THE ROAD TO THE GETTYSBURG ADDRESS - [PDF Document] (2024)

THE ROAD TO THE GETTYSBURG ADDRESS

ALFRED L. BROPHY

ABSTRACT

This Article recovers the forgotten ideas about public constitutionalism in seventy pub-

lished addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s

address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, to the addresses

by Edward Everett and Abraham Lincoln at Gettysburg in November 1863. It reveals an

important, but forgotten, set of ideas that provided a precedent for Lincoln’s Gettysburg

Address. Those addresses, including Lincoln’s, reveal the centrality of constitutional val-

ues—as opposed to constitutional text—in framing Americans’ interpretation of the Consti-

tution. Pre-Civil War Americans had a vibrant public discussion of constitutional princi-

ples, in addition to constitutional text. These were ideas propagated on such diverse occa-

sions as July Fourth celebrations, arguments in the Supreme Court, dedication of public

monuments, lyceum addresses, and college literary society lectures.

For Americans, especially those of the Whig Party, the Constitution was a key compo-

nent of culture and a key unifier of the nation. Cemetery dedications are one place where

Whigs turned to promote their constitutional values. The cemetery supported constitutional

values of Union, respect for property, and obedience to the rule of law. Rural cemeteries

promoted Whig constitutional ideals about order, patriotism, and Union. Those values were

at the center of the debate over the response to secession and they were put into practice by

soldiers along Cemetery Ridge at Gettysburg in 1863. Lincoln’s address at Gettysburg re-

flects the appeals to sentiment and Constitution that were so frequently invoked in the thirty

years before the War. This hidden history reveals how those ideas mobilized support for

Union and, thus, how public constitutional thought affected the actions of voters, jurists,

and politicians.

I. INTRODUCTION: JUSTICE JOSEPH STORY AND THE MOUNT AUBURN

CEMETERY ....................................................................................................... 832 II. PUBLIC CONSTITUTIONALISM AND WHIG CONSTITUTIONALISM ....................... 836

A. The Literature of Public Constitutionalism ............................................... 836 B. The Whig Constitutional World ................................................................. 841

III. THE PURPOSES, LESSONS, AND PLACES OF CEMETERIES IN THE

CONSTITUTIONAL ORDER................................................................................. 846 A. Beauty, Landscape, Setting, and Uplift ..................................................... 847 B. Cemeteries as Places of Repose from City and Market............................... 853 C. Speaking Through the Grave: The Cemetery as the “Great Moral

Teacher” ..................................................................................................... 855 D. The Cemetery’s Civilizing Mission ............................................................. 860 E. Cemetery as Part of a Christian Republic .................................................. 865 F. Whig Constitutionalism Within and Beyond the Cemetery ....................... 872

IV. THE CEMETERIES’ LEGAL METHODS: PRIVATE CORPORATION AND PUBLIC

REGULATION ................................................................................................... 877 A. Corporate Form and Public Good .............................................................. 877 B. Regulation of Burial for Public Good ........................................................ 884

Judge John J. Parker Distinguished Professor of Law, University of North Caroli-

na, Chapel Hill, NC 27599–3380 [emailprotected] 919.962.4128. I would like to

thank Aaron Wunsch for his invitation to present at the Library Company of Philadelphia’s

symposium “Building the City of the Dead: The Creation and Expansion of Philadelphia’s

Laurel Hill Cemetery,” which was the inspiration for this article, and Tanya Marsh for her

invitation to present this at Wake Forest Law School. I would also like to thank Mary Sa-

rah Bilder, Mark E. Brandon, Daniel M. Filler, Paul Frymer, Alfred Konefsky, Blanche

Linden, Richard E. Myers, Gregg Polsky, David Schorr, Ellen Stroud, and Aaron Wunsch

for comments and Anna Elizabeth Lineberger and Thomas Thurman for terrific research

assistance.

832 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

V. PUBLIC CONSTITUTIONALISM AND THE RURAL CEMETERY .............................. 887 A. Public Constitutionalism, American Culture, and the Supreme Court ..... 889 B. Public Constitutionalism at Gettysburg: Cemetery Ridge, Edward

Everett, and Abraham Lincoln .................................................................. 892 APPENDIX ........................................................................................................ 897

I. INTRODUCTION: JUSTICE JOSEPH STORY

AND THE MOUNT AUBURN CEMETERY

On September 24, 1831, Supreme Court Justice Joseph Story, in

the beginning of his fifty-second year, spoke in front of thousands of

Boston’s citizens at the dedication of the Mount Auburn Cemetery.1

Mount Auburn, the United States’ first “rural cemetery,” had been in

the making for several years. It was a joint venture of the Massachu-

setts Horticultural Society and a group of Bostonians who sought a

more appropriate place for burials than the overcrowded downtown

Boston cemeteries.2 A private charitable corporation, the Massachu-

setts Horticultural Society, was organized for the public missions of

the dignified burial of the dead, the preservation of their memory,

and the elevation of those who visited cemeteries.3 Story began his

address with a statement about a natural law: the universal human

respect for the dead and the desire to have a place of repose as well

as veneration.4 This was a principle common to humans throughout

history, from the time of Egypt to Rome and Greece, to the present.5

Such universal sentiments could serve noble purposes. “We should

accustom ourselves to view [cemeteries] . . . as influences to govern

human conduct, and to moderate human suffering,” Story suggested.6

After visiting a cemetery, “we feel ourselves purer, and better, and

wiser, from this communion with the dead.”7 For Story thought—as

1. JOSEPH STORY, AN ADDRESS DELIVERED ON THE DEDICATION OF THE CEMETERY AT

MOUNT AUBURN, SEPTEMBER 24, 1831 (Boston, Joseph T. & Edward Buckingham 1831);

Rural Cemeteries, 53 N. AM. REV. 385, 389 (1841) (commenting that thousands attended

Story’s dedication address).

2. BLANCHE M. G. LINDEN, SILENT CITY ON A HILL: PICTURESQUE LANDSCAPES OF

MEMORY AND BOSTON’S MOUNT AUBURN CEMETERY (rev. ed. 2007).

3. CATALOGUE OF THE LOTS IN MOUNT AUBURN CEMETERY: NAMES OF THE

PROPRIETORS AND REPRESENTATIVES OF DECEASED PROPRIETORS, THE CHARTER, BY-LAWS,

ETC. 13-16 (Boston, Austin J. Coolidge 1860) (charter of Massachusetts Horticulture Socie-

ty); id. at 16-26 (act to “Incorporate the Proprietors of the Cemetery of Mount Auburn”); see

also Mount Auburn Cemetery, 33 N. AM. REV. 397, 397-406 (Oct. 1829) (discussing Report of

the Massachusetts Horticultural Society Upon the Establishment of An Experimental Gar-

den and Rural Cemetery, in MASSACHUSETTS HORTICULTURAL SOCIETY 62-69 (Boston,

Isaac R. Butts 1831)).

4. STORY, supra note 1, at 7.

5. Id. at 7-9.

6. Id. at 6.

7. Id. at 7.

2016] THE GETTYSBURG ADDRESS 833

did other people of his time, like Washington Irving8—that cemeter-

ies might be turned from places of gloom to places of moral uplift.

“Why,” he asked, “do we not enlist it with more persuasive energy in

the cause of human improvement? . . . Why do we not make it a more

efficient instrument to elevate Ambition, to stimulate Genius, and to

dignify Learning?”9

The cemetery was part of a mission to teach people about the

eternal life of the soul; that lesson was common to barbarians as well

as Christians.10 By visiting the graves of ancestors, individuals en-

gaged in a sentimental project of learning from the past and interact-

ing with it.11 “[W]e gather up, with more solicitude,” Story said, “the

broken fragments of memory, and weave, as it were, into our very

hearts, the threads of their history.”12 By removing graveyards from

cities, where there was no opportunity to reflect on their lessons,

where they were disturbed by commerce, and where they had to be

gated to prevent further violation, and putting them in rural settings

where people might visit them in quiet moments, Story planned

to enlist cemeteries in “the highest purposes of religion and human

duty.”13

In Justice Story’s mind, religion worked in conjunction with the

Constitution, the government, and individual sentiment to create a

godly, civilized nation. From his 1826 Harvard Phi Beta Kappa ad-

dress that linked the common law to Christianity and those two to-

gether to moral and economic progress,14 to his Commentaries on the

Constitution of the United States,15 through to his opinions on the Su-

preme Court,16 Story’s world was one of moral duties that restrained

vice, preserved the republic through patriotism and Christianity, and

preserved property rights.17

8. WASHINGTON IRVING, 1 THE SKETCH BOOK OF GEOFFREY CRAYON 225 (London,

John Murray 1821) (“rural funerals”).

9. STORY, supra note 1, at 10.

10. Id. at 7-8, 10.

11. Id. at 13.

12. Id. at 7.

13. Id. at 13.

14. JOSEPH STORY, A DISCOURSE PRONOUNCED BEFORE THE PHI BETA KAPPA SOCIETY:

AT THE ANNIVERSARY CELEBRATION ON THE THIRTY-FIRST DAY OF AUGUST, 1826, at 21-22,

24-25 (Boston, Hilliard, Gray, Little, & Wilkins 1826) (discussing the reforms of common

law and of Christianity).

15. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston, Hilliard, Gray & Co. 1833).

16. See, e.g., Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18-22 (1842) (on nationalizing mis-

sion); Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420, 583 (1837) (Story, J.,

dissenting); Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 666 (1819)

(Story, J., concurring).

17. R. KENT NEWMEYER, SUPREME COURT JUSTICE JOSEPH STORY: STATESMAN OF THE

OLD REPUBLIC 115-54 (1985) (discussing Story’s economic thought); id. at 155-95 (explain-

834 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

Americans learned about those constitutional values in many

places. They heard about constitutional values in church pulpits,18 in

college literary societies,19 and at gatherings of civic organizations.20

The places where those sentiments of Union, economy, and law were

put into action were legislative halls.21 Story saw a unique ability of

cemeteries to contribute to the mission of those related institutions.

Cemeteries taught moral truths differently (and in some ways better)

than anywhere else, for they spoke with a voice that everyone could

hear. “They may preach lessons, to which none may refuse to listen,

and which all, that live, must hear. Truths may be there felt and

taught in the silence of our own meditations, more persuasive, and

more enduring, than ever flowed from human lips.”22 Indeed, ceme-

teries spoke with an eloquence heard by everyone:

The grave hath a voice of eloquence . . . which speaks at once to the

thoughtlessness of the rash, and the devotion of the good; which

addresses all times, and all ages, and all sexes; which tells of wis-

dom to the wise, and of comfort to the afflicted; which warns us of

our follies and our dangers; which whispers to us in accents of

peace, and alarms us in tones of terror; which steals with a healing

balm into the stricken heart, and lifts up and supports the broken

spirit; which awakens a new enthusiasm for virtue, and disciplines

us for its severer trials and duties; which calls up the images of the

illustrious dead, with an animating presence for our example and

glory; and which demands of us, as men, as patriots, as christians,

as immortals, that the powers given by God should be devoted to

his service, and the minds created by his love, should return to

him with larger capacities for virtuous enjoyment, and with more

spiritual and intellectual brightness.23

ing Story’s constitutional thought); G. EDWARD WHITE, THE MARSHALL COURT AND

CULTURAL CHANGE, 1815-1835, at 103-10, 493-94 (1988) (discussing Story’s constitutional

thought).

18. See generally MITCHELL SNAY, GOSPEL OF DISUNION: RELIGION AND SEPARATISM IN

THE ANTEBELLUM SOUTH (1997).

19. See Alfred L. Brophy, The Republics of Liberty and Letters: Progress, Union, and

Constitutionalism in Graduation Addresses at the Antebellum University of North Caroli-

na, 89 N.C. L. REV. 1879, 1881 (2011); Donald M. Scott, The Popular Lecture and the Crea-

tion of a Public in Mid-Nineteenth-Century America, 66 J. AM. HIST. 791, 791-809 (1980).

20. See generally JOHANN N. NEEM, CREATING A NATION OF JOINERS: DEMOCRACY AND

CIVIL SOCIETY IN EARLY NATIONAL MASSACHUSETTS (2008); DAVID WALDSTREICHER, IN THE

MIDST OF PERPETUAL FETES: THE MAKING OF AMERICAN NATIONALISM, 1776-1820 (1997);

Jason Mazzone, The Creation of a Constitutional Culture, 40 TULSA L. REV. 671 (2005).

21. See generally CHRISTIAN G. FRITZ, AMERICAN SOVEREIGNS: THE PEOPLE AND

AMERICA’S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR (2008); Saul Cornell, The

People’s Constitution vs. the Lawyer’s Constitution: Popular Constitutionalism and the

Original Debate Over Originalism, 23 YALE J.L. & HUMAN. 295, 333 (2011).

22. STORY, supra note 1, at 13.

23. Id. at 13-14; see also THE HISTORY, INCORPORATION, RULES AND REGULATIONS OF

OAKWOOD CEMETERY, AT SYRACUSE, N.Y., TOGETHER WITH THE DEDICATION ODES AND

2016] THE GETTYSBURG ADDRESS 835

Cemeteries, thus, had a unique call on the mind, which fit with

Story’s desire to “use every possible incentive to human virtue.”24

Cemeteries exercised a sentimental pull because of the people buried

there. They also caused people to reflect on life. The rural setting

amplified their appeal to visitors’ emotions. Mount Auburn was with-

in sight of Boston, Harvard, and farms. Thus, “within our reach, eve-

ry variety of natural and artificial scenery, . . . is fitted to awaken

emotions of the highest and most affecting character.”25 The cemetery

furnished a useful school for instruction. As the North American Re-

view commented in 1841, “[T]he appropriate burial of the dead . . . is

fraught with moral and religious uses, which the thoughtful will

readily interpret.”26

Story concluded with a call to “cultivate feelings and sentiments

more worthy of ourselves, and more worthy of christianity.”27 Story’s

address tapped a well of cultural ideas. It also set the model for many

addresses down to the Civil War, just as Mount Auburn set the

standard for subsequent rural cemeteries.28 Several books detailed

the art and layout of Mount Auburn, and travel memoirs recorded

the thoughts of visitors.29 Within a few years, rural cemeteries were

opening throughout the United States.30

This Article turns to the seventy dedication addresses31 that were

published from Story’s Mount Auburn address in 183132 before Abra-

ADDRESSES, WITH OTHER PAPERS 27, 36 (Syracuse, J.G.K. Truair & Co. 1860) [hereinafter

OAKWOOD CEMETERY] (“The graves of all the dead have myriad voices, that speak to the

living with more than the eloquence of human lips.”) (dedication speech of the Honorable

William J. Bacon).

24. STORY, supra note 1, at 14-15.

25. Id. at 18; see also CAROLINE GILMAN, THE POETRY OF TRAVELING IN THE UNITED

STATES 158-68 (New York, S. Colman 1838) (discussing visit to Mount Auburn); GILMAN,

supra, at 158 (quoting STORY, supra note 1 passim); CAROLINE GILMAN, RECOLLECTIONS OF

A SOUTHERN MATRON 80-82 (New York, Harper & Bros. 1838) (discussing funeral of slave,

Jacques).

26. Rural Cemeteries, supra note 1, at 387.

27. STORY, supra note 1, at 21.

28. The North American Review’s article on the Mount Auburn Cemetery, Rural Cem-

eteries, supra note 1, helped spread the word. When Laurel Hill opened in Philadelphia in

1838, Story’s address was reprinted in newspaper articles about the new cemetery. See

Letters from Philadelphia, November 28th, 1838, SALEM GAZETTE 2 (Dec. 4, 1838).

29. See, e.g., JACOB BIGELOW, A HISTORY OF THE CEMETERY OF MOUNT AUBURN (Bos-

ton, James Munroe & Co. 1860); NATHANIEL DEARBORN, A CONCISE HISTORY OF, AND

GUIDE THROUGH MOUNT AUBURN (Boston, Nathaniel Dearborn 1843); WILSON FLAGG,

MOUNT AUBURN: ITS SCENES, ITS BEAUTIES, AND ITS LESSONS 6 (Boston, James

Munroe & Co. 1861); JAMES SMILLIE & CORNELIA W. WALTER, MOUNT AUBURN

ILLUSTRATED (New York, R. Martin 1847).

30. LINDEN, supra note 2, at 133-53 (discussing growth of rural cemeteries).

31. See infra Appendix, Published Dedication Speeches, 1831-1860.

32. See generally STORY, supra note 1.

836 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

ham Lincoln’s November 1863 address at Gettysburg33 to pull togeth-

er the threads in the dedication addresses that are most directly re-

lated to constitutional culture of the pre-Civil War era. Those ad-

dresses reveal a constellation of ideas about the cemetery as a pro-

moter of patriotic sentiments, which supported a constitutional re-

public. Those ideas included the reverence of the past, the promotion

of an ordered republic that improved upon sublime nature, and the

use of charitable corporations to promote public values.

This Article begins by locating the ideas of the Whig party about

constitutionalism and their vehicles for promoting those ideas, from

oratory to judicial opinions and situating the data here in the sec-

ondary literature on public constitutionalism, which has recently ex-

panded the boundaries of “constitutional law.” Part III excavates the

constitutional and political ideas in the dedication addresses. Those

orators saw cemeteries as part of the establishment of order through

public and private co-operation. The cemeteries were places of order

and of private action for public good, which brought the republic to-

gether to recall the past and learn about the future. They were an

articulation of the Constitution’s mission of creating an ordered re-

public. Part IV turns to the legal technology of charitable corpora-

tions that was employed to create and run the cemeteries. Cemeter-

ies were made possible by the corporate form and the affluence of the

republic; they were also instruments in the creation of an ordered

constitutional state. In this way, technology helped advance civiliza-

tion through art and through improvement upon nature and through

the creation of beauty. Part V takes a holistic look at the rural ceme-

tery movement’s relationship to public constitutional thinking. It

turns to the two addresses at the Gettysburg National Cemetery,

which reflected the constitutional thought of the Whigs in the thirty

years leading into Civil War and also propelled a new vision of the

Constitution, especially of democracy and equality.

II. PUBLIC CONSTITUTIONALISM AND

WHIG CONSTITUTIONALISM

A. The Literature of Public Constitutionalism

For several decades, running back at least to Michael Kammen’s

path-breaking A Machine that Would Go of Itself,34 scholars have ex-

panded the scope of the study of constitutional law. They have shown

33. ABRAHAM LINCOLN, Address at Gettysburg, Pennsylvania, in ABRAHAM LINCOLN:

SPEECHES AND WRITINGS, 1859-1865, at 536 (Don E. Fehrenbacher ed., 1989).

34. MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF: THE CONSTITUTION IN

AMERICAN CULTURE (1986) (focusing on how Americans celebrated the Constitution and

appealed to it and what “the Constitution” meant to people making appeals to it).

2016] THE GETTYSBURG ADDRESS 837

that people outside of the Supreme Court had vibrant and sophisti-

cated ideas about the Constitution and that those ideas have shaped

how judges have understood the Constitution. But even more than

that, they have shown that public constitutional ideas shaped politi-

cal action as well.35 Kammen focused on how Fourth of July address-

es tapped the deep reservoir of respect for the Revolution and the

Constitution to celebrate and advance constitutional values.36 And in

the wake of A Machine that Would Go of Itself, legal scholars and his-

torians have expanded the spectrum of sources of constitutional

study. They are increasingly finding the making of the constitutional

culture in streets and in civic organizations.37 These studies range

from the legal ideas that motivated the American Revolution38 to po-

litical and social organizations in the early Republic39 to oratory in

the African American community in the nineteenth century,40

through to the twentieth-century reformers who took the civil rights

movement into the streets and injected seemingly radical ideas into

the courtroom41—and those who opposed the civil rights movement in

the streets as well.42 Perhaps in response to the robust criticism of

scholarship on public constitutional law, which questions the rele-

vance of studies of public ideas about the Constitution to the core is-

sues of constitutional law,43 scholars are also increasingly focusing on

35. Even before Kammen, there was a literature that located Supreme Court decisions

in the public thought about the Constitution. See generally, e.g., DON E. FEHRENBACHER,

THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS (1978); WILLIAM

WIECEK, THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN AMERICA, 1760-1848

(1977).

36. KAMMEN, supra note 34, at 21, 45, 50, 70, 98, 227, 292-93.

37. See, e.g., Mazzone, supra note 20.

38. See, e.g., DANIEL J. HULSEBOSCH, CONSTITUTING EMPIRE: NEW YORK AND THE

TRANSFORMATION OF CONSTITUTIONALISM IN THE ATLANTIC WORLD, 1664-1830 (2005) (dis-

cussing ideas about constitutionalism from colonial New York through the early national

period, with attention to how New York fit into various empires—from Great Britain

through the United States).

39. See, e.g., WALDSTREICHER, supra note 20; Hendrik Hartog, The Constitution of

Aspiration and the “Rights That Belong to Us All,” 74 J. AM. HIST. 1013 (1987).

40. See, e.g., MARTHA S. JONES, ALL BOUND UP TOGETHER: THE WOMAN QUESTION IN

AFRICAN AMERICAN PUBLIC CULTURE, 1830-1900 (2009) (exploring how African American

women spoke about law and constitutionalism and their place and rights in American

government).

41. See, e.g., KENNETH W. MACK, REPRESENTING THE RACE: THE CREATION OF THE

CIVIL RIGHTS LAWYER (2012) (exploring African American lawyers’ civil rights and civil

litigation in the years leading into and including the Civil Rights movement).

42. See, e.g., MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME

COURT AND THE STRUGGLE FOR Racial EQUALITY (2004) (exploring both the Supreme Court

decisions that made the Civil Rights movement and the reactions of people on all sides of

the Civil Rights movement).

43. Lucas A. Powe, Jr., Are “The People” Missing in Action (and Should Anyone

Care)?, 83 TEX. L. REV. 855, 857 (2005) (book review) (pointing out that before the Civil

War there were many actors beyond the Supreme Court in constitutional interpretation,

838 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

the ways that the public understanding of the Constitution had a

powerful gravitational pull on the Supreme Court.44 They also ad-

dress how public ideas operate outside of the Supreme Court, often to

constrain the action of legislators.45 In fact, a central question for

scholars addressing constitutional culture and its relationship to

formal law is a subset of the question, what is the relationship be-

tween public ideas and constitutional thought?46 This involves a se-

ries of questions: what is the nature of public constitutional thought

and how do those ideas impel action (or restrain it)? That is, what are

the contours of the thought and how do public constitutional ideas

matter? Scholars may have decided their mission should be “Taking

the Constitution Away from the Court.”47 But how they are going to do

that—and whether it has been done before—is something we are

still exploring.48

but arguing based on recent episodes of “popular constitutionalism” that we may be better

off without it).

44. See, e.g., Joseph Blocher, Popular Constitutionalism and the State Attorneys Gen-

eral, 122 HARV. L. REV. F. 108 (2011) (locating similar public constitutional ideas about the

Second Amendment in the briefs of state attorneys general); Robert C. Post, Foreword:

Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4 (2003);

Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial

Supremacy, 92 CALIF. L. REV. 1027, 1027 (2004); Reva B. Siegel, Dead or Alive: Originalism

as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191 (2008) (detailing the Su-

preme Court’s adoption of an interpretation of the Second Amendment that had become

commonplace outside of the Court).

45. See, e.g., Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia,

and the True Nature of Constitutional Culture, 93 GEO. L.J. 897, 900-01 (2005) (noting that

constitutional culture addresses public’s various invocations of the Constitution but that

scholarship is sometimes respectful and at other times suspicious of public judgments

about the public’s power in Constitutional interpretation); Doni Gewirtzman, Our Found-

ing Feelings: Emotion, Commitment, and Imagination in Constitutional Culture, 43 U.

