Modern history

11

Jacksonian Democracy and the Rule of Law

Although Andrew Jackson defended his own authority with resolute determination, he did not manifest a general respect for the authority of the law when it got in the way of the policies he chose to pursue. This character trait, already apparent in his military career, continued to manifest itself during his years in the White House. Jackson’s removal of the federal deposits from the Bank of the United States proved but one of a number of presidential actions illustrating his impatience with legal restraints. His reactions to the Supreme Court’s decision on Cherokee rights, to abolitionist use of the mails, and to the epidemic of public violence that raged during his presidency all contribute to the pattern. Old Hickory’s admirers, in his own time and since, have extolled his willpower and leadership. Yet, although he set an example of an activist presidency, Jackson’s administration was also an unusually divisive one. He remains the only president to have been formally censured by the Senate. No wonder the opposition party took up the name that traditionally stood for resistance to abuses of executive authority: “Whigs.”

Jackson’s personal attitude toward the law bore a decided congruence to the broader relationship of his party to the American legal tradition. Where Whigs voiced reverence for the supremacy of the law, Democrats more typically celebrated the autonomy of the sovereign people. When they were being careful, Democrats would specify that they meant the people of the several states, distinguishing their position from that of Webster and Marshall once the nullification crisis had passed. When they were being careless, Democrats could close their eyes to the problems of pervasive lawlessness and violence that plagued American society in their time. In the words of the historian Richard Hofstadter, violence in the Jacksonian period expressed “the pathology of a nation growing at a speed that defied control, governed by an ineffective leadership, impatient with authority, bedeviled by its internal heterogeneity, and above all cursed by an ancient and gloomy wrong”: slavery.1

1. Richard Hofstadter and Michael Wallace, eds., American Violence: A Documentary History (New York, 1971), 477.

II

The nullification crisis impacted immediately upon the Cherokee Nation. The case of Worcester v. Georgia had set the stage for a confrontation between the authority of the Supreme Court and the state of Georgia. Having consistently denied the Court’s right to hear the case at all, Georgia took no steps to release Samuel Worcester and Elizur Butler from their confinement despite the decision in their favor. Under the cumbersome legal procedures of the time, there was nothing that could be done about this until the Supreme Court reconvened early in 1833, at which time the two missionaries could officially inform the Court of their difficulty and request a writ. Since the Georgia legislature had forbidden any state officer to obey such a writ, the Court would surely have to call upon the president to exercise his constitutional duty to “take care that the laws be faithfully executed.” But no one imagined that Old Hickory intended to enforce the Court’s judgment in a case where his sympathies lay so solidly with the other side. An oft-told story goes that when he learned of the Supreme Court’s ruling in Worcester v. Georgia, Jackson scoffed, “John Marshall has made his decision: now let him enforce it!”2

By the winter of 1832–33, the situation had changed significantly from the previous March when the original decision was handed down. Clay had been defeated in the election, removing the Cherokees’ hope that he would be in a position to enforce Marshall’s ruling. At a time when Jackson already faced one contumacious state, neither the administration nor the National Republican opposition wanted to risk antagonizing its neighbor, driving Georgia into alliance with South Carolina; Alabama and Mississippi might well follow suit. The problem called for the skills of the Little Magician. Accordingly, vice president–elect Van Buren brokered an arrangement in December 1832 to defuse the situation. Reluctantly, Worcester and Butler announced they would not seek an order from the Court to enforce their release but would instead accept a pardon from the Georgia governor. The Georgia legislature repealed the law under which the missionaries had been convicted (though not the rest of the code that discriminated oppressively against the Indians), so they could return to their missions in the Cherokee Nation. Governor Wilson Lumpkin almost wrecked the deal by insisting on every possible ounce of

2. Horace Greeley, The American Conflict (Hartford, Conn., 1864), I, 106, citing the memory of George Briggs. Although the story rests on a recollection long after the fact, it is consistent with Jackson’s behavior and quite in character. He wrote to John Coffee: “The decision of the Supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate” (April 7, 1832), Correspondence of AJ, IV, 430.

rhetorical satisfaction for state rights but finally issued the pardon on January 14. The nullifiers’ hopes to recruit Georgia to their side were frustrated; the Supreme Court avoided the public embarrassment of issuing a writ that proved unenforceable. The big losers, of course, were the Cherokees, whose legally validated rights would now be ignored. Samuel Worcester had never been sanguine about the chances of saving the Cherokee Nation, but (he had reflected two years earlier) “still it appears to me that the effort ought to be made, though it ends in defeat.”3 The two missionaries had endured seventeen months in harsh imprisonment and had been willing to serve a four-year sentence for their cause; they were not willing to jeopardize the national interest for it. Worcester spent the rest of his life with the Cherokees, accompanied them to Oklahoma, and translated much of the Bible into Sequoyah’s script.

Hostile confrontation between them safely averted, the president hosted the justices of the Supreme Court at the White House for dinner on January 25, 1833. The great nationalist Justice Joseph Story (whom Jackson had once called “the most dangerous man in America”) reported to his wife that “the President specially invited me to drink a glass of wine with him. Since his last proclamation and message [denouncing nullification], the Chief Justice and myself have become his warmest supporters, and shall continue so just as long as he maintains the principles contained in them. Who would have dreamed of such an occurrence?”4

At least two other cases before the Supreme Court may have been influenced by the nullification crisis. One of them was New Jersey v. New York, a boundary dispute in which Van Buren’s home state argued that the Court had no jurisdiction. Since this was the same position that Georgia was taking against Worcester, this case too became potentially explosive in the context of nullification. Chief Justice Marshall prudently halted arguments in March 1832 and postponed their resumption until February 1833. By the time that date rolled around, the parties had set up a commission to negotiate a settlement, which was reached in 1834. Once again Van Buren’s sleight-of-hand was evident in the outcome.5

Of more long-lasting significance was Barron v. Baltimore (1833), which presented the question whether the city of Baltimore, in damaging

3. Quoted in John G. West Jr., The Politics of Revelation and Reason (Lawrence, Kans., 1996), 172. See also Edwin Miles, “After John Marshall’s Decision,” Journal of Southern History 39 (1973): 519–44.

4. Quoted in G. Edward White, The Marshall Court and Cultural Change (New York, 1991), 739.

5. Michael Birkner, “The New York–New Jersey Boundary Controversy, John Marshall, and the Nullification Crisis,” JER 12 (1992): 195–212.

a privately owned wharf, had violated the “takings” clause of the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”). The wharf owner had won a judgment of $4,500, which the Maryland Supreme Court set aside on the grounds that the Fifth Amendment did not apply to the state of Maryland (and its municipal corporation Baltimore) but limited only the federal government. Appeal to the U.S. Supreme Court threatened to replay the hostilities that had been aroused when Marshall had ruled against Maryland in McCulloch fourteen years before. At that time, legal textbooks and state court precedents around the country revealed no particular pattern, some applying Amendments Two through Nine to the states and some not. (Amendments One and Ten explicitly limit only the federal government.) So devoted a supporter of nationalism as Marshall might have been expected to find that the Fifth Amendment did restrict the states. But no, Marshall spoke for a unanimous Court and ruled otherwise without even waiting to hear oral argument for Baltimore. In his last major opinion on constitutional law, the aged chief justice held that the Bill of Rights restricted only the federal government, not the states. It would take the Fourteenth Amendment and much elaborate reasoning in the twentieth century for the Supreme Court to undo (at least partially) the consequences of Marshall’s uncharacteristic decision in favor of state rights. But in the political climate of its January 1833 term, it is unlikely that the Court would have issued an opinion alarming the states.6

III

Back on the ground in the Cherokee Nation, the rejoicing at the decision in Worcester v. Georgia passed as it became apparent that neither state nor federal authorities would obey it. Starting July 1, 1830, state law had been extended over the Cherokee Nation. Although the federal government usually took over lands relinquished by Indian tribes, in this case the state received them. The mood of Georgia’s white populace was captured in a popular song of the day:

All I want in this creation

Is a pretty little wife and a big plantation

Away up yonder in the Cherokee nation.7

6. Barron v. Baltimore, 32 U.S. (7 Peters) 243 (1833); Walker Mayo, “The Federal Bill of Rights and the States Before the Fourteenth Amendment” (D.Phil. thesis, Oxford University, 1993).

7. Joel Chandler Harris, Stories of Georgia (New York, 1896), 216.

To gratify such longings, in 1832 Georgia held a lottery and raffled off all unoccupied Cherokee lands to lucky white ticket holders. For the time being, the Native people themselves were permitted to remain, on plots where they had built improvements, pending their ultimate Removal. Georgia’s Jacksonian Democrats, led by Governor Lumpkin, took an even harder line against the Indians than the State Rights Party of Governor Gilmer (who also endorsed Jackson for president in 1828 and ’32), though the difference was not striking. The lottery was the idea of Lumpkin’s party; Gilmer’s party would have preferred deriving a state revenue from the Cherokee lands. While almost all white Georgians hoped the Indians would go away, not all approved of how they were treated. Some state court judges showed a modicum of respect for Cherokee property rights.8

In the face of extreme state pressure, tribal unity eventually gave way. Most Cherokees, led by Principal Chief John Ross, resolutely stayed put, but a small minority of the tribe decided that it would be better to sign a removal treaty and try to salvage something from the wreckage. On December 29, 1835, a party led by John Ridge and Elias Boudinot (publisher of the Cherokee Phoenix) signed the Treaty of New Echota, consenting to trade the tribe’s ancestral homeland in return for $5 million and land in Oklahoma. The treaty party derived its support mainly from mixed-bloods and slaveowners; Ross, although a mixed-blood and slaveowner too, was supported by the overwhelming majority of full-blood yeoman farmers. A mediator between cultures and a Christian himself, Ross numbered among his conservative party followers of the traditionalist sage White Path. The members of the treaty party may be characterized as a rising middle class within Cherokee society, eager for commercial advantage and frustrated by the conservatism of both Ross’s elite and the multitude.9 Notwithstanding Cherokee protests that the treaty signatories lacked authorization, and the eloquent opposition of Daniel Webster and Henry Clay, the U.S. Senate consented to ratification on May 23, 1836, by 31 to 15: one vote over the constitutionally minimum two-thirds.

