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The Law and Mob Law in Attacks on Antislavery Newspapers, 1833–1860

Published online by Cambridge University Press:  18 August 2010

Richard B. Kielbowicz
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Extract

Two months after a mob in Alton, Illinois, killed abolitionist editor Elijah Lovejoy and destroyed his fourth press, a jury acquitted several assailants accused of rioting. By the time that the trials commenced in January 1838, the defenses had all been publicly aired; indeed, they had been rehearsed in print and at well-attended meetings long before the attack occurred. The mob's leaders had taken special care over several months to lay a legal foundation for their action; most notably, the Illinois attorney general led the pre-attack rhetorical justification and the post-attack courtroom defense. In the end, the jury found that resorting to forcible measures in such circumstances did not clearly fall outside the law.

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Law and History Review , Volume 24 , Issue 3 , Fall 2006 , pp. 559 - 600
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Copyright © the Board of Trustees of the University of Illinois 2006

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References

1. The Alton trials and the circumstances that led to them are discussed below.

2. Roche, John P., “Civil Liberties in the Age of Enterprise,” University of Chicago Law Review 31 (1963): 103.CrossRefGoogle Scholar

3. Curtis has most recently and thoroughly documented the free-speech efforts of the abolitionists and the attacks on them in Free Speech, “The People's Darling Privilege”: Struggles for Freedom of Expression in American History (Durham: Duke University Press, 2000)Google Scholar; “The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835‘“37, Northwestern University Law Review 89 (1995): 785–870Google Scholar; and “The 1837 Killing of Elijah Lovejoy by an Anti-Abolition Mob: Free Speech, Mobs, Republican Government, and the Privileges of American Citizens,” UCLA Law Review 44 (1997): 1109–84Google Scholar. Curtis and other scholars also argue that the abolitionists' legal and political claims ultimately altered jurisprudence well beyond free-speech theory. See Curtis, , No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986)Google Scholar; Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998)Google Scholar; Nelson, William E., “The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America,” Harvard Law Review 87 (1974): 513–66CrossRefGoogle Scholar; Richards, David A. J., “Abolitionist Political and Constitutional Theory and the Reconstruction Amendments,” Loyola of Los Angeles Law Review 25 (1992): 1187–1205Google Scholar.

4. Friedman, Lawrence M., Crime and Punishment in American History (New York: Basic-Books, 1993), 172–92Google Scholar, quote at 172; Wilton, Carol, “‘Lawless Law’: Conservative Political Violence in Upper Canada, 1818–41,” Law and History Review 13 (1995): 111–36CrossRefGoogle Scholar.

5. Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 2Google Scholar. For one critique of this book that notes the importance of studying mob actions, see Scheiber, Harry N., “Private Rights and Public Power: American Law, Capitalism, and the Republican Polity in Nineteenth-Century America,” Yale Law Journal 107 (1997): 856 n. 174CrossRefGoogle Scholar : “mob actions, for example actions against abolitionists,.…represent a significant part of the story of how ‘well-regulated’ the society actually was, who was counted ‘in’ and who ‘out’ in defining community and enjoying its collective protection through law, and how effectively the law was actually mobilized in dealing with such incidents and movements.”

6. Novak, William J., “The Legal Transformation of Citizenship in Nineteenth-Century America,” in The Democratic Experiment, ed. Jacobs, Meg, Novak, William J., and Zelizer, Julian E. (Princeton: Princeton University Press, 2003), 85–119Google Scholar, quote at 101; Amar, Bill of Rights; Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004), 189–209Google Scholar.

7. Contributions to the considerable literature on mob violence and American vigilantism, especially works focusing on the Revolutionary Era and the frontier, discuss the use of law in justifying extralegal actions. Some of the more useful studies include Reid, John P., “Violence in American Law: A Review of Five Books,” New York University Law Review 40 (1965): 1208–20Google Scholar; Reid, John P., “In a Defensive Rage: The Uses of the Mob, the Justification in Law, and the Coming of the American Revolution,” New York University Law Review 49 (1974): 1043–91Google Scholar; Maier, Pauline, “Popular Uprisings and Civil Authority in Eighteenth-Century America,” William & Mary Quarterly, 3d ser., 27 (1970): 3–35CrossRefGoogle Scholar; Wallace, Michael, “The Uses of Violence in American History,” American Scholar 40 (1970-1971): 81–102Google Scholar; Brown, Richard M., “Legal and Behavioral Perspectives on American Vigilantism,” Perspectives in American History 5 (1971): 93–144Google Scholar; Brown, Richard M., Strain of Violence: Historical Studies of American Violence and Vigilantism (New York: Oxford University Press, 1975), 95–133Google Scholar; Hoerder, Dirk, “‘Mobs, a Sort of Them at Least, are Constitutional’: The American Revolution, Popular Participation, and Social Change,” Amerikastudien/American Studies 21 (1976): 289–306Google Scholar; Johnson, David A., “Vigilance and the Law: The Moral Authority of Popular Justice in the Far West,” American Quarterly 33 (1981): 558–86CrossRefGoogle Scholar; Fritz, Christian G., “Popular Sovereignty, Vigilantism, and the Constitutional Right of Revolution,” Pacific Historical Review 63 (1994): 39–61CrossRefGoogle Scholar.

8. For a sociological analysis of the elaborate discourse produced to justify and oppose mob action against one antislavery paper, see Ellingson, Stephen, “Understanding the Dialectic of Discourse and Collective Action: Public Debate and Rioting in Antebellum Cincinnati,” American Journal of Sociology 101 (1995): 100–44CrossRefGoogle Scholar.

