Daniel Webster : the expounder of the Constitution

Preface

I WAS brought up among men who knew Mr. Webster personally, and loved and honored him. I heard his oration before the New York Historical Society just before I went to college. In my Freshman year I went to his funeral, and saw him lie in simple state on his lawn at Marshfield. Every flag was at half-mast and every street draped in mourning. The hills were black with the countless throngs who assembled to pay the last tribute of respect to the first American of his day. The country showed how deeply it felt the loss of him who for fifty years had served it faithfully. My soul took in something of the universal emotion.

Then again, the men who influenced me in my youth were alive to the difficulties of the political situation, and their talk was of Mr. Webster, and the country, and the Union, and of the part he had played in the long struggle that attended their growth, and that finally effected their preservation. I lived throueh the Civil War and saw what that preservation cost when the final grapple came.

My professional studies have led me to a careful examination of the great cases that Webster argued, and the decisions that followed his arguments, and that have moulded our Constitution and made it

III iv Preface

adequate to the needs of a great Nation. For twenty years in the brief intervals afforded a busy lawyer by the demands of his exacting profession, I have been collecting the materials for this book. It has really been an evolution, and I send it forth now, invoking for it the friendly consideration of my fellow-citizens, and believing that the Webster lesson was never more needed than it is now. One necessary result of free institutions is to develop independence. But the majority of mankind will always follow a leader. And the independence of the leader often begets subservience on the part of the follower, the result of which is injurious to the Commonwealth. In these days of industrial warfare, it is especially necessary to recur to the principles of our Constitution, and to cultivate respect for the rights of others as sedulously as we insist upon our own. This was the motif of Mr. Webster's career.

My attention was first drawn to the comparison between the Seventh of March speech and Mr. Lincoln's first inaugural by my cousin Alexander S. Wheeler, of Boston. He knew Mr. Webster well. His suggestions and personal knowledge have been of great service to me in the preparation of this book.

I have made a careful examination of the Webster manuscripts in the Congressional Library, and in the Library of the New Hampshire Historical Society at Concord, N. H. In both I have found much important unpublished material. Probably the most interesting of this is a manuscript of Mr.

Preface • v

Justice Story, giving an account of the argument of the Dartmouth College case, and of the case of Gibbons v. Ogden, that I discovered in the Library at Washington.

Most of my references to Mr. Webster's writings are to the edition of his works in six volumes, published by Little & Brown during Mr. Webster's lifetime, and of which numerous editions have since been published. This edition is referred to as Webster's Works. The recent more complete edition, published by Little, Brown & Company, is referred to in those cases in which it contains matter not in the original edition. This is cited as Webster s Writings and Speeches.

Everett P. Wheeler.

CONTENTS CHAPTER I

PAGE

Introduction ........... I

CHAPTER n

Early Professional Life— Extension of Constitution to New States — Town of Pawlet vs. Clark — Criminal Jurisdiction in Harbors — U. S. vs. Bevans 12

CHAPTER HI

Impairing Obligation of Contracts— Law of the Land — Corporate

Franchise — Dartmouth College Case i6

CHAPTER IV

Supremacy of the National Government — Power to Charter a Bank

— McCulloch vs. Maryland 34

CHAPTER V

Interstate Commerce — Gibbons vs. Ogden 47

CHAPTER VI The Slave Trade — La Jeune Eugenie 63

CHAPTER VII

State Insolvent Laws — Ogden vs. Saunders 67

vii viii Contents

CHAPTER VIII

PAGE

Acquisition of New Territory — American Insurance Company vs.

Canter . 70

CHAPTER IX

The United States not a Confederacy but a Union — Reply to Mr.

