Lincoln's Greatest Case: The River, the Bridge, and the Making of America

by Brian McGinty

  The main channel of the Mississippi marks the northern edge of Rock Island, flowing in an archlike course from the eastern to the western end of the island. In the early days of steamboating, the treacherous Rock Island Rapids extended for about fourteen miles above the island, roiling the great waterway with winding currents and treacherous chains of rocks that challenged the best of the river pilots. The island itself belongs to Illinois, while the opposite side of the river is Iowa (a U.S. territory before December 28, 1846, and a state thereafter). Before the bridge was built, the river at Rock Island was about 1,400 feet wide and, at low water, six to eight feet deep.5 It was, in fact, the narrowest point on the river for a hundred miles in either direction. The banks on either side were rock-bound and elevated well above the usual flood levels of the river.6 On the south side of the island, a narrower stream (sometimes called the back or south channel but more formally known as Sylvan Slough) separates the island from the Illinois mainland. The land slopes on both sides of the river to bluffs that rise high above the water and command fine views of the river channel and its banks.

  From the middle of the eighteenth century, the Sauk and Meskwaki (Fox) Indians maintained a village called Saukenuk a short distance south of the island near the mouth of the Rock River. Black Hawk, the Sauk leader who led a portion of his people in the short-lived Black Hawk War of 1832, left an evocative description of Rock Island:

  This was the best one on the Mississippi, and had long been the resort of our young people during the summer. It was our garden, like the white people have near their big villages, which supplied us with strawberries, blackberries, gooseberries, plums, apples and nuts of different kinds. Being situated at the foot of the rapids its waters supplied us with the finest fish. In my early life I spent many happy days on this island. A good spirit had charge of it, which lived in a cave in the rocks immediately under the place where the fort now stands. This guardian spirit has often been seen by our people. It was white, with large wings like a swan’s, but ten times larger. We were particular not to make much noise in that part of the island which it inhabited, for fear of disturbing it. But the noise of the fort has since driven it away, and no doubt a bad spirit has taken its place.7

  The fort that Black Hawk referred to was Fort Armstrong, a large quadrangle of hewn logs that crowned a thirty-foot limestone cliff at the western tip of Rock Island. In 1829, a government agent at the fort ordered the Indians in the region to relocate to the Iowa side of the river because whites wanted to occupy the Illinois shore. Legal title to the land was tangled by a bitterly disputed treaty with the Indians. When Black Hawk stubbornly refused to give up his homeland, a short but bloody “war” broke out. Fort Armstrong became the headquarters of the army operations during the five-month-long conflict, although the fighting ranged over northern Illinois and into southwestern Wisconsin.8 White casualties numbered about seventy-seven, but Indian deaths were estimated as high as six hundred. Black Hawk was ultimately captured and his followers sent across the river.

  Before the fighting ended, some later-famous names were associated with the Black Hawk War. General Winfield Scott, who was to serve as Lincoln’s general in chief at the outset of the Civil War, went to Fort Armstrong to take command of the troops. Colonel Zachary Taylor, elected president of the United States on the Whig ticket that Lincoln supported in 1848, was a commander in the area; and Second Lieutenant Jefferson Davis, a recent West Point graduate then serving under Taylor, was charged with the duty of capturing Black Hawk and taking him on a Mississippi riverboat to Jefferson Barracks near St. Louis.9

  Lincoln also had a brief role in the Black Hawk War, for he was one of sixty-eight men from the village of New Salem who responded to Illinois governor John Reynolds’s call for militiamen to join the fight against Black Hawk.10 Officially mustered into service at Fort Armstrong, the twenty-three-year-old Lincoln was surprised when his fellow volunteers elected him captain of their company. It was his first electoral victory, and in later years he said it gave him “more pleasure than any I have had since.”11 Lincoln saw no combat, although he and his men discovered some casualties of the war: dead bodies that had been scalped, decapitated, and mutilated by the Indians.12 His military service ended in July 1832, when he was honorably discharged.13