9. Grimsted, David, “Rioting in Its Jacksonian Setting,” American Historical Review 77 (1972): 361–97CrossRefGoogle Scholar, esp. 364; Gilje, Paul A., Rioting in America (Bloomington: Indiana University Press, 1996), 60–91Google Scholar; Feldberg, Michael, The Turbulent Era: Riot and Disorder in Jacksonian America (New York: Oxford University Press, 1980), 33–53Google Scholar, 87. See also Grimsted, David, American Mobbing, 1828–1861 (New York: Oxford University Press, 1998)Google Scholar, though by design it excludes many of the mobs inspired by religious and ethnic tensions.

10. Nerone, John, Violence Against the Press: Policing the Public Sphere in U.S. History (New York: Oxford University Press, 1994)Google Scholar. Nerone studied many types of anti-press violence, of which mobs were one type.

11. Prospectus for True American, n.d., reprinted in The Writings of Cassius Marcel-lus Clay, ed. Greeley, Horace (New York: Harper and Brothers, 1848), 211–12Google Scholar [hereafter Clay's Writings]; articles from the True American, 3 June-22 July 1845, reprinted in ibid., 213–87; Clay, Cassius M., Appeal of Cassius M. Clay to Kentucky and the World (Boston: J. M. Macomber & E. L. Pratt, 1845), 4Google Scholar; Smiley, David L., Lion of White Hall: The Life of Cassius M. Clay (Madison: University of Wisconsin Press, 1962), 21–23, 86–88Google Scholar.

12. True American, 12 Aug. 1845, in Clay's Writings, 285; Harrold, Stanley, “Violence and Nonviolence in Kentucky Abolitionism,” Journal of Southern History 57 (1991): 15–38, esp. 23CrossRefGoogle Scholar.

13. B. W. Dudley et al. to Clay, 14 Aug. 1845, Clay's Writings, 290; Clay to Dudley et al., 15 Aug. 1845, ibid., 290–91; True American, 15 Aug. 1845, in Clay's Writings, 287–88; Louisville, Daily Journal, 18 Aug. 1845Google Scholar.

14. Appeal of Cassius M. Clay, 15. 15. Clay to the chairman of the public meeting, 18 Aug. 1845, Clay's Writings, 298–300, quote at 300; Clay's handbills, 16 and 18 Aug. 1845, ibid., 292–98; Louisville, Daily Journal, 18 and 20 Aug. 1845Google Scholar; Smiley, , Lion of White Hall, 92–96Google Scholar.

16. “Removal of C. M. Clay's Press,” in Speeches and Writings of Hon. Thomas F. Marshall, ed. Barre, W. L. (Cincinnati: Applegate, 1858), 196–210Google Scholar. Marshall's speech received widespread attention through republication in Niles' Weekly Register 69 (6 Sep. 1845): 13–15Google Scholar.

17. Marshall, , “Removal of C. M. Clay's Press,” 198–206Google Scholar, quotes at 198, 200, 202, 206.

18. Ibid., 207; Kentucky Constitution of 1799, article X, section 7.

19. Marshall, , “Removal of C. M. Clay's Press,” 206–8.Google Scholar

20. Clay, Cassius M., The Life of Cassius Marcellus Clay (Cincinnati: J. F. Brennan, 1886), 105–7Google Scholar, quote at 107; Smiley, , Lion of White Hall, 21–23, 86–88Google Scholar.

21. Marshall, , “Removal of C. M. Clay's Press,” 197–98, 208.Google Scholar

22. Ibid., 209–10; Niles’ Weekly Register 69 (Sept. 6, 1845): 14–15; Louisville, Daily Journal, 20 Aug. 1845Google Scholar; [Committee of Sixty] , History and Record of the Proceedings of the People of Lexington and Its Vicinity in the Suppression of The True American (Lexington: Virden, 1845)Google Scholar; newspaper extracts, reprinted in True American, 30 Sept. and 21 Oct. 1845; Marysville (Ky.) Eagle, 15 Oct. 1845.

23. Lexington Observer report of the trial, including judge's comment, reprinted in True American, 11 Nov. 1845.

24. Appeal of Cassius M. Clay, 30; Life of Cassius Marcellus Clay, 108; “The Judicial Acquittal of the Mob,” 4 Nov. 1845, in Clay's Writings, 336; Liberator, 17 Oct. 1845.

25. Life of Cassius Marcellus Clay, 165–66, 206; National Anti-Slavery Standard, 20 Apr. 1848Google Scholar; Liberator, 14 July. 1848Google Scholar; Smiley, , Lion of White Hall, 112–29Google Scholar, 262 n. 2.

26. Porto, Joseph A. Del, “A Study of American Anti-Slavery Journals” (Ph.D. diss., Michigan State College, 1953)Google Scholar; John, Richard R., Spreading the News: The American Postal System from Franklin to Morse (Cambridge: Harvard University Press, 1995), 257–80Google Scholar; Savage, W. Sherman, The Controversy over the Distribution of Abolition Literature, 1830–1860 (Washington, D.C.: Association for the Study of Negro Life and History, 1938)Google Scholar; Wyatt-Brown, Bertram, “The Abolitionists Postal Campaign of 1835,” Journal of Negro History 50 (1965): 227–38CrossRefGoogle Scholar.

27. Nerone, , Violence against the Press, 93, 221–25.Google Scholar

28. Eaton, Clement, The Freedom-of-Thought Struggle in the Old South, rev. ed. (New York: Harper and Row, 1964), 118–43Google Scholar, 162–95. For texts of the southern laws, see Hurd, John C., The Law of Freedom and Bondage in the United States (Boston: Little, Brown, 1862), 2:9–10Google Scholar (Va.), 22–23 (Md.), 86 (N.C.), 97 (S.C.), 147 (Miss.), 161 (La.), 170 (Mo.), 173 (Ark.); Stroud, George M., A Sketch of the Laws Relating to Slavery in the Several States of the United States, rev. ed. (1856; reprint, New York: Negro Universities Press, 1968), 104–8Google Scholar. For examples of bills introduced in northern legislatures that would have limited antislavery discussions, see Birney, William, James G. Birney and His Times (New York: D. Appleton, 1890), 192Google Scholar; Curtis, , “Attempts to Suppress Antislavery Speech,” 813–17Google Scholar.

