Winds of Political Doctrine
II.The name of Webster has been so closely associated with the movement of constitutional nationalism as to overshadow the just fame of one who has many claims to be regarded as the intellectual leader of the school. Joseph Story was a Salem lawyer whose reputation, considerable as it is, is scarcely commensurate with his influence on our later constitutional development. Of the same Harvard class with William Ellery Charming, he dabbled in polite letters as a young man, but went into the law, entered politics, became Associate Justice of the Supreme Court, and for a time was Dane professor of law at Harvard. He came of radical stock. His father, a physician at Boston till he removed to Marblehead, was a militant Revolutionary Whig, one of the score or so of Indians who made up the Boston Tea Party, and a leader amongst the group of Sons of Liberty who seized and gagged the sentinels and carried off two brass fieldpieces from the Common where the British commander had posted them to overawe the town. The son grew up an ardent republican. As a very young man he became an outstanding leader of the unfashionable party, then in the minority, and suffered certain humiliations on account of his political opinions; on one occasion, according to Theodore Parker, being "knocked down in the street, beaten, and forced to take shelter in the house of a friend, whither he fled, bleeding, and covered with the mud of the street" (Additional Speeches, Vol. I,. 178). Of these youthful heresies few indications appeared in his later life. Republican though he might be, he was utterly devoid f any radical tendencies, and when he took his seat on the Supreme Court bench he was speedily drawn into the powerful orbit of John Marshall, shared the latter's views on all major constitutional questions, and turned Whig. He became a close friend of Webster and from 1816 to 1842 he was his chief adviser on knotty legal, constitutional, and international questions. "From that deep and copious well of legal knowledge," Parker asserts, Webster drew freely "whenever his own bucket was dry" (ibid., p. 170). This shift from Republican to Whig came about quite naturally. New England liberalism, it must be remembered, produced no intellectual leaders till late, and no clear-cut political philosophy. Though it nominally accepted the leadership of Jefferson it never was won over to the Physiocratic economics or states-rights principles of the Virginia school. Story was at no time a Jeffersonian, but rather an eager and avowed disciple of Washington, "little infected with Virginia notions, as to men or measures." In his Autobiography he wrote:
The republican party then and at all other times embraced men of very different views on many subjects. Nay, a Virginia republican of that day, was very different from a Massachusetts republican, and the anti-federal doctrines of the former state then had and still have very little support or influence in the latter state, notwithstanding a concurrence in political action upon general subjects. I was at all times a firm believer in the doctrines of General Washington, and an admirer of his conduct, measures and principles. . . . I read and examined his principles, and have made them in a great measure the rule and guide of my life. I was and always have been a lover, devoted lover, of the constitution of the United States, and a friend to the union of the states. I never wished to bring the government to a mere confederacy of states; but to preserve the power of the general government given by all the states, in full exercise and sovereignty for the protection and preservation of all the states. (Story, Life and Letters of Joseph Story, Vol. I, p. 128.)That he had as little sympathy with the Physiocratic economics of Jefferson is apparent from his early activities in furthering the new paper system. While a member of the Massachusetts legislature, as a young man, he was active in pressing for bank franchises, and upon the establishment of the Merchants' Bank of Salem he became its president. Like Washington and Marshall he espoused the new gospel of capitalism, with none of the agrarian prejudices of the landed gentry to hold him back. He was the political twin of the great Chief Justice, and a Whig in spirit long before Webster. "I seem to myself," he remarked late in life, "simply to have stood still in my political belief, while parties revolved about me; so that, although of the same opinions now as ever, I find my name changed from Democrat to Whig, but I know not how or why" (ibid., Vol. I, p. 546). Though somewhat naive the comment is just. Anti-federalism in Massachusetts would seem to have been largely a capitalistic protest against the narrow tie-wig Federalism; and while Joseph Story sat upon the Supreme Court bench, adapting legal principles to the new needs of business, the country was moving forward to the middle-class philosophy that he had early come to hold. In the year 1833 he published his Commentaries on the Constitution, the fruit of long labors, which was at once accepted throughout the