9. Edward William Clay, “The Rats Leaving a Falling House” (Courtesy of the American Antiquarian Society)
10. Edward William Clay, “,00001—The Value of a Unit with Four Cyphers Going Before It” (Courtesy of the American Antiquarian Society)
11. “Exhibition of Cabinet Pictures” (Courtesy of the American Antiquarian Society)
Cartoons dramatized the political events of the day and sought with humor to alleviate public anxieties over the state of the union. By portraying cartoon images as works of art displayed in a museum, “Exhibition of Cabinet Pictures” subtly elevated the importance of the cartoonist’s craft while making a mockery of Jackson’s presidency. And newspapers increased their visibility, not to mention sales, as editors began not only to report the news, but also to make it. The appearance in print of confidential documents and undocumented rumors helped shape events in unexpected ways. John Quincy Adams lamented, “In our Presidential canvassing an editor has become as essential an appendage to a candidate as in the days of chivalry a squire was to a knight.” Incendiary headlines became so commonplace that one publication even joked, “We should have prefaced this article with such phrases, in large capitals, as REVOLUTION AT WASHINGTON—EVACUATION OF THE DEPARTMENTS—MYSTIFICATION OF THE PEOPLE—NEW CABINET YET UNKNOWN—TENDER CORRESPONDENCE.” Here was a paradox at the heart of American politics: democracy meant telling all, but telling all, as in the Seminole and Eaton affairs, could threaten democratic government.61
Foreign visitors commented on the importance of newspapers in America—New York alone had forty-seven papers. “Nothing in America is perhaps more striking,” observed James Boardman, “than the rapid and general diffusion of information through the community by means of newspapers.” Tocqueville was struck by the contents of a poor farmer’s cabin in Tennessee: “There one finds a fairly clean bed, some chairs, a good gun, often some books and almost always a newspaper, but the walls are so open to the day that the outside air comes in on every side.” He deplored the “coarse insults … petty slanders … and impudent calumnies” that constituted the news, but he recognized that the papers’ ubiquity served as a way of knitting together an expansive nation. “Newspapers penetrate to every crevice of the Union,” noted Thomas Hamilton. “It is thus that the clamor of the busy world is heard even in the wilderness, and the most remote invader of distant wilds is kept alive in his solitude to the common ties of brotherhood and country.”62
The government survived the Cabinet tempest, though several members refused to relent and began commenting openly in the papers. Eaton responded by challenging at least one of his colleagues to a duel and publishing a Candid Appeal to the American Public. Calling his lamentable associates “monuments of duplicity, ingratitude, and baseness,” Eaton marveled at their inability to understand why, in attacking the virtue of female character, “the sun of their political glory was so suddenly shorn of its beams.”
Jackson emerged reinvigorated, relieved at last to have regained control over his house. He had been suffering from severe headaches and physical exhaustion. His political opponents privately expressed hope that the general might not live out the year. They even contemplated impeaching him, but feared generating still more sympathy for a man whom the people “have not yet altogether ceased to idolize.” Jackson regained his spirit and his health, not to mention his political balance. He continued to “long for retirement to the peaceful shade of the Hermitage,” his Tennessee estate, but he would not surrender his office. The Washington Globe announced that the president would run for re-election, and Jackson readied himself for a line of tumultuous political storms that were enveloping the nation.63
STATE AND NATION
INDIANS
The freezing rain of a February morning did not faze Chief Justice John Marshall as he trudged to the Supreme Court with his coat open and head uncovered. Edward Everett, riding to the Capitol in a hack, watched Marshall with wonder. The Massachusetts congressman, who was suffering from a “heavy and troublesome cold,” paid half a dollar a day, as much as most workingmen earned, to be driven back and forth between the Capitol and his boarding rooms. “It makes me ashamed of myself,” he confided, “to see the Chief Justice who is 75 years old trudging up to Court on foot … . Here I am, at the age of 37 obliged to drive up to the Capitol while the old Chief Justice walks.”1