29. Grimsted, , “Rioting in Its Jacksonian Setting,” 361–97Google Scholar; Feldberg, , Turbulent Era, 5–6Google Scholar.

30. Niles'Weekly Register 49 (31 Oct. 1835): 145–46Google Scholar; Lyman, Theodore, ed., Papers Relating to the Garrison Mob (Cambridge, Mass.: Welch, Bigelow, 1870)Google Scholar.

31. Thomas], Defensor [William, The Enemies of the Constitution Discovered, or, An Inquiry into the Origin and Tendency of Popular Violence (New York: Leavitt, Lord, 1835), 93–94Google Scholar, quote at 86; Niles’ Weekly Register 49 (31 Oct. 1835)Google Scholar : 146–48; Morrison, Howard A., “Gentlemen of Proper Understanding: A Closer Look at Utica's Anti-Abolitionist Mob,” New York History 62 (1981): 61–82Google Scholar, which sketches the partisan context of the mobbing.

32. History of Pennsylvania Hall, Which Was Destroyed by a Mob, on the 17th of May, 1838 (1838; reprint, New York: Negro Universities Press, 1969), 13–135Google Scholar; Brown, Ira V., “Racism and Sexism: The Case of Pennsylvania Hall,” Phylon 37 (1976): 126–36CrossRefGoogle Scholar.

33. Fladeland, Betty, James Gillespie Birney: Slaveholder to Abolitionist (Ithaca: Cornell University Press, 1955)Google Scholar; Aaron, Daniel, “Cincinnati, 1818–1838: A Study of Attitudes in the Urban West” (Ph.D. diss., Harvard University, 1942), 451–76Google Scholar.

34. Harrold, Stanley, Gamaliel Bailey and Antislavery Union (Kent: Kent State University Press, 1986), 17–19Google Scholar, 42–43; Folk, Patrick A., “‘The Queen City of Mobs’: Riots and Community Reactions in Cincinnati, 1788–1848” (Ph.D. diss., University of Toledo, 1978), 222–23Google Scholar.

35. Lovejoy's martyrdom inspired many hagiographic accounts by contemporaries and historians. The best biographies are Dillon, Merton L., Elijah P. Lovejoy, Abolitionist Editor (Urbana: University of Illinois Press, 1961)Google Scholar; Gill, John G., Tide without Turning: Elijah P. Lovejoy and Freedom of the Press (Boston: Starr King, 1959).Google Scholar

Participants and eyewitnesses left important book-length accounts. The American AntiSlavery Society commissioned Lovejoy's brothers Joseph and Owen to write The Memoir of the Rev. Elijah P. Lovejoy Who Was Murdered in Defence of the Liberty of the Press, At Alton, Illinois, Nov. 7, 1837 (1838; reprint, Freeport, N.Y.: Books for Libraries, 1970)Google Scholar [hereafter Lovejoy's Memoir]. Edward Beecher, a clergyman from a family of prominent clergy, left a thorough report , Narrative of Riots at Alton, ed. Merideth, Robert (1838; reprint, New York: Dutton, 1965)Google Scholar, of the public meetings that preceded the final battle. The vast majority of the primary sources are from the abolitionists' perspective. Although this might seem to diminish their evidentiary value, in this case, as well as virtually all the other mobbings, the adversaries rarely disputed facts; only interpretations and justifications were at issue.

36. For a summary of the reaction to Lovejoy's martyrdom that emphasizes how the attack galvanized support for the antislavery movement, see Curtis, , “Killing of Elijah Lovejoy,” 1142–64Google Scholar. For a summary of press coverage that finds a greater division in reactions, see Rutenbeck, Jeff, “Partisan Press Coverage of Anti-Abolitionist Violence,” Journal of Communication Inquiry 19 (1995): 126–41CrossRefGoogle Scholar.

37. Richards, Leonard L., “Gentlemen of Property and Standing”: Anti-Abolition Mobs in Jacksonian America (New York: Oxford University Press, 1970), 156–70.Google Scholar

38. Industrial Luminary, 30 Mar. 1855Google Scholar, reprinted in National Anti-Slavery Standard, 2 Jun. 1855Google Scholar; Park, George S. to Louis, St.Democrat, 10 May. 1855Google Scholar, reprinted in ibid.; Magers, Roy V., “Raid on the Parkville Industrial Luminary,” Missouri Historical Review 30 (1935): 34–46Google Scholar.

39. Malin, James C., “Judge Lecompte and the ‘Sack of Lawrence,’ May 21, 1856,” Kansas Historical Quarterly 20 (1953): 465–94Google Scholar, 553–97; Johnson, David W., “Freesoilers for God: Kansas Newspaper Editors and the Antislavery Crusade,” Kansas History 2 (1979): 74–85Google Scholar; Nichols, Alice, Bleeding Kansas (New York: Oxford University Press, 1954), 103–6Google Scholar.

40. Bailey, William S., A Short Sketch of Our Troubles in the Anti-Slavery Cause (Newport, Ky.: Newport News, 1858)Google Scholar; Steely, Will F., “William Shreve Bailey, Kentucky Abolitionist,” Filson Club Historical Quarterly 31 (1957): 274–81Google Scholar.