Hayne — Carver vs. Astor's Lessee ...... 76

CHAPTER X

The United States a Union, not a Confederacy — Subject Continued

— Reply to Calhoun ......... 93

CHAPTER XI

Power of the United States over Acquired Territory when Admitted

as a State — New Orleans vs. United States . . . . iiS

CHAPTER XII

Effect of Grant of One Franchise upon Power to Grant Rival Franchise — The Charles River Bridge Case . . . . .121

CHAPTER XIII

Rights of Corporations in Other States— Comity between States —

Bank of Augusta vs. Earle 124

CHAPTER XIV

Girard Will Case— Rhode Island Boundary Case— Case of the Lexington 129

CHAPTER XV

Eminent Domain over Franchise — West River Bridge Case . . T34

CHAPTER XVI

Power to Reorganize State Governments— Dorr Rebellion . . .137

Contents ix

CHAPTER XVII

PACE

State Power over Foreign Commerce— Passenger Tax Cases . . 143

CHAPTER XVIII

Extensive Range of Webster's Legal Acquirements— Van Rensselaer

Title — Van Rensselaer vs. Kearney I54

CHAPTER XIX

The Constitution and Slavery— Seventh of March Speech . . .157

CHAPTER XX Conclusion • • -177

Table of Cases iSr

Index 183

The Expounder of the Constitution

Introduction

The work of a truly great man must needs be permanent in its nature. To understand the true character of existing systems and to value them justly, it is needful to recur from time to time to their development and to study the part that statesmen have played therein. No American has done more to make our government what it is than Daniel Webster. To understand the Constitution of America, we must needs examine what he did while it was yet — so to speak — in the gristle, and this study will also teach us something of the true function of the profession of law in this country.

The labors that fall to an American lawyer are so varied in character that no one man can perform them all. In the mother country the profession for this reason is divided into ranks and grades, and he who serves in one does not attempt the responsibilities of the other. The attorney must be a shrewd and skilful man of business. The proctor must be familiar with the rules of navigation. There is no height of intellectual attainment to which the advocate may not aspire, and no resource of learning or power of persuasive or judicial eloquence which will not aid him in his daily task.

Again, the development of our system of jurisprudence to provide for the rapid changes in the conditions of business and social life imposes a constant duty upon the intelligent and conscientious lawyer. The law which regulated the business of a few stages and canal-boats was inadequate to direct the complicated affairs of carriers by steam on land and sea. The judge-made code for the carrier of articles that could be weighed and measured, had but a limited application to the companies who put at the service of the public the invisible force of electricity, and have made New York and Boston, Chicago and San Francisco, parts of one great municipality. The English common law was well adapted to the thickly settled and compact island of Great Britain, but was insufficient and in some particulars ill adapted to the requirements of a people scattered over thirteen Commonwealths just formed into one Union.

There is yet another more arduous responsibility resting on the American lawyer from which our English brethren are exempt. First among the nations the United States established a written Constitution which should be the supreme law of

Introduction 3

*

the land, supreme over Executive and Legislature, and which gave to the courts of justice the power to enforce its supremacy, by declaring that a statute which had received the votes of both houses of Congress and the signature of the President, or which had been adopted by a State Legislature and signed by its Governor, should yet be altogether held for naught if it violate the supreme Constitution.

Well might we say when we contemplate the magnitude of these labors, — Who is sufficient for these things ? No doubt now, as in the Apostles' time, there are many who pervert the word of God, of whose justice and equity courts of justice ought to be the visible embodiment. But also there are many who, like St. Paul, speak in godly sincerity, and fulfil with singleness of heart the true function of the lawyer, which is to aid the court in the discharge of its exalted and responsible office.

Preeminently such a man was Mr. Webster. He became a member of the bar at a time when many of the most important questions since determined were unsettled. More than any other man, he aided in their settlement.^

Coleridge tells us that " The first man upon whom the light of an idea dawned, received thereby the function of a lawgiver." It was because Mr. Webster, in his capacious mind, apprehended with

' " It is impossible to overestimate the support that the court derives from the bar, and in Mr. Webster's arguments fidelity to the court is as conspicuous as fidelity to his client. It is not client first and conscience afterwards, but duty to both together, one and inseparable." — Chief Justice Fuller, IVebste?- Centennial, p. 275.

such clearness the idea which was the soul of the novel system our fathers established, that he was able to lead our courts to formulate this idea in their judgments.

