What Hath God Wrought (35 page)

In 1820, Daniel Boone died in Missouri at the age of eighty-five. The old frontiersman had been a model for Cooper’s Leatherstocking. Boone had fought in the Revolution and opened Kentucky to white settlement; his passing seemed to mark the end of an era. Even before he died Boone had been transformed into a legendary figure. Timothy Flint, a Cincinnati journalist-printer, completed that process in his account of Boone’s life, the best-selling biography of the nineteenth century. In Flint’s hands Boone became a model for young Americans, courageous and self-reliant, a harbinger of progress. With the aid of mass communications, a hero from the past could help the coming generation cope with the future in a rapidly changing world.
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IV

Innovations in technology often pose new questions in law. The steamboat company that employed Robert Fulton was owned by the powerful Livingston clan of New York; the state legislature rewarded them for their technological breakthrough with a monopoly over the steamboat trade in New York. The Livingstons then licensed Aaron Ogden to carry on the trade between New York City and the Jersey shore. Thomas Gibbons, a former business partner of Ogden, hired Cornelius Vanderbilt as his boat captain and Daniel Webster as his lawyer and challenged the monopoly. The case of
Gibbons v. Ogden
reached the U.S. Supreme Court in 1824. There Chief Justice Marshall ruled that because the Constitution grants Congress power to “regulate commerce among the several states,” the monopoly granted by the state of New York could not be applied to commerce with New Jersey.
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Unlike the Court’s decision in the Bank case, this one was widely welcomed, for the steamboat monopoly had become unpopular even within New York and was soon repealed.

Even more important than the interpretation of the federal Constitution was interpretation of the common law by state courts. Unlike continental European lawyers, fascinated by Enlightenment reason and the law codes of Napoleonic times, the American legal profession venerated a heritage peculiar to English-speaking people, based on popular customs first recorded by the traveling royal judges of King Henry II. Fiercely defended by Anglo-American colonists before independence, respect for common law was reaffirmed in the federal Constitution’s Seventh Amendment. Common law provided the foundation for the legal system of every state save the former French colony of Louisiana. In the words of Justice Joseph Story, common law constituted “the watchful and inflexible guardian of private property and public rights.”
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The use of common law implied a system based on custom and precedent, yet American judges established their independence of English decisions and shaped their rulings to evolving American needs. By no means unchanging, common-law jurisprudence, being derived from community experience, valued flexibility. Within its framework antebellum judges balanced the interests of society and the individual, of debtors and creditors, of freedom and regulation, of innovation and stability. Judges became increasingly self-conscious of their role as lawmakers for society. They restricted the scope of jurors’ discretion to finding matters of fact, reserving legal decisions for themselves. Two legal maxims often helped guide their opinions:
salus populi suprema lex est
(“the welfare of the people is the supreme law”) and
sic utere tuo
(“so use your right that you injure not the rights of others”).
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Judges gradually reinterpreted law on such subjects as eminent domain, water use, and patent rights in ways that facilitated entrepreneurship and technological innovation. This did not necessarily mean choosing between public and private interests, for in an age of many “mixed” public-private institutions, their opposition did not seem so sharp as it later appeared. Nor did the federal government’s jurisdiction over interstate commerce always preclude state legislation, as it had in the case of the steamboat monopoly. States exercised extensive “police powers” even in areas affecting interstate commerce, the Supreme Court acknowledged repeatedly.
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A litigious people even then, Americans provided their state courts with plenty to do. The decisions of state jurists like the eminent Chief Justice Lemuel Shaw of Massachusetts created the basis for an American common law jurisprudence.
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V

Among the many aspects of life affected by the transportation and communications revolutions, politics was conspicuous. The availability of information coming from outside liberated people from the weight of local tyrannies, whether that of a local elite or a local majority. (Local authorities “were no longer the information gatekeepers for their neighbors,” as the historian Richard D. Brown has put it.)
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People could now read newspapers and magazines for themselves and could join organizations led by people who lived elsewhere, just as they could invest their money in distant enterprises. Politics, which had long seemed a game of personal rivalries among local leaders, became a battle over public opinion conducted through political organizations and the medium of print. The change occurred first, appropriately enough, in the state that built the Erie Canal. New York politics became a microcosm of the future of national politics. To understand these changes will require some attention to the state’s complex power struggles, particularly those between DeWitt Clinton and Martin Van Buren.