41. “A History of the Persecution of the Church of Jesus Christ, of Latter Day Saints in Missouri” (pt. 1), Times and Seasons 1 (Dec. 1839): 17–18Google Scholar (Times and Seasons was a Mormon monthly published in Illinois, where many Mormons fled after their expulsion from Missouri); Evening and Morning Star, Dec. 1833, 114Google Scholar; Jennings, Warren A., “Factors in the Destruction of the Mormon Press in Missouri, 1833,” Utah Historical Quarterly 35 (1967): 56–76Google Scholar.

42. National Era, 7 Jan. 1847. Editor Gamaliel Bailey had been assistant editor and then editor-in-chief of the Philanthropist when it was mobbed in 1836 and 1841.

43. Harrold, Stanley C., “The Pearl Affair: The Washington Riot of 1848,” Records of the Columbia Historical Society 50 (1980): 140–60Google Scholar; Harrold, , Gamaliel Bailey, 124–27Google Scholar; York, NewHerald, 21 Apr. 1848Google Scholar.

44. “Samuel H. Davis Was Pioneer in News Field in Ill.; Regarded As One of Best in the Midwest,” Mt. Sterling (Ill.) Democrat-Message, 28 July. 1948Google Scholar; Ernest East, “The First Decade of Journalism in Peoria” (paper presented to the Peoria Historical Society, 20 Jan. 1941, available in Special Collections Center, Cullon-Davis Library, Bradley University).

45. Zanesville, (Ohio) Gazette, 8 Sep. 1847Google Scholar; Volpe, Vernon L., Forlorn Hope of Freedom: The Liberty Party in the Old Northwest, 1838–1848 (Kent: Kent State University Press, 1990), 74, 77, 110, 122, 127.Google Scholar

46. The editor of the Indianapolis-based Indiana Freeman was assaulted by a city councilman and threatened by a mob on July 4, 1845, a holiday that traditionally uncorked political feelings. Indiana State Journal, 9 and 23 July. 1845Google Scholar; National Anti-Slavery Standard, 21 Aug. 1845Google Scholar. Perhaps more typical was the experience of the Davenport, Iowa, Gazette, whose editor “became accustomed to have abusive epithets hurled at him as he went along the streets, and daily to be threatened with violence and death,” his son recalled. Shot at least once, the editor was “well aware of the fate of Lovejoy” and knew that the police would be of little help if needed. Russell, Charles E., A Pioneer Editor in Early Iowa (Washington, Iowa: Ransdell, 1941), 20–25Google Scholar. Up river in St. Cloud, Minnesota, a newspaper edited by feminist social critic Jane Grey Swisshelm provoked the wrath of the area's most powerful resident. Accompanied by his attorney and a friend, this proslavery Democrat broke into Swisshelm's office in 1858 and destroyed her press, leaving behind a note that read: “The citizens of St. Cloud have determined to abate the nuisance.” But not all citizens agreed: some outraged residents voted to purchase her a new press . Crusader and Feminist: Letters of Jane Grey Swisshelm, 1858–1865, ed. Larsen, Arthur J. (St. Paul: Minnesota Historical Society, 1934), 5–19Google Scholar, quote at 16; Swisshelm, Jane G., Half a Century, 2d ed. (Chicago: Jansen, McClurg, 1880), 112–58, 171–95Google Scholar.

47. Curtis, , “Attempts to Suppress Antislavery Speech,” 817–36Google Scholar; John, , Spreading the News, 257–80Google Scholar; Wiecek, William M., The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977), 173–83Google Scholar. For a vigorous defense of the abolitionists’ right to use the mail, but one that expressed doubts about their free-press rights under state constitutions, see John, Richard R., “Hiland Hall's ‘Report on Incendiary Publications’: A Forgotten Nineteenth Century Defense of the Constitutional Guarantee of the Freedom of the Press,” American Journal of Legal History 41 (1997): 94–125CrossRefGoogle Scholar.

48. Novak, , People's Welfare, 60.Google Scholar

49. Wood, H. G., A Practical Treatise on the Law of Nuisances in Their Various Forms, 2d ed. (Albany: Parsons, 1883), 1–2Google Scholar. See also Hilliard, Francis, The Law of Torts, 3d ed. (Boston: Little, Brown, 1866), 3:575–80Google Scholar.

50. Wood, , Law of Nuisances, 24–25.Google Scholar

51. Ibid., 26–82, quote at 3; Dane, Nathan, A General Abridgement and Digest of American Law (Boston: Cummings, Hilliard, 1823), 3:39–70Google Scholar. For a good discussion of how nuisance law applied to a variety of nineteenth-century activities, see Novak, , People's Welfare, 66–71Google Scholar, 123–28, 133–42, 146–47, 157–70, 195–97, 212–15.

52. Teeter, Dwight L., “‘King’ Sears, the Mob and Freedom of the Press in New York, 1765–76,” Journalism Quarterly 41 (1964): 539–44CrossRefGoogle Scholar. For other incidents of anti-press mob violence during the Revolutionary and Early Republic Eras, see Nerone, , Violence against the Press, 18–83Google Scholar.

53. Wood, , Law of Nuisances, 67–68Google Scholar, quote at 57.

54. Story, Joseph, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray and Co., 1833), 3:732Google Scholar, 740–41. On the “movement toward this freedom-and-responsibility standard” in state constitutions’ free-press clauses, see Blanchard, Margaret A., “Filling in the Void: Speech and Press in State Courts Prior to Gitlow,” in The First Amendment Reconsidered, ed. Chamberlin, Bill F. and Brown, Charlene J. (New York: Longman, 1982), 17–25Google Scholar.

55. Barron v. Baltimore, 32 U.S. 243 (1833)Google Scholar; Szasz, Ferenc M., “Antebellum Appeals to the ‘Higher Law,’ 1830–1860,” Essex Institute Historical Collections 110 (1974): 33–48Google Scholar; Curtis, , Free Speech, 195–97, 209–15Google Scholar.