8. H. David Williams, “The Cherokee Nation and Georgia’s Gold and Land Lotteries of 1832–33,” Georgia Historical Quarterly 73 (1989): 519–39; Mary Young, “The Exercise of Sovereignty in Cherokee Georgia,” JER 10 (1990): 43–63.

9. Theda Perdue, “The Conflict Within: Cherokees and Removal,” in Cherokee Removal: Before and After, ed. William Anderson (Athens, Ga., 1991), 55–74. For more on Cherokee internal politics, see Gary Moulton, John Ross, Cherokee Chief (Athens, Ga., 1978); Duane Champagne, Social Order and Political Change: Constitutional Governments Among the Cherokee, the Choctaw, the Chickasaw, and the Creek (Stanford, 1992).

Members of the treaty party now departed for Oklahoma, but most Cherokees still did not abandon their homes voluntarily. Starting in May 1838, the majority of the tribe were rounded up by the U.S. Army and sent to detention camps to await Removal; others fled to neighboring states. Widespread bloodshed at this point was averted by the moderation and good sense of Chief Ross and General Winfield Scott.10 But incompetence, indifference, and policy disagreements among civilian authorities had frustrated the efforts of General John Ellis Wool to prepare properly for the massive evacuation. Conditions in the unsanitary detention camps and the harsh weather along the notorious “Trail of Tears” westward in the fall and winter of 1838–39 led to a tragically high death rate; the usual estimate is that four thousand people died out of the twelve thousand participants in the forced migration. Among the dead was Chief Ross’s wife. Once in Oklahoma, the tribe suffered long recriminations over Removal; John Ridge and Elias Boudinot were assassinated (justly executed, said some) for having signed the Treaty of New Echota.11

By this time the Creek and Chickasaw tribes had undergone their own coerced Removals, accompanied by similar hardships, from Alabama and Mississippi, respectively. These states imitated Georgia and extended their own laws over the land guaranteed to Indian tribes by federal treaty. The Creeks, once the most powerful of the southern tribes, suffered perhaps the worst of all during Removal. Their treaty, signed in Washington, D.C., on March 24, 1832, surrendered all tribal lands east of the Mississippi in return for a place in Oklahoma, but also promised that those Creek families who chose to remain in Alabama would be assigned modest “allotments” to own and farm there. But the Creek lands were quickly overrun by whites whom neither state nor federal authorities had the will to evict, and their erstwhile occupants driven off to wander as refugees. In seizing Native American lands, Alabamans made the Georgians look diffident. The many ways of defrauding the Indians of their allotments were varied, ingenious, often brazen, and conducted by large speculative consortia as well as individual cheaters. When the commissioner of Indian affairs investigated, he declared, “It is shocking to reflect on the disclosures elicited. Persons heretofore deemed respectable, are implicated in the

10. See Mary Young, “Conflict Resolution on the Indian Frontier,” JER 16 (1996): 1–19.

11. Anthony Wallace, The Long, Bitter Trail (New York, 1993), 88–94. Estimates of Cherokee deaths in connection with Removal range from 1,600 to 8,000. The controversy is summarized in Ronald Satz, “The Cherokee Trail of Tears,” Georgia Historical Quarterly 73 (1989), 431–32; Russell Thornton, The Cherokees: A Population History(Lincoln, Neb., 1990), 73–77.

most disgraceful attempts to defraud.” The historian Paul Prucha has commented: “The frauds were spectacular and widespread, making a mockery of the treaty intentions, and the government seemed impotent to stem the speculators’ chicanery.”12 Other historians, however, infer that the government actually foresaw these events and signed the treaty as “a clever administration ploy to expedite Indian removal by opening the door to white speculation in Creek lands.”13 Creek tribal law vested land ownership in the woman of the house, but whites insisted on dealing with the man of the house, who might well think he had cheated the strangers by selling what he didn’t own—until they came back with guns to evict him and his family. Not surprisingly, some of the Creeks, goaded beyond endurance, put up violent resistance in the spring of 1836, called the Second Creek War. Secretary of War Lewis Cass of Michigan, who had replaced John Eaton but who was equally committed to Removal, rushed in the army. The troops that could not be spared to maintain order against whites now quickly subdued the Creeks, who were escorted en masse to Oklahoma, “hostiles” and “friendlies” alike, without further regard for the treaty. A few escaped to Florida to join the Seminoles, whose language and culture they shared. Mortality due to Creek deportation may have run as high as 50 percent.14

The Chickasaws of Mississippi tried to spare themselves some suffering by quickly accepting the inevitable and consenting to move west. Then it turned out that the administration had neglected to identify anyplace for the tribe to relocate. Eventually the Chickasaws themselves purchased a section of the Choctaw domain in Oklahoma in order to escape from the persecutions to which they were being subjected by intruders on their lands in Mississippi.

The Seminoles in Florida Territory proved the most difficult of the southeastern tribes to expel. Willing to fight for their homes, they put up a resolute resistance and benefited from a remote defensible bastion and the assistance of runaway slaves. A treaty consenting to Removal, extorted from a group of Seminoles in 1833 when they visited Oklahoma, was

12. Both quotations are from Paul Prucha, The Great Father: The United States Government and the American Indians (Lincoln, Neb., 1984), I, 222. The frauds practiced on the Creeks are thoroughly documented in Mary Young, Redskins, Ruffleshirts, and Rednecks: Indian Allotments in Alabama and Mississippi, 1830–1860 (Norman, Okla., 1961), 3–98.

13. Ronald Satz, American Indian Policy in the Jacksonian Era (Lincoln, Neb., 1975), 105.

14. Michael Doran, “Population Statistics of Nineteenth-Century Indian Territory,” Chronicles of Oklahoma 53 (1975–76): 497–500.

image

Tribes were sent not only to Oklahoma, but also to Kansas and Nebraska.

repudiated by the tribe but accepted as binding by the administration. In December 1835, a hundred soldiers under Major Francis Dade were annihilated by a combined force of Indians and blacks. When Jackson left office in March 1837, the federal government had undertaken a serious war effort, and the fate of the Seminole tribe was still unresolved. Before it was through, the government would spend ten times as much on subjugating the Seminoles alone as it had estimated Removal of all the tribes would cost.15

The administration’s Removal policy applied to all Indians east of the Mississippi, not only those of the Deep South. In the Northwest it led to a

15. Satz, American Indian Policy, 103.

tragic conflict known as Black Hawk’s War. In April 1832, Black Hawk led between one and two thousand people of the Sac and Fox tribes to cross the Mississippi and return to land in northern Illinois where their right of occupancy was now disputed. Black Hawk had long advocated inter-tribal resistance to white encroachment and had sided with the British during the War of 1812; more recently he had been losing influence to his rival leader, Keokuk, an advocate of accommodation with the settlers. On this occasion, Black Hawk and his band were seeking not conflict but refuge from their traditional enemies, the Sioux; a war party would not have included women and children. Illinois governor John Reynolds nevertheless interpreted their move into his state as hostile. As soon as Black Hawk realized that he could persuade neither other tribes nor Canadian traders to support his venture into Illinois, he tried to surrender. On May 14, a delegation of Indians seeking to negotiate under a flag of truce was fired upon by state militiamen; in the battle that followed, the disorganized militia were routed.16

Secretary of War Cass seized this opportunity. He summoned federal troops, requested more Illinois militia to support them, and rushed himself to Detroit so as to be closer to the scene. Among the men assembled for service in the brief campaign were future presidents Abraham Lincoln (whose grandfather had been killed by Indians on the Kentucky frontier), Zachary Taylor, and Jefferson Davis. Jackson pressed the local commander for action, and the hastily gathered army then drove Black Hawk’s band away, pursuing them into what is now Wisconsin, and massacring several hundred men, women, and children at Bad Axe on August 2, 1832, as they were trying to flee back across the Mississippi. Those who made it across were killed by Sioux allied with the government. Of all Black Hawk’s band, scarcely 150 survived. The administration’s seeming overreaction paid off: Peace treaties followed, depriving the Sac and Fox and Winnebago tribes of more lands. The government exhibited the prisoner Black Hawk around the country, as the imperial Romans did with captive monarchs; by his dignity and eloquence, the old warrior won the lasting admiration of the American public.17

Only belatedly did the Jackson administration address the fact that shoving eastern tribes onto the Great Plains would require the tribes who

16. Anthony Wallace, “Introduction,” The Black Hawk War, ed. Ellen Whitney (Springfield, Ill., 1970).

17. William Klunder, Lewis Cass (Kent, Ohio, 1996), 68–69; William Hagan, The Sac and Fox Indians (Norman, Okla., 1958), 153–91. Also see Black Hawk: An Autobiography, ed. Donald Jackson (Urbana, Ill., 1955).