Governor DeWitt Clinton was a survivor of the Byzantine intrigues characteristic of the old New York state politics. But through all the kaleidoscopic recombinations of factions and clans, Clinton had nurtured a vision of strong government, a government acting in partnership with private enterprise to promote public prosperity and enlightenment. From 1815 on, the Erie Canal provided the centerpiece for this vision. In his youth Clinton’s friends dubbed him “Magnus Apollo” for his handsome physique and the diverse accomplishments of a Renaissance man; later critics used the nickname to satirize his pride and love of classical culture. In 1812, at the age of forty-four, Clinton had had the audacity to challenge Madison’s reelection as president, carrying the northeast. Thereafter the Virginia dynasty had no use for him, even though he was the nephew of Jefferson’s vice president. An innovator, DeWitt Clinton introduced economic and reform issues into the clannish political culture of New York. His long agenda included, besides internal improvements, aid to education, libraries, and manufacturing, prison reform, scientific agriculture, and the abolition of both chattel slavery and imprisonment for debt.
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Clinton’s most successful philanthropic enterprise was the Savings Bank of New York, chartered in 1819. The idea that a bank could gather up small deposits from ordinary people and invest them seemed novel at the time. Clinton explained in a gubernatorial address that if working men had a secure place to save some of their wages, it would “prevent or alleviate the evils of pauperism.” The SBNY turned out to be a huge success, both with the saving public and financially. It played a key role in financing the Erie Canal, for the bank purchased twelve times as much of the canal’s bonded indebtedness as the second biggest investor.
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The popularity of Clinton’s great canal portended a period of Clintonian dominance in New York. To block this eventuality, Clinton’s political rival Martin Van Buren deployed his own faction of Republicans, called “Bucktails” for the emblems they wore in their hats to party meetings. Van Buren determined to trump Clinton’s appeal by changing the dominant electoral issue in the state from economic prosperity to political democracy. The Bucktails began to call for revision of the New York state constitution of 1777 to do away with the unpopular property qualifications for voting. By this time the legal voting requirements were more honored in the breach than in the observance. Clinton did not oppose doing away with the requirements; indeed, he enjoyed political support among propertyless Irish immigrants thanks to his own Irish ancestry. But he hoped to delay calling a constitutional convention until it could include on its agenda a reapportionment of legislative seats based on the census of 1820. This would improve the representation of the western part of the state, which thanks to the Erie Canal was both growing fast and pro-Clintonian. The Bucktails, however, succeeded in getting the convention held quickly and in stigmatizing the Clintonians as reluctant democrats for seeking delay.
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When the convention met in August 1821, Bucktails dominated it. James Kent, chancellor of the state’s highest court of equity and an elderly Federalist, made a forlorn defense of property requirements to vote for the state senate, though their demise was a foregone conclusion. But even Kent did not oppose the removal of property qualifications in voting for governor and the assembly.
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Actually, Van Buren and his close associates would have preferred to retain a modest property qualification, but some of their supporters got the bit in their teeth and ran out of control. The property qualification for voting was abolished for white men, though the Bucktails pandered to racist sentiment by requiring that black voters have a net worth of $250, over the opposition of Clintonians. The convention also made various institutional changes and legislative redistricting (“gerrymanders,” critics charged) that weakened the Clintonians. As a slap at Clinton himself, the gubernatorial term was reduced to two years and a year sliced off the current term Clinton was already serving. When the governor naturally protested, he was made to seem the opponent of the new constitution in general, including its democratic features. Even today, some historians continue to accept the claims of Van Buren’s Bucktails to have scored a dramatic victory for democracy at the New York constitutional convention of 1821. On the whole, however, partisan advantage rather than philosophical disagreement over democracy explains the differences between Bucktails and Clintonians at the convention.
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As a result of these tactics and an advantageous alliance with a group of so-called high-minded Federalists led by Rufus King, Van Buren’s followers gained control of the state government in 1822, creating a patronage machine nicknamed “the Albany Regency.” The Bucktails did not consistently support popular democracy, even for white men. When the presidential election of 1824 approached, the two factions of New York Republicanism reversed their roles as friends of democracy. The Bucktails wanted to keep the state legislature, which they controlled, in charge of choosing presidential electors, thinking to benefit Crawford. A new organization called “the People’s Party,” demanding a popular presidential election in New York, rallied all those who favored Jackson, Adams, or Clay to their banner. The Clintonians now embraced democracy as their cause and won with it in November 1824. As the candidate of the People’s Party, Clinton rode back into the governor’s mansion with a landslide victory in time to lead the celebrations of the canal’s completion. His running mate, the antislavery hero James Tallmadge, won election as lieutenant governor by an even larger majority. Although the new constitution increased the number of men who could legally vote for the state assembly by 56 percent, the Clintonians remained competitive in New York politics.
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Despite the Clintonian victory in the state election of 1824, the presidential election took place, one last time, under the old rules: The lame duck legislature got to choose New York’s presidential electors. The Adams and Clay followers in the legislature formed an alliance that presaged the one their chiefs would forge at a later stage. But at the last minute, Van Buren succeeded in holding Clay’s New York electoral vote below the threshold the Kentuckian needed to finish in the top three candidates and qualify for consideration in the House of Representatives.
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When the contest then moved to the House, New York’s large delegation seemed split evenly between Crawford and Adams. Van Buren strove to keep it that way, in effect denying the state its vote for president, because he hoped for a deadlock in which he could barter New York’s vote to the highest bidder.