RICH. L. REV. 623 (2008) (focusing on invocations of sentiment, rather than reason, as a

central feature of eighteenth century moral philosophy and constitutional thought).

46. Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 HARV.

L. REV. 1594, 1635 (2005) (reviewing LARRY D. KRAMER, THE PEOPLE THEMSELVES:

POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004)); see also Tom Donnelly, Mak-

ing Popular Constitutionalism Work, 2012 WIS. L. REV. 159 (explaining how public ideas

may serve to constrain political actors); David E. Pozen, Judicial Elections as Popular Con-

stitutionalism, 110 COLUM. L. REV. 2047, 2049 (2010) (noting that scholars of popular con-

stitutionalism have not yet developed a pragmatic theory of how popular ideas will work

their way into principles of formal constitutional law).

47. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999) (hy-

pothesizing that that those outside the courts can and should advance their own constitu-

tional ideas and act on them and that it is dangerous to rely on the courts as the protectors

of liberty).

48. Some of those explorations have come in studies of how public ideas affect the

development of Supreme Court doctrine. See, e.g., BARRY FRIEDMAN, THE WILL OF THE

PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE

MEANING OF THE CONSTITUTION (2009); see also Matthew Adler, Popular Constitutionalism

and the Rule of Recognition: Whose Practices Ground U.S. Law?, 100 NW. U. L. REV. 719

(2006).

2016] THE GETTYSBURG ADDRESS 839

For the pre-Civil War period there is a particularly vibrant litera-

ture on civic organizations. Historian Johann Neem’s Creating a Na-

tion of Joiners: Democracy and Civil Society in Early National Mas-

sachusetts focuses on the emergence of an ideology that turned to pri-

vate charitable corporations to pursue the public good in the early

nineteenth century.49 Neem’s close study of Massachusetts follows

other broader studies of the constitutional ideas and political theories

of the Whigs.50 This is particularly important because the public con-

stitutional ideas tapped into core American values, which are often

independent of constitutional text. Where our constitutional law is

focused on interpretation of the text, this interpretative method com-

peted with—and was often subordinate to—the constitutional values

that were discussed in public addresses. The cemetery dedication ad-

dresses in the years leading into Gettysburg reveal the depth and

breadth of such constitutional values.

Much of the study of what legal scholars frequently call “popular

constitutionalism” is about how popular ideas about the Constitution

are used to limit the scope of acceptable action for politicians—in es-

sence a legislative oversight that substitutes for judicial review.51

Yet, others are increasingly looking to the ways that public ideas

about constitutionalism help to shape and impel positive action. This

is particularly true for work on the Civil War, where attitudes about

the perpetuity of the Union provided moral support to the war effort

in the North, while in the South, their ideas of state power and prop-

erty rights supported secession and war as well.52

49. NEEM, supra note 20. See generally KEVIN BUTTERFIELD, THE MAKING OF

TOCQUEVILLE’S AMERICA: LAW AND ASSOCIATION IN THE EARLY UNITED STATES (2015) (look-

ing broadly at private associations in Jacksonian America and interpreting them as a key

part of American culture).

50. DANIEL WALKER HOWE, WHAT HATH GOD WROUGHT: THE TRANSFORMATION OF

AMERICA, 1815-1848 (2007); LAWRENCE FREDERICK KOHL, THE POLITICS OF INDIVIDUALISM:

PARTIES AND THE AMERICAN CHARACTER IN THE JACKSONIAN ERA 63-99 (1989).

51. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR

CONSTITUTIONALISM AND JUDICIAL REVIEW (2004) (discussing New Deal division of labor

between legislatures and courts in which legislatures left decisions of constitutional limits

largely to courts); Larry D. Kramer, “The Interest of the Man”: James Madison, Popular

Constitutionalism, and the Theory of Deliberative Democracy, 41 VAL. U. L. REV. 697, 699-

700 (2006) (emphasizing the constraining role that constitutional law plays); Mark Tush-

net, Popular Constitutionalism as Political Law, 81 CHI.-KENT L. REV. 991 (2006).

52. See generally, e.g., MARK E. NEELY JR., LINCOLN AND THE TRIUMPH OF THE

NATION: CONSTITUTIONAL CONFLICT IN THE AMERICAN CIVIL WAR (2011) (exploring the

constitutional arguments around the Civil War and secession). While historians are thor-

oughly skeptical of claims that the Civil War was about states’ rights and constitutionalism

as a distinct category from slavery, they are increasingly recognizing the ways that consti-

tutional principles were utilized by Southern politicians to support secession, just as

Northern visions of constitutionalism supported the cause of Union. See, e.g., DON E.

FEHRENBACHER, CONSTITUTIONS AND CONSTITUTIONALISM IN THE SLAVEHOLDING SOUTH

(1989) (discussing Southern invocations of constitutionalism during the era of slavery).

840 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

Scholars have already recognized that cemeteries were part of

creating nation-wide stories about the past. For instance, as Michael

Kammen showed in Digging Up the Dead: A History of Notable Amer-

ican Reburials, beginning in the middle of the nineteenth century,

cemetery creators dug up and re-buried famous Americans to help

add dignity and power to their cemeteries.53 This was a part of the

celebration of the past and the promulgation of the values of Ameri-

can nationhood. And there is a robust literature on Lincoln’s

Gettysburg Address.54

What has not yet been studied is the role that rural cemeteries

played in the creation and sustenance of a constitutional vision.55

Lincoln’s words at Gettysburg represented a new constitutional vi-

sion of equality.56 The seeds of that vision were laid over the preced-

ing decades in many places, including the rural cemeteries that were

planted in the United States beginning in the 1830s. This Article re-

covers the role that the dedication addresses served in the propaga-

tion of a constitutional culture. It also uses the addresses and the

cemeteries corporations as a gauge of the constitutional vision put

forward by the Whig Party. The cemetery was also a form of com-

memoration closely linked to the erection of monuments to the past.

The era of the creation of the rural cemetery was also the era of

monuments to the American Revolutionary generation, which includ-

ed the Bunker Hill Monument;57 the Washington Monument in

Washington, DC.;58 and Richmond, Virginia’s Washington Equine

Statue;59 as well as numerous local monuments to Washington, such

as copies of the Washington statue in the Richmond capitol building

that were displayed in Raleigh, North Carolina, and Columbia, South

53. See generally MICHAEL KAMMEN, DIGGING UP THE DEAD: A HISTORY OF NOTABLE

AMERICAN REBURIALS (2010).

54. See, e.g., MARTIN P. JOHNSON, WRITING THE GETTYSBURG ADDRESS (2013); GARRY

WILLS, LINCOLN AT GETTYSBURG: THE WORDS THAT REMADE AMERICA (1992).

55. The leading historian of the rural cemetery movement begins her book with an

acknowledgment of the role that cemeteries might play in political thought. See LINDEN,

supra note 2, at 1 (“In the new republic, the art of the painter, the sculptor, the architect,

and the landscape gardener would augment and perpetuate the work of statecraft.”). Lin-

den’s book does not address the constitutional significance of the cemeteries and the

addresses.

56. See DREW GILPIN FAUST, THIS REPUBLIC OF SUFFERING: DEATH AND THE

AMERICAN CIVIL WAR 189 (2008); WILLS, supra note 54, at 121-47.

57. See DANIEL WEBSTER, AN ADDRESS DELIVERED AT THE LAYING OF THE CORNER

STONE OF THE BUNKER HILL MONUMENT (Boston, Cummings, Hilliard & Co., 3d ed. 1825).

58. ROBERT C. WINTHROP, ORATION PRONOUNCED BY THE HONORABLE ROBERT C.

WINTHROP, SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, ON THE

FOURTH OF JULY, 1848, ON THE OCCASION OF LAYING THE CORNER-STONE OF THE NATIONAL

MONUMENT TO THE MEMORY OF WASHINGTON (Washington, J. & G. S. Gideon, 1848).

59. R.M.T. HUNTER, MR. HUNTER’S ORATION: OPENING ODE AND ORATION, DELIVERED

AT THE INAUGURATION OF CRAWFORD’S EQUESTRIAN STATUTE OF WASHINGTON (Richmond,

Macfarlane & Fergusson, 1858).

2016] THE GETTYSBURG ADDRESS 841

Carolina.60 A painting of Concord on the day of opening of the Revolu-

tion, entitled View of Concord, which was painted around 1830, fur-

ther illustrates the centrality of the cemetery to the mindset of ante-

bellum Americans and its relationship to American constitutional-

ism. For the cemetery appears at the center of the painting.61

B. The Whig Constitutional World

In the years leading into Civil War, the dominant party of consti-

tutionalism and law was the Whig Party.62 The Whigs—who were the

successors to the Federalists and the forerunners of the Republican

Party63—concentrated their attention on government promotion of

economic development, technological and moral progress, and order

through law.64

For Americans in the 1830s and 1840s, the central issues included

how to maintain the Union amidst rapid technological and economic

changes. As the country grew in size and innovations like the steam

ship and railroad allowed people increased mobility, the traditional

bonds that united people—connections to their family and place of

birth—declined. Thus, the market revolution led to a decline of hu-

man connections.65 America in the 1830s was a world of individual-

ism,66 of the market,67 and of revolutions in communication68 and mi-

60. See TOM ELMORE, COLUMBIA CIVIL WAR LANDMARKS 47-48 (2011); Gordon S.

Wood, The Legacy of Rome in the American Revolution, in THOMAS JEFFERSON, THE

CLASSICAL WORLD, AND EARLY AMERICA 11, 26 (Peter S. Onuf & Nicholas P. Cole eds.,

2011) (discussing statues modeled on classical art); Historical Notes, 8 S.C.

HIST. & GENEALOGICAL MAG. 42, 42-43 (1907) (discussing placement of Houdon statue at

Columbia, South Carolina statehouse); Christopher M. S. Johns, Proslavery Politics and

Classical Authority: Antonio Canova’s “George Washington,” 47 MEMOIRS AM. ACAD. ROME

119, 121, 124 (2002); see also MICHAEL KAMMEN, MYSTIC CHORDS OF MEMORY: THE

TRANSFORMATION OF TRADITION IN AMERICAN CULTURE 17-40, 685-88 (1993) (discussing

how Americans recorded their history as they wanted it to be, to tell stories about their

imagined, rather than actual, past).

61. View of Concord, NAT’L GALLERY OF ART, http://www.nga.gov/content/ngaweb/

Collection/art-object-page.56748.html (last visited Apr. 10, 2016); see also MICHAEL G.

KAMMEN, MEADOWS OF MEMORY: IMAGES OF TIME AND TRADITION IN AMERICAN ART AND

CULTURE 63-64 (1992).

62. See generally RUSH WELTER, THE MIND OF AMERICA, 1820-1860 (1975) (attending

to differences between Whigs and Democrats and focusing on Whig constitutional ideas).

63. WILLIAM E. GIENAPP, THE ORIGINS OF THE REPUBLICAN PARTY, 1852-1856, at 13

(1987).

64. William W. Fisher, III, Ideology, Religion, and the Constitutional Protection of

Private Property: 1760-1860, 39 EMORY L.J. 65, 112-20 (1990).

65. KOHL, supra note 50, at 15 (loosening of traditional bonds).

66. See id. at 6-12.

842 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

gration.69 Thus, in law there was the emergence of rules promoting

duty to others—like the rapidly growing law of trustees’ responsibil-

ity to beneficiaries.70 Where traditional relationships might have con-

strained violence in the early Republic, by the 1830s riots were a ma-

jor concern in cities.71

The Whig response to these rapid and unsettling changes was a

series of intersecting ideas. These ideas included promotion of duties

to oneself and to one’s nation,72 which would help increase trust and

promote national harmony. Then, working outwards from the focus

on the duties of the individual, Whigs saw a need to promote the rule

of law in the face of what seemed like a lawless people and uncon-

trolled passions.73 They looked with fear and disdain at various

events, such as the city riots,74 state legislatures’ attempts to infringe

on property rights of corporations,75 and President Andrew Jackson’s

confrontation with the Supreme Court.76 Whigs appealed to the state

and national governments to promote economic growth, such as

through funding of internal improvement programs like canals,

roads, and railroads.77 They capped these off with appeals to patriot-

ism and the bounties that could accrue to the country if it promoted

67. HOWE, supra note 50, at 5 (discussing market growth rather than revolution and

referring to the “communications revolution”); CHARLES SELLERS, THE MARKET

REVOLUTION: JACKSONIAN AMERICA, 1815-1846 (1991).

68. HOWE, supra note 50, at 5.

69. Id. at 41-43 (migration and transportation).

70. See, e.g., Alfred L. Brophy & Douglas Bradley Thie, Land, Slaves, and Bonds:

Trust and Probate in the Pre-Civil War Shenandaoh Valley, W. VA. L. REV. (forthcoming

2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2113084 (discussing need for

robust trust law in pre-Civil War era to protect beneficiaries in the increasingly impersonal

market economy); Stephen Duane Davis II & Alfred L. Brophy, “The Most Solemn Act of

My Life”: Family, Property, Will, and Trust in the Antebellum South, 62 ALA. L. REV. 757,

783-89 (2011) (discussing incidence of trusts in wills among slave-owners in the old South

and identifying the role of “the trust as instrument of economic development”).

71. WILLIAM GASTON, AN ADDRESS DELIVERED BEFORE THE AMERICAN WHIG AND

CLIOSOPHIC SOCIETIES OF THE COLLEGE OF NEW JERSEY, SEPTEMBER 29, 1835, at 11

(Princeton, J. Bogart 1835) (appeal to duties to nation and law).

72. See, e.g., WILLIAM GASTON, ADDRESS DELIVERED BEFORE THE PHILANTHROPIC AND

DIALECTIC SOCIETIES, AT CHAPEL-HILL, N. C., JUNE 20, 1832 (Richmond, Thomas W. White,

2d ed. 1832) (on duties of individuals).

73. GASTON, supra note 71, at 22, 39-40.

74. Id. at 39-40.

75. James Kent, Supreme Court of the United States, 2 N.Y. REV. 372, 385-86 (1838).

76. HOWE, supra note 50, at 410-13.

77. Id. at 220-21.

2016] THE GETTYSBURG ADDRESS 843

obedience to law and economic growth. Thus, economic growth, rule

of law, property rights, and Union were central themes of Whig con-

stitutional thought.78

For instance, William Gaston, then a Whig politician but soon-to-

be member of the North Carolina Supreme Court, linked trade and

law with economic and intellectual progress in a letter he sent to a

group of Whigs in Montgomery, Alabama:

Free as heart could wish, yet loyal to all constitutional and legal

obligations, united even more by affection than by the forms of a

common government, and practically drawing more and more

closely together by the wonder working Steam Boat[,] the Canal[,]

and the Railroad; subduing the forest to the dominion of Agricul-

ture and whitening every sea with their sail; advancing daily in

manufacturing and mechanical skill, in art, science, and literature;

growing with unexampled rapidity in [making] wealth and

strength; enjoying the blessings of Providence . . . How could I look

upon these my happy fellow citizens . . . without a thrill of exulta-

tion that this was my own very native land?79

Law and constitutionalism were part of the process of creating the

nation, along with economic, moral, and technological progress.80

This Whig vision of progress through private corporations came by

the 1830s to be opposed to the Democratic vision of progress, of good

springing up from the many.81 A classic statement of the conflict

comes in the Charles River Bridge case,82 in which Justice Story’s vi-

sion of broad respect for a charter to a private corporation conflicted

with Chief Justice Roger Taney’s vision of narrow construction of

that charter, to protect the public’s right against monopoly.83 This

conflict played out frequently in cases at the federal and state level

78. See Brophy, supra note 19, at 1929-33; KOHL, supra note 50, at 145-85.

79. Letter from William Gaston to Gentlemen, Montgomery, Alabama Whigs (Oct. 3,

1832) (Gaston Papers, on file with Wilson Library, UNC).

80. HOWE, supra note 50, at 411-45 (discussing Jacksonian Democracy and the Rule

of Law).

81. NEEM, supra note 20, at 141.

82. Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420, 554 (1837).

83. See id. at 583 (Story, J., dissenting); Kent, supra note 75, at 385 (complaining

about Charles River Bridge’s attack on property rights).

844 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

throughout the Civil War, with oscillation between broader construc-

tions of charters by Whigs and narrower constructions by

Democrats.84

Senator Daniel Webster’s argument in the Dartmouth College case

is a key example of sentimental appeal that mobilized support for a

constitutional principle. Webster’s peroration appealed to the Court

to save the school and others like it, which contributed so much to

knowledge. Webster’s appeal on behalf of Dartmouth College used

sentiment to support the school’s charter granted by the Crown be-

fore the Revolution and thus to preserve property rights from altera-

tion by the New Hampshire Legislature.85 The Dartmouth College

case is an example of a private corporation that performed public

good.86

While Whigs focused on property rights as a central part of their

constitutional virtues, the Democrats interpreted the Whig’s consti-

tutional agenda differently. For Democrats saw the promotion of

property rights as a detriment to equality. George Bancroft, a leading

Democrat thinker and the author of Andrew Jackson’s second inau-

gural address, for instance, described Whig constitutional thought in

a July Fourth oration in 1836 in Springfield, Massachusetts.87 Ban-

croft said that “the whig idolizes present possessions . . . the whig,

forgetting that God is not the God of the dead, appeals to prescrip-

tion; . . . [and] the whig [pleads] for a wealthy aristocracy . . . .”88

Bancroft thought that the Whigs’ focus on “liberty” was really a focus

on vested property rights.

The whig professes to cherish liberty, and he cherishes only his

chartered franchises. The privileges that he extorts from a careless

84. See OSCAR HANDLIN & MARY HANDLIN, COMMONWEALTH: A STUDY OF THE ROLE OF

GOVERNMENT IN THE AMERICAN ECONOMY: MASSACHUSETTS, 1774-1861, at 101-03 (1969)

(discussing Massachusetts context of Charles River Bridge); Stephen Siegel, Understand-

ing the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction

and “Takings” Clause Jurisprudence, 60 S. CAL. L. REV. 1 (1986).

85. See, e.g., ROBERT A. FERGUSON, LAW & LETTERS IN AMERICAN CULTURE 213-18

(1984) (discussing Webster’s Dartmouth College argument); WHITE, supra note 17, at

616-17.

86. See Mark McGarvie, Dartmouth College and the Legal Design of Civil Society, in

CHARITY, PHILANTHROPY, AND CIVILITY IN AMERICAN HISTORY 91-106 (Lawrence J. Fried-

man & Mark McGarvie eds., 2003).

87. GEORGE BANCROFT, AN ORATION DELIVERED BEFORE THE DEMOCRACY OF

SPRINGFIELD AND NEIGHBORING TOWNS, JULY 4, 1836 (Springfield, George & Charles

Merriam 1836).

88. Id. at 10-11.

2016] THE GETTYSBURG ADDRESS 845

or a corrupt legislature, he asserts to be sacred and inviolable. He

applies the doctrine of divine right to legislative grants, and

spreads the mantle of superstition round contracts. He professes to

adore freedom, and he pants for monopoly.89

Where Whigs called for law and constitutionalism, Democrats saw an

interference with “justice.”90 There was, thus, a serious question

about the virtues of property—whether constitutional property rights

were virtues or whether they subordinated human rights.91 But

whatever interpretation one places on Whig constitutional thought,

there was agreement by both Whigs and Democrats that Whigs fo-

cused on constitutional thought as it related to property and to

vested rights.

Nevertheless, Whigs promulgated their constitutional vision fre-

quently through public oratory, including dedication addresses for

monuments,92 churches,93 and school buildings,94 as well as funeral

orations95 and college literary addresses.96 The cemeteries and the

dedication addresses for them were, thus, part of American constitu-

tional culture. This Article moves from the general ideas in the ad-

dresses, which were frequently about personal and sentimental uplift

and patriotic duty, to more specific ideas of the Whig constitutional

ideology. The cemeteries were part of a Whig mission of ordering the

home, the marketplace, the community, and the nation through a

89. Id. at 7.

90. Id. at 6.

91. Id. at 11.

92. HUNTER, supra note 59; WEBSTER, supra note 57; DANIEL WEBSTER, AN ADDRESS

DELIVERED AT THE COMPLETION OF THE BUNKER HILL MONUMENT, JUNE 17, 1843 (Boston,

Tappan & Dennet 1843).

93. J. H. THORNWELL, THE RIGHTS AND THE DUTIES OF MASTERS: A SERMON

PREACHED AT THE DEDICATION OF A CHURCH, ERECTED IN CHARLESTON, S.C., FOR THE

BENEFIT AND INSTRUCTION OF THE COLOURED POPULATION (Charleston, Walker & James

1850).

94. CHARLES FRASER, AN ADDRESS DELIVERED BEFORE THE CITIZENS OF CHARLESTON

AND THE GRAND LODGE OF SOUTH CAROLINA AT THE LAYING OF THE CORNER STONE OF A

NEW COLLEGE EDIFICE WITH MASONIC CEREMONIES ON THE 12TH JANUARY, 1828 (Charles-

ton, J.S. Burges 1828).

95. EDWARD EVERETT, ADDRESS DELIVERED AT CHARLESTOWN, AUGUST 1, 1826, IN

COMMEMORATION OF JOHN ADAMS AND THOMAS JEFFERSON (Boston, William L. Lewis

1826).

96. TIMOTHY WALKER, THE REFORM SPIRIT OF THE DAY: AN ORATION BEFORE THE PHI

BETA KAPPA SOCIETY OF HARVARD UNIVERSITY, JULY 18, 1850 (Boston & Cambridge, James

Munroe & Co. 1850).

846 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

combination of appeals to sentiment,97 adherence to law,98 and use of

civic associations.99The addresses, thus, fit into a matrix of ideas

about the individual’s support for the state100 and the use of civic or-

ganizations to advance the state’s mission.101

III. THE PURPOSES, LESSONS, AND PLACES OF

CEMETERIES IN THE CONSTITUTIONAL ORDER

In 1845, at the dedication of Spring Grove Cemetery near Cincin-

nati, Ohio, U.S. Supreme Court Justice John McLean spoke about

how the “voice from the tomb reaches [the] heart!”102 The lessons of

the cemetery helped formulate character. Cemeteries spoke to indi-

viduals, and this was part of the Whig mission of individual reform.

“There is no language which reaches the heart with such power and

effect as that which proceeds from the graves of those we loved,” 103

said Justice McLean, who a dozen years later dissented in the Dred

Scott decision.104 Graves spoke to the dead and encouraged them to

97. See, e.g., JAMES C. BRUCE, AN ADDRESS DELIVERED BEFORE THE ALUMNI AND

GRADUATING CLASS OF THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, JUNE 3,

1841, at 12 (Raleigh, North Carolina Standard 1841) (explaining that the United States

had made a reality of what had been a utopian dream); BARTHOLOMEW F. MOORE, AN

ADDRESS DELIVERED BEFORE THE TWO LITERARY SOCIETIES OF THE UNIVERSITY OF NORTH

CAROLINA 14 (Raleigh, Order of the Society 1846) (appealing to sentiments of the “silken

cord [of Union]”).

98. See, e.g., GASTON, supra note 71, at 21-25 (appealing to constraints of law as

a civilizer).

99. See, e.g., NEEM, supra note 20, at 6 (discussing formation of a culture of non-

governmental civic associations “to form private organizations to promote their interests

and to shape public opinion”).

100. DANIEL D. BARNARD, MAN AND THE STATE: SOCIAL AND POLITICAL: AN ADDRESS

DELIVERED BEFORE THE CONNECTICUT ALPHA OF THE PHI BETA KAPPA AT YALE COLLEGE,

NEW HAVEN, AUGUST 19, 1846, at 6, 8 (New Haven, B.L. Hamlen 1846). Aaron Wunsch’s

expansive study of Philadelphia cemeteries offers a detailed picture of how the constitu-

tional and public values fit together in the eighteenth and nineteenth centuries. See Aaron

Vickers Wunsch, Parceling the Picturesque: “Rural” Cemeteries and Urban Context in

Nineteenth-Century Philadelphia (Fall 2009) (unpublished Ph.D. dissertation, University

of California, Berkeley) (on file with author).

101. Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 552-88 (1819) (Webster’s

argument).

102. JOHN MCLEAN, ADDRESS DELIVERED ON THE CONSECRATION OF THE SPRING GROVE

CEMETERY, NEAR CINCINNATI, AUGUST 20TH, 1845, at 14 (Cincinnati, Daily Atlas Office

1845).

103. MCLEAN, supra note 102, at 13.

104. Scott v. Sandford, 60 U.S. (19 How.) 393, 529 (1857) (McLean, J., dissenting).

2016] THE GETTYSBURG ADDRESS 847

virtue because they reminded the visitor of “the end of Mortality.”105

Such a reminder “must chasten the heart.”106

By such reminders, the cemetery created more virtuous citizens.

For it caused citizens to ask, “[W]hy should I cherish an unholy ambi-

tion for fame, or seek to accumulate wealth by doubtful means? Why

should I endeavor, by injustice, to enrich myself at the expense of my

neighbor, seeing the time of enjoyment is so short, and the end of my

career is so certain?”107 The cemetery conveyed such ideas by both

seeing and feeling. It did this in a number of ways, from appealing to

beauty to countering the market to serving as part of a Christian

republic.

A. Beauty, Landscape, Setting, and Uplift

Many addresses drew on romantic images, and in that era the

beauty of landscape was seen as one important mode of moral up-

lift.108 Beauty and nature combined to instruct.

This human improvement of nature was frequently discussed by

landscape artists as well—people who had special reason to observe

and understand the relationship of nature to human progress and

art. For example, landscape artist Thomas Cole spoke to a lyceum

audience in 1836 about the power of cultivated scenery. Though Cole

was talking about landscape paintings, his reasoning applies equally

to garden cemeteries. Cultivated scenery facilitated the shaping of

human culture.

[Such scenery] is still more important [than natural scenery] to

man in his social capacity—necessarily bringing him in contact

with the cultured; it encompasses our homes, and, though devoid

of the stern sublimity of the wild, its quieter spirit steals tenderly

into our bosoms mingled with a thousand domestic affections and

heart-touching associations—human hands have wrought, and

human deeds hallowed all around.109

The South Carolina landscape artist Charles Fraser, thus, was

particularly well-situated to lecture on the power of beauty of the

105. MCLEAN, supra note 102, at 13.

106. Id.

107. Id. at 13-14.

108. See, e.g., id. at 11-13; OAKWOOD CEMETERY, supra note 23, at 36.

109. Thomas Cole, Proceedings of the American Lyceum: Essay on American Scenery,

AM. MONTHLY MAG., Jan. 1836, at 1, 3. Where Cole was concerned with wild nature, the

cemetery was a retreat both from wilderness and the market.

848 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

natural world and the cultivated garden at the 1850 dedication of

Charleston’s Magnolia cemetery. Fraser’s address linked the beauty

of cemeteries to the public character. He thought that the rural ceme-

teries were motivated in part by problems with city cemeteries, as

“an emigrant population fill[ed] up our cities” and there emerged “a

fatal epidemic, hitherto unknown in our favored country; carrying

disease and mortality into its healthiest portions.”110 But even more

impetus came from an understanding of the “moral proprieties in-

volved in the subject.”111 Beauty could mold and improve character

and make more fit citizens. Cemeteries offered “peaceful situations,

where the beauties of nature and the improvements of art may be

united in promoting the moral purposes of their establishment.”112

Fraser likened the cemetery to an “unsullied canvas, inviting crea-

tions of fancy from the pencil of the artist.”113 The cemetery offered “a

wide field, in almost original simplicity, . . . spread before you by the

hand of nature, and requiring only the adornments of taste to carry

out her design of beauty.”114

Many others joined Fraser in these sentiments. At the dedication

of Savannah’s Laurel Grove Cemetery in 1852, lawyer Henry Rootes

Jackson praised nature for providing a setting. He called for im-

provement of the garden. “Nature has done her part in the work, by

presenting a surface beautifully undulating,–with the level plain, the

gentle declivity, the dark ravine,–and planting around her stately

forests with their pendant moss. Nature has done her part; it re-

mains but for Art to do hers.”115 And the artwork about the cemeter-

ies confirmed that they had a role in beautification of the landscape.

For instance, prints made from the 1830s through the 1850s cele-

brated the ordered beauty of Mount Auburn. These included William

110. CHARLES FRASER, ADDRESS DELIVERED ON THE DEDICATION OF MAGNOLIA

CEMETERY, ON THE 19TH NOVEMBER, 1850, at 17 (Charleston, Walker & James 1850).

111. Id.

112. Id. at 17-18.

113. Id. at 19.

114. Id.

115. LAUREL GROVE CEMETERY!, AN ACCOUNT OF ITS DEDICATION, WITH THE POEM OF

THE HON. ROBERT M. CHARLTON, AND THE ADDRESS OF THE HON. HENRY R. JACKSON,

DELIVERED ON THE 10TH NOVEMBER, 1852, TO WHICH ARE ADDED THE ORDINANCES

ESTABLISHING AND REGULATING THE CEMETERY 19 (Savannah, City Council 1852); see also

HENRY R. JACKSON, COURAGE: AN ORATION DELIVERED BEFORE THE LITERARY SOCIETIES

OF FRANKLIN COLLEGE AUGUST 3, 1848 (Athens, Demosthenian Society 1848); HENRY R.

JACKSON, TALLULAH AND OTHER POEMS (Savannah, John M. Cooper 1850) (emphasizing

pastoral themes).

2016] THE GETTYSBURG ADDRESS 849

Henry Bartlett’s views of Mount Auburn in American Scenery116 and

Thomas Chambers’ Mount Auburn Cemetery.117 The carefully ordered

nature of the cemeteries is also apparent in the maps that were pro-

duced for the cemeteries.118

Their beauty was one of the rural cemeteries’ great advantages.

Revered J.H.C. Dosh asked at the 1855 dedication of Gettysburg’s

Ever Green Cemetery—soon to become world famous as the scene of

battle—“Could a more lovely spot have been chosen?”119 Reverend

F.W. Shelton began his dedication address for the Green Mount

Cemetery in Montpelier, Vermont, in 1855, with an observation

about how the cemetery had already improved upon the wilderness:

We stand upon a hill-side which, almost yesterday, lay unre-

claimed in its original wildness, and now already it begins to look

like an embellished garden. Art has redeemed it from its rude es-

tate, with an almost magic transformation. It has its winding

walks, and will have its shady avenues. It is the most choice posi-

tion in this valley, and its natural surface presents the charm of

great variety. There is no stretch of landscape, in this neighbor-

hood, around the abodes of the living, which can vie in beauty with

this Paradise which you now dedicate, as the resting place of your

beloved dead.120

The beauty of cemeteries inspired visitors. The cemeteries were

not just places to visit ancestors; they were refuges for many from

city life. Reverend Pharcellus Church’s dedication of the Rochester

Cemetery in 1838 called upon romantic imagery to convey the beauty

of the cemetery and the inspiration that visitors would feel:

116. See N. P. WILLIS, AMERICAN SCENERY; OR LAND, LAKE, AND RIVER: ILLUSTRATIONS

OF TRANSATLANTIC NATURE 97 (London, James S. Virtue 1840).

117. See NAT’L GALLERY OF ART, AMERICAN NATIVE PAINTINGS 54 (Judith Millon ed.,

1992) (discussing Chambers’ View of Mount Auburn).

118. See, e.g., ALBANY RURAL CEMETERY (n.p., J.E. Gavit 1846), http://digitalgallery.nypl.org/

nypldigital/id?434097; MOUNT AUBURN, AVENUES AND PATHS (Boston, Nathaniel Dearborn

1848), http://maps.bpl.org/id/12739.

119. J.H.C. DOSH, ANNOUNCEMENT OF ADDRESS DELIVERED AT THE OPENING

CEREMONIES OF EVER GREEN CEMETERY, GETTYSBURG, PA., NOVEMBER, 7, 1854, at 5 (Get-

tysburg, H.C. Neinstadt 1855).

120. F.W. Shelton, Address, in SERVICES AT THE DEDICATION OF GREEN MOUNTAIN

CEMETERY, MONTPELIER, VT., SEPTEMBER 15, 1855, WITH THE RULES AND REGULATIONS 17

(Montpelier, E.P. Walton, Jr. 1855); see also JOHN F. NORTON, THE HOME OF THE ANCIENT

DEAD RESTORED: AN ADDRESS DELIVERED AT ALTHOL ON JULY 4, 1859, at 22 (Althol Depot,

Rufus Putnam 1859) (the cemetery “turned this wilderness into a fruitful field”). This is the

story of America written in the cemetery, and this is precisely the story that landscape

artists were telling at the same time.

850 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

[W]hen you stand on the summit itself, how enchanting is the pro-

spect! The smooth current of the Genesee meandering round the

base, and stealing its now obvious and now concealed way to the

distant lake, like the passing of life through shade and sunshine to

the ocean of eternity. Around, you see, spread out in the ample

view, the rich fields of one of the richest countries in the world,

sending their loaded harvests to the marts of trade, and supplying

the staff of life to millions of people. Before you lies the thronged

city, with its spires and minarets pointing to heaven, while the

clatter of hydraulic machinery, or the deep toned bell, or the voices

of living multitudes, united to the roar of the neighboring cascades,

all, send up to heaven a voice as deafening and discordant as the

cries of factious clans on the world’s tumultuous theatre. Far off

beyond the city, the broad blue Ontario skirts the undefined dis-

tance, as if to remind you of the boundless fields of existence which

eternity will unfold, and to make you feel how few and meager are

the objects subjected to our present inspection, compared with

those in the distance, which a future world will disclose.121

Other addresses linked natural settings with the cemeteries’ les-

sons. “The Cemetery is nature’s Commentary, in which are drawn

out . . . the inevitable destinies of man,” said Reverend Abraham Gil-

lette at the dedication of Woodlands Cemetery in Cambridge, New

York, near Albany, in 1858.122 “It is a book that may ever be read

with impressiveness and profit. To the cultivated and the rude, it is a

faithful and true prediction of the unavoidable doom of our fallen

race.”123 Gillette explained the mechanism by which the cemetery

worked its magic: “Cemeteries exert a healthful moral influence over

the minds and hearts of the living. . . . I believe few persons in whose

bosoms glow any sparks of moral emotion, can visit a rural Cemetery,

without leaving it a humbler and better citizen, parent, friend, kin-

dred and man.”124

121. PHARCELLUS CHURCH, AN ADDRESS DELIVERED AT THE DEDICATION OF MOUNT

HOPE CEMETERY, ROCHESTER, OCT. 2, 1838; AND REPEATED, BY REQUEST, BEFORE THE

ROCHESTER ATHENÆUM AND YOUNG MEN'S ASSOCIATION 17 (Rochester, David Hoyt 1839).

122. THE WOODLANDS CEMETERY AT CAMBRIDGE, N.Y., WITH HISTORICAL SKETCHES

AND AN ADDRESS OF REV. A.D. GILLETTE, D. D., DELIVERED AT THE DEDICATION JUNE 2,

1858, at 45 (Troy, N.Y., A.W. Scribner & Co. 1859).

123. Id.

124. Id. at 46 (“Among the refined Greeks and sturdy Romans, the dead were buried

beyond the walls of Towns . . . . How rich with lessons of mortality these sequestered

shades, groves and tomb-stones must become—generations better than ours shall live to

testify.”).

2016] THE GETTYSBURG ADDRESS 851

The rural cemeteries, thus, tapped into values of nature, art, and

sentiment. The cemeteries provided a place of beauty and order in a

chaotic world.125 The cities were crowded and having graveyards in

them was a health hazard; moreover, the city was not an appropriate

place to mourn the dead. With the advent of rural cemeteries came

the chance for something peaceful and dignified—a place of senti-

ment—which was a way of responding to the market. The cemeteries

were far enough away from the center of town that they would not be

threatened by city life. This was especially important because the

crowded urban graveyards were believed to threaten public health.126

In fact, the rural cemeteries grew up as the cities prohibited burial.127

In short, beauty, order, and improvement over nature all led to

virtue.

Even the location of the cemeteries often conveyed a sense of con-

tinuity of place. Many were built on the site of former Indian burial

grounds, or at least stories were frequently told about how the ceme-

teries were built on Indian burial grounds. Fort Hill Cemetery, for

example, in Auburn, New York, was supposed to have been built on

the site of an ancient Indian village cemetery.128

At other times, the importance of the cemetery’s location sprang

from more recent events. Brooklyn’s Greenwood Cemetery, for in-

stance, was built within sight of the Revolutionary War Brooklyn

battlefield.129 At Magnolia Cemetery in Charleston a recent burial

there conferred particular dignity. A soldier who died in the Mexican

American War was buried in the spot where he had last spoken with

125. See KOHL, supra note 50, at 147-48 (discussing Whig desire for order in a world of

chaos); WILLS, supra note 54, at 64-68 (discussing cemeteries’ appeal as places of order and

peaceful nature).

126. HENRY LAURENS PINCKNEY, REMARKS ADDRESSED TO THE CITIZENS OF

CHARLESTON, ON THE SUBJECT OF INTERMENTS, AND THE POLICY OF ESTABLISHING A PUBLIC

CEMETERY, BEYOND THE PRECINCTS OF THE CITY (Charleston, W. Riley 1839) (discussing

right of Charleston to prohibit burials that would be a health hazard); Brick Presbyterian

Church in N.Y. v. New York, 5 Cow. 538 (N.Y. Sup. Ct. 1826) (upholding a New York City

ordinance prohibiting burials); see also LINDEN, supra note 2, at 149.

127. See LINDEN, supra note 2, at 149-63; see also WILLS, supra note 54, at 71 (linking

rural cemeteries and the Victorian culture’s fascination with death); Thomas Bender, The

“Rural” Cemetery Movement: Urban Travail and the Appeal of Nature, 47 N. ENG. Q. 196,

196-211 (1974).

128. FORT HILL CEMETERY ASS’N., HANDBOOK OF FORT HILL CEMETERY: CONTAINING

INFORMATION RESPECTING THE ANCIENT MOUND AND FORTIFICATION, AND THE INDIAN

MONUMENT WITHIN THE ENCLOSURE 5 (Auburn, W.J. Moses 1853).

129. NEHEMIAH CLEAVELAND, GREEN-WOOD ILLUSTRATED 79-91 (New York, R. Martin

1847).

852 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

his mother before his regiment decamped for the war. Artist Charles

Fraser told the story in sentimental terms in his 1850 dedication

address:

Filial piety, parental affection, devoted patriotism, are the moral

elements of the atmosphere that surrounds it. . . . For there were

interchanged the last farewell words between a dutiful son and an

affectionate mother. The regiment was quartered in this neighbor-

hood, on the eve of its departure for Mexico. Under that tree, and

on that secluded spot, . . . the interview took place. How deeply it

impressed him, may be learned from the fact, that he requested,

should he fall in battle, that his remains might be brought home

to his native soil, and deposited on a spot so endeared to his

recollection.130

Even when there was no particular historical association of the

place, the beautiful setting of the cemetery—as improved by human

cultivation—had an elevating power.131 Edward Humphrey empha-

sized this in 1848 at the dedication of Cave Hill near Louisville:

The bleak hill-side, or the unprotected and barren field, is not

suitable either for the living or the dead. Let the place of graves be

rural and beautiful. Let it be under the free air and cheerful light

of heaven. Let trees be planted there. Let the opening year invite

to their branches the springing leaf and birds of song, and when

the leaves and birds are gone, let the winds summon from their

boughs sweet and melancholy strains. Let the tokens of fond re-

membrance, in the shrub and flower, be there. Let the murmuring

of the gentle rill be there. There let the rising sun cast westward

the shadows, admonishing us of life’s decline, and then let the

evening shadows point to the eastern sky, in promise of another

and brighter day. Amidst ever-changing beauty and harmony,

where the decay and renovation of nature may perpetually remind

us that we must die, and that to die is to live again, there, let the

dust return to the earth as it was.132

Such places were hallowed even before the rural cemeteries were

planted there; and, the place helped to add to the cemetery’s dignity

130. FRASER, supra note 110, at 21.

131. E.A. NISBET, THOUGHTS ON THE BEAUTIFUL: AN ADDRESS DELIVERED AT THE

COMMENCEMENT OF THE GRIFFIN SYNODICAL FEMALE COLLEGE IN JUNE, 1857 (Griffin, Em-

pire State Job Office 1857).

132. EDWARD P. HUMPHREY, AN ADDRESS, DELIVERED ON THE DEDICATION OF THE CAVE

HILL CEMETERY, NEAR LOUISVILLE: JULY 25, 1848, at 15 (Louisville, Courier Job-Room

1848).

2016] THE GETTYSBURG ADDRESS 853

and to the lessons that the cemetery could teach. For cemeteries of-

fered lessons on the continuity of the republic and the power of long-

term rights.

B. Cemeteries as Places of Repose from City and Market

The placement of cemeteries near cities, but far enough away from

them as to be places of repose, was important to their civilizing mis-

sion.133 Oliver Baldwin’s 1849 address at Richmond’s Hollywood

Cemetery linked the cemetery to the environment surrounding it.

Baldwin wanted the cemetery near enough to the city that people

might visit it, but far enough away to maintain the cemetery’s seclu-

sion.134 From Hollywood Cemetery, high on a hill overlooking the

James River, one could see Richmond’s commerce and also survey

centuries of history. The location made it possible for the cemetery to

be a vehicle of uplift and repose.

We see the stream so replete with historic associations, seized for

manufacturing purposes, and yonder black smoke telling where

the captive waters struggle at the wheel and labour for the benefit

of man. If the “Knights of the Golden Horse Shoe” have ceased to

exist, we have an even more potent brotherhood in those Knights

of the Iron Horse, whose dark track we see on yonder bridge, and

whose fierce tramp may be heard on every hand, as with fiery nos-

trils he seems to devour the air, and with his exulting shout of tri-

umph to make the forests ring. . . .[W]e behold distinct, but promi-

nent, that commanding eminence, Church Hill, so replete with

sublime historical recollections,—that sacred Church, from which

the voice of Patrick Henry rang like a trumpet call upon the ear of

every freeman in the land,—that political Sinai from which the

Spirit of Liberty proclaimed–Thou shalt no longer bow the knee to

kingly idols. . . .Within our sight are the halls of justice; the grand

and symmetrical proportions of the Capitol; the temples of Reli-

gion, all whose office is to prepare us for this spot.135

Where Baldwin saw the connections between the cemetery and

the ethic of commerce, most others who spoke about this saw ceme-

133. LINDEN, supra note 2, at 149-63 (discussing health concerns in Boston that im-

pelled new burial places outside the crowded city); Stanley French, The Cemetery as Cul-

tural Institution: The Establishment of Mount Auburn and the “Rural Cemetery” Movement,

26 AM. Q. 37, 38-53 (1974).

134. OLIVER BALDWIN, ADDRESS DELIVERED AT THE DEDICATION OF THE HOLLY-WOOD

CEMETERY: ON MONDAY, THE 25TH JUNE, 1849, at 13 (Richmond, Macfarlane & Fergusson

1849).

135. Id. at 14-15.

854 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

teries as a place for the development of art in a setting that was free

from the market. This allowed citizens a respite from the bustle of

the market, among art and nature. Though Whigs were the party of

the market, they found in cemeteries an appropriate balance of the

market. A book published in 1851 about Brooklyn’s Greenwood Cem-

etery explained the contrast between the bustling city of the living

and the peaceful city of the dead, which were so close together:

An opening on his left reveals to him the lower bay, Staten Island,

and the Narrows. Another, in front, reaches across the harbor, and

is bounded by the masts, spires, and dwellings of New York and

Brooklyn. The little dell which he has just passed, with its shady

water, is immediately below. Here, with a city of the living before

him, and another of the dead growing up around, the charm of con-

trast is felt in its power. Here are presented, as it were, side by

side, art and nature—bustle and repose—life and death;—while

each quiet sail, moving but noiseless, seems a fit medium of com-

munication between them.136

Many others saw a similar moral effect of cemeteries, though they

emphasized more the ways that cemeteries explicitly countered the

market than the ways that they worked together. An article in the

Yale Literary Magazine, for instance, concluded with a celebration of

how cemeteries countered the cold feelings of the market:

The moral effect of a cemetery, thus laid out and ornamented, es-

pecially in the vicinity of a mammon-serving and tumultuous city,

cannot well be overrated. Its solemn aisles are frequented by many

who never seek elsewhere the temple of God. And though the giddy

may prattle, and the sentimental pluck rose-buds for their fair

ones—the white monument will still stand by their side, and death

be their constant companion. As one enters such a place, a feeling

steels over him, not unlike that which the traveler experiences as

he gazes upon the mouldering shrines and cathedrals of some city

of the past, whose memory is almost obliterated;—the impression

indeed is deeper, and the suggestions more personal. At the close

of day, or during the quiet hours of the Sabbath, I delight to wan-

der among its ghostly mausoleums, to view the unsleeping green of

nature, standing in solemn vigil over the last resting place of the

immortal soul. As I gaze upon the obelisks of the wealthy, I reflect

with sorrow upon the vanity and littleness of man,—as I walk by

the monuments of the honored and loved, I am convinced that

nothing can perpetuate our memories, but deeds of goodness and

136. CLEAVELAND, supra note 129, at 26.

2016] THE GETTYSBURG ADDRESS 855

virtue; the quiet tombs of youthful beauty and loveliness remind

me of the soul’s immortality,—and the faded cenotaphs that com-

memorate the scattered dust of our ancestry, cause me to remem-

ber that the time is not far distant, when for us, too, shall “the sil-

ver cord be loosed, and the golden bowl broken.”137

C. Speaking Through the Grave:

The Cemetery as the “Great Moral Teacher”

Story’s words traveled far and served as a model for many subse-

quent dedications. Four years later when Stephen Duncan Walker

urged Baltimore to establish a rural cemetery, he used a question

Story had asked at Mount Auburn: “[W]ho that has stood on Mount

Vernon, on the margin of the tranquil Potomac, ‘but feels his heart

more pure, his wishes more aspiring, his gratitude more warm, and

his love of country touched by a holier flame?’ ”138 Walker asked for

Baltimore to collect the remains of Maryland’s founding fathers in

one place because the graves of great people inspired more greatness.

Such relics “would form a treasure if collected together, of inestima-

ble value, upon which posterity might draw, without consuming; it

would be a widow’s cruse of holy impulses, forever flowing and forev-

er full.”139 The power of cemeteries to instruct was great, indeed. The

grave might “speak audibly to the human conscience, and though

without tongue or voice, breathes with ‘miraculous organs’ over the

mystic chords of sensibility, to the heart and to the judgment.”140

Similarly, at the 1838 dedication of the Worcester Cemetery, Mas-

sachusetts Governor Levi Lincoln invoked Yale President Timothy

Dwight’s comments on cemeteries that “a Burial Ground should be a

solemn object to man, because in this manner, it easily becomes a

source of useful instruction, and desirable impressions.”141 Indeed,

many dedication addresses emphasized that cemeteries provided in-

137. Ornamental Cemeteries, 21 YALE LITERARY MAG., Nov. 1855, at 4, 50.

138. S. D. WALKER, RURAL CEMETERY AND PUBLIC WALK 19 (Baltimore, Sands & Neilson

1835) (quoting STORY, supra note 1, at 14).