already lived there to turn over some of their historic lands to newcomers. In 1835, the government authorized a commission chaired by Montfort Stokes of North Carolina to seek suitable agreements. Expeditions by cavalry and dragoons based at Fort Leavenworth and Fort Scott, Kansas, eventually persuaded some of the Plains tribes to sign the required treaties, though friction among the different tribes of original inhabitants and relocated easterners would remain, one more tragic aspect of Indian Removal. In 1841, a conscientious investigation of the government’s treatment of the exiles, by Major Ethan Allen Hitchcock of the Regular Army, revealed widespread corruption by white contractors.18

Andrew Jackson mobilized the federal government behind the expropriation and expulsion of a racial minority whom he considered an impediment to national integrity and economic growth. Before the end of his two terms, about forty-six thousand Native Americans had been dispossessed and a like number slated for dispossession under his chosen successor. In return Jackson had obtained 100 million acres, much of it prime farmland, at a cost of 30 million acres in Oklahoma and Kansas plus $70 million ($1.21 billion in 2005, insofar as such equivalents can be calculated).19 Little of the money ended up with the American Indians, but its expenditure seriously compromised Jackson’s pledges of strict republican economy. Of course, the blame for the dispossession and expulsion of the tribes must be widely shared among the white public, and even a sympathetic administration found it difficult to protect Indian rights, as John Quincy Adams’s experience proved. But Jackson’s policies encouraged white greed and made a bad situation worse. In some places where the administration did not resort to force to expel them, modest numbers of tribal Indians succeeded in remaining east of the Mississippi, including Iroquois in New York and Cherokee in North Carolina.

Nor did the fault lie simply with the inefficient and corrupt implementation of Removal, rather than with Jackson’s policy itself. The Indian Removal Bill called for renegotiating treaties and (assuming what the outcome of the negotiations would be) funding deportation. The treaty-making process was notorious for coercion and corruption, as Jackson knew from firsthand experience, and the new treaties concluded under his administration carried on these practices. Jackson’s favorite

18. See Ethan Allen Hitchcock, A Traveller in Indian Territory, rpt. with foreword by Michael Green (Norman, Okla., 1996).

19. Donald Cole, The Presidency of Andrew Jackson (Lawrence, Kans., 1993), 116. Currency equivalent calculated using the Consumer Price Index in Bureau of the Census, Historical Statistics of the United States (Washington, 1975).

negotiator, John F. Schermerhorn, despite much contemporary criticism for his chicanery, was reappointed and rewarded by the president. Firmly believing that “Congress has full power, by law, to regulate all the concerns of the Indians,”20 Jackson found it convenient to pretend that the states had authority to extend their laws over the tribes because he knew the states would make life intolerable for the Natives. After the white populace and their state governments had looted and defrauded the helpless minority group, Jackson (as the historian Harry Watson has put it) “struck a pose as the Indians’ rescuer,” offering deportation as their salvation.21 During the Removal process the president personally intervened frequently, always on behalf of haste, sometimes on behalf of economy, but never on behalf of humanity, honesty, or careful planning. Army officers like General Wool and Colonel Zachary Taylor who attempted to carry out Removal as humanely as possible or to protect acknowledged Indian rights against white intruders learned to their cost that Jackson’s administration would not back them up.22

Indian Removal reveals much more about Jacksonian politics than just its racism. In the first place it illustrates imperialism, that is, a determination to expand geographically and economically, imposing an alien will upon subject peoples and commandeering their resources. Imperialism need not be confined to cases of overseas expansion, such as the western European powers carried on in the nineteenth century; it can just as appropriately apply to expansion into geographically contiguous areas, as in the case of the United States and tsarist Russia. Imperialism is a more accurate and fruitful category for understanding the relations between the United States and the Native Americans than the metaphor of paternalism so often invoked by both historians and contemporaries (as in treaty references to the “Great White Father” and his “Indian children”). The federal government was too distant and too alien, too preoccupied with expropriation rather than nurture, for a parental role to describe the relationship, save perhaps as a sinister caricature. Paternalism might be invoked with more justice to characterize the attitude of the Christian missionaries to the Indians.

Besides eagerness for territorial expansion, Jackson’s Indian policy also demonstrates impatience with legal restraints. The cavalier attitude

20. Andrew Jackson to James Monroe, March 4, 1817, quoted in Robert Remini, The Legacy of Andrew Jackson (Baton Rouge, 1988), 49.

21. Harry Watson, Liberty and Power: The Politics of Jacksonian America (New York, 1990), 109.

22. See, e.g., Klunder, Lewis Cass, 70.

toward the law expressed by Jackson (who was, after all, a Tennessee lawyer and judge) was widespread among his fellow countrymen. The rule of law obtained only in places and on subjects where local majorities supported it. At times during the Georgia gold rush, for example, neither the Cherokee Nation, the state authorities, nor the federal government could enforce law and order. The restoration of legal order to the gold fields came as a result of a desire for secure property titles. Relations with the Indian tribes turned out to be one area of American law where John Marshall’s Supreme Court did not make good on its attempt to set binding precedent. When more cases involving Indian rights came before the Court after Marshall’s death, the new majority of Jackson appointees disregarded Worcester v. Georgia and instead restored the doctrine of Johnson v. M’Intosh (1824), affirming white sovereignty over aboriginal lands based on a “right of discovery.”23 During the generations to come, state governments all over the country repeatedly asserted their supremacy over Indian reservations, state courts enforced it, and the federal government, including the judiciary, acquiesced. Even after tribes had relocated to the west of the Mississippi River, their ability to remain on their new domain was no more secure than it had been on their old. In 1831–32, the state of Missouri expelled its Shawnee residents and turned their farms and improvements over to white squatters.24

The president’s stated goals in Indian Removal included the spread of white family farming, for “independent farmers are everywhere the basis of society, and the true friends of liberty.”25 But Jackson’s insistence on opening up the Indian lands quickly, in advance of actual white population movement, played into the hands of speculators with access to significant capital, who engrossed the best lands. Not until his Specie Circular of 1837, issued just before he left office, did Jackson give any indication of wishing to discourage speculation in expropriated Indian lands. Of course, when small farmers got the chance, they too participated in land speculation to the extent that their resources permitted; even actual settlers commonly chose their sites with an eye to later resale.26

Martin Van Buren correctly predicted that the issue of Indian Removal would “occupy the minds and feelings of our people” for generations

23. Explained in detail by Lindsay Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford, 2005).

24. Tim Garrison, The Legal Ideology of Removal (Athens, Ga., 2002), 234–45; John Farragher, “From Ethnic Mixing to Ethnic Cleansing,” in Contact Points, ed. Andrew Cayton and Fredrika Teute (Chapel Hill, 1998), 304–26.

25. “Fourth Annual Message” (Dec. 4, 1832), Presidential Messages, II, 600.

26. See Young, Redskins, Ruffleshirts, and Rednecks, 172–90.

to come.27 Today Americans deplore the expropriation and expulsion of racial minorities, a practice now called “ethnic cleansing.” The state of Georgia repealed its Cherokee laws in 1979 and exonerated Worcester and Butler in 1992, calling their imprisonment “a stain on the history of criminal justice in Georgia.”28 The federal government has set up markers along the Trail of Tears, which an American of today may observe with shame at the country’s past offenses, leavened with at least some pride at the nation’s willingness to confess them.

IV

White supremacy, resolute and explicit, constituted an essential component of what contemporaries called “the Democracy”—that is, the Democratic Party. Jackson’s administrations witnessed racial confrontation not only between whites and Native Americans but also between whites and blacks. In the case of African Americans, however, the government did not embark on an initiative of its own like Indian Removal but responded to actions by the blacks themselves and their handful of radical white supporters.

Six months after Jackson’s inauguration appeared the most incendiary political pamphlet in America since Tom Paine’s Common Sense. It bore a long title: An Appeal to the Colored Citizens of the World, But in Particular, and Very Expressly, to Those of the United States of America. The author, a self-educated free black man named David Walker, owned a used clothing store near the Boston waterfront. Active in the AME Church and an admirer of its Bishop Richard Allen, Walker contributed to the New York–based black newspaper Freedom’s Journal. Walker’s Appeal, published on September 28, 1829, deployed a wide range of learning marshaled in the service of moral outrage. It denounced not only the institution of slavery but also the indignities to which all black people, free as well as slave, were subjected.