But it may be asked, How can this be ? Is it not the duty of judges to declare, and not to make the law ? In one sense no doubt it is. The judge ought not to depart from the principles of the law as he finds them established. But when a case comes up, as often it does, which involves a new application of these principles or modification of rules already settled, to adapt them to a new state of facts for which no precise provision has been or could have been made, the judge does, in a very real and important sense, make the law and is a lawgiver as well as a judge. If the lawyer who presents such a case to the court is adequate to his task, he must first thoroughly understand the existing rule and the reason for it ; next, he must appreciate the change in circumstances and conditions which makes this in its precise form no longer applicable. To this he must add constructive ability, and be able to show how the rule, as it has hitherto served, may most wisely and fitly grow to meet the requirements of the present and of the future. No man in America ever combined these qualities to a higher degree than Mr. Webster. He understood the history and character of the mother country and the common law which was the necessary outgrowth of that character and history. He looked into the very heart of the American people and realized our needs. He was able to point out the

Introduction 5

path by which we could most wisely be led to our true growth and development. With unrivalled power for making hard places easy and dark things clear, he succeeded in impressing his own convictions upon the courts before which he practised.

In dealing even with the precision of mathematics, great minds can see what lesser minds fail to apprehend. What they see they can make clear. The truths which Newton and Laplace were the first to behold and develop can now be taught to our college students ; and judges many times rightly and justly laid down as law what the genius of Webster perceived and demonstrated — what without the aid of that genius might have remained undetermined. Most important of all his public services was the part he took in demonstrating the true method of construing the Constitution of the country. The very fact that this was the supreme law of the land made it all the more important that its construction should be established on the right basis.

From the begfinninof there was a school of thinkers who sought to limit the scope of our great charter and restrain its plain provisions within narrow bounds. It is the most brief of constitutions. Its sections and articles never undertook to provide in detail for all emergencies which might arise, but established general provisions, which, fairly construed, should be adequate for every occasion. If the country were to be held in bondage to the letter, and disregard the spirit of the Constitution, the purpose stated in its preamble, " to form a more perfect Union," would fail of accomplishment.

No doubt there were thinkers who sought to give such a lax interpretation to its provisions that they might mean anything or nothing, as the immediate occasion might seem to require, and the strict constructionists did good service in restraining- the vagraries of such reasoners. The merit of Mr. Webster lay in this, that he maintained the golden mean, and in numerous arguments pointed out clearly and convincingly the evils which led to the formation of the Constitution, the objects its founders sought to accomplish and the method by which they had, upon fair rules of construction, achieved the great end they had in view.

The celebration of the centennial of the accession of Chief Justice Marshall to the Supreme Court of the United States called attention to the leading part which the decisions of that Court have played in making the nation what it is. Side by side with the great name of Marshall should be placed that of Webster. The arguments of the one were as necessary as the decisions of the other. They combined to impress upon the American people a conviction of the possibilities of the country, of the fitness of the government which they had founded to enable them to make the most of these possibilities and, above all, the conviction that the thirteen Colonies had become blended into one indissoluble Union.

It is hard for us to realize in the days of our greatness the weakness and insignificance of our beginnings. It frequently happens under American institutions that a man born of the humblest

Introduction 7

parents and amid the most adverse circumstances has become a man of wealth, power and influence. But the rise of the most remarkable of them all is not more extraordinary than the change which has taken place in the condition of the American people since the birth of Mr. Webster. He was born at the conclusion of the Revolutionary War and just before the treaty of peace was concluded between the thirteen Colonies and the United Kinedom of Great Britain and Ireland. His father was one of the hardy settlers who had not found scope for their energies in the surroundings of their childhood, and had gone into the forest, not only to discover, but really to create a new world. The little house in Salisbury, New Hampshire, where Daniel Webster was born on the i8th day of January, 1782, was on the border of colonial civilization.^ The Colonies were scattered alongr the Atlantic coast and the eastern slope of the Alleghanies. They had neither money nor credit ; were deeply in debt, with an army about to be disbanded, the meagre pay of which was long in arrears.' They lived under a Confederation which gave to the general government no real power, and which worked