139. Id. at 20.

140. Id.

141. HINTS ON THE SUBJECT OF INTERNMENTS WITHIN THE CITY OF PHILADELPHIA:

ADDRESSED TO THE SERIOUS CONSIDERATION OF THE MEMBERS OF COUNCILS,

COMMISSIONERS OF THE DISTRICTS, AND CITIZENS GENERALLY BY ATTICUS 14 (Philadelphia,

William Brown 1838).

856 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

struction to the living.142 But it was not only that the living learned

from the cemeteries, cemeteries were indicators of how far culture

had progressed. They illustrated the growth of social conditions.

“[W]e build” cemeteries, one orator said in 1852, “for the use, the

pleasure, the instruction, the edification of the living.”143 Unitarian

Minister Amory B. Mayo explained in 1858, the society had pro-

gressed to the stage where it could afford better cemeteries than in

the colonial era.144 Cemeteries were, thus, both props to further pro-

gress and signifiers of progress.

The makers of the cemetery had the power to tell stories through

the cemetery. Professor Edward North of Hamilton College told his

audience at the dedication of the Clinton, New York cemetery in 1857

about the messages that cemeteries might delivery.

It is our privilege to speak from our graves. With this privilege

comes the inquiry, What expression shall we choose for ourselves

in our place of burial; in the memorials that tell where our dust

reposes; in the surroundings and decorations of the spot? What

shall be the lessons taught by the grave-ground we expect to occu-

py, and which, by a serious forethought that betokens innate long-

ing for a glorified reunion of soul and body, we select, embellish

and consecrate ere our time of departure?

. . . We shudder at the desecration of crowded city cemeter-

ies when ruthless Mammon breaks down moss-covered head-

stones, invades the sanctity of family vaults, shovels out the relics

of whole generations, and lays open streets or sells building lots

where the hush of the sepulchre ought to have been perpetual.145

Lawyer Bellamy Storer, who had served as a Whig in Congress in

the 1830s, explained the process of thought by which we could expect

to learn lessons in a cemetery in his dedication address at Linden

Grove Cemetery in Covinginton, Kentucky in 1843.

142. THE DALE CEMETERY, (AT CLAREMONT, NEAR SING-SING,) ITS INCORPORATION,

RULES AND REGULATIONS, AND THE DEDICATION ADDRESSES 21 (New York, Casper C.

Childs 1852) [hereinafter DALE CEMETERY].

143. Id. at 21.

144. A.D. MAYO, THE AMERICAN CEMETERY: AN ADDRESS AT THE DEDICATION OF GREEN

HILL CEMETERY AT AMSTERDAM, MONTGOMERY CO., N.Y., ON WEDNESDAY, SEPTEMBER 1,

1858, at 7 (Amsterdam, N.Y., Recorder Office 1858).

145. ADDRESSES DELIVERED AT THE DEDICATION OF THE CLINTON CEMETERY 14-15

(Utica, Roberts 1857) [hereinafter CLINTON CEMETERY].

2016] THE GETTYSBURG ADDRESS 857

There is no train of reflection more subdued, nor more instructive,

than that which is induced by the contemplation of a grave yard.

We gather around us, while we wander among its monuments, the

past, the present, and the future. All of life and of death, and the

life to come, are grouped in the brief hour! We are dissociated from

our fellows! We become individualized, in the truest sense of the

term, and understand, if we never did before, the meaning of per-

sonal accountability, our relation to the world, and to Him who

made the world!146

Storer, who began teaching at the University of Cincinnati Law

School in 1855, did not speak exactly in constitutional terms. He was

dealing with cultural ideas, like patriotism, that we associate with

constitutional values.147 Whig lawyer Daniel Barnard, who figures

prominently later in this story, had a similar interpretation as Storer

in his 1844 address at the Albany Cemetery. Barnard invoked gen-

eral terms dealing with morality, which prepared individuals for con-

stitutional government: “We may expect this place to become a great

moral Teacher; and many valuable lessons there are, that may be

learned here—lessons of humility, of moderation, of charity, of con-

tentment, of mercy, of peace—lessons touching nearly all that con-

cerns life, touching death, and touching immortality.”148

Professor Truman Marcelleus Post of Washington University re-

called in a speech at Bellefontaine Cemetery in St. Louis in 1851,

that schools were often placed within sight of ancient cemeteries.

What a school was that of the cemetery of the Ceramicus, where

Plato and Aristotle taught in sight of the tombs of the great de-

parted! What memories there aided their instructions to the youth

of Athens, with an eloquence more glowing, subduing and awful

than the wisdom of the Areopagus or the Senate—than the heroic

thought and Pythic enthusiasm of Homer or Pindar—or than the

pathos of her tragic Muse, or the fiery logic of her great Orator.

There, in awful marble, still spoke her great Lawgiver—there

146. BELLAMY STORER, AN ADDRESS DELIVERED AT THE CONSECRATION OF THE LINDEN

GROVE CEMETERY, COVINGTON, KENTUCKY, SEPTEMBER 11, 1843, at 9 (Cincinnati, E. Mor-

gan & Co. 1843).

147. More than a dozen years later, Storer’s address at the University of Louisville

linked law and the Bible. See BELLAMY STORER, THE LEGAL PROFESSION: AN ADDRESS

DELIVERED BEFORE THE LAW DEPARTMENT OF THE UNIVERSITY OF LOUISVILLE, KENTUCKY,

FEBRUARY 20TH, 1856, at 13-15 (Cincinnati, C. Clark & Co. 1856) (“[In the Bible,]

we . . . learn that human law, in its highest developments, is but an emanation from the

hallowed flame that illuminates its every page.”).

148. D. D. Barnard, Address, in ALBANY RURAL CEMETERY ASSOCIATION: ITS RULES,

REGULATIONS &C., WITH AN APPENDIX 31-32 (Albany, C. Van Benthuysen & Co. 1846).

858 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

stood the hero of Marathon, whose trophies would not suffer The-

mistocles to sleep; and there Pericles, the true, the noble, the elo-

quent, still plead for the life and glory of the Athens he loved

so well.149

Perhaps inspired by the recollection that ancient schools were located

near cemeteries, in the 1830s Martin Dawson, an affluent reform-

minded Virginian, left money in trust in his will to fund several

schools, with the stipulation that at least one of the academies be lo-

cated near his family’s cemetery.150 The Virginia legislature created

“The Literary Fund” by a special act to hold Dawson’s bequest.151 The

Liberty Fund supported several lower schools and the University of

Virginia as well, though the entire will, which also provided for free-

dom for Dawson’s slaves, was challenged by his relatives and the

Virginia Court of Appeals heard several appeals regarding Dawson’s

estate.152 Dawson’s will is yet another example of the ways that ceme-

teries were located next to other reform movements, including educa-

tion and anti-slavery, in the minds of Americans.

The cemeteries taught lessons to the entire nation, not just to the

scholars in adjacent schools. For, as Professor Post recalled, Rome

cemented “the tremendous strength of her empire in tears of honor

for the dead, even more than in the blood of war.”153 Post’s use of his-

tory as evidence of universal truths of human nature was common

in the romantic era. Post’s survey of recent history revealed a similar

lesson—that monuments and cemeteries taught lessons to the

entire nation:

So of modern nations—the monuments of the dead keep watch for

the living. Does not the life of Britain this hour stand as much in

the memories of Westminster, and other high places of her dead,

as in her fleets and armies, or in her industrial greatness, or Par-

liamentary wisdom? Nor is the beneficent power of this sentiment

149. DEDICATION OF THE BELLEFONTAINE CEMETERY: ADDRESS OF PROFESSOR POST,

AND OTHER PROCEEDINGS ON THAT OCCASION; ALSO, THE RULES AND REGULATIONS, AND

CHARTER OF THE RURAL CEMETERY ASSOCIATION, &C.; WITH AN APPENDIX CONTAINING THE

PROCEEDINGS OF THE SECOND ANNUAL MEETING, AND REPORT OF THE SECRETARY AND

TREASURER OF THE ASSOCIATION 19 (St. Louis, T.W. Ustick 1851).

150. Literary Fund v. Dawson, 37 Va. (10 Leigh) 147, 148 (1839), 1839 WL 2064 (re-

quiring one seminary be located “in the county of Nelson, as near the graveyard in this

mentioned, as a proper site can be procured”).

151. Id. at 152 (discussing the incorporation of the “Literary Fund”).

152. See Dawson v. Dawson, 37 Va. (10 Leigh) 602, 602-08 (1840), 1840 WL 2210; Lit-

erary Fund v. Dawson, 37 Va. (10 Leigh) 147-54 (1839), 1839 WL 2064.

153. POST, supra note 149, at 19.

2016] THE GETTYSBURG ADDRESS 859

confined to names eminent and world-famed. From sire to son in

the obscurest household, and through all the relations of family

and friendship, this contexture of sympathy and authoritative

memory extends, binding together the fabric of society. Each

hearth-side has its memories of virtues, thoughts and affections,

unknown to the great world, but to it a vestal fire.154

Post then claimed:

[The rural cemetery] demanded by natural taste and for its moral

uses, we may regard as almost a necessity of civilization; and we

feel it worthy of ourselves and our city to provide such a place for

the burial of our dead, and to consecrate it for all coming time as a

sanctuary for grief, and memory, and funeral silence and repose.155

The cemeteries instructed when visitors saw the graves of ances-

tors and of venerable people and learned about the deeds of great

people buried there. Instruction came from the sentiments that visit-

ing graves conjured, as generations of poets had already spoken

about—from Gray’s “An Elegy Written in a Country Churchyard”156

to William Cullen Bryant’s 1817 poem “Thanatopsis.”157

Presbyterian minister (and later professor at Centre College) Ed-

ward Humphrey phrased the moral values of cemeteries succinctly in

his dedication of the Cave Hill Cemetery near Louisville, Kentucky,

in July 1848. The cemetery’s “ancient monuments, its pious inscrip-

tions, its moss-covered head-stones, its venerable shades, the

memory of the great and good of olden time, constitute a legacy of

imperishable moral wealth to those who come after.”158 Humphrey’s

address to the Phi Delta Theta literary society at Miami University

in 1853 provides a context for his thoughts about the role that the

cemetery could provide in moral uplift.159 That address surveyed

western civilization to tell a story of gradual progress. He concluded

with a character study of Henry Clay, designed to show how great

men were made.160 Humphrey portrayed Clay’s education during the

154. Id. at 19-20.

155. Id. at 20.

156. THOMAS GRAY, AN ELEGY WRITTEN IN A COUNTRY CHURCHYARD (Philadelphia,

J.B. Lippincott & Co. 1883).

157. WILLIAM CULLEN BRYANT, THANATOPSIS (N.Y., G.P. Putnam’s Sons 1817).

158. HUMPHREY, supra note 132, at 10-11.

159. E.P. HUMPHREY, ADDRESS DELIVERED BEFORE THE SOCIETY OF THE “PHI DELTA

THETA” AT THE MIAMI UNIVERSITY, JUNE 29, 1853 (Cincinnati, C. Clark & Co. 1853).

160. Id. at 21-23.

860 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

Revolution as setting the course of his life.161 Clay’s experience during

the Revolution and the early republic left him with a sense of patriot-

ism and a reverence for the Constitution.162 Clay stated:

Every early recollection and fixed conviction, every impulse and

prejudice even, of his ardent nature allied itself with the institu-

tions of the country; and a veneration for the Constitution and Un-

ion of these States was the highest principle—nay, the strongest

passion—of his earliest manhood and his latest declining age.163

Clay learned those values in many ways—from studying with the

Revolution’s leaders to living through the Revolution itself.

His soul had been fused down in the camp-fires of the revolution,

and like the molten gold, it received a coinage which showed that

it was purely American. His voice pleading ever for liberty, had

in it the ring of the old revolutionary metal. He was the product

of our republican institutions. The genius of his country struck

all its forces into his spirit. He was a native of the soil. We think

of him as we gaze upon the noble, aboriginal tree which now

casts its broad shadows upon us. Its roots pierce the virgin soil. It

trails low its boughs to drink the dew. It spreads its branches far

and wide. All the elements are its ministers. From the deep

mould, from rain and sunshine, from day and night, yea, from all

the winds and storms of heaven it elaborates its springing life

and its vernal crown. It is the noble growth of the soil—its prod-

uct and its pride.164

D. The Cemetery’s Civilizing Mission

Cemeteries were places where people learned about their obliga-

tions to the future, and where they discharged their duties to the

past. For burial was a sacred duty, which had humans had fulfilled

from time out of mind. And the preparation of cemeteries helped to

discharge such duties.165 But it was not just a discharge of a solemn

(and one is tempted to say grave) duty. The rural cemeteries also

served other civilizing missions in the instruction they provided. Art-

ist Charles Fraser explained during the dedication of Charleston’s

Magnolia Cemetery in 1850 the many benefits the dead had con-

161. Id. at 21.

162. Id. at 23.

163. Id.

164. Id.

165. Rural Cemeteries, 3 S.Q. REV. 523 (Apr. 1851).

2016] THE GETTYSBURG ADDRESS 861

ferred on the living. They provided examples of virtue, the discoveries

and inventions “which are diffusing the blessings of comfort and

prosperity throughout the world . . .” and “. . . we owe, not only the

foundations of the great fabric of our liberties, but those lessons of

wisdom, justice and moderation, upon the observance of which alone

can depend its stability.”166 Those debts could be discharged by trib-

ute in a cemetery. Thus, the cemetery was a place where we dis-

charged our debts—it was something that we owed to those before us

and to the country. It was in that way backwards looking, the ful-

filling of an obligation. Indeed, a decent burial was “the common debt

due from man to his fellow.”167 Cemeteries were also, however, for-

ward looking places where we taught future generations.

The fullest description of how cemeteries related to human pro-

gress came in Cyrus Mason’s address at Dale Cemetery in 1852. Ma-

son, who was a Presbyterian minister and sometimes professor at

New York University, started at a meta-level, with a description of

human progress. He dealt with the means by which humans achieved

dominion over nature; how humans had turned nature to their uses.

He turned to the history of human development to illustrate how

human ingenuity might conquer nature. “A few hundreds of savages

led a poor and wretched life along the Hudson where millions now

rejoice in rich abundance.”168

That sense of progress then invited the question: how does pro-

gress, what he called “social condition,” occur?169 Improvement re-

quired society-wide mobilization. “Every one knows, that life, liberty

and property are in hourly dependence on society. If these are not, in

the maine [sic], defended, society is deemed a failure . . . ..”170 Mason

set on a lengthy demonstration of how social condition depended on

moral condition, how morality led to protection of property and com-

merce and society. He compared the present social condition with

that of the colonial era and with feudalism in Europe: “where the

king, the soldier, the landlord and the priest, take all the fruits of the

people’s labor, except that precise amount, which will keep together

166. FRASER, supra note 110, at 4-5.

167. William L. Clark, Address, in DEDICATION OF MOUNT HEBRON CEMETERY, IN

WINCHESTER, VIRGINIA, JUNE 22, 1844; THE ACT OF INCORPORATION BY THE LEGISLATURE

OF VIRGINIA IN 1844, AND THE CONSTITUTION AND BY-LAWS OF THE MOUNT HEBRON

CEMETERY COMPANY 12, 13 (Winchester, Republican Office 1845).

168. DALE CEMETERY, supra note 142, at 18.

169. Id. at 19.

170. Id.

862 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

the souls and bodies of a people who never cherish the thought of an

improved condition.”171 The present, improved social condition was

due to the government, to education, and to natural resources. But it

was also dependent on the moral condition of individuals.

Mason thus moved from a society-wide analysis to the individual.

His prescription was to take action to improve individuals.

We must adopt and cherish those forms of social action, which

have a tendency to make the members of society obtain the mas-

tery over the dangerous elements of nature within themselves, as

well as the available elements of nature without them. We must

take such measures, and adopt such institutions as are manifestly

adapted to make men mindful of the past and regardful of the fu-

ture, to quicken their tenderest sensibilities, to invigorate their

domestic and social affections, to inspire them with an honest

pride of ancestry and a deep care of their posterity, to cultivate

their taste, and to inflame them with a common sentiment of re-

gard for the honor of their town and their townsmen. These are the

germs of a high social condition; give to these a vigorous growth,

and you insure a steady progress of the common welfare.172

Mason showed that the founding of cemeteries was just that kind of

“social action” when he demonstrated the contributions cemeteries

made to the mission of individual improvement. The cemetery was

about the improvement of the living. Monuments are erected “to

teach the living a great lesson of patriotism, to show them how man-

kind regard those, who by mortal peril found a nation and make it

free[.]”173 The purpose of the cemetery was one of improving individu-

al condition so that social condition, too, was improved:

The true idea, the motive and end of this new, social

institution . . . is a permanent and common memorial of the com-

munity, in which, each family has its appropriate place, and where

the past life and influence of the departed are, in some sense, pre-

served for the benefit of those who survive.”174

The cemetery worked its magic over people in four ways. First, it col-

lected the sentiments of the survivors and gave pride in their family

and their country. “Let it be made easy for the day-laborer to own a

171. Id. at 20.

172. Id. at 20-21.

173. Id. at 21 (“[W]e build here for the living: for the use, the pleasure, the instruction,

the edification of the living.”).

174. Id. at 22.

2016] THE GETTYSBURG ADDRESS 863

lot in this Cemetery,” Mason explained, “let him be induced to save

by carefulness the price of this lot, and his descendants will be all the

more likely to shun the grog-shop, the poor-house and the prison.”175

Second, the cemetery introduced beauty and order. Third, it intro-

duced a common interest and a common attachment of the people

irrespective of “existing divisions into classes, sections, denomina-

tions and political parties.”176 And finally, the cemetery offered to

grow in influence as more people were buried there. “The memory of

the just, the wise, the useful will here become precious.”177

All of those values together led to the advance of civilization—a

phrase used often in discussion of cemeteries and elsewhere in Amer-

ican culture. Advance of civilization was one theme that Story refer-

enced in his Mount Auburn address.178 In fact, this was a term in

wide-spread use at the time. It conveyed the sense of the technologi-

cal and moral progress Americans had experienced—and conveyed a

set of inter-related ideas about the settlement of the continent, the

displacement of Native Americans, technological advancements like

the steam engines, which conquered space as it also made faster

printing possible. Shortly, Americans would add the telegraph to

their list of devices that had transformed the country. Law was yet

another of the technologies that facilitated settlement; in fact, it was

central to advancement for it controlled the passions of humans and

provided a stable government.179 Such ideas were conveyed in graphic

terms in the landscape art of the era—such as Asher Durand’s 1853

canvas, Progress180—and also in a series of books—like E.L. Magoon’s

Westward Empire181—and it was a value widely celebrated in college

literary addresses.182

175. Id. at 23.

176. Id. at 24.

177. Id. at 25.

178. See, e.g., STORY, supra note 1, at 13 (explaining the cemeteries can promote “high-

est purposes of religion and human duty”).

179. See, e.g., Davis & Brophy, supra note 70, at 789 (discussing trust as a form of legal

technology). 180. See ANGELA MILLER, THE EMPIRE OF THE EYE: LANDSCAPE REPRESENTATION AND

AMERICAN CULTURAL POLITICS, 1825-1875, at 154-58 (1996); Alfred L. Brophy, Property

and Progress: Antebellum Landscape Art and Property Law, 40 MCGEORGE L. REV. 603

(2009).

181. E. L. MAGOON, WESTWARD EMPIRE: OR, THE GREAT DRAMA OF HUMAN PROGRESS

(New York, Harper & Bros. 1856).

182. See, e.g., JAMES H. PERKINS, CHRISTIAN CIVILIZATION: AN ADDRESS DELIVERED

BEFORE THE ATHENIAN SOCIETY OF THE UNIVERSITY OF OHIO AT ATHENS, SEPTEMBER

SIXTEENTH, 1840 (Cincinnati, A. Pugh 1840).

864 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

That civilizing mission contained important elements of order and

stability. Professor Macellus Post, who taught history at Washington

University, turned to lessons of history for the evidence of the power

that cemeteries held over humans. History taught that cemeteries

served to bring stability to human society.

History shows the strength of the power of political conserva-

tion, in reverence for the dead, even in cases of its abuse and per-

version. The Chinese, whose worship of the dead has conserved an

effete civilization for twenty centuries—the Hindoo, whose tradi-

tions embalmed in time-defying monuments from the source of the

Ganges to Cape Comorin, have for 3,000 years kept watch over a

civilization seemingly as lasting and changeless as the features of

the natural world—ancient Egypt, who embalmed herself for ages

in porphyry and granite and marble, making the whole Nile valley

one cemetery of mausoleum, of obelisk and pyramid—illustrate the

power of the principle, though in mis-direction and excess. Greece

understood its power—and in temple and grove, and forum and

cemetery, in forests of statuary and funeral sculpture, she caused

her gifted and glorious dead to speak, from generation to genera-

tion, to her brilliant but mobile people.183

As with so much of pre-Civil War thinking about the lessons of

history, Post found that history taught lessons about the need for

stability.184

In other places writers casually linked cemeteries with the mis-

sion of commerce. For instance, in 1855 Congressman James L. Orr

of South Carolina included cemeteries as part of his plan for “Devel-

opment of Southern Industry” in an article in DeBow’s Review.185 Orr

asked for every southern town to have a “cemetery—enclosed with

substantial iron railing—laid out in plats and walks, and planted in

flowers and evergreens . . . . This would be showing that respect and

affection for the memory of the dead due by a civilized and christian

183. POST, supra note 149, at 18-19.

184. See, e.g., THOMAS R. DEW, A DIGEST OF THE LAWS, CUSTOMS, MANNERS, AND

INSTITUTIONS OF THE ANCIENT AND MODERN NATIONS 484, 562-69, 572-662 (New York, D.

Appleton & Co. 1853) (discussing instability in the wake of the French Revolution); see also

KUNAL PARKER, COMMON LAW, HISTORY, AND DEMOCRACY IN AMERICA, 1790-1900: LEGAL

THOUGHT BEFORE MODERNISM 184-85 (2011) (discussing utility of historical arguments to

conservatives in pre-Civil War period).

185. J. D. Orr, Development of Southern Industry, 19 DEBOW’S REV. 1, 6-7 (1855).

2016] THE GETTYSBURG ADDRESS 865

people.”186 A few years later the Spring Grove Cemetery’s 1857 annu-

al report suggested that monuments were part of the advance of

Christian civilization.187

E. Cemetery as Part of a Christian Republic

Because rural cemeteries were places of beauty and repose from

the market, which nurtured and taught values of Christianity, patri-

otism and order, they were part of the Christian republic. They oper-

ated, as did other private organizations, to support a constellation of

ideas about religion, economy, and constitutional order. Orators at

the dedication understood this.

Amory Dwight Mayo’s 1858 address at the dedication of Green

Hill Cemetery in Amsterdam, northwest of Albany in the Hudson

River Valley, provided a detailed sense of the connections of the cem-

etery to the United States as a nation and to constitutionalism. At

the cemetery, it was easy to recall how much civilization had pro-

gressed in the generations since the beginning of the eighteenth cen-

tury. The land was no longer inhabited by Native Americans (who

were buried with their faces “turned towards the east, as in prophetic

foresight of the coming civilization . . .”).188 Through “patient forti-

tude,” the valley’s settlers had “subdued the wilderness” and with

“patriotic devotion saved [the valley] for the heritage of freemen.”189

Mayo then looked to the future to “behold in vision the scene that

shall gladden the eyes of your descendants a century and a half from

to-day.”190 Mayo predicted that far-off generations would find “[a]

garden valley more enchanting that any Eden of the past, peopled by

a race that in power and opportunity shall surpass our largest proph-

ecy.”191 The cemetery was the best act citizens of the town had ever

undertaken, which promised to grow in beauty over the generations

and appeal “to the holiest and calmest sentiments of our being,

through the spectacle of enchanting natural scenery, and the associa-

tions of the beloved on earth . . . .”192

186. Id. at 7.

187. THE CINCINNATI CEMETERY OF SPRING GROVE: REPORT FOR 1857, at 43 (Cincin-

nati, C. F. Bradley & Co. 1857).