Show me a page of history, either sacred or profane, on which a verse can be found, which maintains, that the Egyptians heaped the insupportable insult upon the children of Israel, by telling them that they were not of the human family. Can the whites deny this charge? Have they not, after having reduced us to the deplorable condition of slaves under their feet, held us up as descending originally from the tribes of Monkeys or Orang-Outangs? ... Has Mr. Jefferson declared to the

27. Martin Van Buren, Autobiography, ed. John Fitzpatrick (Washington, 1920), II, 295–96.

28. New York Times (national ed.), Nov. 11, 1992, A-7.

world, that we are inferior to the whites, both in the endowments of our bodies and our minds? It is indeed surprising, that a man of such great learning, combined with such excellent natural parts, should speak so of a set of men in chains. I do not know what to compare it to, unless, like putting one wild deer in an iron cage, where it will be secured, and hold another by the side of the same, then let it go, and expect the one in the cage to run as fast as the one at liberty.29

Both by precept and example, Walker’s Appeal stressed education as a vehicle for black liberation. In this respect, the author reflected mainstream opinion in the African American middle class. Less conventional aspects of Walker’s message made a mark on public attitudes. His denunciation of the colonization movement turned the northern black community decisively against it and to supporting racial equality within American society as the alternative to separation. Walker’s insistence that the literate minority spread his message to the rest of the African American community formed part of his call for black solidarity against oppression. Most shockingly of all, at least to those whites who encountered his pamphlet, Walker called for resistance on the part of the slaves. “Never make an attempt to gain our freedom or natural right, from under our cruel oppressors and murderers, until you see your way clear—when that hour arrives and you move, be not afraid or dismayed; then be you assured that Jesus Christ the King of heaven and of earth who is the God of justice and of armies, will surely go before you.” Walker spoke in the biblical prophetic tradition. Unless white America changed its ways, the country was doomed to the wrath of an avenging God.30

David Walker had spent several years in Charleston, South Carolina, where he may well have been involved with Denmark Vesey’s circle. Now, Walker made use of his waterfront contacts to distribute his pamphlet to southern ports, hoping its message would reach an audience that included slaves. To evade southern censorship, he sometimes stitched copies into the coats he sold black sailors. Worcester and Butler, the missionaries to the Cherokees whose cause was vindicated by the Supreme Court, may have carried Walker’s pamphlet. In the months following its publication, authorities in Georgia, Virginia, the Carolinas, and Louisiana confiscated copies of the Appeal wholesale. They also passed new laws against circulating seditious literature, isolated black sailors on ships coming

29. David Walker’s Appeal, in Four Articles, ed. Sean Wilentz (New York, 1995), 10. Walker’s allusion to Thomas Jefferson is based on the latter’s Notes on the State of Virginia (London, 1787), Query XIV.

30. David Walker’s Appeal, 11–12.

into port, and tightened restrictions on black religion and literacy. Rumor had it that southern planters put out a contract on Walker’s life. No wonder that when David Walker died suddenly on August 6, 1830, many suspected poison.31

Walker’s work as a Boston antislavery publicist with a national audience was carried on by a white man named William Lloyd Garrison. Garrison’s sailor father had walked out when the boy was twelve; his mother, a cleaning woman, could give her son little but love and Baptist devotion. Born in Newburyport, Massachusetts, a few yards from the tomb of the great revival preacher George Whitefield, Garrison grew to manhood poor, talented, and “all on fire” with religious zeal to set the world aright in preparation for the Second Coming of Christ.32 After experience working in Baltimore for the Quaker Benjamin Lundy on a periodical called The Genius of Universal Emancipation, twenty-five-year-old Garrison returned to Boston; with encouragement and help from the black community there he set up his own antislavery newspaper. The first issue of the Liberator appeared in January 1831, bearing a statement of editorial policy that became famous.

I am aware that many object to the severity of my language, but is there not cause for severity? I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or speak, or write, with moderation. No! no! Tell a man whose house is on fire to give a moderate alarm; tell him to moderately rescue his wife from the hands of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen;—but urge me not to use moderation in a cause like the present. I am in earnest—I will not equivocate—I will not excuse—I will not retreat a single inch—AND I WILL BE HEARD.33

Within six months, the Liberator had a firm circulation base in the black neighborhoods of northern cities as well as financial support from the New York businessmen Lewis and Arthur Tappan, who also supported Charles Finney’s revivals. Defying conventional journalistic practice, Garrison opened his paper’s columns to black and female writers. For the next thirty-five years, the weekly publication of the Liberator kept

31. Clement Eaton, “A Dangerous Pamphlet in the Old South,” Journal of Southern History 2 (1936): 323–34; Peter Hinks, To Awaken My Afflicted Brethren (University Park, Pa., 1997), 25–40, 127–31. Boston city records list Walker’s cause of death as consumption; modern historians disagree over the likelihood of foul play.

32. For Garrison’s postmillennialism, see Henry Mayer, All on Fire: William Lloyd Garrison and the Abolition of Slavery (New York, 1998), 125, 225.

33. Liberator 1 (Jan. 1, 1831): 1.

Garrison’s promise of protest until the ratification of the Thirteenth Amendment purged slavery from the Constitution.

Garrison’s Liberator became the most prominent voice of a distinctive antislavery position known as abolitionism, whose platform demanded that emancipation should be immediate, not gradual, without compensation to the masters, and without the deportation or “colonization” of the freedpeople. On January 6, 1832, in the basement of Boston’s African Meeting House, he and others founded the New England Anti-Slavery Society, dedicated to the principles of abolitionism. Within a few years a nationwide American Anti-Slavery Society had been formed, with a network of abolitionist associations operating throughout the North, despite periodic violent harassment from racist mobs. It is conventional for historians to emphasize what a small minority abolitionism constituted. Yet its expansion actually reflected a remarkably successful effort of communication, organization, and influence on the state of opinion. By 1835, the AASS boasted 200 auxiliaries (local chapters), and by 1838, a remarkable 1,350, representing some 250,000 members. This number, the historian Kathleen McCarthy points out, is 2 percent of the U.S. population at the time—making the American Anti-Slavery Society larger, in relation to its American public, than the Boy Scouts of America or the National Wildlife Federation or the National Rifle Association in the year 2000.34 Whether accurate or not, AASS numerical claims carried enough conviction to arouse serious alarm in southern political circles.

While Garrison, like Walker, scorned the Colonization Society, he deliberately courted the constituency that had opposed Indian Removal and associated their cause with his own. In his Thoughts on African Colonization (1832), he declared that black organizations were “as unanimously opposed to a removal to Africa, as the Cherokees from the council-fires and graves of their ancestors.”35 Indeed, the controversy over Removal, by demonstrating the evils of expulsion as a way to treat a racial minority, helped discredit African colonization in the eyes of northern reformers. Garrison’s fundamental objection to the colonization movement was its failure to stress the moral evil of slavery. Though regularly condemned as an impractical fanatic, Garrison actually had a sound understanding of the nature of the antislavery cause. It was a battle for public opinion. If a

34. Kathleen D. McCarthy, American Creed: Philanthropy and the Rise of Civil Society (Chicago, 2003), 135. The AASS membership statistics are given in Louis Filler, The Crusade Against Slavery (New York, 1960), 67.

35. William Lloyd Garrison, Thoughts on African Colonization (Boston, 1832), pt. ii, p. 5.

critical segment of public opinion could be brought to recognize slavery as a moral evil, the institution’s days would be numbered.

Failing to capture the imagination of the rising generation of Yankee philanthropists, the colonization movement increasingly fell under the control of southerners. The great debate in Virginia following Nat Turner’s Rebellion represented the best chance that the colonization movement ever had of large-scale implementation. Yet the impulse fell apart when it became apparent that western Virginians supported colonization as a means to get rid of emancipated slaves, whereas eastern Virginians only cared about it as a way to get rid of blacks who were already free. Free black Virginians were rarely interested in voluntary emigration, and western white Virginians were unwilling to deport them forcibly.36 Meanwhile, the Jackson administration decided that the colonization program constituted an implied critique of slavery and curtailed its modest federal funding. Lydia Maria Child’s influential abolitionist Appeal in Favor of that Class of Americans called Africans (1836) declared colonization impractical, as indeed it was without government support. The decline of colonization as a viable option contributed over the long run to the polarization of positions on the slavery issue.

Through his discussion of Walker and his impact, Garrison positioned the Liberator as heir to the Appeal. Unlike Walker, however, Garrison was a thoroughgoing pacifist and drew the line at violent insurrection. This did nothing to reassure southerners, however, since he also disapproved of government-sponsored violence such as the suppression of insurrection. Sometimes southern editors reprinted Liberator articles with their own rebuttals—thereby magnifying Garrison’s fame/notoriety. Nat Turner’s Uprising in the summer of 1831 gave a new immediacy to the issue of whether slavery justified violent resistance. Did northern criticism of slavery incite bloodshed? Had Nat Turner read David Walker? The most likely answer is given by the historian Vincent Harding. Without needing to read Walker, “Nat Turner had long been convinced that the God of Walker’s Appeal had always been in Southampton.”37 Yet, rather than admit that slaves inevitably resented their oppression, white southerners usually blamed insurrection on outside agitators.

For quite a while after Turner’s Uprising, the new northern abolitionist organizations refrained from pushing their literature on the South. The debate in the Virginia House of Delegates suggested that southerners themselves might take steps against slavery, even if not the ones that

36. Allison Freehling, Drift Toward Dissolution (Baton Rouge, 1982), 177–95.

37. Vincent Harding, There Is a River (New York, 1981), 94.

Garrison would find morally sound. However, when nothing had come of Virginia’s debate over slavery by the summer of 1835, it seemed clear that the colonization movement had demonstrated its bankruptcy. Garrison and his New York City counterpart, Elizur Wright, then decided to undertake a major southern propaganda offensive. Their target audience consisted of twenty thousand influential southern whites, including many who had previously criticized slavery in conventional Jeffersonian terms as an unfortunate legacy from previous generations, a problem that could be solved with the help of colonization when the time was ripe. The abolitionists intended to persuade such southern moderates that further procrastination was pointless: The time for emancipation was now, and the colonization movement offered no hope. Their program took advantage of the latest mass-production printing technology and relied on the U.S. mails for distribution. The federal Post Office would not be legally bound by the censorship that southern states had enacted in response to David Walker and Nat Turner.38

