What Hath God Wrought (61 page)

Objectively, in terms of national politics, the nullifiers had lost. The other southern states had not rallied to their side. Both the legislative and executive branches of the federal government had demonstrated their resolve to suppress nullification. And the tariff that came out of it all would not significantly lower rates until nine years in the future. Yankee farmers expressed their impression that nullification was mere bluster by calling their scarecrows “calhouns.”
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But in South Carolina it was an altogether different story. There the alliance between Calhoun and the Radicals became permanent. Unrepentant, the nullifiers solidified their control of state politics and from then on provided their great spokesman with an unchallenged local power base. The biggest losers from the crisis, in fact, were the South Carolina Unionists; starting in 1834, they were virtually precluded from holding state office by a test oath swearing primary loyalty to the state and only conditional loyalty to the federal government.
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Henceforth the aristocratic South Carolina state-righters played a lone hand for high stakes in national politics, from time to time allying with the Democratic Party only to bolt it, sometimes courting Whig allies, more often trying to rally the South as a section to embrace their own extremist agenda. The president recognized that the nullifiers had not been destroyed, and privately warned that they would make trouble again. Next time, he predicted, they would seize upon “the negro, or slavery question.”
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But never again would Calhoun’s theory of nullification be taken seriously enough to be tried. Instead, the doctrine of secession, which Calhoun had hoped to preempt, lived on, now endorsed more strongly than ever by the ardent defenders of slavery.

In the wake of the crisis, Jackson enjoyed a brief period of cross-party popularity, as National Republicans acknowledged his veneration for the Union. Webster in particular reached out to embrace his fellow nationalist. At his second inauguration on March 4, 1833, the president instructed Americans on the necessity of Union to their trade, communications, prosperity, and peace.

That summer Jackson toured New England, where he was greeted with acclamations, delivered a patriotic address at Bunker Hill, and received an honorary LL.D. from Harvard (despite objection from John Quincy Adams, a member of the Board of Overseers). The story that he was asked to address the degree ceremony in Latin and replied, “
E pluribus unum
, my friends,
sine qua non
!” is apocryphal.
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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.
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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
!”
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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 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.”
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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?”
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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.
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Of more long-lasting significance was
Barron v. Baltimore
(1833), which presented the question whether the city of Baltimore, in damaging 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.
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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.
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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.
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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.
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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.

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.
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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.
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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 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.”
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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.”
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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.
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