56. Evening and Morning Star, July. 1833, 109Google Scholar; Harrold, , “Pearl Affair,” 140–60Google Scholar; “Mob in Newport, Kentucky,” National Anti-Slavery Standard, 12 Nov. 1859Google Scholar.

57. “The Presentation of The Helderberg Advocate,” quoted in Ralph Frasca, “The Helderberg Advocate: A Public-Nuisance Prosecution a Century before Near v. Minnesota” (paper presented at the American Journalism Historians Association convention, 2000), 15.

58. Resolutions and proceedings reprinted in Zanesville (Ohio) Gazette, 8 Sept. 1847; National Era, 23 Sept., 14 Oct, and 2 Dec. 1847; National Anti-Slavery Standard, 7 Oct. 1847; Volpe, , Forlorn Hope of Freedom, 74Google Scholar, 77, 110, 122, 127.

59. Walker, Timothy, Introduction to American Law (Philadelphia: P. H. Nicklin & T. Johnson, 1837), 189Google Scholar. Criminal libel prosecutions were relatively rare in the early and mid-nineteenth century and courts were increasingly recognizing truth, often conditioned on the motives behind the message, as a defense in civil libel suits. Rosenberg, Norman L., Protecting the Best Men: An Interpretive History of the Law of Libel (Chapel Hill: University of North Carolina Press, 1986), 108–29Google Scholar.

60. Hitchcock, Walter T., Timothy Walker: Antebellum Lawyer (New York: Garland, 1990), 41.Google Scholar

61. Murdock, Francis P. quoted in Lincoln, William S., Alton Trials (1838; reprint, Miami, Fla.: Mnemosyne Publishing, 1969), 8.Google Scholar

62. Feiner v. New York, 340 U.S. 315, 320 (1951)Google Scholar (quoting Cantwell v. Connecticut, 310 U.S. at 308 [1940])Google Scholar. In Feiner, the Court upheld the arrest of a sidewalk speaker whose remarks were provoking a violent response from the crowd.

63. On the efforts by the mayor, board of aldermen, and president to marshal city and federal resources to forestall violence, see handbill addressed “To the Citizens of Washington,” 20 Apr. 1848Google Scholar, reprinted in National Intelligencer, 21 Apr. 1848Google Scholar; The Diary of James K. Polk, ed. Quaife, Milo M. (Chicago: A. C. McClurg, 1910), 3:429Google Scholar; report of the Board of Aldermen and Board of Common Council, 20 Apr. 1848, reprinted in National Intelligencer, 21 Apr. 1848Google Scholar; National Era, 27 Apr. 1848Google Scholar; Liberator, 28 Apr. 1848Google Scholar; Harrold, , “Pearl Affair,” 152–53Google Scholar.

64. Feldberg, , The Turbulent Era, 104–19Google Scholar; Reinders, Robert, “Militia and Public Order in Nineteenth-Century America,” Journal of American Studies 11 (1977): 81–101CrossRefGoogle Scholar; Walker, Samuel, Popular Justice: A History of American Criminal Justice (New York: Oxford University Press, 1980), 56–60Google Scholar.

65. Smiley, , Lion of White Hall, 21–23Google Scholar, 86–88.

66. Folk, , “‘Queen City of Mobs,’” 108–9Google Scholar; Aaron, , “Cincinnati, 1818–1838,” 466Google Scholar; Birney, , James G. Birney, 210–15Google Scholar.

67. Davis, Samuel H., Free Discussion Suppressed in Peoria (Peoria: n.p., 1843), 4.Google Scholar

68. Bailey, Sketch of Our Troubles; Marshall, , “Removal of C. M. Clay's Press,” 207Google Scholar.

69. Congressional Globe, 30th Cong., 1st sess. (1848), 649–73Google Scholar, quote at 662 (remarks of Thomas H. Bayly).

70. Blackstone's Commentaries, ed. Tucker, St. George (1803; reprint, South Hackensack, N.J.: Rothman Reprints, 1969), 5:166Google Scholar (this edition was published in Philadelphia with notes applicable to American law); Dane, , Digest of American Law, 3:50Google Scholar.

71. Dane, , Digest of American Law, 3:39Google Scholar; Blackstone's Commentaries, 4:5. See also Walker, Timothy, Introduction to American Law, 2d ed. (Cincinnati: Derby, Bradley & Co., 1846), 474Google Scholar, who agrees that law permitted a person who suffers from a nuisance “to abate it,” but without riot or violence.

72. Wood, , Law of Nuisances, 795.Google Scholar

73. Ibid., 795–97.

74. 115 Wend. 397, 399 (N.Y., 1836).

75. The phrase was often used derisively by abolitionists to describe some of their opponents.

76. Novak, , People's Welfare, 61–62Google Scholar, 71, 65, 123–24, 155, 180, 212–15, 226–27.

77. Quoted in Liberator, 24 Oct. 1835. See also Defensor, , Enemies of the Constitution Discovered, 57–58Google Scholar.

78. Grand jury statement reprinted in Sara Robinson, T. L., Kansas: Its Interior and Exterior Life (Boston: Crosby, Nichols, 1856), 243–44Google Scholar. See also Malin, James C., John Brown and the Legend of Fifty-Six (Philadelphia: American Philosophical Society, 1942), 50Google Scholar. For an analysis that sifts the evidence and examines the legal dimensions of the court's role, see Malin, , “‘Sack of Lawrence,’” 465–94Google Scholar, 553–97. The judge's supposed orders became accepted facts in serious Kansas histories. The judge later denied that he had issued such an order . “A Defense by Samuel D. Lecompte,” Transactions of the Kansas State Historical Society 8 (1903-1904): 389–405Google Scholar. At most, “[t]here may have been issued by the clerk of the court citations to the owners [of the newspapers and hotel] to appear and show cause why they should not be abated as nuisances,” the judge recalled. Ibid., 395.