188. MAYO, supra note 144, at 4.

189. Id.

190. Id. at 4-5.

191. Id. at 5.

192. Id.

866 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

Mayo explained that the cemetery was part of establishing the

principles of democracy and republicanism because it brought people

together in death. The cemetery was, again, a symbol of republican-

ism and a creator of it:

All things are tending, at least in the more advanced portions of

our country, to a broad and pure republicanism, founded on the

christian law of love; and what emblem can be more significant of

this happy tendency than the American Cemetery, constructed by

the money, taste and sentiment of the whole people; containing the

dust of the earliest generations removed thither with pious care;

receiving the body of every citizen when his earthly work is done,

and he steps down from his little eminence of worldly distinction,

to mingle with the great democracy of death.193

Mayo’s praise for the cemetery was extreme. It was “a powerful aid in

teaching the people the christian view of life and death; as a perpetu-

al preacher on the relations of those who live in this world, and in the

world of souls.”194

For Mayo, the cemetery was an important piece part of a larger

mission of what he called “a true Christian civilization.”195 Other ad-

dresses also took up Mayo’s themes, though not quite in as much de-

tail. Reverend Increase N. Tarbox spoke in similar terms at the 1848

dedication of the Framingham Cemetery. He explained that cemeter-

ies amplify the general moral influence that Christianity exercises.

Together, the sentiments evoked by the cemetery and Christianity

combine to make people more moral, that is more respectful of others

193. Id. at 8. Similarly, Augustus E. Silliman’s A Gallop Among American Scenery has

a chapter on Green Wood Cemetery in Brooklyn. AUGUSTUS E. SILLIMAN, A GALLOP AMONG

AMERICAN SCENERY: OR, SKETCHES OF AMERICAN SCENES AND MILITARY ADVENTURE 220-

31 (New York, D. Appleton 1843).

194. MAYO, supra note 144, at 8; see also id. at 8-9 (“How impressive is the testimony

of the Cemetery to that true equality of man founded on respect for his nature; and that

union of all men for the common welfare which is the foundation stone of our national ex-

istence. However we may be forced by shallow theories or selfish projects to despise and

run over any man or class in the mad struggle of our week-day life, we have only to come

up here to be converted from the sin of contempt for Humanity. For in the cemetery all

distinctions lie level with the dust. Friend and foe, rich and poor, wise and simple, good

and bad, honored and obscure, are all here. . . . From these green graves a voice shall speak

to us, saying, ‘Man is worthy of respect as man;’ and this primal reverence transcends all

secondary distinctions. Made in the shape of a common Father; clothed in the dust of the

common earth; bound to every spirit by a common nature; destined to a common immortal-

ity; the soul demands more reverence than any man can pay. Of all distinctions, but one

endures beyond these walls; and this only for the common good of Humanity.”).

195. A.D. MAYO, SYMBOLS OF THE CAPITAL; OR, CIVILIZATION IN NEW YORK 350 (New

York, Thatcher & Hutchinson 1859).

2016] THE GETTYSBURG ADDRESS 867

and the future. The work of the cemetery would continue and its in-

fluence would grow as more people were buried there.196 At Framing-

ham, Tarbox spoke in general terms; some sense of his ideas about

government appear in more detail in an 1843 address at Hamilton

College on the “origins, progress, and present condition of philoso-

phy.”197 That address was an attack on idealists, especially Ralph

Waldo Emerson, who embodied what Tarbox thought was the “sickly

sentiment of men who live apart from the world and whose minds

heat and ferment with thought.”198 In fact, Tarbox recalled how far

New England had traveled from the days of its founding when prag-

matic ideas ruled to the present when idealists like Emerson were

corrupting philosophy by reference to cemeteries:

In New England,—a land of hills and primitive rocks—beneath

whose soil seven generations of hardy Saxon men are sleeping –

the foundation of whose institutions was laid by hands hardened

with toil – whose genius is the genius of utility and practical

sense,—in our own New England, a class of men are found who

discourse, by the day, of moonlight and starlight and abstract

beauty generally; who find a sort of religion in dew-drops and

flowers and falling snow-flakes, and manufacture a kind of God

out of the spirit of the age. . . .199

Instead of the idealists like Emerson, Tarbox respected Anglo-Saxon

common sense philosophy—what he called the philosophy of Bacon.200

Tarbox explained how practical ideas influenced the flow of thought

from the high to the low and that is perhaps a model of how a ceme-

tery could influence everyone in a community.201 Tarbox focused in

particular on the centrality of commerce in bringing about progress.

This was constitutional theory at very high level of generality—one

that focused on the practical and on utility as it sought to promote a

commercial republic.202 Other addresses linked the ways that ceme-

196. INCREASE N. TARBOX, AN ADDRESS BEFORE THE CITIZENS OF FRAMINGHAM, AND

THE NEIGHBORING TOWNS, AT THE CONSECRATION OF THE CEMETERY IN SAID TOWN, OCT.

13, 1848 (Boston, Joseph L. Hallworth 1849).

197. I.N. TARBOX, AN ADDRESS ON THE ORIGIN, PROGRESS & PRESENT CONDITION OF

PHILOSOPHY, DELIVERED BEFORE THE HAMILTON CHAPTER OF THE ALPHA DELTA SOCIETY

ON ITS ELEVENTH ANNIVERSARY AT CLINTON, N.Y. 25 (Utica, R.W. Roberts 1843).

198. Id.

199. Id. at 23.

200. Id. at 22, 30.

201. Id. at 10.

202. Id. at 28-29.

868 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

teries reflected the natural instinct for respect for the deceased with

natural law. That is, the cemeteries were a manifestation of natural

instincts and natural law.203 They appealed to the Whig sense of nat-

ural justice, which appeared in the Whig desire for legal order.204

There is another way of comparing Tarbox and Emerson. It is

through Emerson’s address at the dedication of the Sleepy Hollow

Cemetery in Concord, Massachusetts. Emerson’s address has sub-

stantially fewer references to God than the others; it is more focused

on the beauty of nature; it is more forthright than many addresses in

its acknowledgment that cemeteries are about the present. For in-

stance, after discussing that individuals die even as human society

continues and that it is impossible to preserve bodies for long, Emer-

son says that “[o]ur people accepting this lesson from science, yet

touched by the tenderness which Christianity breathes, have found a

mean in the consecration of gardens.”205 Emerson alludes to the “sim-

ultaneous movement . . . in a hundred cities and towns” to establish

rural cemeteries.206 His focus is on the beauty of nature and the lon-

gevity of trees. “What work of man will compare with the plantation

of a park?” he asked.207 This address is classic transcendentalism and

thus has less to do overtly with law than a lot of other addresses.

Emerson explicitly links the cemetery to the local courthouse, when

he says they were both part of “a large block of public ground, per-

manent property of the town and country.”208

The cemetery’s civilizing mission was one piece of a much larger

mosaic. That cemeteries were part of the world of the market, com-

mercialization, religion, civic organizations, and reform movements

appears perhaps most clearly in Amory Mayo’s book Symbols of Capi-

tal; Or, Civilization in New York.209 Published the year after his Am-

203. See, e.g., DANIEL APPLETON WHITE, AN ADDRESS, DELIVERED AT THE

CONSECRATION OF THE HARMONY GROVE CEMETERY, IN SALEM, JUNE 14, 1840, at 8 (Salem,

The Gazette Press 1840) (stating that natural affection for the dead is part of natural law);

Edward North, Dedicatory Address, in CLINTON CEMETERY, supra note 145, at 13, 24 (ex-

plaining the natural instinct for justice).

204. See HOWE, supra note 50, at 411-45 (discussing Whig support for law over Demo-

cratic appeals to power).

205. RALPH WALDO EMERSON, Consecration of Sleepy Hollow Cemetery in 11 THE

COMPLETE WORKS OF RALPH WALDO EMERSON: MISCELLANIES 430 (Boston & N.Y., Hough-

ton, Mifflin & Co. 1904).

206. Id. at 430-31.

207. Id. at 188.

208. Id. at 432.

209. MAYO, supra note 195.

2016] THE GETTYSBURG ADDRESS 869

sterdam dedication address, Symbols of the Capital places the ceme-

tery into the context of New York culture, for it has chapters on free

labor, modern inventions like the canal and railroad, the higher law

critique of the fugitive slave act, art, the penitentiary, women’s

rights, and churches. All of that was capped off with a final chapter

on cemeteries, which supplemented Mayo’s dedication address.210

Thus in that book we see the cemetery as part of a system of public

and private institutions and individual and collective action, all of

which pointed towards republicanism founded on Christian princi-

ples.211 Those elements interacted—from art, which served to provide

the refinement that is the foundation of the state, to free labor, and

human inventions, which improved life and preserved a republican

government. At the center of this was commerce, which served as the

advance guard of Christianity. “Commerce,” Mayo wrote, “turns out a

pioneer of civilization and Christianity. Every blow of the spade or

sweep of the mower on the uplands and in the valleys of New York, is

felt in the spiritual experience of these who dwell in far-off lands.”212

Mayo saw in commerce the workings of God. And he turned to im-

ages of commerce to illustrate God’s presence in the United States:

Were I challenged by the skeptics to show my strong reasons for

the faith in God, and moral obligation and immortality, I do not

think I should detain him in my study among the volumes of dead

divines, but I would lead him to the very throbbing heart of this

world’s activity, to the decks of those steamers freighted with the

science and burdened with the hopes of two continents. There I

would stand, as these messengers ploughed their way through the

waves, breasting an ocean of incredulity more chilling than the

surges of the cold Atlantic, I would bid him mark the demeanor of

those toil-worn men; their fidelity, their silent and sacred obedi-

ence to every command, the faith of their leader unsubdued by

failure.213

Mayo carried the story farther than many. He linked the bustle of

American commerce to the cemetery. For the cemetery was nearby

the city, though separated from it. It was a place where visitors

would think of life rather than death.

210. Id. at 343-68.

211. Id. at 351.

212. Id. at 354.

213. Id. at 355-56.

870 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

How admirable, then, is the sentiment that often places the

Rural Cemetery within sight of all the agencies of our new civiliza-

tion. Walking among its silent graves, you can almost hear the

hum of the machinery that crowds the adjacent stream; the mead-

ows are sown and harvested beneath your eye; the spires and roofs

of the city gleam in the distance, or the village streets are vocal be-

low; the near river or blue ocean afar glitter with flitting sails; the

thunder and the scream of the lightning train startle the echoes of

innumerable ravines, and swift as thought, fly tidings of humanity

over the glittering wire. All is life around; oh, yes, and there is no

death here.214

The cemetery, then, was part of a world of the “Christian Repub-

lic”215—a place where people mixed and where we learned lessons of

republicanism. Amory Mayo’s address at Green Hill Cemetery pro-

vided the most elaborate explanations of the country’s tendency to-

ward “a broad and pure republicanism, founded on the christian law

of love” and how cemeteries functioned to foster that principle.216

[The cemetery represented] a most significant type of the great

democratic idea, on which our society is founded; as a powerful aid

in teaching the people the christian view of life and death; as a

perpetual preacher on the relations of those who live in this world,

and in the world of souls.217

For the cemetery represented “that true equality of man founded on

respect for his nature; and that union of all men for the common wel-

fare which is the foundation stone of our national existence.”218 It il-

lustrated those principles by leveling distinctions.

Friend and foe, rich and poor, wise and simple, good and bad, hon-

ored and obscure, are all here. Whatever they may have been or

may have done above-ground, our gentle mother earth opens her

bosom to the least and greatest alike. However separated by the

accidents of conventional society, Nature, the most illustrious

hostess, keeps open house for all. From these green graves a voice

214. Id. at 357.

215. Id. at 196.

216. MAYO, supra note 144, at 8.

217. Id.

218. Id. at 8; accord BALDWIN, supra note 134, at 12-14 (interpreting cemeteries as

contributors to republics with their connections to history as well as contemporary culture);

see also MARY H. MITCHELL, HOLLYWOOD CEMETERY: THE HISTORY OF A SOUTHERN SHRINE

26 (1985) (discussing Peter Mayo’s injunction against sale of the lots); Holly-wood Ceme-

tery, RICHMOND ENQUIRER, June 29, 1849, at 1 (discussing absence of political talk in

Baldwin’s address, which emphasized equality of humans).

2016] THE GETTYSBURG ADDRESS 871

shall speak to us, saying, “Man is worthy of respect as man;” and

this primal reverence transcends all secondary distinctions.219

At the cemetery Mayo believed there would be critical lessons about

Christian republicanism.

Come to this hill side from the selfish competitions that divide

man from man, and learn from the way our mother treats her eve-

ry child, to reverence all men for their manhood derived from God;

to live for each other, counting any superiority of native faculty, a

culture, or character, as a trust to be used for the uplifting of the

whole; to make society in this community, in our beloved country,

one family, bound together by respect for the nature and rights of

all—a republic on earth, fit emblem of the kingdom of God in

heaven. 220

Mayo was one of many people who linked Christianity, the market,

and Constitutionalism. He was preceded in this by lawyer Oliver

Baldwin, who told the audience at the dedication of Richmond’s Hol-

lywood Cemetery in June 1849, “Of all the schools of instruction

there is none like that which speaks to us from the dust.”221 Baldwin

explained the ways that cemeteries evoked religious sentiments:

[T]he Grave, the Grave, how simply but powerfully it speaks

through the eye to the soul, and bids it mediate upon itself and its

destiny. An ancient writer has said that man was taken from the

dust of the earth to prompt him to humility. . . . The lessons which

will here be taught are adapted to all conditions of life, and readily

suggest themselves to every mind. . . . The votary of wealth may

learn a useful lesson when he sees the purple robe of the rich ex-

changed for the unsightly shroud, and the man who fared sumptu-

ously every day become himself a banquet for worms. The sons of

sorrow and of poverty may come here not to mourn, but to be com-

forted; to be reminded that troubles, like pleasures, have an end;

and that for the meek and pure in heart the grave is but the gate

to ceaseless felicity above. Even the man of an evil nature may

perhaps be touched with solemn awe when, whether he reject Di-

vine Revelation or not, he sees around him a thousand incontesta-

ble evidences that Sin is in the world, and Death by Sin. . . . Here

may the Christian stand and look upon the monument of his de-

parted friend as his own lighthouse to the harbor of eternal rest.222

219. MAYO, supra note 144, at 8-9.

220. Id. at 9.

221. BALDWIN, supra note 134, at 11.

222. Id. at 11-12.

872 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

F. Whig Constitutionalism Within and Beyond the Cemetery

Whig politician Daniel Dewey Barnard made the most explicit

connection between nature, art, and constitutional values of any

cemetery orator. Barnard, who was a constant figure in New York

politics from the 1830s through the 1850s and a staunch defender of

property rights during the New York anti-rent movement,223 spoke in

other addresses about the need for protection of property rights,224

and the important role that the government played in establishing

order.225 At the Albany cemetery, though, Barnard emphasized the

particular place of the cemetery’s natural setting and the possibilities

of further cultivation in order and uplift.

The grounds where we are now assembled have been selected

for a cemetery . . . with a special view to their natural beauty, and

their capability of improvement after the manner of landscape

gardening. . . . Think of all this natural beauty at once fully

brought out and softened by the hand of art—at once heightened,

yet subdued by the civilizing and humanizing processes to which it

may be subjected—and then think of it inhabited only by the dead;

here and there a grave, or a group of graves; some in one lovely

spot, some in another . . . . What scene in nature could be more

beautiful, more attractive, more impressive, more improving!226

Where Barnard’s Albany address operated at a high level of generali-

ty with respect to constitutionalism, we can see how Barnard’s con-

stitutional world fit together in some of his other addresses, such as

the address he delivered in 1839 at Amherst College. At Amherst,

Barnard drew the connections between Christianity and the Consti-

tution.227 And in an 1846 address at the University of the City of New

York, Barnard credited four key events in shaping a solid American

character: “We have the Bible, and the Reformation, and the Ameri-

can Revolution, and the Constitution of the United States.”228 In the

United States the public mind acted a stabilizer, to “keep society firm

and assured, and enable it to throw back, as from a rock based in

223. CHARLES W. MCCURDY, THE ANTI-RENT ERA IN NEW YORK LAW AND POLITICS,

1839-1865, at 15-16, 228-31 (2001).

224. DANIEL D. BARNARD, AN ADDRESS DELIVERED AT AMHERST, BEFORE THE LITERARY

SOCIETIES OF AMHERST COLLEGE, AUGUST 27, 1839, at 43, 53 (Albany, Hoffman & White

1839).

225. See generally BARNARD, supra note 100.

226. BARNARD, supra note 148, at 28-29.

227. BARNARD, supra note 224, at 6.

228. BARNARD, supra note 100, at 7.

2016] THE GETTYSBURG ADDRESS 873

deep unfathomed earth, all the shocks which the restless, the specu-

lative, the bigoted or the fanatical may direct against it.”229 In that

search for stability—Barnard called his lecture a “plea for social and

popular repose”—the cemetery could be one of the many elements.230

Barnard developed his political philosophy perhaps most fully in

an address, “Man and the State, Social and Political” to the Yale Phi

Beta Kappa Society in 1845. Barnard spoke of his concern that the

well-educated ought to use their talents for the “genial, gentle, sua-

sive influence over the popular mind . . . .”231 His mission was a

search for eternal truth amidst the “age of reform.” His address was

on the “relation of the state and of governments to the subject of the

Moral condition and Progress of man.”232 The state was based on an

unwritten social constitution that helped define the “political es-

tate”—the group of political actors who in turn formed a written con-

stitution. Barnard wanted civil society to overcome what he called

“political materialism,” in which physical and material impulses led

to a tyranny of the majority’s wishes.233

Barnard’s Yale address touched on a central issue: how to mold and

shape humans for progress? And while often addresses spoke of an in-

dividual’s duty, such progress occurred through society, through legal

forms, through actions of the state, the family, and private organiza-

tions. “Men find themselves every where, not merely existing by the

side of other men, but associated every where with other men, in vari-

ous relations.”234 It was the social and the political state that could or-

ganize and develop human morality, for “[m]an does not exist alone.”235

229. Id. at 7-8.

230. DANIEL D. BARNARD, A PLEA FOR SOCIAL AND POPULAR REPOSE: AN ADDRESS

BEFORE PHILOMATHEAN AND EUCLEIAN SOCIETIES OF UNIVERSITY OF THE CITY OF NEW-

YORK, JULY 1, 1845 (New York, Tribune Job Printing 1845). Barnard wrote against the

anti-rent movement and spoke about the problems of excesses of democracy and attacks on

property numerous times. See generally, e.g., DANIEL D. BARNARD, A DISCOURSE

DELIVERED BEFORE THE SENATE OF UNION COLLEGE ON THE 24TH DAY OF JULY, 1843 (Al-

bany, Weed & Parsons 1843); DANIEL D. BARNARD, A DISCOURSE ON THE LIFE, SERVICES

AND CHARACTER OF STEPHEN VAN RENSSELAER: DELIVERED BEFORE THE ALBANY

INSTITUTE, APRIL 15, 1839 (Albany, Hoffman & White 1839) (attacking early anti-rent

movement); D. D. BARNARD, A DISCOURSE PRONOUNCED AT SCHENECTADY: BEFORE

THE NEW-YORK ALPHA, OF THE SOCIETY OF PHI BETA KAPPA, JULY 25TH, 1837 (Albany,

Hoffman & White 1837) (urging support for law instead of excesses of democracy).

231. BARNARD, supra note 100, at 6.

232. Id. at 8.

233. Id. at 6-7, 36-38.

234. Id. at 8.

235. Id. at 11.

874 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

Barnard’s political theory justified, indeed depended upon, a

“higher constitution” than mere numbers. It was a sense of patriot-

ism, Christian duty, and morality.236 Law was an adjunct to Bar-

nard’s vision of “personal Morality.” Together the laws and such per-

sonal morality formed “a Code of National Morality.”237 Given the

centrality of law to the country’s definition and maintenance of mo-

rality, Barnard identified the terms where there might be progress—

it had “to be done in the state and under the state.”238 Barnard looked

forward to the day when the state, aided by Christianity, would head

off for “moral renovation, reform, and progress.”239

Law was also central because it was about setting boundaries on

popular will. He wrote the leading defense of the feudal tenures that

were attacked during the New York Anti-rent movement. Barnard

saw the movement at base as an appeal to “public licentiousness,”

akin to other popular movements that tended to destroy respect for

law.240 He appealed to the Constitution and to a return to principles

of respect for property and principles in place of those of who “look to

the end, and . . . easily quiet themselves about the means.”241 Those

popular appeals led to the movement. “There seems to be nothing so

intrinsically base or wicked, that respectable and apparently well-

meaning persons may not be found to encourage and support it, pro-

vided only it have the sanction of numbers in its favor.”242

Though these ideas do not have the sophistication that we often

associate with constitutional theory in places of high culture like the

floor of the United States Senate243 and the pages of the Supreme

Court’s decisions,244 works like Barnard’s and Mayo’s addresses allow

us to see how contemporaries fit the cemetery into their world. The

cemetery emerges as one piece of a complex system that saw the

236. Id. at 36-38.

237. Id. at 40; accord id. at 39-40.

238. Id. at 43.

239. Id. at 45.

240. D. D. Barnard, The “Anti-Rent” Movement and Outbreak in New York, 2 AM. REV.

577, 587 (1845).

241. Id. at 578.

242. Id. at 580.

243. See generally DANIEL WEBSTER, SPEECH OF THE HON. DANIEL WEBSTER ON THE

SUBJECT OF SLAVERY: DELIVERED IN THE UNITED STATES SENATE ON THURSDAY, MARCH 7,

1850 (Boston, Redding & Co. 1850) (supporting the Fugitive Slave Act of 1850 as part of a

constitutional compromise over slavery).

244. See, e.g., Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 440-48 (1857) (finding the

Constitution protects slavery in the territories).

2016] THE GETTYSBURG ADDRESS 875

Reformation and the American Revolution, and the Revolution’s re-

sult—a Constitutional republic—as the center of the American na-

tion.245 Progress in morals was bound up with progress in economics,

and always it was Christianity—of which the cemetery was a key

part—at the center of this progress. The Erie Canal, steam boats,

railroads, the telegraph, women’s domestic sphere that elevated cul-

ture, fine art, free labor, the reform of prisons, and the cemetery—all

these were parts of the same culture and they worked together in the

Christian mission.246 This was why Elias W. Leveanworth, the presi-

dent of Syracuse’s Oakwood Cemetery, found the cemetery a neces-

sary—though often missing—piece of progress of the age.247

At a high level of generality, then, cemeteries functioned to pro-

mote republican values. They taught lessons about the early Repub-

lic, about change over centuries. Their monuments’ inscriptions as

well as the historical importance of their setting and the beauty of

their landscaped gardens inspired citizens to more moral thinking.

But in other ways the cemetery was part of the mission of creating a

republican government. In 1853, shortly after the dedication of the

Hollywood Cemetery, Richmond’s periodical Southern Literary Mes-

senger (“Messenger”) wrote of the need for permanent rural cemeter-

ies. When children moved away from their ancestral homes, family

cemeteries fell into disrepair; perhaps they were even forgotten en-

tirely and often the cemeteries fell to development and farming.

“Change is the order of the day” was the explanation.248 Where in

England families would stay and thus were able to provide care for

family plots, in the United States things were entirely different. Be-

cause of the constant migration, “[t]he father plants and the stranger

to his blood and family waters.”249 There could not—indeed should

not—be laws prohibiting development.250 This led the Messenger to

ask whether the problem of the desecration of family cemeteries could

245. GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-

1815 (2009) (focusing on constitutional republic as one of the key outcomes of the Revolu-

tion); MARK E. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL

FAILURE (1998) (focusing on constitutional ideas of anti-slavery advocates in the era of

slavery and the Civil War and how the Constitution was unable to constrain or “solve” the

conflict over slavery).