Marshall was not so vigorous as he may have appeared. Since the onset of his wife’s illness, the chief justice had let himself go. William Wirt, who as attorney general appeared frequently before the Court, had commented on Marshall’s unkempt appearance. He observed that one day the chief justice arrived in Court “badly shaved” and “with a quantity of egg on his underlip & chin.” Associate Justice Joseph Story knew Marshall’s condition better than most. Story entered the chief justice’s chambers during the January term in 1832, only weeks after Mrs. Marshall’s death on Christmas Day, and found the great man crying. “The moment he relaxes from business he feels exceedingly depressed, and rarely goes through a night without weeping over his departed wife,” reported Story. Throughout 1831, rumors spread that the chief justice would soon retire, a possibility that many considered a “national calamity.” John Quincy Adams expressed his anxiety that, with Marshall gone, Jackson would appoint some “shallow-pated wildcat … fit for nothing but to tear the Union to rags and tatters.” “It makes me melancholy to reflect,” concluded one editor, “that such men as John Marshall must grow old, become infirm and Die!”2
Marshall had sworn Jackson in as president, and he must have said a silent prayer when the general vowed to “preserve, protect, and defend the Constitution of the United States.” Contentious issues threatened the nation, and the fate of the Cherokee Indians at the hands of the state of Georgia was one of them. Jackson hated Indians. He had made his name fighting them, going to battle against the Creek in 1813 and the Seminole in 1817. He never relinquished the belief that the Indians desired only “to comit Murder with impunity,” a fear he expressed in 1793. In his First Annual Message to Congress he declared that the presence of Indian tribes living independently within state jurisdictions had become an acute problem. Jackson believed the states had sovereign power to pass laws that applied to everyone residing within state boundaries, and that the national government had no right to interfere. The president would not countenance independent republics within state lines any more than he would approve separate governments within national lines. The Indians living in the Southeast would have to “submit to the laws of those States.”3
Everyone knew what that meant. State laws in Georgia, Alabama, and Mississippi abolished tribal units and powers, invalidated Indian possession of lands, encouraged white settlement on Indian territory, and denied Indians the right to vote or bring suit or testify. Georgians seemed especially keen to control the territory occupied by the Cherokee Nation, an expanse of fertile ground on the state’s northern border with Tennessee. They had forced the Creek, Choctaw, and Chickasaw off of millions of acres of land in the mid-1820s and now sought to do the same to the Cherokee, especially after the discovery of gold in the region. The Georgia General Assembly passed law after law asserting its own sovereignty over the entire state and circumscribing the rights of the Cherokee. A law went into effect on February 1 making it illegal for the government of the Cherokee to meet, compelling all whites (mostly missionaries) living among the Cherokee to take an oath of allegiance to the state, and creating a special unit, the Georgia Guard, to enforce all laws. Elias Boudinot, the editor of the Cherokee Phoenix, observed, “Cupidity and self-interest are at the bottom of all these difficulties—A desire to possess the Indian land is paramount to a desire to see him established on the soil as a civilized man.”4
Boudinot was commenting on one of the ironies of the situation. The Cherokee had gradually repudiated elements of their own culture and embraced a program for “civilization” begun by George Washington. They became farmers, English-speakers, and Christians. One visitor c