The Little Magician’s plan was foiled when Stephen Van Rensselaer, one of the “high-minded” Federalists who had been temporarily allied with Van Buren, decided to vote for Adams. Many years later, after Van Rensselaer had died, Van Buren told a story of how the old man had found an Adams ballot lying on the floor and took it as a sign from heaven. Van Buren, of course, had every reason to trivialize Van Rensselaer’s choice. The great patroon (as proprietors of Dutch land grants were called) might have decided to vote as he did for any number of causes. His constituents and the rest of his clan were for Adams, he had been lobbied by Daniel Webster and Henry Clay, and he was a longtime supporter of internal improvements. A month after the election, Van Rensselaer gave his own explanation in a letter to DeWitt Clinton. He had become convinced that Adams was bound to win eventually, and to cut short “the long agony” voted for him on the first ballot.
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In 1826, DeWitt Clinton was reelected to another two-year term as governor of New York, this time—amazingly—with the support of the Bucktails, for both Clinton and Van Buren were now backing Jackson for president. Both men aspired to become Jackson’s designated heir. Clinton, who had been backing his old friend and fellow Royal Arch Mason longer than Van Buren had, might well have enjoyed the advantage in the contest. The choice would be important in determining the nature of Jackson’s political agenda. DeWitt Clinton had come to personify political enthusiasm for economic development and transportation in particular. His rival Van Buren, on the other hand, typified a kind of politician willing to play the economic issues whichever way seemed momentarily advantageous. Van Buren reached out to forge an alliance with Calhoun and arrange for him to be named Jackson’s 1828 running mate in order to make sure that Clinton was not chosen for the number two place.
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Had Clinton become Jackson’s confidant and designated heir, would Old Hickory have embraced Clinton’s faith in planned economic development? It would have made a dramatic difference to the course of American history, but we shall never know. For on February 11, 1828, Magnus Apollo died, the victim of a heart attack at the age of fifty-eight. If Jackson wanted an alliance with a major New York political figure, Martin Van Buren was now the obvious choice. Van Buren would bring to the national arena all the skills in party organization and flexibility in economic issues that he had learned in the demanding school of New York state intrigue. His career represented not the triumph of the common man over aristocracy but the invention of machine politics.