What Hath God Wrought (65 page)

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
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.
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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.
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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.
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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 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.
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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.
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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.
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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 contempt of court when he jailed the New Orleans federal judge back in 1815.
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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.
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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.

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 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.”
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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.
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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
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.
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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.
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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.
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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 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.
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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 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).
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