' As Mr. Webster said in his speech at Saratoga, August ig, 1840 (Webster's IVoris, vol. ii., p. 30):

" Gentlemen, it did not happen to me to be born in a log-cabin; but my elder brothers and sisters were born in a log-cabin, raised amid the snowdrifts of New Hampshire, at a period so early that, when the smoke first rose from its rude chimney, and curled over the frozen hills, there was no similar evidence of a white man's habitation between it and the settlements on the rivers of Canada."

' See Stone's interesting Zi/e of Johti Howland, a Rhode Island soldier, who, when his enlistment expired, was obliged to walk home from Yorktown.

so badly that it left the Colonies at the end of the war with actually less unity that they had at the beginning. The father of Daniel Webster had been a distinguished officer in the Revolution, and in common with his comrades had smarted under the weakness and incompetency and consequent injustice of the government of the Confederation, and he realized, therefore, the absolute necessity for a united and stable government, if the thirteen independent Colonies were ever to become a united nation.

The treaty of peace concluded at Paris, September 3, 1783, contained in its first article the following clause :

" His Britannic Majesty acknowledges the said United States, viz: New Hampshire, Massachusetts Bay, Rhode Island & Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina & Georgia."

In the breast of an American of the present day, this description of his country cannot fail to awaken amusement. But the description was accurate at the time. The necessity for something better led to the calling of the convention for the forminpf of a new Constitution for the United States. The preamble to this instrument, as finally adopted, uses very different language. There are no words there indicating that these " Independent States " were any longer to remain independent as between themselves. On the contrary, it begins as follows :

" We, the people of the United States, in order to form a more perfect Union, establish Justice, ensure domestic Tran-

Introduction 9

quilHty, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

In debates which took place in the conventions which were held in the different States to consider whether or not they would ratify this Constitution, the pivot on which the discussion turned was really whether this preamble expressed the national consciousness. Patrick Henry cried in Virginia : " Who gave them the right to say, — ' We, the people of the United States'?" True enough, that right 'had not been conferred upon the delegates. But they assumed it, and when this assumption of authority was ratified, that which at first was but a proposition became the Constitution of a nation. The student of the constitutional history of the United States from 1789 to 1861 knows well that there was a constant strife between those who adhered to the old notion that the States were still what the treaty declared them to be, and those who maintained that the Constitution had welded them into a nation.

As Mr. Webster himself said in the debate on the Force Bill, February 16, 1833^ :

" The Constitution, Sir, regards itself as perpetual and immortal. It seeks to establish a union among the people of the States, which shall last through all time. Or, if the common fate of things human must be expected at some period to happen to it, yet that catastrophe is not anticipated.

lo Daniel Webster

" The instrument contains ample provisions for its amendment, at all times; none for its abandonment, at any time. It declares that new States may come into the Union, but it does not declare that old States may go out. The Union is not a temporary partnership of States."

One of the extraordinary statements in Senator Lodge's Life of Webster is that all the early fathers believed in the right of secession.^ No doubt some of them did. But they were not the men who were responsible for the Constitution.