North as a classical authority, and which has held its ground pretty well since. In method and temper, as well as objective, the exposition of Story stands in sharp contrast to that of the southern school. In its particularism the latter appealed to the history of the Constitution in the making, and to French romantic philosophy; whereas the former followed English constitutional theories to nationalistic ends. Story was steeped in the Common Law and his thinking reveals the strong influence of Blackstone. In passing through the mind of the great Tory commentator, English constitutional theory had received a pronounced Tory bias, and something of this remains after filtering through the mind of Story. The ideal of a strong and efficient political state, with its corollaries of a coercive sovereignty, of the duties of a subject rather than the rights of a citizen, of loyalty to government rather than concern for political justice, derives immediately from English theory and practice. Much likewise he took from the older Federalists: their fear of an encroaching legislative power; their concern at faction; their faith in checks and balances to restrain the majority will. But his chief inspiration came from the spirit of the Common Law-that subtle influence that Jefferson so greatly feared. His legalism was inveterate; the final, authoritative answer to all questions he discovered in the decision of the courts. Against such a mind, deeply read in the law and with scanty knowledge of economics and political theory, the waves of liberal and romantic thought broke impotently. His reasoning may be convincing to a lawyer, but to the historian his exposition is often weak, his data inadequate, and his conclusions not infrequently contrary to fact. In building his argument Story drew his materials freely from The Federalist, from the writings and decisions of Marshall, and from Blackstone. The backbone of the work is Hamilton and Marshall, from whom he quotes constantly, supplemented by a host of decisions by Federalist judges. With its pronounced bias The Commentaries must be regarded as a partisan document, which like The Federalist has grown in authoritativeness with the triumph of its party principles. Its surprising weakness on the historical side has come to be overlooked since the downfall of southern particularism, but during the debates that preceded the Civil War the work was sharply handled by southern historians, and in his Constitutional View of the War between the States Stephens quite demolished Story's feeble attempt at an historical justification of the anti-compact theory. The weight of historical evidence, to present-day students, would seem to be on the side of the states-rights argument, although in certain aspects, both sides were innovators: Story in overleaping the period of French ascendency when the Constitution took shape, and going back to the older English tradition; and the compact school in reasserting the compact theory at a time when the spirit of nationalism was undermining it. Story seems to have been conscious of his weakness, for he expressly repudiates the method of interpreting the work in the light of contemporary testimony at the time of its formulation. In so doing he not only violates the principle that a document is to be construed in the light of the common understanding when it was drawn; but with naive inconsistency, he constantly appeals to The Federalist, pretty much ignoring the opposition pamphlets, and interprets the Constitution in accord with its commentary. But for the most part he clings to the strict letter of the document. He lightly brushes aside the whole compact argument by asserting dogmatically that the phrase, "We the people of the United States," must be understood in its simple literal sense, and that thus interpreted, the Constitution is seen to derive immediately from the individual citizens acting in their sovereign capacity without the intermediation of the state governments. The dispute long, waged furiously about this point and Story's analysis touches only the fringe of the argument. Very likely it is presumptuous for one who is not a lawyer to express an opinion, yet these celebrated Commentaries seem today very little more than a new-modeled Federalism, adapted to changing conditions. Underneath the somewhat crabbed and narrow legalism is a common-sense realistic political philosophy, an embodiment of English constitutional tradition as it grew up under a Tory regime, that reveals scant sympathy with French romantic theories. The work is an unconscious testimony to the tenacious hold of the English Common Law on the legal mind of America, as well as to the rising spirit of nationalism. It did much to strengthen both. It was a triumph of the lawyer over the historian and political philosopher, and it marks the beginning of the lawyer's custodianship of the fundamental law. In spite of its somewhat petty legalism and prosaic common sense, a note of veneration for the great document runs through the tedious pages, constituting the work at once both a commentary and a eulogy.