79. Phillips, William A., The Conquest of Kansas by Missouri and Her Allies (Boston: Phillips, Sampson, 1856), 290–92Google Scholar, 305, quotes at 298–99; Herald of Freedom, 1 Nov. 1856; George W. Brown to Eli Thayer, 4 June 1856, Thayer Collection, Kansas Historical Society; letter from eyewitness, 26 May 1856, reprinted in Liberator, 27 Jun. 1856Google Scholar; Malin, , “‘Sack of Lawrence,’” 581Google Scholar; Nichols, , Bleeding Kansas, 103–7Google Scholar.

80. Weisberger, Bernard A., “The Newspaper Reporter and the Kansas Imbroglio,” Mississippi Valley Historical Review 36 (1950): 633–56CrossRefGoogle Scholar, points out that many of the eastern reporters covering the Kansas disturbances were antislavery partisans writing for Republican newspapers.

81. Birney to Gerritt Smith, 11 and 25 Nov. 1835, in Letters of James Gillespie Birney, 1831–1837, ed. Dumond, Dwight L. (New York: D. Appleton-Century, 1938), 1:259 n. 4Google Scholar, quote at 273 [hereafter Birney's Letters]; Birney, , James G. Birney, 207–19Google Scholar; Fladeland, , James Gillespie Birney, 127–33Google Scholar; Folk, , “‘Queen City of Mobs,’” 69–70Google Scholar, 78; Richards, , “Gentlemen of Property and Standing,” 40–43Google Scholar, 94–95.

82. Nerone, John, The Culture of the Press in the Early Republic: Cincinnati, 1793–1848 (New York: Garland, 1989), 152–53Google Scholar, quote at 164; Folk, , “‘Queen City of Mobs,’” 66–69Google Scholar.

83. Birney to Lewis Tappan, 17 Mar. 1836, Birney's Letters, 1:310–12, quote at 311; Birney, , James G. Birney, 240–41Google Scholar; Fladeland, , James Gillespie Birney, 136Google Scholar. Aaron, , “Cincinnati, 1818–1838,” 462Google Scholar, claims that the night watch silently witnessed the vandalism, while Folk, , “‘Queen City of Mobs,’” 91Google Scholar, asserts that the mayor, forewarned, had ordered police patrols away from the site.

84. Folk, , “‘Queen City of Mobs,’” 97Google Scholar, 100 (quoting handbill); Birney to Lewis Tappan, 15 and 22 July 1836 , Birney's, Letters, 1:342–47Google Scholar.

85. The newspaper commentary is conveniently summarized in Folk, , “‘Queen City of Mobs,’” 93–100Google Scholar. See also Ellingson, , “Discourse and Collective Action,” 110–35Google Scholar, for a close analysis of the different positions represented in the newspaper discussions and popular meetings. Ellingson finds that the discourse clustered in three camps: abolition, law and order, and anti-abolition.

86. Birney, , James G. Birney, 243–46Google Scholar; Aaron, , “Cincinnati, 1818–1838,” 464–65Google Scholar; Folk, , “‘Queen City of Mobs,’” 107–22Google Scholar; Fladeland, , James Gillespie Birney, 138–39Google Scholar. The resolutions are reproduced in Birney, James G., Narrative of the Late Riotous Proceedings against the Liberty of the Press in Cincinnati (Cincinnati: Ohio Anti-Slavery Society, 1836), 24Google Scholar.

87. Committee's remarks reported in Birney, , Late Riotous Proceedings, 35Google Scholar; Aaron, , “Cincinnati, 1818–1838,” 465–67Google Scholar, 476; Fladeland, , James Gillespie Birney, 139–40Google Scholar.

88. Cincinnati Gazette report reprinted in Birney, Late Riotous Proceedings, 39–40; Birney, , James G. Birney, 246–47Google Scholar; Folk, , “‘Queen City of Mobs,’” 141–42Google Scholar; Fladeland, , James Gillespie Birney, 140–41Google Scholar.

89. Richards, , “Gentlemen of Property and Standing,” 99–100Google Scholar, 113, 134–50, quote at 149; Folk, , “‘Queen City of Mobs,’” 197Google Scholar; Hammett, Theodore M., “Two Mobs of Jacksonian Boston: Ideology and Interest,” Journal of American History 62 (1976): 845–68CrossRefGoogle Scholar.

90. Lawless quoted in Louis, St.Observer, 21 July. 1836.Google Scholar

91. St. Louis Observer, 5 May, 2 and 9 June, 21 July, 10 Aug. 1836; Lovejoy's Memoir, 168–79Google Scholar; Gill, , Tide without Turning, 60–77Google Scholar, 228–29 n. 4; Dillon, , Elijah P. Lovejoy, 81–87Google Scholar.

92. Missouri Republican, 26 July. 1836Google Scholar; Alton, Observer, 8 Sep. 1836Google Scholar; Lovejoy's Memoir, 180–234, 268–82; Beecher, , Narrative of Riots, 27–60Google Scholar; Harris, Norman D., Negro Servitude in Illinois (Chicago: A. C. McClurg, 1904), 83Google Scholar; Dillon, , Elijah P. Lovejoy, 90–114Google Scholar; Gill, , Tide without Turning, 79, 87–97, 110–22Google Scholar.

93. Louis, St.Commercial Bulletin, 23 Aug. 1837Google Scholar; Missouri Argus, 25 Aug. and 27 Sep. 1837Google Scholar; Lovejoy's Memoir, 231–34, 245–67; Dillon, , Elijah P. Lovejoy, 114–42Google Scholar, 159, 161; Gill, , Tide without Turning, 126–64Google Scholar.