  Lincoln was proud of his service, though in later years he joked about it, saying “I had a good many bloody struggles with the musquetoes; and, although I never fainted from loss of blood, I can truly say I was often very hungry.”14 Lincoln also made some valuable friendships during the conflict. It was there that he met several lawyers who were later active in Whig Party politics.15 John Todd Stuart was the most prominent of the group. He was the polished Springfield attorney who lent Lincoln the law books he used in his early legal studies and, in 1837, became his first law partner.16

  The year after Lincoln left Fort Armstrong, an assistant army surgeon named John Emerson was assigned there from his home in St. Louis. A Missouri slave Emerson had purchased in St. Louis also accompanied him to Fort Armstrong, where he worked as a valet for the surgeon and three other officers.17 Illinois was forbidden by the Northwest Ordinance to permit slavery within its borders, so, in theory if not in practice, Emerson’s slave, who later became known as Dred Scott, was a free man.18 From Fort Armstrong, Dr. Emerson took Scott to Fort Snelling, which stood on land—then part of the Wisconsin Territory—acquired as part of the Louisiana Purchase. Slavery there was forbidden by federal law (in the Missouri Compromise of 1820, Congress had forbidden slavery in all U.S. territories north of 36° 30', the southern border of Missouri).19 But Dred Scott later returned with his master to Missouri, where, in 1846, he filed a lawsuit to secure his freedom on the ground that he had lived as a free man at both Rock Island and Fort Snelling. Scott’s lawsuit culminated nine years later in the United States Supreme Court’s 1857 decision in Dred Scott v. Sandford, in which Chief Justice Roger Taney denied Scott’s bid for freedom and declared that when the Constitution was adopted, persons of African descent were deemed to be so far inferior that they “had no rights which the white man was bound to respect.”20 Lincoln was outraged by the Dred Scott decision, which became one of the principal issues in his campaign for the Senate against Stephen A. Douglas in 1858. Though he lost the senatorial election that year, the outrage that he expressed in his debates with Douglas raised his political profile to a national level and did much to help him win the presidency two years later.21

  Years before the Supreme Court’s decision in Dred Scott v. Sandford, the federal government had decided that it no longer needed to protect the area around Rock Island from Indian attack and ordered the army to leave Fort Armstrong. The troops withdrew in 1836, Dr. Emerson and Dred Scott going with them. Not long after the army withdrawal, a town began forming on the mainland southwest of Rock Island. First called Stephenson, it was known as Rock Island City, or just Rock Island, after 1841. In 1848, Secretary of War William L. Marcy wrote Secretary of the Treasury Robert J. Walker that the land Fort Armstrong had occupied “is no longer required for military purposes, and it is therefore hereby relinquished, and placed at the disposal of the department which has charge of the public lands.”22 Then, on August 4, 1852, President Millard Fillmore signed a federal law that granted rights-of-way to companies that wanted to build railroads on public lands. These were granted to “all rail and plank road, or Macadamized turnpike companies, that are now or that may be chartered within ten years hereafter.” The rights-of-way went “over and through any of the public lands of the United States, over which any rail or plank road or Macadamized turnpikes are or may be authorized by an act of the legislature of the respective States in which public lands may be situated,” but only if the public lands were unsurveyed and “held for private entry and sale.” Lands that were already being used, or reserved for government use, would not be included.23

  The law was clearly an effort by Congress to avoid taking a stand on its own constitutional power to subsidize the buil
ding of railroads. Congress said, in effect, that it would offer its aid to the construction of rail and other roads, but only when the state legislatures first acted to create corporations and authorize them to build the roads. Not surprisingly, the Illinois legislature was happy to cooperate with the congressional direction. On January 17, 1853, it incorporated the Railroad Bridge Company and gave it power to build a railroad bridge over the Mississippi River at or near Rock Island, provided it did not “materially obstruct” the free navigation of the river.24 The state legislation went on to authorize the Railroad Bridge Company to connect the bridge with any railroad in the states of Illinois or Iowa terminating at or near the same point.25