Rufus Kine, Roeer Sherman, Alexander Hamilton and Benjamin Franklin knew very well what they were about when their great Constitution was published to the world.^

It found no warmer friends anywhere than among the old soldiers of the Revolution. These men realized the necessity of the change expressed in the preamble and rallied to the support of the Constitution which Washington signed, with as much unanimity as they had stood by him during the war. Among them, none was more resolute, more thoroughly in earnest, than the father of Daniel Webster, and the son grew up, amid the forests and mountains of his native State, impressed with

5 James Russell Lowell in his "Essay on Abraham Lincoln," Prose Works, vol. v., p. 201, states this well :

" Though it [secession] contradicts common-sense in assuming that the men who framed our government did not know what they meant when they substituted Union for Confederation ; though it falsifies history which shows that the main opposition to the adoption of the Constitution was based on the argument that it did not allow that independence in the several States which alone would justify them in seceding."

See also the argument on this subject in Webster's Reply to Calhoun, post, pp. 102-107.

Introduction ii

the conviction that he was the citizen of a nation. This conviction he finally impressed upon the great majority of his fellow-citizens in the Northern States and upon no small part of the people of the Southern States, It was this conviction that carried us through the Civil War. Without it, our success in that great struggle would have been impossible.

As well said by an American historian who himself lived through the war :

" For that magnificent popular enthusiasm for the Union — an enthusiasm the like of which for blended fury and intelligence, enlisted on behalf of an idea, the world had never before beheld; this, as history will explain, was by no means the birth of a moment — Fort Sumter fired it, but it was otherwise fuelled and prepared. Daniel Webster, by eminence, his whole life long, had been continuously at work. Speech by speech, year after year, the great elemental process went on. There men might scoff and here men might jeer, but none the less through jeer and scoff the harnessed Titan went steadily to his task. Three generations, at least, of his countrymen, he impregnated, mind and conscience and heart, with the sentiment of devotion to the Union. This in a great part accounts for the miracle in 1861." '

' Scribner's Monthly, vol. xii., p. 425 ; " Daniel Webster and the Compromise Measures of 1850," by William C. Wilkenson.

Another interesting statement of the influence of Webster's speeches upon the war for the Union is to be found in Mellen Chamberlain's Jolin Adams and Other Essays, p. 355 :

" The discourses at Plymouth Rock and at Bunker Hill were not for an hour, nor was the Great Reply. In the days of their utterance they were resplendent, unprecedented eloquence; but they spake truest when they became wisdom to Lincoln and valor to Grant ; they rang loudest when heard along the front of battle, and inspired deeds of immortal heroism on a hundred fields."

See also Rhodes, History of the United States, vol. i., p. 161; Blaine, Twenty Years in Congress, vol. i., p. 94; and Joseph H. Choate's masterly oration on Rufus Choate, p. 23.

Chapter II

EARLY PROFESSIONAL LIFE EXTENSION OF CONSTI- TUTION TO NEW STATES TOWN OF PAWLET

VS. CLARK CRIMINAL JURISDICTION IN HAR- BORS U. S. VS. BEVANS

So much has been written of the early life of Mr. Webster that it is unnecessary here to speak further of it. Three years after graduation and on the 24th July, 1804, being then twenty-two years of age, he became a student in the office of Christopher Gore in Boston. Mr. Gore had been a member of the United States Senate, and had been our Minister to England. Nothing shows more clearly the extraordinary effect which even then was produced by the personality of Mr. Webster, than the fact that he, without any introduction, an absolutely unknown young man, should have been admitted into the office of one of the leaders of the Massachusetts bar, and one of the first men in the United States.^

In March, 1805, Mr. Webster was admitted to the bar of the Suffolk Common Pleas. In the same month, he opened an office at Boscawen, N. H., near his father's home, where he remained

'Webster's Writings and Speeches, vol. xvii., p. 185.

Extension of Constitution to New States 13

until that father's death. In September, 1807, he removed to Portsmouth, N. H. He was married on the twenty-fourth of June, 1808. On the twelfth of November, 181 2, he was elected to Congress from the Portsmouth District, and took his seat at the extra session in the following May. In August, 1 8 14, he was reelected to Congress.