The abolitionists printed up 175,000 tracts and would have a million ready by the end of the calendar year, but no more than a handful ever reached their addressees. Southern local authorities had vainly urged the mayor of Boston to crack down on Walker’sAppeal and Garrison’s Liberator; when the first abolitionist tracts showed up in their local post offices, they took the law into their own hands. Regardless of the fact that the literature was addressed to prominent white citizens, most southerners seemed convinced that it could fall into the hands of literate blacks and incite rebellion. On June 29, 1835, a group of burglars broke into the Charleston, South Carolina, post office and made off with a bag of abolitionist publications that the postmaster had (not coincidentally) sorted out and labeled for their convenience. The next night the contents of the mailbag were burned before a crowd of two thousand.39

In the abolitionists’ fight to influence public opinion, access to the mails was crucial. Postmasters from all over the country began to ask Jackson’s newly appointed postmaster general, Amos Kendall, how they should deal with abolitionist literature. Did they really have to obey the law and deliver the mail? A member of the kitchen cabinet who had ghostwritten some of Jackson’s major state papers, Kendall consulted his chief on August 7, proposing to allow local postmasters to leave antislavery mail

38. Mayer, All on Fire, 195–200.

39. Sherman Savage, The Controversy over the Distribution of Abolitionist Literature (New York, 1938), 1–26, updated by Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge, Mass., 1995), 257–63.

undelivered. Old Hickory concurred, calling the abolitionists “monsters” guilty of stirring up “the horrors of a servile war,” who deserved “to atone for this wicked attempt with their lives.” Whereas Kendall expressed the hope to resolve the matter “with as little noise and difficulty as possible,” Jackson characteristically took the issue public. At the next session of Congress, he called for legislation authorizing federal censorship “to prohibit, under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection.” Until Congress met, Jackson hit upon a scheme to stifle the distribution of abolitionist material. “Direct that those inflamatory [sic] papers be delivered to none but who will demand them as subscribers,” he told the postmaster general, and then publish their names as supporters of “exciting the negroes to insurrection and to massacre.” This, the president confidently predicted, would bring them “into such disrepute with all the South, that they would be compelled to desist, or move from the country.”40 Kendall went further. He not only deferred to local sentiment in the South, he even instructed postmasters in the North that although there was no legal authority for them to do so, they were “justified” if they refused to dispatch abolitionist mailings into the South. To shield the administration from legal action, he carefully added that postmasters acted on their own responsibility when they did this.41

Where Jackson had proposed the federal government should define and exclude “incendiary” materials from the mail, Calhoun introduced a bill in the Senate to require the federal Post Office to enforce whatever censorship laws any state might enact. At one point in its consideration, Vice President Martin Van Buren saved this measure by his casting vote, but eventually Calhoun’s proposal was defeated. Seven slave-state senators, including Henry Clay and Thomas Hart Benton, joined with northerners to vote it down. Concern for civil liberties, even those of unpopular minorities, counted for more in the halls of Congress than within the Jackson administration. In 1836, an opposition representative from Vermont named Hiland Hall persuaded Congress to pass a law affirming the responsibility of postmasters for delivering all mail to its destination.42 In practice, however,

40. Amos Kendall to Andrew Jackson, Aug. 7, 1835, and Andrew Jackson to Amos Kendall, Aug. 9, 1835, Correspondence of AJ, V, 359–61; “Message to Congress” (Dec. 7, 1835), Presidential Messages, III, 1394–95.

41. Kendall’s instructions to the New York City postmaster were printed in Niles’ Weekly Register, Sept. 5, 1835.

42. See Richard R. John, “Hiland Hall’s Report on Incendiary Publications,” American Journal of Legal History 41 (1997): 94–125.

Kendall found ways to allow southern postmasters to continue deferring to the censorship laws of their states. As he put it in a letter to the Charleston postmaster, “We owe an obligation to the laws, but a higher one to the communities in which we live.” What Calhoun and Van Buren would have required, Kendall and his successors managed to permit. And as Jackson had foreseen, no southern addressee—no matter how respectable, moderate, or Jeffersonian—dared challenge the policy and demand his mail. Instead, the prominent men whom the abolitionists had targeted led public meetings across the South, demanding the Post Office ban abolitionist mailings, and often demanding as well that northern states crack down on their antislavery societies.

The southern practice of ignoring inconvenient federal laws in order to preserve white supremacy was established long before the Civil War. Jackson, who had stood up to South Carolina so firmly over the tariff, cooperated with the state’s defiance of federal law when the issue was race.43 The refusal of the Post Office to deliver abolitionist mail to the South may well represent the largest peacetime violation of civil liberty in U.S. history. Deprived of access to communication with the South, the abolitionists would henceforth concentrate on winning over the North.

V

April 8, 1834, was the first of three days of voting in a hotly contested race for mayor and city council of New York. The Bank War, then at its height, inflamed partisan rancor. In the predominantly Democratic Sixth Ward, armed men drove the Whig Party observers away from the polling place. The next day a Whig parade was attacked when it passed through the Sixth Ward. The coverage of these events by the local partisan press exacerbated passions rather than encouraging order. The Whigs resolved to challenge the Democratic “bullies” who for years had intimidated prospective voters, helping keep the city under the control of Tammany Hall. On the third day of voting, the rioting involved thousands; the mayor himself was clubbed to the ground as he tried to restore order; and only the mobilization of twelve hundred soldiers separated the antagonists. The election returned a Democratic mayor (by 180 out of 35,000 votes cast) and a Whig council. Although many were injured in the disorders,

43. Amos Kendall to Alfred Huger, Aug. 4, 1835, Charleston Courier, Aug. 14, 1835. See also Clement Eaton, The Freedom-of-Thought Struggle in the Old South, rev. ed. (New York, 1964), 196–212; Susan Wyly-Jones, “The 1835 Anti-Abolition Meetings in the South,” Civil War History 47 (2001): 289–309.

Table 3
Riots Reported in Niles’ Register

Source: Leonard Richards, Gentlemen of Property and Standing (New York, 1970), 12. Niles’ Register did not attempt to cover all riots, and the actual number of incidents was perhaps three times as large, but the figures above give a sense of public perceptions and relative frequency.

1830

1 incident reported

1831

3

1832

1

1833

4

1834

20

1835

53

1836

16

1837

3

1838

4

only one person had been killed, probably because the riot was halted just as the participants began to arm themselves with guns.44 The April election riot commenced a year of recurrent mob violence in New York City and heralded an explosion of such violence across the whole United States for the next three years. In August 1835, at the peak of the disorders, the Richmond Whig deplored “the present supremacy of the Mobocracy,” while the Philadelphia National Gazette declared, “Whenever the fury or the cupidity of the mob is excited, they can gratify their lawless appetites almost with impunity.”45

Party politics was by no means the only cause of rioting in Jacksonian America. Ethnic, racial, and religious animosities provided the most frequent provocation to riot. The growing cities seemed vulnerable to anyone exploiting group resentments among the increasingly diverse urban communities, though small settlements certainly demonstrated their share of mob violence, as the Mormons found out in Missouri and Illinois. The absence of effective law enforcement in both urban and rural areas permitted inflammatory situations to get out of hand. The largest riots, surprisingly, were those directed against theaters where prominent British actors accused of anti-American remarks were performing. New York City appearances by actor Joshua Anderson were repeatedly called off in 1831–32, despite audiences paying to see him, because of unchecked

44. Hazard’s Register of Pennsylvania 14 (Oct. 1834): 164–65; David Grimsted, American Mobbing, 1828–1861 (New York, 1998), 200–203.

45. Quoted ibid., 3.

violent demonstrations by self-styled patriots seeking excitement. Other actors subjected to the same treatment included Edmund Kean and William Charles Macready. The worst of many riots of this kind occurred in 1849 at the Astor Place Opera House in New York, in which as many as thirty-one people may have died.46

Rioting, rather than crime by individuals, primarily precipitated the creation of police forces as we know them. There were no professional city police forces before 1844, when New York began the process of creating one in imitation of London’s, founded by Sir Robert Peel in 1829 (hence called “Bobby’s” or “bobbies”). In pre-police days, the only recourses of beleaguered officials consisted of night watchmen (primarily looking out for fires), courtroom marshals, a few part-time, politically chosen constables, ad hoc sheriff ’s posses, and the military. Uniforms for the new police forces were introduced only slowly, beginning in the 1850s, because many in America felt they smacked of militarism.47 The nickname “copper” or “cop” came from the copper badges that antedated uniforms.

The most common targets of mob violence in the 1830s were the abolitionists and the free black communities that supported them. In fact, the appearance of organized abolitionism explains much of the dramatic rise in the number of riots. In October 1833, an elite-led mob forced the prominent evangelical philanthropists Arthur and Lewis Tappan to relocate the founding meeting of their New York Anti-Slavery Society. New Yorkers, with so much of their city’s business dependent upon the cotton trade, felt understandably suspicious of interference with southern slavery. Even members of the American Colonization Society, offended by the uncompromising rhetoric of the abolitionists, joined the mob. After intimidating the abolitionists into a change of venue, the crowd conducted their own meeting according to rules of order.48

The great abolitionist undertaking of 1835, their mass mailing of pamphlets to southern addresses, provoked the largest number of riots. The communications revolution, by empowering social critics on the one hand and fanning conservative fears on the other, catalyzed the violence. Future president John Tyler, addressing an antiabolition crowd at Gloucester Courthouse, Virginia, in August 1835, focused his remarks on the

46. Paul Weinbaum, Mobs and Demagogues: The New York Response to Collective Violence in the Early Nineteenth Century (Ann Arbor, 1979), 37–39. Another account sets the death toll at twenty-two.

47. J. F. Richardson, The New York Police (New York, 1970), 27–28; Eric Monkkonen, Police in Urban America (Cambridge, Eng., 1981), 42–46, 162–68.