IIIA far solider mind, strongly realistic and broadly philosophical, acute in analysis and with great powers of imagination, was the mind of the distinguished leader of the New England Whigs. Not the equal of Story as a lawyer, he was far superior as a political thinker. No man more richly endowed in mind and person has played a part on the stage of our public life, and in spite of gross shortcomings in character and the betrayal of his own promise, Webster retains an aura of the heroic about him. He was a great man, built on a great pattern, who never quite achieved a great life. In Emerson and Webster were completely embodied the diverse New England tendencies that derived from the Puritan and the Yankee: the idealistic and the practical; the ethical and the rationalistic; the intellectual revolutionary, ready to turn the world upside down in theory, planting at the base of the established order he dynamite of ideas, and the soberly conservative, understanding the economic springs of political action, inclined to pessimism, neither wishing for Utopian change nor expecting it. The physical contrast was as striking as the mental. The child of the Puritan was slender, nervous, with a lambent energy that played freely in a rarefied atmosphere; the child of the Yankee was massive, solid, somnolently heavy till an idea awakened his faculties, a lover of the fleshpots, careless of conventional morals, rankly physical, and yet with an assured stateliness of manner, a slow imagination that expanded majestically and a rich eloquence that moved forward by regular stages to a great objective. Emerson was the child of a long line of ministers, and ministerial in his unworldliness; Webster was a Yankee squire, the descendant of some fox-hunting master of broad English acres, who by a freak of fortune had got born into the family of a New Hampshire yeoman. No Englishman was ever more English than he. He loved the substantial things of life: his Marshfield farm; his cattle and horses and crops; his rides afield and the return to good dinners and rich wines. Nothing is more characteristic or more likable - more redolent of the natural Webster - than his concern for agricultural improvements. His homely talk on The Agriculture of England, filled with facts that had come under his observant eye, reveals a side that is too little known. It is an English country squire talking to his neighbors about the homely things they all care for; and when after long years and disappointed ambition and utter weariness, he returned to his Marshfield farm to die, it was his cattle and his fields that offered a last solace to the broken man. Webster's intellectual development falls into distinct and rather sharply defined periods. Before 1825 his mental processes were still under the dominion of the solid, rationalist eighteenth century, with its realistic politics and its laissez faire economics. With the emergence of the constitutional disputes at the end of the twenties, when the lawyers and historians were busy at their commentaries, he came increasingly to take a legalistic view of government. During the acrimonious forties, with slavery dividing the country into hostile camps, he was bitten deeply by presidential ambitions, and thenceforth to the end of his life he was little more than a politician - a rôle for which he was singularly ill-fitted, and which brought bitterness and disillusion to his last days. Since his death both earlier and later phases of his career have fallen into the background, and the middle period of constitutional interpretation has stamped itself indelibly upon his fame. Yet in many respects the solid reasoning of the political philosopher is more valuable than the stately but somewhat ill-grounded declamation of the defender of the Constitution; and his just fame is increased rather than lessened by recalling his earlier contribution to our institutional development. Webster was a sound political scholar, if not an outstanding creative thinker. He was of the distinguished line of political realists, from Harrington through Locke and Burke, to Hamilton Madison and John Adams. He derived equally from seventeenth century liberalism and eighteenth-century Federalism. He was widely read in the political classics, and his vigorous mind laid hold upon major principles and examined them closely. His intellectual master was the acute thinker of the English Commonwealth period, James Harrington, whom he pronounces "one of the most ingenious of political writers," and to whose suggestive doctrine of economic determinism he returns persistently. That Harrington was not the originator of the doctrine he was well enough read to have discovered; but he pays him high tribute as the thinker who gave the doctrine form and currency. It is the substantial realism of the Oceana that appealed to a mind thoroughly indoctrinated with political realism, before the rise of manhood suffrage and the spread of equalitarianism had brought a change in American political theory. Both his major premises and his mode of reasoning bear the impress of the classic English school. In the year 1820, within a single week, he made two speeches, which as expositions of his political philosophy are the most illuminating he ever uttered, and which should stand side by side: the Basis of the Senate, delivered before the Massachusetts Constitutional Convention, and the Plymouth speech on The First Settlement of New England. They supplement each other and together give an admirable elucidation of the stake-in-society principle that embodied a conviction he never abandoned. They are compact of Harrington, Montesquieu and John Adams - the last authentic expression of the old Federalism, before the democratic storms had driven it into new roadsteads and whipped its flag from the halyards where it had long waved. In his admirable argument Webster accepts as axiomatic the theory of division of powers, with the attendant machinery of checks and balances. He accepts equally the familiar view of eighteenth-century liberalism, that the legislature as the self-conscious custodian of