246. MAYO, supra note 195, at 196.

247. OAKWOOD CEMETERY, supra note 23, at 20.

248. Memorials of the Dead, 19 S. LITERARY MESSENGER 543, 543 (1853).

249. Id.

250. Id. at 544 (“The character of our institutions forbid a change in our laws and na-

ture demands, as well as the good of society, that they shall not be altered.”).

876 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

“be remedied without an abrogation of a policy so essentially necessary

to the freedom and prosperity of our country?”251 It could, if there were

a place where the dead would be cared for in perpetuity. “[T]hese great

and beautiful republics of the dead” served that purpose.252

It was not just that cemeteries inspired patriotic sentiments; they

actually were examples of democracies and republics. Rural cemeter-

ies brought everyone together regardless of religious affiliation.

There was a democracy in cemeteries, where rich and poor mingled.

The lawyer John Thompson, who was elected to the U.S. House of

Representatives in 1856 as a Republican, spoke of such democracy in

cemeteries in his 1854 dedication address at Poughkeepsie’s Cemetery:

Here the rich and the poor—the lofty and the lowly; friends and

foes, meet and mingle in a fellowship that knows no rivalries; ad-

mits of no distinctions. Whatever the affection or opulence of sur-

vivors may erect, “of storied urn, or animated bust,” to mark the

merit of the lost—the dwellers in this quiet city of the dead, will

experience no difference—rank and precedence are unknown, and

peace sits enthroned in every chamber of these silent realms.253

Orators like Daniel Barnard and Amory Mayo realized that cemetery

dedication addresses were part of a world of Whig thought about con-

stitutionalism, law, patriotism, order, and even beauty. Together

those ideas amplified each other. The cemetery addresses and the

cemeteries themselves were part of implementing an ordered repub-

lic, which was a place of moral and economic growth. When we seek

to understand their world and the place of the Constitution in it, we

see that many institutions came together to create that orderly world

of subordination to law. The legal form of the corporation was used to

create and maintain cemeteries and, thus, the corporate form served

constitutional purposes.

251. Id.

252. Id. Similarly, counsel for the City of Hannibal, Missouri, arguing in favor of emi-

nent domain in 1852 used similar phrasing: “A grave yard is not private property, but be-

longs to the great ‘Republic’ of the dead.” City of Hannibal v. Draper, 15 Mo. 634, 635

(1852).

253. John Thompson, Address, in THE POUGHKEEPSIE RURAL CEMETERY, ITS BY-LAWS,

RULES AND REGULATIONS AND THE DEDICATION CEREMONIES 10, 18 (Poughkeepsie, Platt &

Schram’s Steam Prtg. Establishment 1854).

2016] THE GETTYSBURG ADDRESS 877

IV. THE CEMETERIES’ LEGAL METHODS:

PRIVATE CORPORATION AND PUBLIC REGULATION

Justice Joseph Story spoke not only about lessons of sentiment

and constitutionalism. His speech also dealt with the seemingly

mundane issue of the cemetery’s legal authority, its charter from the

Massachusetts Legislature.254 Indeed, the pamphlet version of Story’s

address printed shortly after his speech also had the cemetery’s or-

ganic act and its rules for operation, which included instructions on

how to assign lots and the varying levels of rights among owners.255

The cemetery was a triumph of the corporation, which assembled

money from investors for a purpose of eternal preservation. In fact,

Story emphasized the perpetual nature of Mount Auburn.256 In an era

when charities were feared by many precisely because they were per-

petual,257 this was an extraordinary moment. There were two aspects

of the rural cemetery that dealt rather directly with law, though Sto-

ry only dealt with the first one in his 1831 Mount Auburn address.

The first was the corporate form, which was authorized first by spe-

cial legislative act and then, later, by a general incorporation statute

for cemeteries. The second and in many ways more important one

was the power of the state to regulate burials for the public good.

A. Corporate Form and Public Good

Pharcellus Church’s 1839 dedication address at Rochester ex-

plained in more detail how the corporate form worked. The cemetery

corporation was established to provide for the perpetual upkeep of

the grounds, because the profit from the sale of the land went into a

fund for preservation of the cemetery.

By a wise provision, the lots here sold will be secured to the

purchasers forever, under such circ*mstances too, as to afford eve-

ry assurance, that, should their families remove to the ends of the

earth or become extinct, the graves of their friends will be respect-

ed and will share in the general improvements which the grounds

254. STORY, supra note 1, at 18-19.

255. Id. at 24-25.

256. Id. at 19, 22.

257. See, e.g., Am. Bible Soc’y v. Noble, 11 S.C. Eq. (3 Rich. Eq.) 156 (S.C. App. Eq.

1859), 1859 WL 4395 (discussing mortmain statutes and the reasons why the concentration

of property in hands of churches had proven a problem in the United Kingdom); Gallego v.

Attorney Gen., 30 Va. (3 Leigh) 450 (1832), 1832 WL 1845 (detailing Virginia’s opposition

to concentration of property in hands of churches).

878 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

may be expected to receive. And, to what a pitch of perfection may

these grounds be carried, by allowing due scope to art in improving

the advantages of nature! . . . [I]t is pleasant to reflect that a laud-

able desire of providing for the dead, has determined our corpora-

tion to devote all the proceeds from the sale of lots, after paying

the debts contracted in the purchase, to improvements. By duly

prosecuting this noble design, our cemetery will become the

brightest ornament of our city, and be able to vie with any thing of

the kind on the surface of the globe. . . . How may avenues and

walks be cut in every direction, among the thick trees and tortuous

ravines, to make way for the solemn procession, or the contempla-

tive traveler to spend an hour of pensive musing and awful con-

verse with eternity!258

This was an instance in which the private corporation contributed to

public good. So much so, in fact, that the New York legislature

passed an act for the general incorporation of cemeteries in 1847.259

Professor Cyrus Mason of New York University told the audience at

258. CHURCH, supra note 121, at 18.

259. Act of April 27, 1847, ch. 133 1 LAWS OF THE STATE OF NEW-YORK, PASSED AT THE

FIRST MEETING OF THE SEVENTIETH SESSION, OF THE LEGISLATURE, BEGUN AND HELD THE

FIFTH DAY OF JANUARY, 1847, AT THE CITY OF ALBANY 125 (Albany, Charles Van Benthu-

ysen 1847) (An Act authorizing the incorporation of Rural Cemetery Associations); see also

Act of …, LAWS OF WISCONSIN TERRITORY, PASSED BY THE FOURTH LEGISLATIVE ASSEMBLY,

AT MADISON, THE SEAT OF GOVERNMENT, COMMENDING ON THE THIRD DAY OF DECEMBER,

A.D. 1843, AND ENDING JANUARY, A.D. 1844 WITH AN APPENDIX CONTAINING RESOLUTIONS

PASSED AT THE SAME SESSION 237-41 (Madison, W.W. Wyman 1844) (An Act to provide for

the incorporation of rural cemetery associations); Act of March, 1851, LUCIUS Q.C. ELMER,

A DIGEST OF THE LAWS OF NEW JERSEY 80-82 (Philadelphia, J.P. Lippincott 1855) (An Act

authorizing the incorporation of rural cemetery associations); Act of February 24, 1848, ch.

867, 2 PUBLIC STATUTES AT LARGE OF THE STATE OF OHIO 1443 (Cincinnati, Maskell Cur-

wen 1858) (An Act making provision for the incorporation of cemetery associations); Act of

February 14, 1855, ch. 487, A COMPILATION OF THE STATUTES OF THE STATE OF ILLINOIS, OF

A GENERAL NATURE 271-72 (Chicago, Keen & Lee 1856) (An Act to provide for the incorpo-

ration of cemetery associations by general law); Act of April 18, 1859, ch. CCLXVII, THE

STATUTES OF CALIFORNIA PASSED AT THE TENTH SESSION OF THE LEGISLATURE. 1859, at

281-85 (Sacramento, John O’Meara 1859) (An Act to authorize the incorporation of rural

cemetery associations); Act of June 4, 1861, GENERAL LAWS OF THE STATE OF KANSAS 86-87

(Lawrence, Kansas State Journal 1861) (An Act to provide for the incorporation of ceme-

tery associations); Act of February 6, 1845, ch. XXVII, 10 LAWS OF THE STATE OF

DELAWARE 27-29 (Dover, S. Kimmey 1845) (An Act to establish the Wilmington and Bran-

dywine cemetery); Act of January 19, 1846, ch. CCCLIV LOCAL LAWS OF THE STATE OF

INDIANA 344 (Indianapolis, J.P. Chapman 1846 (An Act to incorporate the Madison ceme-

tery); Act of March 29, 1844, ch. 94, LAWS OF THE STATE OF NEW YORK 85 (Albany, C. Van

Benthuysen 1844) (An Act to incorporate the Wheatfield cemetery association); NEEM,

supra note 20, at 77 (discussing growth of charters for charitable corporations).

2016] THE GETTYSBURG ADDRESS 879

Dale Cemetery near Sing Sing in 1852 that the New York statute

was designed to increase cemeteries.260 Mason thought a public ser-

vice is performed by corporation.261

Robert Cochran, another speaker at the Dale Cemetery dedica-

tion, praised the New York legislature even more than Mason.

Cochran found that the legislature had acted in keeping with the

“spirit of the age” with the incorporation statute because it guaran-

teed the cemetery plot against creditors:

With a wise and humane policy, that reflects the greatest honor

upon that dignified body, the Legislature of this State have recent-

ly enacted laws encouraging the Incorporation of Rural Cemeter-

ies, and throwing around them certain important sanctions and

immunities. Under the protection of these beneficent enactments,

the poor laborer in the lowlier walks of life, as well as the more fa-

vored and prosperous, may here, cheaply, purchase his little plot of

ground for the final abode of himself and those whom he loves, and

hold it without fear. The hard and unrelenting grasp of the credi-

tor cannot shake his tenure. No public taxes, rates, or assessments

can be imposed, by civil authority, upon his estate. Having hal-

lowed the soil, by interring in it one pale form of kindred dust, he

has set the seal to his possession, and not even his own act, in a

moment of desperate madness, can wrench it from him.262

This was yet another instance of the use of public power to encourage

private action for public good. Amory Mayo mused in 1858 that there

was yet incalculable public good that would emerge from the ceme-

tery. The community did not yet know the size of its debt to the cem-

etery’s creators.263 Others mused on that question as well. “The moral

effect of this one burial place no one can anticipate or describe,” Rev-

erend Gillette said in 1858.264 Yet he was certain the value would be

greater than the cost. “It will be alone more than sufficient to repay

the anxiety, expense and toil its respected projectors have bestowed

upon it, and will redound with benefits untold, upon their children

and their children’s children, even to the remotest generations.”265

260. DALE CEMETERY, supra note 142, at 37.

261. Id. at 25.

262. Id. at 37-38.

263. See generally MAYO, supra note 195.

264. WOODLANDS CEMETERY, supra note 122, at 48.

265. Id.

880 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

New York Judge David Buel spoke in some detail about the 1847

New York Cemetery statute at the dedication of Troy’s Oakwood

Cemetery in 1850. He discussed the ways that the statute protected

cemeteries from tax assessment, protected buyers of individual lots

from their creditors. Moreover, once someone was buried there, their

relatives could never sell the lot. It also limited the power of cemeter-

ies to spending the money they collected for the preservation and im-

provement of the cemetery. “Thus the law provides that by no change

of circ*mstances, by no pressure of poverty which may overtake the

first proprietor . . . can he or his descendants, ever be deprived of

their last earthly home.”266 Buel concluded, “The law makes this in-

heritance of the dead a sacred charity.”267

The rural cemeteries used corporate form (and celebrated it with

their publication of charters) to do something that Whigs urged on

individuals and on educational institutions—bring the nation togeth-

er to celebrate the past and have moral uplift.268

Many of the dedication pamphlets contained the cemeteries’ rules,

the deeds that they gave to purchasers, their charters, and some-

times even the state acts that authorized the creation of cemeter-

ies.269 Why was there an elaborate legal literature regarding the rural

266. DAVID BUEL, JR., AN ADDRESS DELIVERED AT THE CONSECRATION OF OAKWOOD

CEMETERY, OCTOBER 16, 1850, at 12-13 (Troy, John F. Prescott 1850).

267. Id. at 13.

268. The rural cemeteries confirm the role of private, collective action for public good

and for the promotion of values. See, e.g., 3 JOSEPH STORY, Rights of the Fellows of Harvard

College, in 3 MISCELLANEOUS WRITINGS OF JOSEPH STORY 298-339 (Boston, Little & Brown

1852); see also ALBRECHT KOSCHNIK, LET A COMMON INTEREST BIND US TOGETHER:

ASSOCIATIONS, PARTISANSHIP, AND CULTURE IN PHILADELPHIA, 1775-1840 (2007); Scott

Gregory Lien, Contested Solidarities: Philanthropy, Justice, and the Reconstruction of

Public Authority in the United States, 1790-1860 (2006) (unpublished Ph.D. dissertation,

University of Chicago) (on file with author). For the rural cemetery was a public civic asso-

ciation that all might join and that all might benefit from. It was part of a robust spirit of

charitable corporations in the Northeast. Cf. PETER DOBKIN HALL, INVENTING THE

NONPROFIT SECTOR 32-36 (1992) (discussing antebellum institutional and philanthropic

culture); KATHLEEN MCCARTHY, AMERICAN CREED: PHILANTHROPY AND THE RISE OF CIVIL

SOCIETY 123-43 (2003) (discussing Jacksonian Democracy’s conflicts with philanthropy);

Peter Dobkin Hall, What the Merchants Did with Their Money: Charitable and Testamen-

tary Trusts in Massachusetts, 1780-1880, in ENTREPRENEURS: THE BOSTON BUSINESS

COMMUNITY, 1700-1850, 365, 403-16 (Conrad Edick Wright & Katheryn P. Viens eds.,

1997) (discussing Boston philanthropy funded via testamentary trusts in the nineteenth

century); Johann Neem, Politics and the Origins of the Nonprofit Corporation in Massachu-

setts and New Hampshire, 32 NONPROFIT & VOLUNTARY SECTOR Q. 344-65 (2003).

269. See, e.g., Act of Incorporation, in DANIEL APPLETON WHITE, AN ADDRESS,

DELIVERED AT THE CONSECRATION OF THE HARMONY GROVE CEMETERY, IN SALEM JUNE 14,

1840, at xii-xv (Salem, The Gazette Press 1840); CLINTON CEMETERY, supra note 145, at

37-40 (incorporation act); FORT HILL CEMETERY ASS’N., supra note 128, at 61-62 (state

2016] THE GETTYSBURG ADDRESS 881

cemeteries and why was it often linked to the dedication ceremonies?

This was part of a larger movement to legitimize through public dis-

cussion the organic act. The public organic act was a badge of honor,

as well as an element of legal technology. Moreover, the charters

served to give notice to the lot owner of the procedures that the ceme-

tery corporations needed to follow. The cemetery rules served notice

to all interested in the cemetery of the proper behavior and the rules

that they must follow and that the cemetery needed to follow as well.

The charters and financing—for instance, some of the public cem-

eteries were financed through public bonds—are designed to make

the cemeteries permanent. Charters tell us this, and the promotional

literature emphasizes that this is about perpetual memory, not prof-

it.270 Occasionally orators also explained in some depth the im-

portance of the cemetery charters in promoting the purposes of the

cemeteries—in preserving them free from taxes, protecting the as-

sets, so that the cemetery could continue forever, and in protecting

the lots of individual owners from their debts. “It is to be rejoiced

over that in opening this, our Rural Cemetery,” said Edward North,

who taught Greek at Hamilton College, at the dedication of the Clin-

ton, New York Cemetery in 1857, that “we are able to embody in its

organic regulations ideas of permanence and sacred use.”271 North

went on to explain how the cemetery’s charter reflected the purposes

of its founders in preserving the cemetery.

No mercenary or speculative views can ever thwart the sacred

purpose of our Cemetery Association, by controlling the action of

those who serve as its Trustees. The law under which the Associa-

charter); HUMPHREY, supra note 132, at 31-32 (incorporation act); WILSON M’CANDLESS,

FIRST REPORT OF THE MANAGERS OF ALLEGHENY CEMETERY: TOGETHER WITH THE CHARTER

OF THE CORPORATION; ITS RULES, REGULATIONS, LOT HOLDERS, &C. ALSO, A FUNERAL

ADDRESS ON THE OCCASION OF RE-INTERRING THE REMAINS OF COM. JOSHUA

BARNEY & LIEUT. JAS. L. PARKER 23-26 (Pittsburg, Johnston & Stockton 1849) (charter);

OAKWOOD CEMETERY, supra note 23, at 68-79 (printing cemetery rules and New York’s

incorporation statute); THE POUGHKEEPSIE RURAL CEMETERY, ITS BY-LAWS, RULES AND

REGULATIONS AND THE DEDICATION CEREMONIES (Poughkeepsie, Platt & Schram 1854);

REGULATIONS OF THE BALTIMORE CEMETERY WITH SUGGESTIONS TO LOT-HOLDERS, AND THE

ACT OF INCORPORATION, 1850, at 19-23 (Baltimore, John Murphy & Co. 1850) (charter);

REGULATIONS OF THE LAUREL HILL CEMETERY, ON THE RIVER SCHUYLKILL, NEAR

PHILADELPHIA; THE ACT OF INCORPORATION BY THE LEGISLATURE OF PENNSYLVANIA IN

1837; AND A CATALOGUE OF THE PROPERTIES OF LOTS TO FEBRUARY 1, 1846, at 12-14 (Phila-

delphia, C. Sherman 1846) (act of incorporation).

270. CLEAVELAND, supra note 129, at 3; see also CHURCH, supra note 121, at 18 (noting

that cemeteries will be preserved forever, no matter where descendants live).

271. CLINTON CEMETERY, supra note 145, at 15.

882 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

tion is formed, requires that after the payments for purchase mon-

ey are made, all its revenues shall be expended in improving and

keeping the grounds, and for no other purpose. By a wise provision

of statute the title to this soil once made perfect, becomes inalien-

able. The property of the Association is exempt from all public tax-

es, rates and assessments. It is not liable to be sold on execution,

or for the payment of debts due from individual proprietors. After

the title of a plat has been transferred to an individual and an in-

terment made therein, the plat becomes his inalienable property,

descending to his heirs and their heirs forever, or so long as they

choose to retain it. No sheriff's writ can ever deny our right to

sleep here after death, with our fathers and descendants, unmo-

lested.272

Professor Mason praised the proprietors for taking action for public

benefit:

[W]e come to celebrate the opening to the public of an enterprise

set in motion, for purposes of private gain as well as public benefit.

These two features are desirable in every public enterprise. In the

best state of society there would be no room for gratuities because

none would need them. The nearer we can approach this state of

things the better. Every proprietor here will walk uncringing

through these grounds, because he has paid his share of a full re-

muneration to the company. And yet there will be room in his

heart for deep and manly gratitude to those citizens, who set on

foot this enterprise. For there is always required a sort of daring

and superior forecast in those, who project and execute important

social projects. They step out in advance of their fellow citizens,

and do a service, which, but for them, would not be done; they act

against the fears of their friends, and (sometimes) against the

sneers of the bystanders; and they take all the chances of a failure.

272. Id. at 15-16. Professor North articulated why the cemetery charter was so im-

portant: all too often churches were closed and converted to new uses.

In this age of abrupt changes, revolutions and runnings to and fro, when

household altars are set up to-day and destroyed to-morrow, when a church is

consecrated this year for sacred worship, and next year sold for a theatre or a

barn, when even religious principles are pulled up, now and then, as children

pull up the shrubs they have planted to see if they have taken root, it is pleas-

ant to be permitted to organize a Cemetery that carries the elements of durabil-

ity and the permanent expression of a sacred purpose. It is pleasant and grate-

ful to know that our right to an inviolable burial-place, or GOD’s Acre, into

whose furrows we shall all be cast, is respected by the laws of the State; and

that nature herself consents to co-operate with us in doing deathless honor to

the dead.

Id. at 16.

2016] THE GETTYSBURG ADDRESS 883

When their project is successful, they create, by their action, the

benefit they confer; they bring into existence and distribute to the

people large measures of tangible wealth, or of social advantage,

which lays none under any painful pecuniary obligation. They en-

rich others without becoming poorer themselves.

Such men are the highest order of benefactors. Their reward comes

slowly, because their service to mankind comes slowly into view,

and is gradually appreciated; but time is the sure friend of men of

genius and enterprise, and their reward is as sure as the revolu-

tions of the earth, and as large as the justice of unbiased minds.273

Yet even as many celebrated the role of private corporations in the

working of public good, others urged that cemeteries be undertaken

by the public. Hon. John B. Wilkins’ 1852 address at the West Rox-

bury Cemetery celebrated the public good that the private cemetery

corporation.274 The public role that was served by private action. But

Wilkins also urged public action.275

The addresses sometimes even turned to the language of

property to describe the cemeteries. “[T]he dead should have a per-

manent freehold—precincts fortified against the world’s enterprise,

that would invade their home, and would treat their bones as

encumbrances upon the rights of property and on the spirit of

improvement.”276

But for most orators, the nature of the law’s protection for ceme-

teries was of less importance than that it preserved the cemeteries.

The process was less important than the result. And it was law work-

ing in conjunction with sentiment that ensured the preservation. At

the Cave Hill dedication in 1848, Edward Humphrey linked corporate

and property law with public sentiment to ask for protection of the

cemetery. “The authority of the law, and the public sentiment and

conscience, must be successfully invoked to guard our graves from

273. DALE CEMETERY, supra note 142, at 25-26.

274. JOHN H. WILKINS, Introductory Remarks, in MOUNT HOPE CEMETERY IN

DORCHESTER AND WEST ROXBURY: WITH THE EXERCISES AT THE CONSECRATION, THURSDAY,

JUNE 24, 1852, at 7 (Boston, Crosby, Nichols & Co. 1852); see also MARSHALL FOLETTA,

COMING TO TERMS WITH DEMOCRACY: FEDERALIST INTELLECTUALS AND THE SHAPING OF AN

AMERICAN CULTURE (2001); Public and Private Charities of Boston, 61 N. AM. REV. 135-59

(1845).

275. WILKINS, supra note 274, at 7-8.

276. CHARLES F. MAYER, SKETCH OF LOUDON PARK CEMETERY: ITS DEDICATION, AND

ADDRESS OF THE HON. CHARLES F. MAYER, DELIVERED ON THAT OCCASION 17 (Baltimore,

The Printing Office 1853).

884 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

the cupidity of our survivors.”277 This illustrates the ways that Whigs

joined the technology of law with their culture to accomplish the civi-

lizing mission. It is important to see legal thought and legal forms

working in tandem with less visible factors like moral force to create

an American culture.