  Congress’s qualms about directly aiding railroad construction had their roots in the constitutional doctrine of enumerated powers. Article I, section 8, of the Constitution sets forth a list of powers that are granted to Congress (called “enumerated powers”), and the Tenth Amendment specifically provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” All constitutional scholars agree that the doctrine of enumerated powers limits what Congress can properly do, though there has always been a difference of opinion about how the doctrine should be applied. Alexander Hamilton and Thomas Jefferson quarreled over the issue in the earliest days of the republic, and their quarrels have been kept alive in subsequent generations. In 1819, the great Chief Justice John Marshall stated that the federal government “is acknowledged by all, to be one of enumerated powers,” and the principle “that it can exercise only the powers granted to it . . . is now universally admitted.”26 But Marshall did not believe that the absence of a specific enumerated power strictly foreclosed federal action, because the list of enumerated powers in Article I, section 8, includes the power “to make all laws which shall be necessary and proper for carrying into execution” other federal powers. Under this clause (called the Necessary and Proper Clause) Marshall said that “the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people.”27

  The issue arose in 1819 in the landmark case of McCulloch v. Maryland, in which the Supreme Court upheld the constitutionality of the Bank of the United States. The bank had been chartered by Congress despite the absence of any power to create a bank in Article I, section 8’s list of enumerated powers. But the enumerated powers did include the power to tax and spend, to borrow money, to regulate commerce, to declare and conduct war, and to raise and support armies and navies. In the view of Marshall and the other justices of the Supreme Court (the decision in McCulloch was unanimous), the Bank of the United States was a legitimate means by which Congress could exercise its other enumerated powers. “Let the end be legitimate,” Marshall said, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”28

  Of course, the Constitution’s list of enumerated powers did not include a power to build railroads, or even to authorize or aid the building of railroads. It did, however, include powers to regulate commerce among the several states, to establish post roads, to raise and support armies, and to provide and maintain a navy. Under John Marshall’s broad interpretation of the Necessary and Proper Clause, it could be argued that granting rights-of-way for railroads, or even aiding in the financing of railroads, was a valid exercise of congressional power over post roads and the armies and navies of the nation, and for regulating interstate commerce. If roads are necessary and proper to facilitate the delivery of the U.S. mail, they are equally necessary and proper to facilitate the movement of military forces and the equipment necessary to support them. Railroads can contribute as much to the regulation of interstate commerce as equestrian or wagon roads, and nobody seriously argued that a railroad was not a form of a “road” for purposes of the Constitution.

  The constitutional issues played a part in an important series of Supreme Court decisions announced before and during the construction of the Rock Island Bridge. In 1847, the legislature of Virginia authorized the Wheeling and Belmont Bridge Company, a Virginia corporation, to build a large bridge across the main channel of the Ohio River from Wheeling in Virginia (now West Virginia) to an island in the middle of the river. Another smaller span, called the Bridgeport Bridge, had been built in the 1830s across the “back channel” that separated the island from the Ohio mainland and was still standing. The large bridge—called the Wheeling and Belmont Bridge—was a suspension bridge that, together with the smaller span, was intended to connect two stretches of the National Road, an important highway that began in Maryland and would eventually extend through Ohio, Indiana, and Illinois to Missouri. It was designed for foot and wagon traffic, not railroad cars, although it was believed that if rails were laid across it horses could safely pull individual cars from one end to the other. At its highest point, the bed of the bridge rose ninety-three and a half feet above the low water level of the river.29 Completed in 1849, the Wheeling Bridge was the first bridge to carry land traffic over a navigable western waterway. It was a notable engineering accomplishment and immediately recognized as the forerunner of similar bridges that would in the future be built for railroad use.30

  Steamboat interests upriver in Pittsburgh were outraged by the Wheeling Bridge. They complained that it was an obstacle to navigation on the river, for at high water levels steamboats with very high chimneys could not pass under it without striking the bridge bed. They also argued that it would seriously harm their very profitable shipping business (Pittsburgh was then a major entrepôt for transshipments between the Northeast and the West). Their arguments persuaded the State of Pennsylvania to bring suit in the U.S. Supreme Court to have the bridge abated as a public nuisance. Edwin M. Stanton, a prominent Pittsburgh attorney who was to become Lincoln’s secretary of war during the Civil War, was Pennsylvania’s principal attorney in the suit.