ommented, “They adopt in part the costume of Europeans; they have schools, and churches, and a printing press among them.” In 1827, when the Cherokee ratified a constitution that proclaimed total sovereignty over their land and people, they had become too “civilized” for Georgia’s leaders. Had they resisted missionary efforts, they would have been assaulted as savages; having embraced “civilization,” they were condemned for zealously seeking to protect their identity and property. In the end, the “civilization” program provided the rationale for Indian removal. In relinquishing their own ways, Jackson claimed, the Cherokee doomed themselves to “weakness and decay,” to an inability to fight off transgressors. Wishing to avoid the annihilation of the Cherokee, Jackson proclaimed, “Humanity and national honor demand that every effort should be made to avert so great a calamity.” Just as free blacks were being pressured to abandon the South for lands in Africa, the only solution to the problem of the Indian presence, Jackson advised Congress, was to encourage “voluntary emigration” to territory west of the Mississippi.5
Responding to Jackson’s message, Democrats introduced an Indian Removal Bill that would authorize the president to provide land west of the Mississippi in exchange for tribal property in the East and would appropriate five hundred thousand dollars to carry out resettlement. The debate over the bill preoccupied Congress in 1830. Opponents of the measure—in the Senate, Theodore Frelinghuysen of New Jersey and Peleg Sprague of Maine; in the House, Henry Storrs of New York and Isaac Bates of Massachusetts—denounced Indian removal on historical, constitutional, and moral grounds. Since the adoption of the United States Constitution, they argued, there had been fourteen treaties signed with the Cherokee and each one had guaranteed the tribe “the remainder of their country forever,” a promise that superseded any states’-rights claims. Furthermore, the Cherokee government could retain its independence and sovereignty, because it was not a state in the sense meant by the Constitution (Article IV, Section 3, proclaims, “No new State shall be formed or erected within the Jurisdiction of any other State”) and it certainly was not a new state: “The emblems of [the Cherokee Nation] were sparkling in the sun, when those who now inhabit Georgia, and all who ever did, were in the loins of their European ancestry … . The Cherokees were the lords of the country in which they dwelt, acknowledging no supremacy but that of the Great Spirit, and awed by no power but his—absolute, erect, indomitable as any creatures on earth the Deity ever formed.”6
“Removal is a soft word,” observed Edward Everett, “and words are delusive.” There was nothing at all voluntary about the measure; rather, if passed, the Removal Act would lead to the compulsory expulsion of some fifteen thousand Cherokee from their land. Everett denounced the Southerners for their ardent states’-rights stand and their indifference to the fate of the Southeastern Indians. He also exposed the true financial cost of the measure, putting the sum not at five hundred thousand dollars but at nearly twenty-five million. He concluded by addressing the conscience of Congress: “We are going … to take a population of Indians, of families, who live as we do in houses, work as we do in the field or the workshop, at the plough and the loom, who are governed as we are by laws, who raise their children to school, and who attend themselves to the ministry of the Christian faith, to march them from their homes, and put them down in a remote, unexplored desert. We are going to do it—the Congress is going to do it—this is a bill to do it.”7
The Indian Removal Act passed the Senate by a vote of 28 to 19 and the House by a vote of 103 to 97. Jackson signed it on May 28, 1830. In his second address to Congress, he called the action “true philanthropy,” because, in accepting the inevitability of the disappearance of the Indians, the nation could move forward. Who, Jackson wondered, could complain of a chance to move west at government expense and by doing so remove themselves from harm’s way? Of course it was difficult to leave behind one’s ancestral homeland, but “to better their condition in an unknown land our forefathers left all that was dear in earthly objects.” If the “civilized Christian” could do so, certainly the “wandering savage” could do the same.