48. Niles’ Weekly Register, Oct. 12, 1833.

sensationalism of the antislavery tracts, their wide circulations, and “the cheap rate at which these papers are delivered.” He pointed with horror to the novel involvement of women in the abolitionist movement, particularly in the circulation of mass petitions, and to the “horn-books and primers” aimed at “the youthful imagination.” Tyler viewed the abolition crusade as an assault not only on slavery but on the entire traditional social order. Not only in the South, but even in the North, the early antiabolitionist mobs sometimes enjoyed the respectable leadership of “gentlemen of property and standing” like Tyler.49 On October 21, 1835, such a mob in Boston almost killed William Lloyd Garrison; the mayor of the city saved his life by locking him up in jail. Two years later, an abolitionist editor named Elijah Lovejoy was not so fortunate; he died defending his press against a mob in Alton, Illinois. Lovejoy remained the only abolitionist killed in the North; he was shot after killing one of his assailants. The editor became a martyr to his cause, and his death was held up as a shameful interference with free speech. Thereafter respectable opinion in the North swung away from mob action, whether against abolitionists or others.

The 1830s witnessed a transition in the composition of mobs from elite-led, politically motivated, and relatively restrained collective actions to impromptu violence, sometimes perpetrated as much for the sheer venting of emotion as for any planned objective, in which people were more likely to be injured or killed.50 In the summer of 1834, the newer, less restrained, kind of mobs spread a more awesome terror in New York City. African American celebrations of the seventh anniversary of the end of New York slavery on July 4, 1827, triggered a massive reaction. For three days and nights starting on July 9, mobs vandalized, looted, and burned the homes, shops, and churches of the free black community and white abolitionists. More than sixty buildings were gutted or destroyed, six of them churches, including St. Philip’s African Episcopal Church on Centre Street. Only when it looked like the rioters would turn on the property of the wealthy in general did Democratic mayor Cornelius Lawrence (the one elected by 180 votes) instruct the militia to get serious about enforcing the law. “As long as Negroes and a few isolated white men were the targets, he had not cared,” one historian has observed.51 The local press

49. Leonard Richards, “Gentlemen of Property and Standing”: Anti-Abolition Mobs in Jacksonian America (New York, 1970). Tyler’s speech is quoted at length on 55–58.

50. See Michael Feldberg, The Turbulent Era: Riot and Disorder in Jacksonian America (New York, 1980).

51. Bertram Wyatt-Brown, Lewis Tappan and the Evangelical War Against Slavery (Cleveland, 1969), 119.

too experienced a change of heart, and suddenly deplored the violence it had earlier shamelessly exacerbated. The rioters seem to have been largely working-class whites motivated (so far as one can tell) by fears of racial intermarriage and black competition for jobs, education, and housing.52

The most notorious of 1834 riots, the burning of the convent at Charlestown, Massachusetts, seems to have been an example of the old-fashioned kind of rioting; it involved both middle-class and working-class conspirators and spared the persons of the sisters. Increasingly, however, mob violence expressed the varied discontents of the working classes. Many of the other disturbances of 1834 document the shift. In January, near Hagerstown, Maryland, Irish canal workers from County Cork fought against other Irish canal workers from County Longford, and dozens died before troops arrived from Fort McHenry. The next month, two volunteer fire companies in New York City engaged each other in a pitched battle. In April, a Democratic Party mob looted the branch of the BUS in Portsmouth, New Hampshire. Philadelphia suffered a race riot in August, prompted by white workers’ fears of blacks taking their jobs, followed by an election riot in October. Elsewhere Protestant workingmen attacked Catholic immigrants. November saw forty Irish immigrant workers laying track between Baltimore and Washington for one of the newly invented locomotives attack their supervisors and kill two of them in an action with both ethnic and class dimensions.53

Workingmen in Baltimore rioted in August 1835 against the defunct Bank of Maryland, ruined by the speculations of Taney’s crony Thomas Ellicott, of which many had been depositors or creditors. While their action expressed understandable feelings, it only delayed winding up the bank’s affairs (and provoked bitter condemnation from Taney, who was no friend of the working class).54 An acute analysis of rioting in this period concludes that although immigrant and working-class groups had plenty of legitimate grievances, their rioting was frequently counterproductive and more often than not misdirected against scapegoats.55

52. Paul Gilje, The Road to Mobocracy: Popular Disorder in New York City, 1763–1834 (Chapel Hill, 1987), 162–70; Tyler Anbinder, Five Points (New York, 2001), 7–13.

53. Daniel Cohen, “Alvah Kelley’s Cow and the Charlestown Convent Riot,” New England Quarterly 74 (2001): 531–79; Carl Prince, “The Great ‘Riot Year’,” JER 5 (1985): 1–20.

54. Taney’s reactions are printed in Frank Otto Gatell, ed., “Roger B. Taney, the Bank of Maryland Rioters, and a Whiff of Grapeshot,” Maryland Historical Magazine 59 (1964): 262–67.

55. David Grimsted, “Rioting in Its Jacksonian Setting,” AHR 77 (1972): 361–97.

Frontier vigilantes enforced a venerable version of quasi-respectable violence in America. Vigilantes conceived of their violence as a supplement to, rather than a rebellion against, the law. The vigilante tradition did not die down as soon as an area became settled; in 1834, a mob in Irville, New York, took direct action against prostitution. But the heightening level of violence in vigilantism shocked observers. A mob in St. Louis lynched a black man accused of murder by roasting him over a fire in 1835. The same year, when the people of Vicksburg, Mississippi, decided to rid their town of gamblers, instead of riding the culprits out of town on a rail, they hanged them—along with several other outsiders who were simply in town on business.

Southerners seemed readier to resort to violence, inured as they were to it by the beatings and other brutal punishments routinely inflicted by masters, overseers, and slave patrols. Many riots of the antebellum era manifested the southern attempt to stifle criticism of slavery, just as so many riots of the postbellum era reflected southern determination to keep the freedpeople in subjection. (Vicksburg would become the site of one of the most notorious race riots after the Civil War.) Another category of mob was peculiar to the South: those generated by fear of slave insurrections, real or imagined. Not only did the slave states generate more mobs, their mobs attacked persons more than property, and in consequence killed more people. In the peak year of 1835, the seventy-nine southern mobs counted by historian David Grimsted killed sixty-three people, while the sixty-eight northern mobs killed eight.56 And in the South, the legal authorities showed even less capacity or interest in controlling mob violence.

The southern penchant for violence was individual as well as collective. The sense of male personal honor that historians have found so much stronger in the South than in the North often led to violence. A virile man was expected to fight if insulted, an expectation shared by southern women as well as men. Some historians have traced this penchant for violence to the folk culture of the Celtic clans (Scots, Irish, Scots-Irish, and Welsh) from which so many southern whites descended. Inherited rural folkways changed more slowly in the South, as the effects of the transportation and communications revolutions were felt more slowly there. The code duello and the related practices of private violence in defense of manly honor, such as family feuds, hung on longer in the South, state legislation notwithstanding. Duels sometimes had a political dimension. When Thomas Ritchie Jr., son of the editor of the Democratic

56. Statistics from Grimsted, American Mobbing, 13.

Richmond Enquirer, accused John Hampden Pleasants, editor of his partisan rival, the Richmond Whig, of being an abolitionist, Pleasants, though a critic of dueling, felt constrained to challenge him. In their ensuing encounter, Pleasants was killed; Ritchie was tried and acquitted.57 When violence marred Congress itself, it was usually southerners who perpetrated it. In April 1832, Congressman William Stanberry of Ohio was waylaid and clubbed by Sam Houston, a former congressman from Tennessee, after Stanberry alluded to Houston’s rigging of an Indian contract. Houston was fined five hundred dollars by a District of Columbia court, but President Jackson remitted the fine, and prominent members of his party defended Houston’s behavior.58 Unseemly acts of violence repeatedly disgraced the Capitol over the next generation, leading up to the most notorious incident, the beating of Charles Sumner of Massachusetts on the floor of the Senate by Congressman Preston Brooks of South Carolina in 1856.

President Jackson himself was not immune to the violence of the society around him. In May 1833, Robert Randolph, a formal naval lieutenant who had been dismissed from the service on Jackson’s order, assaulted the president, intending to tweak his nose. In the southern code of honor, to tweak a man’s nose was to call him a liar. Randolph believed he had been framed on a charge of embezzlement in order to protect Peggy O’Neale’s husband, John Timberlake. Randolph succeeded in giving the president a bloody nose, and bystanders restrained Jackson from beating the assailant with his cane. The Old Hero insisted that Randolph must have been part of a conspiracy whose real goal was his assassination, though no evidence substantiated this claim.59 Later, Jackson did become the object of the first assassination attempt on an American president. On January 30, 1835, Richard Lawrence, an English immigrant and unemployed house painter, pointed two pistols at the president on the east portico of the Capitol from a distance of eight feet and pulled their triggers. Amazingly, both weapons misfired. Jackson once again took after his assailant with upraised cane, but others separated the two men and delivered Lawrence into custody. The would-be assassin turned out to be a madman who thought Jackson had killed his father; appropriately, he was

57. Bertram Wyatt-Brown, Southern Honor (New York, 1982), 35–39, 350–61; Dickson Bruce, Violence and Culture in the Antebellum South (Austin, Tex., 1979); John Hope Franklin, The Militant South (Cambridge, Mass., 1956), 33–62.