  On February 6, 1852, after preliminary orders establishing jurisdiction and appointing a commissioner to gather evidence, the Supreme Court announced its decision in Pennsylvania v. Wheeling and Belmont Bridge Company. Justice John McLean, who was later to preside over the Chicago trial in which Lincoln argued the legality of the Rock Island Bridge, spoke for the Court’s majority, announcing that the bridge was an obstruction to navigation because it was not high enough to permit steamboats to pass under it without damaging their chimneys.31 He said that the bridge would have to be raised to a height of 111 feet above the low water or, failing that, would have to be torn down.32 Chief Justice Roger Taney of Maryland and Associate Justice Peter Daniel of Virginia both dissented from the decision. Taney believed that the inconvenience to river commerce caused by the bridge was “small and occasional,”33 while Daniel thought that the railroads had an “obvious superiority” over steamboats in meeting the transportation needs of the public.34 Stunned by the High Court’s decision, the owners of the Wheeling Bridge appealed to both the Virginia legislature and Congress for relief. After some confusion, Congress responded with legislation declaring both the Wheeling and the Bridgeport Bridges “lawful structures in their present position and elevation” and requiring all boats on the river to regulate their use “so as not to interfere with the elevation and construction of said bridges.”35

  Then, on May 17, 1854, the Wheeling Bridge blew down in a terrific windstorm.36 When the bridge owners rebuilt it to the same specifications, the Pennsylvania interests sought a new Supreme Court order requiring that it be torn down. This time the Court decided that it did not have to be abated. Speaking for the majority on April 21, 1856, Justice Samuel Nelson of New York said that the bridge was still “an obstruction in fact,” but
“not so in the contemplation of law.” Congress’s legislation meant that the bridge now existed under “the concurrent powers” of both the state of Virginia, which had authorized its construction, and the United States, which had declared it legal.37 The bridge could stand.

  The situations of the Wheeling Bridge and the proposed Rock Island Bridge were strikingly similar. Like the Wheeling span, the Rock Island structure was designed to cross a great river at a place where an island stood in the channel. The bridge would traverse the main channel of the river, while the back channel (in Rock Island’s case the slough) would be crossed by a smaller structure. In both places, the islands facilitated the river spans, because they narrowed the channels that the bridges had to cross. Construction of the Rock Island Bridge had been authorized by both the Illinois and the Iowa legislatures, while the Wheeling Bridge had been authorized by that of Virginia. Significantly, the applicable legislation had required that both bridges respect navigation rights. (The Virginia legislation provided that if the Wheeling Bridge obstructed “the navigation of the Ohio River in the usual manner by such steamboats and other crafts as are now commonly accustomed to navigate the same,” the obstruction had to be removed or remedied as a “public nuisance.”)38 The Illinois legislation did not define the word “materially,” though it was clear that it had significance. An obstruction alone was not enough. The obstruction had to be material.

  Federal legislation had granted state-chartered railroads rights of way over public lands, and the Railroad Bridge Company had reason to believe that Rock Island was part of the public land, for Secretary of War Marcy had relinquished it. To make sure, however, the company applied to Secretary of War Jefferson Davis, who had authority over all military lands in the country, for his authorization. John A. Dix, a prominent New York politician and investor who had become president of the Iowa-chartered Mississippi and Missouri Railroad, made the first contact with Davis in September 1853.39 Davis replied that he had no authority to grant rights-of-way; only Congress could do that. When John O. Sargent, an attorney for the bridge company, claimed that Congress’s act of August 4, 1852, had been sufficient to grant the company the rights-of-way it needed,40 Davis vigorously disagreed. He said that Rock Island was well suited for a federal arsenal or armory (none was then planned); failing that, it might be divided into town lots and sold. On March 14, 1854, Davis gave Dix a firm answer: he would not grant any right-of-way over the island.41 Aware that the construction work on Rock Island had already started, Davis ordered that it be halted.42 When the contractors ignored his order, he sent the U.S. Marshal for Illinois to the island to eject all “trespassers.” Major E. B. Sibley, who accompanied the marshal to the island, reported back to the War Department that the roadbed for the railroad across the island was almost finished and that the company had excavated several acres of land to a depth of two to three feet.43