At the February Term of that year, he appeared for the first time as counsel before the Supreme Court of the United States. He argued two prize cases at that Term and appeared in the same cases at the following Term, additional proofs having been ordered in both. At that time, the difficulties of travel were so great, and Washington was consequently so difficult of access, that the majority of cases in the Supreme Court of the United States were argued either by members of Congress or by counsel from neighboring States, Baltimore especially had a brilliant bar, and the names of Pinkney, Wirt and Martin appear very frequently in the reports of Cranch and Wheaton.

The first appeal of real importance that Mr. Webster argued in the Supreme Court was that of the Town of Pawlet vs. Clark. ^ In this case the construction of that clause of the Constitution which extended the judicial power of the United States to controversies between citizens of the same State claiming land under grants of different States was involved. Here the strict constructionist appears on the scene, and claims that this phrase of the Constitution meant the different States that framed the Constitution, and did not apply to any States that might subsequently be admitted. Webster convinced the Court without much difficulty that this construction was too narrow, and that this clause of the Constitution, and by inference all similar clauses in that instrument, referred not only to the thirteen States which framed the Constitution, but to all which they should subsequently admit as integral parts of the Union. This seems too plain for argument now, but in those early days, when everything was in a formative condition, the decision was important, and in its essence involved many of the subsequent decisions which did not appear, at the time they were made, to be so clear.

The rest of the case required a consideration of the character of the grants which had been made by the Colonial Governor of New Hampshire to the town of Pawlet, and which were precedents for the subsequent grants by the various States for educational purposes. This charter divided the land which was set apart to the town of Pawlet into sixty-eight shares, of which one was " for the incorporated Society for the propagation of the Gospel in foreign parts, one share for a glebe for the Church of England as by law established, one share for the first settled Minister of the Gospel, one share for the benefit of a school in said Town."

It was held after a very careful investigation of the English Ecclesiastical Law, that the town could take the land as trustee, and that where no Episcopal church was established before the Revolution

Extension of Constitution to New States 1 5

the State could appropriate the share which had been given for such purpose by the original charter and apply it to other public uses. In this case Vermont had appropriated to the use of public schools the glebe right which had not been taken up by the Episcopal Church, and the Supreme Court sustained the validity of this statute.

In a subsequent case in which Mr. Webster was counsel, — Society for the Propagation of the Gospel in Foreign Parts vs. Town of New Haven, ^ — the rights of this venerable Society came further under consideration by the Court. It was held that the charter which reserved to that Society a share of the town lands vested an interest in the Society which the Legislature of Vermont had no power to divest. This really was an application of the principles of the Dartmouth College case stated in Chapter III.

Mr. Webster does not appear to have argued any cases at the February Term in 18 16. In 181 7, he appeared in numerous prize cases. In 1818, he had to deal with the construction of that clause of the Constitution which described the judicial power and extended it to cases of admiralty and maritime jurisdiction.^ Here it was held that the meaning of this article was a grant, not of territory, but of jurisdiction, and that the harbors in the different States, although within the admiralty jurisdiction of the Courts of the United States, were not withdrawn from the jurisdiction of the particular State in which they happened to be situated.

• 8 Wheat., 464. ' U. S. vs. Bevans, 3 Wheat., 336.

Chapter III Impairing Obligation Of Contracts Law Of The

LAND CORPORATE FRANCHISES — DARTMOUTH

COLLEGE CASE

And now in order we approach the case of Dartmouth College vs. Woodward,^ which has been cited nine hundred and seventy times in subsequent cases, more frequently than any other American decision.^

It is often said that the effect of subsequent constitutional amendments and general legislation has been to rob the doctrine announced in this case of much of its vitality. It is doubtless true that after this decision, in countless ways, public apprehension was aroused lest the corporations, charters for which were being granted by the Legislatures, or which were incorporated under general acts, should become too strong for the people ; and lest, also, applicants might, through political favoritism, or even more ignoble methods, obtain franchises the grant of which would be injurious to the public. Laws were passed, and constitutional amendments were adopted, the object of which was to reserve