58. Parton, Life of Jackson, III, 385–92.

59. For an account of the episode and an explanation of the significance of nose-tweaking, see Kenneth Greenberg, Honor and Slavery (Princeton, 1996), 16–22.

found not guilty by reason of insanity and confined for the rest of his life in St. Elizabeth’s mental hospital in Washington. So bitter was the partisanship of the time, however, that Jackson insisted Lawrence must be the hired tool of his political opponents—specifically, of Senator George Poindexter of Mississippi. Two witnesses came forward claiming to have seen Poindexter with Lawrence, but a Senate inquiry demolished their credibility. The historian who has examined the issue concludes the witnesses were suborned by Democratic Party agents but doubts the president’s own complicity.60 Unfortunately, Jackson’s temperamental inclination to believe himself the victim of conspiracy was legitimated by the Old Republican ideology that American politicians of the time so often invoked. In the poisoned political atmosphere of 1835, the assassination attempt deepened rather than bridged the gulf of feeling separating the two parties.

Sadly, Jackson himself was part of the problem of violence. He realized that the “spirit of mob-law is becoming much too common and must be checked, or ere long it will become as great an evil as servile war.” Yet having said that to his postmaster general, he went on in the same letter to urge Amos Kendall to break the law and cooperate with the mob to prevent delivery of abolitionist tracts.61 During the Washington race riot of August 1835, the president called out troops to contain the riot but did not seek to protect the free black community from white aggressors. Old Hickory’s own image and record, as a hero who stood outside and above the law, typified a strain in American frontier culture that encouraged violence. Nor did his party take a stand against it. Democratic Party rhetoric sometimes actually prompted rioting, as it did against the abolitionists in Utica, New York, in October 1835, when the mob was led by Jacksonian congressman Samuel Beardsley.62 More often, by harping on the supremacy of popular sovereignty over legal rules, the Democrats simply fostered a climate of opinion that undervalued minority rights and the rule of law. Mike Walsh, a leading Democrat among New York City’s Irish working class, headed a youth gang named “the Spartan Band” who carried clubs and roughed up political opponents in the 1840s. As Jackson remitted Houston’s fine, a Democratic Congress refunded, with interest, Jackson’s own fine for

60. Richard Rohrs, “Partisan Politics and the Attempted Assassination of Andrew Jackson,” JER 1 (1981): 149–63.

61. Andrew Jackson to Amos Kendall, August 9, 1835, Correspondence of AJ, V, 359–61.

62. Grimsted, “Rioting,” 394, 376, n. 34; Donald Cole, Martin Van Buren and the American Political System (Princeton, 1984), 271.

contempt of court when he jailed the New Orleans federal judge back in 1815.63

It is no accident that questions of sovereignty were so important in American politics. Leaders preoccupied with sovereignty and authority sensed a very real problem in America: the danger of anarchy. Significantly, when Martin Van Buren was in England at the time of the Great Reform Bill of 1832, his comments on it had to do not with improving the quality of representative government but with his fears for maintaining order. John Quincy Adams noted in his diary the ironic coexistence of humanitarian movements to abolish capital punishment with brutal lynchings of defendants accused of minor crimes or no crimes at all. Respect for legal authority had declined, he reflected.64

Thoughtful contemporaries worried a lot about the strain of violence in American life. Revulsion against violence helped the antislavery movement and Indian rights supporters make their cases; concern about violence within the family helped fuel the temperance movement. Dueling fell out of favor in the North. One of the most remarkable comments on the threat posed by the rising violence came from a young Illinois lawyer named Abraham Lincoln, who addressed the Springfield Lyceum on January 27, 1838. “Accounts of outrages committed by mobs form the everyday news of the times,” the speaker noted grimly. Mob rule constituted a greater threat to American liberty and institutions than any foreign tyrant could ever pose, he warned.

Whenever the vicious portion of the population shall be permitted to gather bands of hundreds and thousands, and burn churches, ravage and rob provision-stores, throw printing-presses into the river, shoot editors, and hang and burn obnoxious persons at pleasure and with impunity, depend on it, this government cannot last.

Lincoln distinguished the mobs of his own day from those of the Revolution. Then, the passions of the crowd were enlisted in the service of liberty. Now, however, Americans must be guided by “reason,” not “passion,” he insisted. If they allowed themselves to be governed by their passions, they could become prey to ambitious demagogues who would subvert republican institutions. Driving home the lesson of his secular sermon, Lincoln cast himself as an evangelist of obedience to the law: “Let every

63. On Walsh, see Arthur Schlesinger Jr., The Age of Jackson (Boston, 1945), 410. On Jackson’s contempt citation, see above, XX [chapter 2, ms. pp. 12–13].

64. Autobiography of Martin Van Buren (Washington, 1920), 463; Memoirs of John Quincy Adams (Philadelphia, 1874–77), diary entry for Sept. 1, 1835, IX, 260.

American, every lover of liberty, every well-wisher to his posterity swear by the blood of the Revolution never to violate in the least particular the laws of the country.”65 Though both men were frontier lawyers, the Whig Lincoln revealed an attitude toward the law far different from Jackson’s.

VI

On July 6, 1835, the Great Chief Justice died, a few months short of his eightieth birthday. Although John Marshall’s nationalism had become unfashionable in his home state of Virginia, he remained personally popular there and found opportunity there to express his deeply felt Burkean conservatism. Serving as a delegate from Richmond to the Virginia state constitutional convention of 1829–30, this self-made man had opposed the democratization of the suffrage and defended the power of the tidewater aristocracy. Modest to the last, he asked that his tombstone bear only the bit of information of which he was proudest: that he was the husband of Mary Willis Ambler. Marshall died at peace with himself but despairing of the American experiment he had tried so hard to perpetuate. He wrote his confidante Joseph Story, “I yield slowly and reluctantly to the conviction that our constitution cannot last.” His death came in Philadelphia, where he had gone in search of medical aid for an enlarged liver. The giant Bell at Philadelphia’s Independence Hall bore inscribed around its circumference a quotation from Leviticus: “Proclaim liberty throughout all the land unto the inhabitants thereof.” The Bell had announced the first public reading of the Declaration of Independence on July 8, 1776. Now, tolling for Marshall’s funeral, the Liberty Bell cracked. If a portent, this was ominous.66

With the chief justice gone, Associate Justice Story remained to carry on the defense of American nationalism and judicial conservatism. Like Marshall and most other American lawyers, Story venerated the common law. More of a scholar than Marshall, Story labored across many years and many cases, both in the Supreme Court and on circuit, to synthesize English and American precedents from a wide time span into a system of common law appropriate for federal jurisprudence. His impressive

65. “Address Before the Young Men’s Lyceum of Springfield” (Jan. 27, 1838), Collected Works of AL, I, 108–15.

66. John Marshall to Joseph Story, Sept. 22, 1832, quoted in Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge, 2001), 386. Attempts to continue using the Liberty Bell worsened the crack; it has not been rung since Washington’s Birthday of 1846.

Commentaries on the Constitution (1833) presented a nationalistic and Burkean interpretation of that instrument, grounding its authority, as Webster had done, in American society as a whole. James Kent, chancellor of New York’s highest court of equity, spread the influence of Story’s judgments through his own famous Commentaries on American Law (1826–30). Kent became known as the “American Blackstone,” a reference to the great eighteenth-century English juridical commentator.67

In the 1820s, certain Jeffersonian Old Republicans voiced criticism of the common law as an alien, undemocratic system that should be replaced by simpler legal codes, more readily comprehensible to laymen. The Jacksonian Democrats continued this criticism, though more often they simply endorsed the popular election of state judges to remind those Tocqueville described as “the aristocracy of America” of their true sovereigns. Led by Story and Kent, the legal profession closed ranks in a successful defense of the common law, arguing that since it derived ultimately from the habits of the people, it presupposed their consent.68 Though some states and the federal government eventually codified their law, the codes embodied common-law principles. But Whig lawyers did not have it all their own way; Jacksonian political philosophy exerted great potency as well. Most states wrote or rewrote their constitutions during the antebellum period, and in doing so demonstrated concepts of natural rights and popular sovereignty congenial to the Democratic Party. While Whig principles stood forth strongly in many a judicial opinion, Democratic ones usually prevailed in elected constitutional conventions.69

Marshall had hoped that Henry Clay would win the election of 1832 and appoint Story his successor, but this was not to be. The choice lay with Andrew Jackson. Jackson made five Supreme Court appointments late in his presidency, in addition to two others in his first term. Two of the second-term appointments were made on his last day in office (March 3, 1837), when an obliging Democratic Congress expanded the

67. Joseph Story, Commentaries on the Constitution of the United States (Boston 1833), vol. I, bk. III, chap. 3. See also Kent Newmyer, Supreme Court Justice Joseph Story (Chapel Hill, 1985); Carl Stychin, “The Commentaries of Chancellor James Kent and the Development of an American Common Law,” American Journal of Legal History37 (1993): 440–63.

68. On this controversy, see Marshall Foletta, Coming to Terms with Democracy (Charlottesville, Va., 2001), 159–72.

69. See Laura Scalia, America’s Jeffersonian Experiment: Remaking State Constitutions, 1820–1850 (DeKalb, Ill., 1999).

Supreme Court from seven to nine justices. All five of his last round of appointees came from the slave states, although if representation on the Court had been proportional to free population or litigation there would have been but three southern justices. When one of Jackson’s last-minute appointees declined, Van Buren plugged in another southerner. Even so, Jackson made more Supreme Court appointments than any other president between Washington and Taft.

