as to the power of Congress and of the Territorial Legislatures, over that subject, was judicially settled. It having been determined by this decision, that the owners of the slaves had the right, under the Constitution, to take that kind of property into the Territories and that there was no power in Congress or in the Territorial Legislatures, the mere creatures of Congress, to exclude it—indeed, no power on the subject matter except the power to protect, he took the ground that, as a logical consequence from this, Congress had the power, and it was in its bounded duty, to pass such laws as might be necessary for the full protection of the rights of the slave-owner in the Territories, whenever the local Legislatures shall either attempt to destroy his right by unfriendly legislation or shall fail to pass such laws as are necessary for his protection. He showed, from newspaper articles in several Democratic papers in Kentucky, including some of those in this District, that the power as well as the policy of Congressional intervention for the protection of slavery in the Territories was denied by a large proportion of that party in this State, who took the ground, that whatever Territorial legislatures might do for the purpose of driving slavery out, Congress had no right to interfere, and the only remedy open to the injured-slave owner was a resort to the courts. These papers represented Capt. SIMMS as occupying this ground, and Mr. HARLAN called upon him to say whether they represented him properly, and for the purpose of bringing the matter to a practical point, he asked him whether, as a member of Congress, he would vote for a law to punish negro stealing, if the legislature of any Territory in which such a law might be necessary, should fail to enact one.

From this subject Mr. HARLAN passed to a consideration of the financial administration of the government. He showed from documentary evidence, the vast and alarming increase in the public expenditures since the close of Mr. Fillmore’s term, and, especially during the existence of the present administration. He demanded of his competitor an explanation of the manner in which the vast excess of expenditure had been brought about—he wanted him to show what had become of the money. Mr. HARLAN averred that it had been wasted in extravagance and swallowed up in corrupt uses, and for proof of the charge referred to the investigations of last winter, to the letter of Mr. Buchanan, written in 1852 in which that gentleman expressed so much alarm at an expenditure of $50,000,000 the very amount of which was evidence of corruption in its use—to the recorded opinions of Democratic members of Congress, uttered in public speeches, and to other testimony, rendering it certain that a very large proportion of the national revenues are wasted through corruption and incompetency.

Mr. HARLAN was in favor of the purchase and annexation of Cuba whenever that can be accomplished fairly and honorably. He would vote for the necessary appropriations for that purpose whenever a treaty shall be negotiated, but he was opposed to placing $30,000,000 in the hands of the President in advance, for purposes of bribery and corruption. Such an appropriation he regarded as corrupting in its tendency, a dangerous precedent, and in violation of the spirit of the Constitution.

He was opposed to Mr. Buchanan’s bankrupt project for placing State corporations at the mercy of the Federal Courts. He thought the States abundantly able to manage their own affairs.

Mr. HARLAN’s speech was listened to with the most profound attention. He is one of the most agreeable speakers we have ever heard. His personal appearance, and his dignified and manly bearing are exceedingly attractive, inspiring and commanding confidence in all his hearers. The maturity and statemanslike breadth of his views of public policy, the clearness and force with which he expresses them, the fullness of his grasp of the facts and philosophy of our political history, combined with an unsullied personal character, mark him as one destined to a brilliant future.

Mr. HARLAN was followed by Mr. TRABUE. What he said is unnecessary to specify. He is of no consequence in the race except to be in the way and consume time that might be more profitably as well as more agreeably spent. Most of his speech was devoted to a history of his own connection with politics in this district, showing his own importance now and in times past. The only impression left upon the popular mind by this history was, that it had never been Mr. TRABUE’s good fortune to be “the right man in the right place.” He showed very satisfactorily that he was always on hand when he was not wanted, which, we take it, is his present attitude, unless, indeed, as we suspect, the Democracy want him to do the dirty work of dogging Mr. HARLAN and abusing an imaginary body which he is pleased to call “The Frankfort Clique.” We are surprised that any man, with a particle of self-respect, should be content to hold the position of Mr. TRABUE in this contest.

Capt. SIMMS came next. He did his best. His friends say it was the best effort of his life. It certainly was in the manner of its delivery, and in the adroitness and force which he managed his materials for the defense of a bad cause, highly creditable to his ability as a public speaker. And, although his arguments were mostly fallacious and his fine periods made up of mere clap-trap, they produced upon his political friends the same effect as if they had been precisely the reverse of these. They swallowed in all as the most relevant and vital truth.