94. The state legislature had recently given the mayor authority “to call on every male inhabitant of said city over the age of eighteen years, and in cases of riot, to call out the militia to aid him in carrying the same into effect.” Act to Incorporate the City of Alton, sec. 7, Illinois Laws Passed at Special Session, 10–22 July 1837, 17, 20. Beecher, , Narrative of Riots, 27–60Google Scholar; Lovejoy's Memoir, 268–83; Dillon, , Elijah P. Lovejoy, 159–63Google Scholar; Gill, , Tide without Turning, 164–69Google Scholar, 189.

95. Gilman, Winthrop S. to Gilman, Chandler R., 8 Nov. 1837, in “The Alton Riot,” Mississippi Valley Historical Review 4 (1918): 491–94Google Scholar; Beecher, , Narrative of Riots, 60–66Google Scholar; Lovejoy's Memoir, 283–93; Dillon, , Elijah P. Lovejoy, 163–70Google Scholar; Gill, , Tide without Turning, 3–8Google Scholar, 182–201; Richards, , “Gentlemen of Property and Standing,” 108–10Google Scholar.

96. Birney to Lewis Tappan, 17 Mar. 1836, Birney's Letters, 1:310–12, quote at 311. See Nye, Russell B., Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830–1860, 2d ed. (Urbana: University of Illinois Press, Illini Books, 1972), 149–52Google Scholar, who anticipated Curtis and other scholars in arguing that attacks on abolitionists’ civil liberties, particularly the widely reported mobbings, redefined an unpopular issue, freedom for slaves, and broadened it to a larger public as freedom of the press.

97. Morning and Evening Star, Dec. 1833Google Scholar; Jennings, , “Destruction of the Mormon Press,” 68Google Scholar.

98. Hammett, , “Two Mobs of Jacksonian Boston,” 845–68Google Scholar; Brown, , “Racism and Sexism,” 126–36Google Scholar.

99. Cincinnati, Daily Gazette, 29 Oct. 1859Google Scholar; Cincinnati, Daily Commercial, 29 Oct. 1859Google Scholar; Wigham, Eliza, The Anti-Slavery Cause in America and Its Martyrs (1863; reprint New York: Negro Universities Press, 1970), 46–50Google Scholar.

100. Platte, Argus Extra, 16 Apr. 1855Google Scholar, reprinted in Cincinnati, Daily Gazette, 26 Apr. 1855Google Scholar; resolutions quoted in letter from eyewitness to Platte Argus, 14 Apr.1855, reprinted in National Anti-Slavery Standard, 5 May 1855. The Platte County Self-Defensive Association had been formed to stop the New England aid societies from settling Kansas. McCandless, Perry, A History of Missouri, 1820 to 1860 (Columbia: University of Missouri Press, 1972), 2:271–73Google Scholar.

101. Letter from eyewitness to Platte, Argus, 14 Apr. 1855Google Scholar, reprinted in National AntiSlavery Standard, 5 May. 1855Google Scholar; Magers, , “Raid on the Parkville Industrial Luminary,” 41Google Scholar.

102. Register announcement quoted in Presbytery of Peoria, The History of the Presbytery of Peoria and Its Churches from 1828 to 1888 (Peoria: H. S. Hill, 1888), 16Google Scholar; Davis, Free Discussion Suppressed in Peoria.

103. Letter reprinted in Pennsylvania Freeman, 21 Jun. 1838Google Scholar.

104. Testimony of Samuel L. Miller quoting Dr. Horace Beal as warning against property damage, Lincoln, , Alton Trials, 111Google Scholar; officer quoted in Phillips, , Conquest of Kansas, 298Google Scholar.

105. Wilson N. Brown offered this resolution, quoted in Birney, , Late Riotous Proceedings, 25Google Scholar. Brown explained it further in a letter to the Cincinnati Whig; see Folk, , “‘Queen City of Mobs,’” 129Google Scholar.

106. Manifesto reprinted in Evening and Morning Star, Dec. 1833, 114.

107. Louis, St.Observer Extra, 10 Aug. 1836Google Scholar; (Louis, St.) Missouri Republican, 23 July. 1836Google Scholar.

108. Alton, Spectator, 11 Jan. 1838.Google Scholar

109. The trials were reported by a member of the Alton bar from notes he took during the proceeding. See Lincoln, Alton Trials. See also Lawson, John D., ed., American State Trials (St. Louis: F. H. Thomas Law Book Co., 1916), 5:528–644Google Scholar, for an annotated version.

110. Alton Trials, 5, 6 (quoting sec. 117, Illinois Criminal Code), 81, 91–92, 158.

111. Ibid., 13–14, 75; Philanthropist, 28 Nov. 1837Google Scholar; Alton, Spectator, 22 Mar. 1838Google Scholar; Gill, , Tide without Turning, 147–64Google Scholar; Dillon, , Elijah P. Lovejoy, 134–40Google Scholar, 151–52, 154–58. There was some doubt whether Linder was legally eligible to serve as attorney general at the time. Linder, Usher F., Reminiscences of the Early Bench and Bar of Illinois (Chicago: Legal News, 1879), 56–58Google Scholar, 395; Newell, Mason, “The Attorneys-General of Illinois,” Transactions of the Illinois State Historical Society for the Year 1903 (Springfield: The Society, 1904), 217Google Scholar. Most contemporary accounts identify Linder as attorney general. See, e.g., Lincoln, , Alton Trials, 5Google Scholar.

112. Alton Trials, 5, 9 (quoting Murdock). Jury foreman Alexander Botkin claimed during voir dire that he had not formed an opinion as to the defendants’ guilt even though he had witnessed some of the action on the streets preceding the assault on the warehouse. Ibid., 15, 89; Dillon, , Elijah P. Lovejoy, 133–37Google Scholar; Gill, , Tide without Turning, 117–18Google Scholar. Linder later sponsored Botkin for membership in the bar. Ibid., 239 n. 2.