Opponents of Jackson and removal refused to abandon the issue. Throughout 1830, thousands of citizens signed numerous petitions opposing the Indian Removal Act. On February 7, 1831, Everett formally presented a memorial from his constituents praying for repeal of the act. He informed the House that he intended to speak on the following Monday, the day set aside for consideration of petitions and memorials. Jackson’s supporters moved to silence Everett. Wilson Lumpkin of Georgia raised a series of procedural objections, but Everett’s motion to refer the memorial to the Committee on Indian Affairs passed by a vote of 101 to 93. Despite suffering from a severe cold, Everett rose on February 14 to speak on the Indian question, “the greatest question which ever came before Congress, short of the questions of peace and war.”8
Everett focused on Indian removal as an unconstitutional attack on the integrity of the American polity. “What is the union?” Everett inquired. “Not a mere abstraction; not a word; not a form of government; it is the undisputed paramount operation, through all the states, of those functions with which the Government is clothed by the Constitution.” Jackson and the state of Georgia had disrupted those operations. By refusing to uphold legal and binding treaties, the executive and the state were guilty of the very crime currently being threatened by South Carolina with regard to the tariff: nullification. The president’s place, averred Everett, was not to decide on the constitutionality of law, only to abide by it. And Georgia’s place was not to declare all Indian treaties unconstitutional, only to follow them until they were revised by Congress. More than the fate of the Cherokee rested upon these deliberations; the fate of the Union did as well. Speaking two days after the atmospheric phenomenon that had closed Congress early in the day, Everett warned, “If we proceed in this path, if we now bring this stain on our annals, if we suffer this cold and dark eclipse to come over the bright sun of our national honor, I see not how it can ever pass off; it will be as eternal as it is total.”9
With the president, Congress, and the states aligned behind removal, the Cherokee delegation in Washington decided to bring the issue to the Supreme Court. Taking the advice of Webster and Clay, they retained William Wirt as counsel for the Cherokee Nation. A talented orator and experienced legal tactician, Wirt took the case because he found the legal questions fascinating, had little sympathy for Andrew Jackson, and was paid a handsome fee. Shortly after passage of the Removal Act, he told John Ross, chief of the Cherokee Nation, “Your case is a great and urgent one.” Wirt wrote immediately to George Gilmer, governor of Georgia, suggesting that the Court be allowed to settle the “difference of opinion” on Indian sovereignty; Gilmer responded by denouncing Wirt as an advocate of nationalist power against the “friends of liberty” who sought to preserve the authority of the state. Knowing the letter would make its way to Chief Justice Marshall, Wirt also wrote to Dabney Carr, a judge on the Virginia Court of Appeals. When Marshall told Carr that he had followed the debate over Indian removal and wished “the executive and legislative departments had thought differently on the subject,” Wirt had the signal he was hoping for.10
Believing it an insult for “a sovereign and independent state … to become a party, before the Supreme Court, with a few savages, residing on her own territory,” Georgia decided to ignore a writ of error commanding the state to appear on the second Monday in January to show cause why a judgment had been rendered against one George Tassel, a Cherokee who was convicted and sentenced to death by a Georgia court for murdering an Indian within Indian territory. Tassel claimed he was exempt from the jurisdiction of the Georgia courts and applied to the Supreme Court to review the matter. But Governor Gilmer refused to take part, telling the Georgia legislature that cooperation would “eventuate in the utter annihilation of the state governments.” On Christmas Eve, 1830, in defiance of Marshall’s order, Georgia executed Tassel, thus making the writ a moot issue. T
he “intemperate and indecorous proceedings” distressed Justice Joseph Story, who saw a general scheme at work “to elevate an exclusive State sovereignty upon the ruins of the general government.”11
On March 5, Wirt and his co-counsel, John Sergeant—a leading National Republican, chief counsel for the Bank of the United States, and, by year’s end, Henry Clay’s running mate—moved for an injunction from the Supreme Court to restrain Georgia from executing and enforcing its laws against the Cherokee. The Court granted the request and soon heard arguments from Sergeant and Wirt in the case of Cherokee Nation v. Georgia; no counsel appeared for the respondent. On Saturday, March 12, Sergeant addressed the bench for several hours. In a presentation described as “cold and dry,” he detailed two principal legal arguments. First, the Supreme Court had original jurisdiction under Article III, Section 2, which extended judicial power to all cases arising under treaties. Second, treaties, precedents, and legal authorities established that the Cherokee were an independent foreign state: they controlled a territory, they had fixed boundaries, they had laws and government, and they were parties to treaties that recognized their rights as a nation. In sum, they met all the criteria offered by political philosophers for the definition of a state: it has “affairs and interests; it deliberates and takes resolutions in common; and becomes a moral person, having an understanding and a will peculiar to itself; and is susceptible to obligations and laws.”
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