A considerable part of his speech was occupied in a review of the history of the slavery question, full of errors or imperfections of statement, the whole bearing a wonderful family likeness to the editorial progeny born of the Democratic press during the last five or six years. Most of this had no bearing whatever, upon any present living issue. It was as a gentleman sitting near us remarked, but “the skin of a dead snake.” The object was to show that the Democratic party was always right on the slavery question, and everybody else wrong. He tried to prove, and boldly asserted that he would prove, that a bargain was made, or about to be made, to transfer the Opposition of the South to the Black Republicans of the North. Of course, he failed. The only proofs offered were extracts, taken out of their connection from certain articles in the Louisville Journal, published last summer. If he had read the articles entire, they would have proved the exact reverse of his assertion.

We thought Capt. SIMMS approached the real slavery issue, and the only one of any importance to the South at this time, rather gingerly. He came to it finally, however, and in answer to Mr. HARLAN’s interrogatory, stated that he would “vote to hang the n****r-stealer as high as Haman,” which, we suggest to Capt. SIMMS, is going rather beyond what is thought necessary or humane in most civilized States. But while avowing this cruel purpose, the Captain ridiculed the idea of applying to Congress for the protection of slavery in the Territories. He evidently took his position in favor of “intervention,” so far as he did take that position, under stress of public sentiment in the district, and not because he heartily approved it. He evidently had some compunctions about turning his back upon his friends of the Statesman and Yeoman.

Capt. SIMMS’ defense of the administration against the charge of extravagance was exceedingly weak, but as strong, perhaps, as the case admits of. He could not show what had become of the money. He undertook to lay the blame upon the House of Representatives of the Congress before the last, in which the Democracy were in the minority, and by way of proof read from divers bills before that body, making grants of public money. But, unluckily for this dodge, the bills never passed and of course the money was not expended under them. Capt. SIMMS, in this attempt to throw upon Congress the responsibility of an extravagance, the existence of which can neither be denied nor excused, but follows the example of the editors and other organs of his party. We intend to show the utter fallacy and absurdity of this defense at some future time.

Capt. SIMMS was in favor of the acquisition of Cuba and approves the Slidell thirty million bill. He is willing to give Mr. Buchanan all the money he asks for, which, in our judgment, ought, of itself, to defeat him. Let him appropriate the money in the ordinary and constitutional way, after a treaty is made, but no man ought to be sent to Congress who will vote the public money into the hands of the President until he knows what is to be done with it.

He thought such a bankrupt law as President Buchanan had proposed might be well enough under certain circumstances, but thought it unnecessary at present.

Capt. SIMMS indulged in much glorification of the Democratic party, and, with much fervor, thanked God, that, although once a Whig and a Whig from principle, he was now a Democrat. We suppose he is thankful for the nomination as a candidate for Congress, a favor which he never had the chance to be thankful for as coming from the Whig party, as well as for the “favor to come,” as he fondly hopes, of an election by the people. We don’t think that any man, and especially a Whig, ought to thank God for the mere fact of having become a Democrat. He ought to wait, like Capt. SIMMS, until he receives some tangible benefit from the change.

Mr. HARLAN had fifteen minutes for a rejoinder. He first administered a spirited and well merited rebuke to Mr. TRABUE for that gentleman’s personal attack upon him and his friends, and then turned to the speech of Capt. SIMMS, whose fallacies he exposed, so far as his time allowed, in the most clear and satisfactory manner. It was glorious to see the edifice of argument erected by his opponent tumbling down under his few rapid but well directed blows. It was of the finest and most complete replies we ever heard, condensed into so short a space. Capt. SIMMS rejoined in a speech of fifteen minutes. It was very well done, and satisfied his friends and the speaker himself, we thought, but brought out nothing new or worthy of special notice.

We have thus given a very meagre statement of the points made by the candidates for popular favor. To do more would require much greater space than we have at our command. Of the result we can only say that we are proud of our candidate—that he is worthy of the hearty support of the opposition, whose principles are undoubtedly safe in his keeping.

Simms won the election although Harlan remained convinced for the rest of his life that he lost due to voter fraud. He considered contesting the outcome in court but decided instead to concentrate on building up his legal career–and paying off his $9,000 campaign expenses. After the Civil War broke out, Simms was named one of Kentucky’s senators for the Confederate Congress, even though Kentucky was still part of the Union. Simms survived the war relatively unscathed but his political career was over.