Cemeteries brought order and improvement upon nature through

the extensive regulations regarding decorum. Yet, such laws de-

signed to bring order to cemeteries were unnecessary, because of the

reverence that existed for cemeteries. “Such institutions of them-

selves appeal so forcibly to the better instincts of our nature, and

raise up so spontaneously sentiments of respect in the human bos-

om,” Whig politician and novelist John Pendleton Kennedy said at

the dedication of Green Mount Cemetery in Baltimore in 1839, “as to

stand in need of little rigor in the enforcement of the laws necessary

to guard them against violation.”278

Similarly, orators frequently noted how cemeteries joined public

good with private enterprise. New York Supreme Court Judge Wil-

liam J. Bacon, in commenting on the efforts that Syracuse’s citizens

made—including re-routing a plank road—to create their cemetery,

thought it “honorable alike to the public spirit and the private enter-

prise that have been engaged in its acquisition.”279 Bacon believed

that nature would combine with human efforts to beautify the ceme-

tery. “Nature has done much, but taste, and skill, and affection, will

do still more in the future years of its history to make it a very Mecca

of the mind and heart.”280 Similarly, Professor Edward North com-

mented in 1857 that “[w]e propose to embody this faith in a public

enterprise that invites the sympathy and co-operation of all our

citizens.”281

B. Regulation of Burial for Public Good

Beginning in the 1820s, many cities moved to prohibit interments

in city graveyards. That led to legal challenges. The first was in New

York, where the Brick Presbyterian Church challenged the city’s

277. HUMPHREY, supra note 132, at 10.

278. John P. Kennedy, Address at the Dedication of Green Mount Cemetery, July 13,

1839, in OCCASIONAL ADDRESSES 111, 119 (New York, G. Putnam 1872).

279. OAKWOOD CEMETERY, supra note 23, at 37.

280. Id. Bacon thought that in the cemetery, the voices of the dead will speak to the

living. Id. at 36.

281. NORTH, supra note 148, at 19.

2016] THE GETTYSBURG ADDRESS 885

prohibition of interment as a violation of the church’s property

rights.282 Although the city won that case with the argument that the

prohibition was a reasonable exercise of its police power—an argu-

ment used frequently afterwards to justify many regulations—other

churches continued to challenge similar restrictions. In 1839,

Charleston, South Carolina’s Mayor Henry Laurens Pinckney issued

a report discussing the evidence that city burials were a health haz-

ard. He suggested that even if they were not a nuisance, rural ceme-

teries were desirable for other reasons like their pastoral and peace-

ful setting.283 Pinckney was an embodiment of these norms of self-

sacrifice and Union above individual, for he had sacrificed his rising

political career to oppose nullification in his home state and thus cost

himself his seat in Congress in 1834. He wrote about these values of

patriotism, Union, and constitutionalism in a literary address for the

University of North Carolina in 1836, as radical politics in South

Carolina pushed him from the scene.284 Pinckney’s report did not set-

tle the dispute, however, and in 1850 the South Carolina Supreme

Court upheld the constitutionality of Charleston’s prohibition on in-

terment in the city. The ordinance had been challenged by churches

claiming—as the Brick Presbyterian Church had twenty years before

in New York285—that the ordinance deprived them of their property

282. HENDRICK HARTOG, PUBLIC PROPERTY AND PRIVATE POWER: THE CORPORATION OF

THE CITY OF NEW YORK IN AMERICAN LAW, 1730-1870, at 74-80 (1983).

283. PINCKNEY, supra note 126, at 4-5.

284. HENRY LAURENS PINCKNEY, “THE SPIRIT OF THE AGE”: AN ADDRESS DELIVERED

BEFORE THE TWO LITERARY SOCIETIES OF THE UNIVERSITY OF NORTH CAROLINA (Raleigh, J.

Gales & Son 1836).

285. Brick Presbyterian Church v. New York, 5 Cow. 538 (N.Y. Sup. Ct. 1826). New

York City’s regulation prohibiting interring bodies was upheld, even though the charter

had expressly granted the right to inter. Id. at 542. Subsequently, Brick Presbyterian

Church was invoked frequently to justify the broad application of the police power to the

regulation of property. See, e.g., City of N.Y. v. Second Ave. R. Co., 32 N.Y. 261, 265 (1865)

(citing Brick Presbyterian Church in deciding that no private contract can nullify the gov-

ernment’s authority to enact regulatory ordinances for the public good); In re Opening of

Albany St., 6 Abb. Pr. 273 (N.Y. S. Ct. 1858) (upholding a city ordinance that closed a

street); see also Providence Bank v. Billings, 29 U.S. (4 Pet.) 514, 547 (1830) (using Brick

Presbyterian Church to argue in favor of bankruptcy statute passed after contracting).

886 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

rights.286 As late as 1854, the Illinois Supreme Court upheld a prohi-

bition on burials in a town because of the potential health hazard of

such burials.287

Similarly, in 1860 North Carolina upheld an injunction against

use of a Baptist church’s graveyard, on a theory that the burial posed

an unreasonable hazard to a neighbor.288 Just the year before, the

North Carolina Supreme Court had upheld the use of a public rural

cemetery in the town of Washington against a claim that the ceme-

tery would be emotionally disturbing to a neighbor. The Supreme

Court thought that public cemeteries were important and did not find

the cemetery necessarily morbid:

Public cemeteries, for the orderly and decent sepulture of the

dead, are necessary requirements for all populous towns. In fixing

sites for them private must yield to public convenience, and the

Courts will be particularly careful and not interfere to prevent such

establishments, unless the mischief be undoubted and irreparable.289

In fact, the North Carolina Supreme Court found that it could be

beneficial to think about death, an argument quite similar to that

advanced by Justice Story and many others to justify the establish-

ment of rural cemeteries:

If the grounds be arranged and drained, and the burial of the

dead be conducted as elsewhere in such establishments, we incline

decidedly to the opinion it will not be a nuisance, either public or

private. The word nuisance is, of course, used here in its legal

sense, and is confined to such matters of annoyance as the law rec-

ognizes and gives a remedy for. The unpleasant reflections sug-

gested by having before one’s eyes constantly recurring memorials

of death, is not one of these nuisances. Mankind would, by no

means, agree upon a point of that sort, but many would insist that

suggestions thus occasioned would, in the end, be of salutary influ-

ence. . . . The nuisance which the law takes cognizance of is such

286. City Council of Charleston v. Wentworth St. Baptist Church, 35 S.C.L. (4 Strob.)

306 (S.C. App. Law 1848).

287. Goddard v. Town of Jacksonville, 15 Ill. 588, 595 (1854) (citing Brick Presbyterian

Church for the proposition that even long-existing use of property for sale of liquor may be

a nuisance).

288. Clark v. Lawrence, 59 N.C. (6 Jones Eq.) 83 (1860) (explaining that water flowed

down from the church yard into the neighbor’s yard and thus posed a health hazard).

289. Ellison v. Comm’rs of Town of Wash., 58 N.C. (5 Jones Eq.) 57, 74 (1859),

1859 WL 2255.

2016] THE GETTYSBURG ADDRESS 887

matter as, admitting it to exist, all men, having ordinary senses

and instincts, will decide to be injurious.290

The court explained the justification of the cemeteries and turned

them into a public good:

The cemeteries, which have been established near the principal

cities and towns of our country (and which it is the commendable

purpose of the Washington corporation to imitate), have sprung

from the idea that open space, free ventilation, and careful sepul-

ture, not only prevent such places from becoming nuisances, but

make them attractive and agreeable places of resort.291

The rural cemetery, thus, owed part of its origin to the increas-

ingly robust ideas of public regulation, to the sense that the city bur-

ials threatened health, as well as the constitutional values of order,

beautification, and commemoration of death.292 Those rural cemeter-

ies were near enough to the city so residents could be inspired, but

far enough away as to not bother the living. Mount Hope, for in-

stance, was far enough away from the city that the city could develop

without interfering with the cemetery.293

V. PUBLIC CONSTITUTIONALISM AND

THE RURAL CEMETERY

How, then, do the seventy addresses relate to constitutional law?

They operated at a high level of generality and collected a constella-

tion of ideas—about individuals, the community, art, nature, Christi-

anity, and charitable organizations—that worked together to form

constitutional culture. Even before Lincoln’s address at Gettysburg

he acknowledged the centrality of cemeteries in fostering a constitu-

tional culture. Lincoln’s first inaugural address concludes with an

appeal to the sentiments of Union that were nurtured by—among

other images—patriot graves. “The mystic chords of memory, stretch-

ing from every battle-field, and patriot grave, to every living heart

290. Id. at 73.

291. Id. at 72-73.

292. HARTOG, supra note 282, at 71-81; LINDEN, supra note 2, at 149-52 (discussing

regulation of Boston cemeteries).

293. WILKINS, supra note 274, at 16.

888 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

and hearthstone, all over this broad land,” Lincoln said, “will yet

swell the chorus of the Union, when again touched, as surely they

will be, by the better angels of our nature.”294

What is the vision of constitutionalism in the cemetery dedication

addresses? Virtue, community, public versus private, visitors, inclu-

sion, morality—not so much specific legal cases. The addresses reveal

how people in the nineteenth century spoke about their relationship

to the nation and each other and the bonds that held us together and

how we tried to use a common core of principles that helped us as we

expanded the nation. The addresses invoked key questions of who

was included, how people assumed their places, and who was allowed

to rise.

For, as people at the time understood, the Constitution was more

than a document interpreted by the Supreme Court that defined and

limited federal and state power. The Constitution provided a frame-

work for public debate about a series of abstract but important ideas

of law, individualism, the State, and how to hold together a constitu-

tional republic.295 It helped structure the beliefs of individuals

throughout the country on issues of the market, the role of the State

in promotion of the economy and of morality, and of the likely future

course of the country. Though there were often areas of agreement

across political parties, there were frequently issues of disagreement

on the proper lessons to draw from the Constitution about federal

intervention in the economy, about the power and desirability of the

market, and about the relationship of individuals to the community.

Artist Charles Fraser, who in 1850 delivered the dedication ad-

dress at Charleston’s Magnolia Cemetery,296 spoke in 1828 at the

placement of a corner-stone of a building on the College of Charles-

ton’s campus. He spoke about education in much the same way that

many spoke about cemeteries. Education had an ability to “unite

the sympathies of every heart, and to subdue and harmonize every

294. ABRAHAM LINCOLN, First Inaugural Address, in ABRAHAM LINCOLN: SPEECHES

AND WRITINGS, supra note 33, at 215, 224.

295. See, e.g., O. A. Brownson, Origin and Ground of Government, 13 U.S. MAG. & DEM.

REV. 129 (1843) (discussing “Constitutional Republic”); see also Mr. Webster’s Plea in the

Case of the Girard College Will, 3 NEW ENGLANDER & YALE REV. 89, 99 (1845) (discussing

Webster’s plea for charities to expand the principles of the “Christian republic” in Girard v.

Vidal, 43 U.S. (2 How.) 127 (1844)).

296. See FRASER, supra note 110.

2016] THE GETTYSBURG ADDRESS 889

diversity of opinion.”297 Fraser went on to explain the effect education

could have on supporting the Constitution and breathing life into the

values of the Constitution.

The Constitution itself is an admirable effort of human intellect.

Foreigners travelling through our country, and observing the re-

sult of this great invisible agent in the uniform, peaceful, and

harmonious operations of society, emphatically ask, where is your

government? We might as emphatically reply, that it exists in the

hearts and the minds of its citizens—that its energies are derived

from public opinion—that a rational respect for the laws and insti-

tutions of our country, imparts to them that vital principle which

pervades and regulates every part of the great republican system.

. . . If we would preserve the ark of our covenant in its

original sanctity, let “Wisdom, and Judgment, and Understand-

ing,” be the lamps that burn before it.298

Fraser spoke of the public nature of the Constitution—not as some-

thing that existed only as interpreted by the United States Supreme

Court and state courts, but as something that existed in the minds of

American citizens. This Constitution was an idea, something created

in the hearts and minds of Americans—and supported by national

action and by culture.299 That is the way in which the Constitution

appeared in cemetery dedication addresses, as a set of values that

the cemeteries would support. For the orators recognized that the

rural cemetery’s mission was about the living more than the dead.

A. Public Constitutionalism, American Culture,

and the Supreme Court

While the cemetery dedication addresses operated at a very high

level of generality, they paralleled ideas made in the pages of the

United States Reports. One should turn to the opinions of two ceme-

tery orators, Justice Joseph Story and Justice John McLean, for ex-

amples of how general appeals to constitutional values in dedication

addresses paralleled the ideas in formal law. To take three of many

examples from Justice Story’s work, one sees in his concurrence in

Dartmouth College a focus on the charter rights of the College, which

Story preserved through an expansive reading of the Constitution’s

297. FRASER, supra note 94, at 1.

298. Id. at 11-12.

299. Fisher, supra note 64.

890 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

Contracts Clause. A decade later in Van Ness v. Pacard, Story used

the imagery of improvement of the American wilderness to support a

claim by a tenant that he was entitled to remove a structure he had

built on his landlord’s property when the lease ended. The landlord

wanted, in essence, to keep the building that the tenant had put on

the property. Story faced a question of whether to apply the English

common law here, which supported the landlord. Story pointed to the

wild conditions of the land in early America that counseled in favor of

a rule that encouraged tenants to build structures on the land. That

is, if the land was going to be improved, tenants needed to have the

opportunity to recapture their investments by moving buildings when

their lease ended.300 But even beyond that economic argument in fa-

vor of a rule that encouraged improvement, Story thought that an-

other rule applied as well, which allowed the tenant to remove struc-

tures built for trade.301 Story was shaping rules to encourage devel-

opment of property, just as the cemeteries reflected Americans’ set-

tlement of the land. The third example is Story’s dissent in Charles

River Bridge v. Warren Bridge, where Story emphasized the harm

that comes from the failure to protect the charter rights of corpora-

tions.302 Like cemeteries, robust protection of property was both a

sign of civilization and an encouragement to further civilization.

A similar story could be told about Justice McLean, who dissented

in Charles River Bridge303 and also in several other later cases that

too narrowly construed charter rights in his opinion.304 In those dis-

sents, McLean broadly construed corporate charters. He also con-

strued a bank charter broadly to protect against subsequent state

regulation in his majority opinion in Piqua Branch of State Bank of

Ohio v. Knoop.305 McLean’s dissent in Groves v. Slaughter, a case

questioning whether slaves were articles of commerce under the in-

300. Van Ness v. Pacard, 27 U.S. (2 Pet.) 137, 145 (1829) (“The country was a wilder-

ness, and the universal policy was to procure its cultivation and improvement. The owner

of the soil as well as the public, had every motive to encourage the tenant to devote himself

to agriculture, and to favour any erections which should aid this result; yet, in the compar-

ative poverty of the country, what tenant could afford to erect fixtures of much expense or

value, if he was to lose his whole interest therein by the very act of erection?”).

301. Id. at 146.

302. Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420 (1837) (Story, J.,

dissenting).

303. Id. at 554 (McLean, J., dissenting).

304. Richmond, Fredericksburg, & Potomac R.R. Co. v. La. R.R. Co., 54 U.S. (13 How.)

71, 83 (1851); W. River Bridge v. Dix, 47 U.S. (6 How.) 507, 536 (1848).

305. Piqua Branch Bank of Ohio v. Knoop, 57 U.S. (16 How.) 369, 376 (1853).

2016] THE GETTYSBURG ADDRESS 891

terstate Commerce Clause, illustrates his broad construction of Con-

gress’s Commerce Clause power.306 Moreover, McLean’s dissent in

Dred Scott illustrates his anti-slavery attitudes and his sense of mor-

al progress that would limit slavery to places where there was an af-

firmative act supporting it.307 As with Justice Story, Justice McLean’s

jurisprudence correlates with the rural cemetery movement. The

support of cemeteries was a part of a Whig world view of order and of

economic and moral advance.

Yet, the pages of appellate reports were not the only places where

such conflicting visions of the Constitution appeared. The contest ap-

peared in Congress and state houses, as well as newspapers, in a pe-

riod when there was dramatic development of ideas about the proper

role of the government, private corporations, and individual concep-

tions of morality in the evolution of constitutional ideas. As the last

several generations of historians of the Civil War have demonstrated,

the war itself was about the relationship of property, the market, in-

dividual humanity, and the State’s role in governing the relationship

between property and humanity.308

The community participated in the celebrations. Thousands at-

tended Story’s speech; the local militia company attended the dedica-

tion of Syracuse’s Oakwood Cemetery in 1860,309 though the proces-

sions at the dedications set them apart from the typical democratic

assembly. William Foster began his 1860 address at the Blossom Hill

Cemetery in Concord with an observation about that differences be-

tween more common democratic assemblies and the cemetery dedica-

tion. “We are assembled to-day for the performance of no ordinary

duty. Not with pageantry, with music, banners and rejoicing shouts,

but with reverent steps and decorous gravity we have come to this

beautiful seclusion.”310

The oratory worked in conjunction with the voice of the graves in

the cemeteries to help create a more moral community—and it was

this culture of moralism that would work to bring about reform and

306. Groves v. Slaughter, 40 U.S. (15 Pet.) 449, 503-05 (1841).

307. Scott v. Sandford, 60 U.S. (19 How.) 393, 535-36 (1857) (McLean, J., dissenting).

308. See, e.g., AMY DRU STANLEY, FROM BONDAGE TO CONTRACT: WAGE LABOR,

MARRIAGE, AND THE MARKET IN THE AGE OF SLAVE EMANCIPATION (1998) (discussing ideas

of market and contract as slavery was attacked before and during the Civil War).

309. OAKWOOD CEMETERY, supra note 23, at 40 (listing order of procession).

310. WILLIAM L. FOSTER, RELIGIOUS SERVICES AND ADDRESS OF WILLIAM L. FOSTER, AT

THE CONSECRATION OF BLOSSOM HILL CEMETERY, CONCORD, N. H., FRIDAY, JULY 13, 1860

(Concord, McFarland & Jenks 1860).

892 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

to assist in constitutional development. Georgia’s Chief Justice

Joseph Henry Lumpkin spoke of the power of sentiment in 1850 at

the South-Carolina Agricultural fair:

Benevolence, instead of malevolence, is beginning to be the grand

master-spirit and motive-power of the world. All working for the

good of all—this is society—all else is savagism. Associated man

regulating the pursuits of individual man—not by law, nor sword,

nor thumbscrew, nor bullet, nor bayonet—but by precept and ex-

ample, moral suasion, personal influence, and the law of good

neighborhood.311

One of the fullest connections of the cemetery to the constitutional

ideals came in John F. Norton’s address on July 4, 1859, “The Home

of the Ancient Dead Restored,” at the rededication of the Athol, Mas-

sachusetts Cemetery. Norton looked back on the long movement that

led to the Revolution, back to the Puritans rebelling against the au-

thority of the church in the seventeenth century. He found the values

that made the Revolution, such as “[t]he spirit of the men and women

that entered this wilderness and converted it into a fruitful field,

their honesty of purpose, their firm resolve, their enlarged views,

their sound judgment, their readiness to sacrifice self for the common

good, their high moral courage, their faith in God . . . .”312 The ceme-

tery connected the people who made the Revolution with his audience

and Norton used that connection to urge further action “in the name

of civilization, patriotism and religion.”313 Norton explained the rev-

erence owed to the past as well as the lessons the future generations

will draw from the cemetery. He left it up to future generations to

extend the Revolution’s legacy.314

B. Public Constitutionalism at Gettysburg:

Cemetery Ridge, Edward Everett, and Abraham Lincoln

This story of public constitutional values and the rural cemetery

should conclude at Gettysburg, where on July 3, 1863, on Cemetery

Ridge, the United States soldiers put into operation the principles of

perpetual Union that had been so carefully nurtured by the Whigs

311. JOS. H. LUMPKIN, AN ADDRESS DELIVERED BEFORE THE SOUTH-CAROLINA

INSTITUTE, AT ITS SECOND ANNUAL FAIR, ON THE 19TH NOVEMBER, 1850 51-52 (Charleston,

Walker & James 1851).

312. NORTON, supra note 120, at 14.

313. Id. at 20.

314. Id. at 21.

2016] THE GETTYSBURG ADDRESS 893

and then Republicans.315 Much of the decisive battle, which was criti-

cal to preserving the Union, was fought along Cemetery Ridge,316

named after the Ever Green Cemetery that was atop nearby Ceme-

tery Hill. Ever Green had been dedicated eight years earlier, in

1855.317 The dedication addresses for the rural cemeteries and the

cemeteries themselves had contributed to the sentiments of constitu-

tional Union. Improbably, the Ever Green Cemetery that was part of

a movement to support and advance the constitutional values that

were being tested in the early days of July 1863 was part of the bat-

tle. The U.S. soldiers positioned on Cemetery Ridge beat back

Pickett’s charge318 and in doing so they put into operation a new con-

stitutional vision of equality and democracy. Those soldiers had more

to say about how to interpret the Constitution than Supreme Court

Chief Justice Roger B. Taney, John C. Calhoun, or Jefferson Davis.

A few months later, on November 19, politicians, reporters, mili-

tary officials, and patriotic Americans assembled to hear another

cemetery dedicated in that hamlet. One of the most commonly told

stories of those ceremonies was of some speaker who droned on for

two and a half hours before Lincoln’s brief speech.319 Though his

name may be rarely remembered, that speaker, Edward Everett, was

famous in his era for serving as Senator from Massachusetts and as

President of Harvard.320 Everett’s was the very last dedication ad-

dress before Lincoln redefined the genre. But before that address Ev-

erett had spoken about the respective roles of the State and individu-

als. His 1824 Phi Beta Kappa address at Harvard—given in the pres-

ence of General LaFayette, the French hero of the American Revolu-

tion who was in the United States touring the country fifty years

315. See, e.g., ERIC S. FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF

THE REPUBLICAN PARTY BEFORE THE CIVIL WAR (1972) (discussing ideas of the early Re-

publican party, especially focusing on free labor ideology); Kenneth M. Stampp, The Con-

cept of a Perpetual Union, 65 J. AM. HIST. 5, 5-53 (1978).

316. ALLEN C. GUELZO, GETTYSBURG: THE LAST INVASION 163-65, 241-60 (2013) (dis-

cussing centrality of Cemetery Ridge to the battle).

317. EVER GREEN, supra note 119, at 2-3.

318. GUELZO, supra note 316, at 388-426.

319. WILLS, supra note 54, at 34-35; see also JOHNSON, supra note 54 (identifying Lin-

coln’s evolving emphasis on Union, sacrifice, and race in the drafts of the address).

320. WILLS, supra note 54, at 24, 35 (noting that the dedication was moved from Octo-

ber to November to accommodate Everett’s schedule and that Everett was given billing on

the program as the orator and that Lincoln’s name was not even present on the program).

894 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

after the Revolution321—was about the place that a well-governed

state could play in raising the moral level of a people.322 Everett, as a

speaker, thus connected the generation of the Revolution to that of

the Civil War. He linked the Constitution and the State it helped es-

tablish to the goal of human progress. That Constitution then further

linked individuals to the State. It was necessary to put the whole

system together. One piece could not accomplish the purpose of

human society.

Where the cemetery dedication addresses before the Civil War

were about the role of cemeteries in promotion of moral values, such

as patriotism and religion, Everett’s speech was about the duty owed

to the people buried in Gettysburg, the War itself, and ways to put

the country back together again. Everett’s primary theme was the

debt owed to the U.S. soldiers buried in the National Cemetery and

to the rest of the soldiers. This was, after all, a tribute. The address

began with reference to the graves of patriots and the “eloquent

silence of God and Nature” in the cemetery.323 Then he turned to the

burial practices of ancient Athens, where war heroes were buried at

public expense, to establish an ancient and honorable lineage for this

national cemetery.

Everett called upon images of sentiment and patriotism to conse-

crate the cemetery. “As my eye ranges over the fields whose sods

were so lately moistened by the blood of gallant and loyal men, I feel,

as never before, how truly it was said of old that it is sweet and be-

coming to die for one’s country,” he said.324 Then he turned to just

how critical the situation was for the United States at the time of the

battle. The consequences would have been dire, indeed, he said, if

“those who sleep beneath our feet, and their gallant comrades who

survive . . . , had failed in their duty on those memorable days.”325

Everett told the story of the entire War; much of the address was

about the campaign of 1863, with a detailed description of the battle

321. 1 A. LEVASSEUR, LAFAYETTE IN AMERICA IN 1824 AND 1825: OR, JOURNAL OF A

VOYAGE TO THE UNITED STATES 40-42 (John D. Goodman trans., Philadelphia, Carey & Lea

1829) (mentioning Everett’s address).