To replace Marshall as chief justice, Jackson nominated his former attorney general Roger Taney, whom he had already tried earlier to appoint an associate justice. The Whig Senate that censured Jackson for removal of the deposits had refused to confirm Taney, the instrument of deposit removal, as either secretary of the Treasury or Supreme Court justice. But this time the Democrats controlled the Senate, and on March 15, 1836, they confirmed Taney as Marshall’s successor. The ascetic Taney, hollow-chested and stooped, contrasted physically with the bluff outdoorsman image his predecessor maintained even in old age. Born into the Catholic tobacco-planting aristocracy of Maryland, Roger Brooke Taney had begun his political career, like Marshall, as a Federalist. He achieved distinction as a practicing lawyer, particularly for his mastery of civil procedure. Director of a state bank and chair of Maryland’s Jackson-for-president campaign, he made a plausible choice when Old Hickory appointed him U.S. attorney general in the cabinet reshuffle of 1831. Taney accepted with the understanding that he would continue his private legal practice. The age displayed a surprising unconcern for what we would consider a clear conflict of interest. Acting in this private capacity, Taney filed the brief for Baltimore in Barron v. Baltimore, arguing that the Bill of Rights did not apply to the states.70

In Jackson’s cabinet Taney early exemplified some of the legal views that would later characterize his chief justiceship. Although he shared the typical lawyer’s respect for the common law, he also embraced the strong view of popular sovereignty characteristic of Jacksonian Democrats. Taney believed that law originated in the will of the sovereign. He shared Calhoun’s view that sovereignty in the American system resided in “the people of the several states” and that the federal government was only an agent of this sovereign. Jacksonians had invoked this legal doctrine in support of Indian Removal, assuming that the sovereign people must be white. Taney himself had declared that the power of the BUS constituted an intolerable infringement upon popular sovereignty. As

70. See Bernard Steiner, Life of Roger Brooke Taney (Baltimore, 1922), 139–43.

chief justice, he would rely on his doctrine of state sovereignty in several of his major opinions, notably the License Cases (1847) and Luther v. Borden (1848).71

The most interesting of Taney’s opinions as attorney general is probably one he delivered on May 28, 1832, regarding South Carolina’s law authorizing imprisonment of any free Negro sailors who came ashore while their ships were in port. Adams’s attorney general, William Wirt, had found South Carolina’s conduct unconstitutional, but Jackson’s previous attorney general, John Berrien, had countenanced it. Taney agreed with Berrien. His reasoning is revealing:

The African race in the United States even when free, are every where a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than of right.... And where they are nominally admitted by law to the privileges of citizenship, they have no effectual power to defend them, and are permitted to be citizens by the sufferance of the white population and hold whatever rights they enjoy at their mercy. They were never regarded as a constituent portion of the sovereignty of any state.... They were not looked upon as citizens by the contracting parties who formed the Constitution.72

Excluding African Americans from the sovereign people of the United States, this argument does not address the issue of black foreigners penalized by the law in question. What makes the attorney general’s opinion interesting is the way it prefigures a judgment he rendered twenty-five years later as chief justice. In his infamous Dred Scott decision of 1857, Taney would rule that, under the Constitution, African Americans had “no rights which the white man was bound to respect.” Roger Taney quietly supported the colonization movement and had manumitted his own slaves. Yet, like most southern critics of slavery including Thomas Jefferson, he was determined that neither national majorities nor black people themselves should ever infringe on the absolute power of masters or the sovereign supremacy of the white race.73

71. Ohio Life Insurance Co. v. Debolt, 57 U.S. (16 Howard) 428 (1853); License Cases, 46 U.S. (5 Howard) 504 (1847); Luther v. Borden, 48 U.S. (7 Howard) 1 (1848). Taney’s doctrine of sovereignty is analyzed in Charles W. Smith Jr., Roger B. Taney: Jacksonian Jurist (Chapel Hill, 1936).

72. Roger Taney to (Secretary of State) Edward Livingston, May 28, 1832, ms. quoted in Carl Swisher, Roger B. Taney (New York, 1935), 154.

73. Dred Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857), quotation at 407; Swisher, Taney, 154–59.

On the Supreme Court, Taney did not implement an antimarket agenda. Opportunities for him to put his views into the law books came as early as January 1837, while Jackson was still in office. In Briscoe v. Bank of Kentucky the former state bank director joined a majority in support of an opinion written by Justice McLean vindicating the right of state banks to issue paper money. The U.S. Constitution declares emphatically that “no state may issue bills of credit,” but the Court ruled that states could charter banks to do so, even if the bank in question was wholly owned by the state! The decision represented a huge victory for “soft money.”74 In the same Court term, Taney struck another legal blow in favor of the entrepreneurial wing of the Jacksonian movement inCharles River Bridge v. Warren Bridge, and this time delivered the opinion himself.

In 1786, a bridge had been built over the Charles River to link Boston with Charlestown. The Commonwealth of Massachusetts had granted the company that built and operated the bridge the right to collect tolls for seventy years. Although the Charles River Bridge represented an improvement over the old ferry, by 1828 Charlestown had grown considerably, and its businessmen felt the tolls as a constriction on further growth. They successfully lobbied the legislature to charter another bridge company. The new Warren Bridge would charge tolls only until 1836 and then become free. No compensation was offered the proprietors of the Charles River Bridge for infringing on their franchise. They brought a lawsuit charging the legislature had violated the provision in the federal Constitution against states “impairing the obligation of contracts.” After losing in the Massachusetts Supreme Judicial Court, the Charles River Bridge company appealed to the U.S. Supreme Court.

Delivering the Court’s judgment in favor of the new Warren Bridge, Chief Justice Taney cast his opinion as a vindication of both state sovereignty and economic development. Sovereign states could not be assumed to yield “any portion of that power over their own internal police and improvement, which is so necessary to their well-being and prosperity.” Since Massachusetts had made no explicit promise in the Charles River Bridge Company’s charter not to charter other bridges, no contract had been impaired. The pressing needs of economic expansion and technological improvement dictated that vested interests might sometimes have to make room for progress. If the Charles River Bridge claims prevailed, Taney warned, who could predict how many old turnpike companies might sue the canals and railroads that had replaced them?

74. Briscoe v. Bank of the Commonwealth of Kentucky, 36 U.S. (11 Peters) 257 (1837).

We shall be thrown back to the improvements of the last century, and obliged to stand still, until the claims of the old turnpike corporations shall be satisfied, and they shall consent to permit these States to avail themselves of the lights of modern science, and to partake of the benefit of those improvements which are now adding to the wealth and prosperity, and the convenience and comfort of every other part of the civilized world.75

Most contemporaries hailed Taney’s decision as legitimating strong state government and active state intervention to promote economic growth. Justice Story dissented, writing on behalf of himself and Smith Thompson (the only remaining pre-Jackson members of the Court). Of course, he did not wish to stand in the way of progress either. Story claimed that Taney had compromised the rights of property, without which neither justice nor economic development would prevail. Taney’s argument won out, not only on this occasion but on countless others, for state as well as federal courts embraced his point of view. Taney’s opinion in the Charles River Bridge Case became a major policy document of its age.76

Local Democratic leaders in places like the Alabama hill country could exploit the fears subsistence farmers sometimes entertained about entering the market economy. Nevertheless in Washington, the Democratic-dominated Supreme Court promoted the expansion of commerce, as indeed the Jackson administration itself often did. In Bank of Augusta v. Earle (1839), Taney and his Court upheld the right of state-chartered banks to do business outside their home state unless specifically excluded; Whigs welcomed the decision. And though westerners who mortgaged their farms often supported the Democratic Party, they got little sympathy from Taney’s Court. Two Illinois laws attempting to protect debtors whose creditors put their farms up for auction were struck down by the Court as impairments of the obligation of contracts.77

Some historians have interpreted Taney’s chief justiceship as the taming of Jacksonian democracy, rendering its populist agrarianism relatively

75. Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge, 36 U.S. (11 Peters) 420 (1837).

76. See Stanley Kutler, Privilege and Creative Destruction: The Charles River Bridge Case (Philadelphia, 1971), 133–54; Morton Horwitz, The Transformation of American Law (Cambridge, Mass., 1977), 130–39.

77. Mills Thornton III, Politics and Power in a Slave Society: Alabama, 1800–1860 (Baton Rouge, 1977); Bank of Augusta v. Earle, 38 U.S. (13 Peters) 519 (1839); Bronson v. Kinzie, 42 U.S. (1 Howard) 311 (1843).

inoffensive to capitalism.78 Looked at another way, however, the Taney Court provided a logical fulfillment of Jacksonianism. Taney’s blend of state sovereignty, white racism, sympathy with commerce, and concern for social order was typical of Jacksonian jurisprudence. Under Taney the Court strengthened the police power of the states and helped facilitate the transportation revolution. The two issues were closely related, since following Jackson’s Maysville Veto the states more than ever exerted leadership over internal improvements. If Marshall embodied the legacy of the Federalists for thirty-five years, Taney did the same for the Democratic Party in the next generation. Ironically, his devotion to state sovereignty and white supremacy in the long run contributed to the dissolution of the Union Andrew Jackson loved. However, a Whig lawyer with an intellect disciplined through the study of Blackstone, Story, and Kent emerged from the Illinois frontier to save it. Abraham Lincoln would rise to the crisis and preserve the Union, invoking both the sovereignty of the nation and the common-law principle that no party to a compact can unilaterally withdraw from it.79

78. E.g., Schlesinger, Age of Jackson, 329.

79. Austin Allen, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court (Athens, Ga., 2006); Perry Miller, The Life of the Mind in America (New York, 1965), 116.

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