113. Lincoln, , Alton Trials, 8Google Scholar (quoting prosecutor), 41 and 45 (mayor); mayor's report, reprinted in Alton, Spectator, 9 Nov. 1837Google Scholar.

114. Lincoln, , Alton Trials, 93–117Google Scholar, 118–20 (testimony of judge), 139 (Linder).

115. Ibid., 75 (quoting Linder), 77, 145–46 (Cowles).

116. Philanthropist, 28 Nov. 1837Google Scholar; Pennsylvania Freeman, 5 July. 1838Google Scholar; Harris, , Negro Servitude, 95Google Scholar n. 2; Gill, , Tide without Turning, 10Google Scholar.

117. “Address Before the Young Men's Lyceum of Springfield, Illinois,” 27 Jan. 1838Google Scholar, The Collected Works of Abraham Lincoln, ed. Basler, Roy P. (New Brunswick: Rutgers University Press, 1953) 1:108–15Google Scholar, quote at 111.

118. Register of Debates, 24th Cong., 1st sess. (1836), 203–5Google Scholar, quote at 205; Utica, Observer Extra, 21 Oct. 1835Google Scholar, reprinted in Niles' Weekly Register 49 (31 Oct. 1835): 147–48Google Scholar; Morrison, , “Utica's Anti-Abolitionist Mob,” 72–74Google Scholar.

119. Report of the Committee on Police, 31 May 1838, reprinted in Pennsylvania Hall, 175–99; governor's proclamation, 22 May 1838, in Pennsylvania Archives, 4th ser., Papers of the Governors, ed. Reed, George E. (Philadelphia: J. Severns, 1901), 6:426–33Google Scholar; Pennsylvania Freeman, 24 May. 21Google Scholar June, and 8 Nov. 1838; Brown, , “Racism and Sexism,” 131Google Scholar n. 26, 134–35. On the popular pressures Philadelphia law faced in the Jacksonian period, see Bell, Robert R., The Philadelphia Lawyer: A History, 1735–1945 (Selinsgrove, Pa.: Susquehanna University Press, 1992), 106–19Google Scholar; Nash, Gary B., “Philadelphia Bench and Bar, 1800–1861,” Comparative Studies in Society and History 7 (1965): 203–20CrossRefGoogle Scholar.

120. Lyman, Garrison Mob; Hammett, , “Two Mobs of Jacksonian Boston,” 845–68Google Scholar; “Recollections of Ellis Ames,” Proceedings of the Massachusetts Historical Society 18 (1881): 340–44Google Scholar (reproducing the complaint charging Garrison with causing a riot and the warrant for Garrison's arrest).

121. Cincinnati Daily Commercial, 25 Jan., 13 and 21 (quote) Feb. 1860; Annual Report of the American Anti-Slavery Society for the Year Ending May 1, 1860 (1861; reprint, New York: Kraus, 1969), 168Google Scholar.

122. Letter from Gov. Daniel Dunklin to W. W. Phelps, 19 Oct. 1833, reprinted in Evening and Morning Star, Dec. 1833, 115Google Scholar; “History of the Persecution” (pts. 1, 3), 19, 50; Firmage, Edwin B. and Mangrum, Richard C., Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints, 1830–1900 (Urbana: University of Illinois Press, 1988), 67–70Google Scholar.

123. In re Pennsylvania Hall, 5 Pa. 204 (1847); Act of June 16, 1836, sec. 13, Pennsylvania Laws (1835–36), 711.

124. Philanthropist, 27 Feb. 1838Google Scholar; Gamaliel Bailey to Birney, 27 May 1837, Birney's Letters, 1:385; Middleton, Stephen, Ohio and the Antislavery Activities of Attorney Salmon Portland Chase, 1830–1849 (New York: Garland, 1990), 50–85Google Scholar; Blue, Frederick J., Salmon P. Chase: A Life in Politics (Kent: Kent State University Press, 1987), 27–31Google Scholar.

125. Birney to Lewis Tappan, 17 July 1839, Birney's Letters, 1:496–97; Philanthropist, 26 June 1838; Blue, , Salmon P. Chase, 31Google Scholar . Richards, , “Gentlemen of Property and Standing,” 98Google Scholar n. 30, reports that the records in these cases burned in a courthouse fire.

126. Report from Chicago Press correspondent, 9 Nov. 1855, reprinted in Liberator, 14 Dec. 1855; Magers, , “Raid on the Parkville Industrial Luminary,” 44–45Google Scholar; letter from Park, 23 Apr. 1855, reprinted in Liberator, 1 June 1855.

127. Cincinnati, Daily Commercial, 25 Jan., 13Google Scholar and 21 Feb., 8 and 12 Mar. 1860; Cincinnati, Enquirer, 12 and 19 Feb., 11 Mar. 1860Google Scholar; Cincinnati, Daily Times, 8 Mar. 1860Google Scholar; Bailey to William L. Garrison, 13 March 1860, reprinted in Liberator, 23 March 1860; Steely, , “William Shreve Bailey,” 279Google Scholar.

128. Grund, Francis J., The Americans in Their Moral, Social and Political Relations (London: Longman, Rees, Orme, Brown, Green & Longman, 1837), 1:323.Google Scholar

129. Near v. Minnesota, 283 U.S. 697 (1931)Google Scholar. Six years earlier, in Gitlow v. New York, 268 U.S. 652 (1925)Google Scholar, the Court in dicta accepted the premise that the Fourteenth Amendment prohibited states from impairing First Amendment rights.

130. Miller v. California, 413 U.S. 15 (1973Google Scholar); Radner, Jennifer L., “Phone, Fax, and Frustration: Electronic Commercial Speech and Nuisance Law,” Emory Law Review 42 (1993): 359–417Google Scholar.