322. EDWARD EVERETT, AN ORATION PRONOUNCED AT CAMBRIDGE, BEFORE THE

SOCIETY OF PHI BETA KAPPA, AUGUST 27, 1824 (N.Y., J.W. Palmer 1824).

323. EDWARD EVERETT, ADDRESS OF HON. EDWARD EVERETT, AT THE CONSECRATION OF

THE NATIONAL CEMETERY AT GETTYSBURG, 19TH NOVEMBER, 1863, at 29 (BOSTON, LITTLE,

BROWN & CO. 1864).

324. Id. at 33.

325. Id.

2016] THE GETTYSBURG ADDRESS 895

of Gettysburg that highlighted the heroism of the Union soldiers and

the debt owed to them for protecting the Northern population.

Then he turned from the history of battle to larger questions about

the issues at stake in the War. Everett used the occasion to plead

that case of the United States and our Constitution against the Con-

federate rebels. He quoted Jefferson Davis’s statement that the Unit-

ed States was “the best government ever instituted by man . . . under

which the people have been prosperous beyond comparison . . . .”326

While the rebels claimed to be the successors to the American Revo-

lutionaries, Everett spoke of their crime against the Constitution and

labeled their actions treason.327 He rebutted what he called the Con-

federacy’s “wretched sophistries” of their interpretation of the Consti-

tution.328 Where southerners believed that the Constitution set up

sovereign states, Everett responded that the Constitution’s preamble

says it is established by “the People of the United States.”329 Everett

presented a concise version of the United States’ constitutional

argument that the Union was perpetual and that states could not

secede.330

The address called for restoration of the Union. A truce with the

Confederacy would be a disaster for the United States, for the people

loyal to the United States in the South, and for the enslaved people of

the South.331 Everett wanted restoration of the Union, and he con-

cluded with a call for reconciliation and an argument that reconcilia-

tion was possible.332 Everett drew on many examples from European

history stretching back hundreds of years.333 This was a deeply patri-

otic address, which sought support for the cause by celebrating the

soldiers and also looking forward to a restored Union. Because of the

deeds of the patriots buried at Gettysburg and those who survived,

those in the audience that day felt a “new bond of union.”334

What followed Everett’s lengthy address was different. Lincoln

spoke in broad terms about the sacrifices at Gettysburg and then ap-

326. Id. at 62 (quoting Jefferson Davis).

327. Id. at 64.

328. Id. at 69.

329. Id. at 66 (quoting U.S. CONST. pmbl.).

330. Id. at 79-81.

331. Id. at 70.

332. Id. 333. See, e.g., id. at 71-79 (discussing examples of European wars and later settlement

of them).

334. Id. at 81.

896 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

pealed to broad principles, such as the “new birth of freedom.”335 Lin-

coln was the visionary who spoke in general and broad terms and

helped remake American democracy. Lincoln’s address appealed to

the spirit of the Constitution, much as the antebellum dedication ad-

dresses had. Lincoln remade the genre, but also remade our Consti-

tution.336 He legitimized the idea of equality and of self-government

that have framed the hopes of our nation and our courts ever since.

None of the earlier speeches had the eloquence or the gravity of Lin-

coln’s words at Gettysburg. But many of them had tapped into—and

helped create—the Romantic Era appeals to sentiment that propelled

Lincoln and his supporters towards war to preserve the Union—and

to the Emancipation Proclamation.337

It was on the battlefield at Gettysburg and at many other previ-

ously obscure places like Antietam, Chancellorsville, Cold Harbor,

and Petersburg, that Americans put into practice their constitutional

ideals. At those places, soldiers showed that the values so cherished

in cemetery dedication addresses—of order under law, Union, and

economic and moral progress—were part of a large world. That world

bound humans to each other as they sought to improve upon nature

and as they created an ordered, commercial republic governed by

sentiments and by law.

335. ABRAHAM LINCOLN, Dedicatory Address of President Lincoln, in ABRAHAM

LINCOLN: SPEECHES AND WRITINGS, supra note 33, at 536.

336. WILLS, supra note 54, at 90, 125-32. There remains the question whether the Ad-

dress represented a signal about the evolution of ideas or actually caused a shift in those

ideas. But see Linda Selzer, Historicizing Lincoln: Garry Wills and the Canonization of the

“Gettysburg Address,” 16 RHETORIC REV. 120-137 (1997). Cf. JOHNSON, supra note 54 (link-

ing shifts in constitutional ideas of Union and equality to Lincoln’s Address). The question

that Selzer raises about Wills’ attribution of causation to Lincoln’s Address parallels ques-

tions this Article has raised about pre-war cemetery dedication addresses’ contribution to

constitutional culture. At the very least, they are gauges of constitutional values.

337. ABRAHAM LINCOLN, Emancipation Proclamation, in ABRAHAM LINCOLN: SPEECHES

AND WRITINGS, supra note 33, at 368-70.

2016] THE GETTYSBURG ADDRESS 897

APPENDIX

Published Dedication Speeches, 1831-1860

Reverse Chronological Order

1. WILLIAM L. FOSTER, RELIGIOUS SERVICES AND ADDRESS OF

WILLIAM L. FOSTER, AT THE CONSECRATION OF BLOSSOM HILL

CEMETERY, CONCORD, N. H., FRIDAY, JULY 13, 1860 (Concord,

McFarland & Jenks 1860).

2. REVEREND J.C. BODWELL, ADDRESS DELIVERED AT THE

CONSECRATION OF THE LAKE GROVE CEMETERY, HOLLISTON,

MASS. JUNE 1, 1860 (Holliston, 1860).

3. ORGANIZATION AND DEDICATION CEREMONIES OF LAKE-VIEW

CEMETERY (Jamestown, N.Y., Sacket & Bishop 1860).

4. William J. Bacon, Address of William J. Bacon (Nov. 3, 1859) in

THE HISTORY, INCORPORATION, RULES AND REGULATIONS OF

OAKWOOD CEMETERY 27-39 (Syracuse, 1860).

5. JAMES C. CONKLING, ADDRESS DELIVERED BY JAMES C. CONKLING

AT THE DEDICATION OF OAK RIDGE CEMETERY, SPRINGFIELD,

ILLINOIS (n.p. 1860).

6. JOHN F. NORTON, THE HOME OF THE ANCIENT DEAD RESTORED: AN

ADDRESS DELIVERED AT ALTHOL ON JULY 4, 1859 (Althol De-

pot, Rufus Putnam 1859).

7. A.D. MAYO, THE AMERICAN CEMETERY: AN ADDRESS DELIVERED AT

THE DEDICATION OF GREEN HILL CEMETERY AT AMSTERDAM,

MONTGOMERY CO., N.Y., ON WEDNESDAY, SEPTEMBER 1, 1858

(Amsterdam, N.Y., Recorder Office 1858).

8. WILLIAM WILEY, THE MISSION CEMETERY AND THE FALLEN

MISSIONARIES OF FUH CHAU, CHINA: WITH AN INTRODUCTORY

NOTICE OF FUH CHAU AND ITS MISSIONS (N.Y., Carlton & Por-

ter 1858).

898 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

9. John Waugh, Address at the Consecration of the Riverside Ceme-

tery (June 28, 1858) in RULES AND REGULATIONS OF RIVERSIDE

CEMETERY, AT GOUVERNEUR, ST. LAWRENCE COUNTY, N.Y.

WITH THE CONSECRETARY EXERCISES (Ogdensburgh, Hitch-

co*ck, Tillotson, and Stilwell 1858).

10. A.D. GILLETTE, THE WOODLANDS CEMETERY, AT CAMBRIDGE, N.Y.,

WITH HISTORICAL SKETCHES, AND AN ADDRESS OF REV. A.D.

GILLETTE, D.D., DELIVERED AT THE DEDICATION, JUNE 2, 1858

(Troy, N.Y., A.W. Scribner 1858).

11. John McLean, Address of John McLean in THE CINCINNATI

CEMETERY OF SPRING GROVE, REPORT FOR 1857 (Cincinnati,

Ohio, C.F. Bradley 1857).

12. James W. Dennis, Address of James Dennis at the Consecration of

the Evergreen Cemetery (July 26th, 1857), in CONSECRATION OF

“EVERGREEN CEMETERY” (Stoughton, Mass., 1857).

13. O.S. Williams & Edward North, Addresses of O.S. Williams and

Edward North, in ADDRESSES DELIVERED AT THE DEDICATION

OF THE CLINTON CEMETERY (Utica, N.Y., Roberts 1857).

14. James F. Chalfant, Address of Rev. James Chalfant, in REPORT OF

THE TRUSTEES OF OAK DALE CEMETERY TO THE MAYOR AND

TRUSTEES OF THE CORPORATION OF URBANA (Urbana, Ohio,

C.B. Flood 1856).

15. A.N. Littlejohn, ADDRESS DELIVERED AT THE DEDICATION OF THE

NEW GROUNDS OF THE EVERGREEN CEMETERY OF NEW HAVEN,

JULY 29TH, 1856 (New Haven, S. Babco*ck 1856).

16. J.H.C. Dosh, Address, in FIRST ANNOUNCEMENT OF EVER GREEN

CEMETERY, GETTYSBURG, PA., WITH AN ADDRESS DELIVERED AT

THE OPENING CEREMONIES BY REV. J.H.C. DOSH, AND A

DISCOURSE DELIVERED AT THE LAYING OF THE CORNER STONE

OF GATEWAY AND LODGES AT CEMETERY (Gettysburg, H.C.

Neinstedt 1855).

2016] THE GETTYSBURG ADDRESS 899

17. W.R.G. Mellen, THE CHRISTIAN IDEA OF DEATH: AN ADDRESS AT

THE CONSECRATION OF OAK GROVE CEMETERY (Gloucester, Ad-

vertiser Press 1856) (June 29, 1855).

18. F. W. Shelton, Address, in SERVICES AT THE DEDICATION OF GREEN

MOUNTAIN CEMETERY, MONTPELIER, VT., SEPTEMBER 15 1855,

WITH THE RULES AND REGULATIONS (Montpelier, E. P. Walton,

Jr.1855).

19. John Thompson, Address, in THE POUGHKEEPSIE RURAL

CEMETERY, ITS BY-LAWS, RULES AND REGULATIONS AND THE

DEDICATION CEREMONIES (Poughkeepsie, Platt & Schram’s

Steam Prtg. Establishment 1854).

20. DEDICATION OF THE OAKLANDS CEMETERY: TOGETHER WITH THE

CHARTER AND BY-LAWS (West Chester, Pa., Register & Exam-

iner Steam Press 1854).

21. JOHN A. ALBRO, ADDRESS AT THE CONSECRATION OF THE

CAMBRIDGE CEMETERY (Cambride, Mass., Metcalf & Co. 1854)

(Nov. 1, 1854).

22. Rev. Butler, Address of Rev. Doct. Butler (Aug. 1, 1854) in SKETCH

AND DEDICATION OF GLENWOOD CEMETERY, WASHINGTON,

D.C., AUGUST 1ST, 1854 (Washington, D.C., 1854).

23. RALPH WALDO EMERSON, Consecration of Sleepy Hollow Cemetery,

in 11 THE COMPLETE WORKS OF RALPH WALDO EMERSON:

MISCELLANIES 430 (Boston & N.Y., Houghton, Mifflin &

Co.1904).

24. ADDRESS OF THE REV. DAVID MAGIE AND OTHER SERVICES

DEDICATORY OF ‘THE EVERGREEN CEMETERY,” TOGETHER WITH

THE CERTIFICATE OF INCORPORATION, AND THE RULES AND

REGULATIONS THEREOF (Elizabethtown, N.J., 1853).

900 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

25. SAMUEL WOLCOTT, ADDRESS DELIVERED AT THE CONSECRATION OF

ROCK HILL CEMETERY IN FOXBOROUGH, MASS. (Providence,

1853).

26. H.D. WALKER, ADDRESS DELIVERED AT THE CONSECRATION OF

MOUNT VERNON CEMETERY, ABINGTON, MASS., MAY 31, 1853

(Boston, A. Mudge 1853).

27. CHARLES F. MAYER, SKETCH OF LOUDON PARK CEMETERY: ITS

DEDICATION, AND ADDRESS OF THE HON. CHARLES F. MAYER,

DELIVERED ON THAT OCCASION (Baltimore, The Printing Office

1853).

28. Green Kendrick, Address, in THE RIVERSIDE CEMETERY, AT

WATERBURY, CONN., ITS ARTICLES OF ASSOCIATION, BY-LAWS

AND RULES AND REGULATIONS, WITH THE DEDICATION

ADDRESS, &C. DEDICATED, SEPT. 24TH, 1853 (Waterbury,

1853).

29. LAUREL GROVE CEMETERY!, AN ACCOUNT OF ITS DEDICATION, WITH

THE POEM OF THE HON. ROBERT M. CHARLTON, AND THE

ADDRESS OF THE HON. HENRY R. JACKSON, DELIVERED ON THE

10TH NOVEMBER, 1852, TO WHICH ARE ADDED THE

ORDINANCES ESTABLISHING AND REGULATING THE CEMETERY

(Savannah, City Council 1852).

30. F.D. Huntington, Address, in MOUNT HOPE CEMETERY IN

DORCHESTER AND WEST ROXBURY JUNE 24, 1852 (Boston,

Crosby, Nichols & Co. 1852).

31. Robert Crowell, ADDRESS, DELIVERED OCTOBER 27TH, 1852, AT THE

CONSECRATION OF THE SPRING STREET CEMETERY, ESSEX,

MASS. (Boston, B. Marsh 1853).

32. George A. Lyon, Address, in FIRST REPORT OF THE MANAGERS OF

THE ERIE CEMETERY, TOGETHER WITH THE ACT OF

INCORPORATION (Erie, Pa., The Gazette Office 1852).

2016] THE GETTYSBURG ADDRESS 901

33. Cyrus Mason, Address, in THE DALE CEMETERY, (AT CLAREMONT,

NEAR SING-SING), ITS INCORPORATION, RULES AND

REGULATIONS, AND THE DEDICATION ADDRESSES 1852 (N.Y.,

C.C. Childs 1852).

34. GEORGE EDWARD ELLIS, AN ADDRESS DELIVERED AT THE

CONSECRATION OF THE WOODLAWN CEMETERY IN CHELSEA AND

MALDEN (Boston, John Wilson & Son 1851).

35. E. B. WILSON, AN ADDRESS DELIVERED AT THE CONSECRATION OF

THE RIVERSIDE CEMETERY IN GRAFTON APRIL 29, 1851 (Boston,

J. Wilson & Son 1851).

36. SPENCER M. RICE, ADDRESS, DELIVERED BEFORE THE SAUQUOIT

VALLEY CEMETERY ASSOCIATION: AT THE CONSECRATION OF

LAWN HILL CEMETERY, OCTOBER 16, 1851 (Utica, N.Y., H.H.

Curtiss 1851).

37. HIRAM WILEY, CONSECRATION OF CEDAR GROVE CEMETERY (New

London, Conn., D.S. Ruddock 1851).

38. WILLIAM GILMORE SIMMS, THE CITY OF THE SILENT, A POEM,

DELIVERED AT DEDICATION OF MAGNOLIA CEMETERY (Charles-

ton, Walker & James 1850).

39. CHARLES C. SHACKFORD, AN ADDRESS DELIVERED AT THE

CONSECRATION OF THE PINE GROVE CEMETERY (Lynn, Mass.,

T. Herbert 1850).

40. CHARLES FRASER, ADDRESS DELIVERED ON THE DEDICATION OF

THE MAGNOLIA CEMETERY, ON THE 19TH OF NOVEMBER, 1850

(Charleston, Walker and James 1850).

41. FREDERIC AUGUSTUS WHITNEY, AN ADDRESS DELIVERED AT THE

CONSECRATION OF EVERGREEN CEMETERY, BRIGHTON,

WEDNESDAY, AUGUST 7, 1850 (Boston, John Wilson 1850).

902 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

42. THOMAS DAWES, AN ADDRESS DELIVERED ON SUNDAY EVENING,

JULY 7TH, 1850 AT THE CONSECRATION OF THE RIVER-SIDE

CEMETERY IN FAIRHAVEN, MASSACHUSETTS (New Bedford,

Mass., B. Lindsey, 1850).

43. FREDERIC J. GOODWIN, AN ADDRESS, DELIVERED AT THE

DEDICATION OF THE INDIAN HILL CEMETERY, MIDDLETOWN,

CONN. (Middletown, Conn., C.H. Pelton 1850).

44. AN ADDRESS BY HENRY NEILL & A POEM BY OLIVER WENDELL

HOLMES (Pittsfield, Mass., Axtel, Bull, & Marsh 1850) (Pitts-

field Rural Cemetery).

45. C. Edwards Lester, Address, in THE MOUNTAIN GROVE CEMETERY

ASSOCIATION (Bridgeport, Conn., William S. Pomeroy 1853).

46. DAVID BUEL, AN ADDRESS DELIVERED AT THE CONSECRATION OF

OAKWOOD CEMETERY (Troy, N.Y., John F. Prescott 1850).

47. JOHN B. BAILEY, AN ADDRESS, PREPARED TO BE DELIVERED AT THE

CONSECRATION OF MOUNT HOPE CEMETERY, IN

ATTLEBOROUGH, JULY 2, 1850 (Taunton, Mass., C.A. Hack

1851).

48. REPORT OF THE TRUSTEES OF GREEN LAWN CEMETERY; WITH THE

ARTICLES OF ASSOCIATION, THE BY-LAWS, REGULATIONS, AND

THE DEDICATION ADDRESSES (Columbus, Ohio, Ohio State

Journal 1849).

49. DANIEL HUNTINGTON, ADDRESS DELIVERED AT THE CONSECRATION

OF THE UNION CEMETERY, AT OAK GROVE, NORTH

BRIDGEWATER, MASS., MAY 21, 1849 (1849).

50. OLIVER BALDWIN, ADDRESS DELIVERED AT THE DEDICATION OF THE

HOLLY-WOOD CEMETERY: ON MONDAY, THE 25TH JUNE, 1849

(Richmond, Macfarlane & Fergusson 1849).

2016] THE GETTYSBURG ADDRESS 903

51. GEORGE PUTNAM, AN ADDRESS DELIVERED BEFORE THE CITY

GOVERNMENT AND CITIZENS OF ROXBURY, AT THE

CONSECRATION OF THE CEMETERY AT FOREST HILLS, JUNE 28,

1848 (Roxbury, J.G. Torrey 1848).

52. INCREASE N. TARBOX, AN ADDRESS BEFORE THE CITIZENS OF

FRAMINGHAM, AND THE NEIGHBORING TOWNS, AT THE

CONSECRATION OF THE CEMETERY IN SAID TOWN, OCT. 13, 1848

(Boston, Joseph L. Hallworth 1849).

53. J.R. ARNOLD, AN ADDRESS DELIVERED AT THE OPENING OF THE

LINWOOD CEMETERY, COLCHESTER, CONN., JUNE, 1848 (Col-

chester, Conn. 1850).

54. EDWARD P. HUMPHREY, AN ADDRESS DELIVERED ON THE

DEDICATION OF THE CAVE HILL CEMETERY, NEAR LOUISVILLE:

JULY 25, 1848 (Louisville, Courier Job-Room 1848).

55. D.D. Barnard, Address, in ALBANY RURAL CEMETERY

ASSOCIATION: ITS RULES, REGULATIONS, &C., WITH AN

APPENDIX (Albany, C. Van Benthuysen & Co. 1846).

56. JOHN MCLEAN, ADDRESS DELIVERED ON THE CONSECRATION OF

THE SPRING GROVE CEMETERY, NEAR CINCINNATI, AUGUST

20TH, 1845 (Cincinnati, Daily Atlas Office 1845).

57. DEDICATION OF MOUNT HEBRON CEMETERY, IN WINCHESTER,

VIRGINIA, JUNE 22, 1844; THE ACT OF INCORPORATION BY THE

LEGISLATURE OF VIRGINIA IN 1844, AND THE CONSTITUTION AND

BY-LAWS OF THE MOUNT HEBRON CEMETERY COMPANY (Win-

chester, Republican Office 1845).

58. David Damon, Address, in AN ADDRESS DELIVERED AT THE

CONSECRATION OF THE NEW CEMETERY IN WEST CAMBRIDGE,

MASS., JUNE 14TH, 1843 (Somerville, Mass., Edmund Tufts

1843).

59. JAMES BUNKER CONGDON, AN ADDRESS DELIVERED AT THE

CONSECRATION OF THE OAK GROVE CEMETERY, IN NEW-

904 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

BEDFORD, OCTOBER 6TH, 1843 (New Bedford, Mass., Benjamin

Lindsey 1844).

60. BELLAMY STORER, AN ADDRESS DELIVERED AT THE CONSECRATION

OF THE LINDEN GROVE CEMETERY, COVINGTON, KENTUCKY,

SEPTEMBER 11, 1843 (Cincinnati, E. Morgan & Co. 1843).

61. JOSIAH CLARK, AN ADDRESS: DELIVERED AT THE CONSECRATION OF

THE RUTLAND RURAL CEMETERY, OCTOBER 7, 1842 (West

Brookfield, Mass., C.A. Mirick 1843).

62. JONATHAN F. STEARNS, RESPECT FOR THE REMAINS OF THE DEAD:

AN ADDRESS DELIVERED AT THE CONSECRATION OF OAK HILL

CEMETERY, IN NEWBURYPORT, JULY 21, 1842 (Newburyport, A.

Augustus Call 1842).

63. WILLIAM BOURN OLIVER PEABODY, ADDRESS DELIVERED AT THE

CONSECRATION OF THE SPRINGFIELD CEMETERY: SEPTEMBER

5TH, 1841 (Springfield, Mass., Wood & Rupp 1841).

64. AMOS BLANCHARD, AN ADDRESS DELIVERED AT THE CONSECRATION

OF THE LOWELL CEMETERY, JUNE 20, 1841 (Lowell, Leonard

Huntress 1841).

65. DANIEL APPLETON WHITE, AN ADDRESS DELIVERED AT THE

CONSECRATION OF THE HARMONY GROVE CEMETERY, IN SALEM,

JUNE 14, 1840 (Salem, The Gazette Press 1840).

66. JOHN PENDLETON KENNEDY, THE DEDICATION OF GREEN MOUNT

CEMETERY, JULY 13TH, 1839 (Baltimore, Woods & Crane 1839).

67. HENRY LAURENS PINCKNEY, REMARKS ADDRESSED TO THE

CITIZENS OF CHARLESTON, ON THE SUBJECT OF INTERMENTS,

AND THE POLICY OF ESTABLISHING A PUBLIC CEMETERY

BEYOND THE PRECINCTS OF THE CITY (Charleston, W. Riley

1839).

2016] THE GETTYSBURG ADDRESS 905

68. SAMUEL BUEL, ADDRESS DELIVERED ON THE OCCASION OF THE

OPENING OF THE MARSHALL CEMETERY, MICHIGAN, MAY 2,

1839 (Marshall, H.C. Bunce 1839).

69. PHARCELLUS CHURCH, AN ADDRESS DELIVERED AT THE

DEDICATION OF MOUNT HOPE CEMETERY, ROCHESTER, OCT. 2,

1838; AND REPEATED BY REQUEST BEFORE THE ROCHESTER

ATHENAEUM AND YOUNG MEN’S ASSOCIATION (Rochester, Da-

vid Hoyt 1839).

70. JOSEPH STORY, AN ADDRESS DELIVERED ON THE DEDICATION OF

THE CEMETERY AT MOUNT AUBURN, SEPTEMBER 24, 1831 (Bos-

ton, Joseph T. & Edward Buckingham 1831).

906 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 43:831

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