the popular will is certain to prove the engrossing member of government whose ambition is most to be feared. To expect a stable balance between Senate and House when their characters are undifferentiated by diverse modes of selection - a result that must follow from choosing both on the numerical majority principle - seems to him the judgment of political inexperience. The wiser method, he believed, was to seek counsel of the philosophers and the clear teachings of history. The first, Webster insisted, have rightly laid down the principle of a stake-in-society as the true measure of political justice: I take the principle to be well established, by writers of the greatest authority. In the first place, those who have treated of natural law have maintained, as a principle of law, that, as far as the object of society is the protection of something in which the members possess unequal shares, it is just that the weight of each person in the common councils should bear a relation and proportion to his interest. Such is the sentiment of Grotius, and he refers, in support of it, to several institutions among the lesser states. ("The Basis of the Senate," in Works, Vol. III, pp. 13-14.) At the basis of the stake-in-society principle is the doctrine of economic power as the controlling factor in determining the form and scope of the political state. In support of this doctrine of determinism Webster appeals to Harrington:
Realist and Constitutionalist
It is his leading object, in his Oceana, to prove, that power naturally and necessarily follows property. He maintains that a government founded on property is legitimately founded; and that a government founded on the disregard of property is founded in injustice, and can only be maintained by military force. "If one man," says he, "be sole landlord, like the Grand Seignior, his empire is absolute. If a few possess the land, this makes the Gothic or feudal constitution. If the whole people be landlords, then it is a commonwealth." "It is strange," says an ingenious person in the last century, "that Harrington should be the first man to find out so evident and demonstrable a truth as that property being the true basis and measure of power." In truth, he was not the first. The idea is as old as political science itself. It may be found in Aristotle, Lord Bacon, Sir Walter Raleigh, and other writers. Harrington seems, however, to be the first writer who has illustrated and expanded the principle, and given to it the effect and prominence which justly belong to it. To this sentiment, Sir, I entirely agree. It seems to me to be plain, that, in the absence of military force, political power naturally and necessarily goes into the hands which hold the property. In my judgment, therefore, a republican form of government rests, not more on political constitutions, than on those laws which regulate the descent and transmission of property. . . . The English Revolution of 1688 was a revolution in favor of property, as well as of other rights. It was brought about by men of property for their security; and our own immortal Revolution was undertaken, not to shake or plunder property, but to protect it. The acts which the country complained of were such as violated the rights of property. An immense majority of all those who had an interest in the soil were in favor of the Revolution; and they carried it through, looking to its results for the security of their possessions. ("The Basis of the Senate," in Works, Vol. III, pp. 14-16.)Harrington's principle that "if the whole people be landlords, then it is a commonwealth," Webster justified by appeal to American history. The spontaneous birth of republican institutions out of colonial experience he attributed to the wide diffusion of property. The land tenure of primitive New England was the creative source of her popular government. Their situation demanded a parcelling out and division of the lands, and it may be fairly said, that this necessary act fixed the future frame and form of their government. The character of their political institutions was determined by the fundamental laws respecting property. . . . The property was all freehold . . . alienation of the land was every way facilitated, even to the subjecting of it to every species of debt. The establishment of public registries, and the simplicity of our forms of conveyance, have greatly facilitated the change of real estate from one proprietor to another. The consequence of all these causes has been, a great subdivision of the soil, and a great equality of condition; the true basis, most certainly, of a popular government. "If the people," says Harrington, "hold three parts in four of the territory, it is plain there can neither be any single person nor nobility able to dispute the government with them; in this case, therefore, except force be interposed, they govern themselves." ("The First Settlement of New England," in Works, Vol. I, pp. 35-36.) Wholly English then, after the soundest English liberal tradition, was Webster's political philosophy in the year 1820, compact of sober eighteenth-century realism, quite unaffected by French romantic equalitarianism. The great principle to which he adhered was the principle that government to be stable must be founded in men's interests; thus founded no cause is given for revolutionary upheavals. "The disastrous revolutions which the world has witnessed, those political thunder-storms and earthquakes which have shaken the pillars of society to their very deepest foundations, have been revolutions against property." Such were Webster's convictions on the eve of those two great upheavals, the rise of Jacksonian democracy and the rejuvenation of the slave economy, that unseated the authority of the old school of political realism, and turned him aside from the plain path to lose himself in a tangle of constitutional legalism. English also was his economic theory, to which, like Franklin before him, he gave close thought. In the year i82o he was a frank disciple of Adam Smith and the laissez faire school. Mercantilism he derided as exploded;2 and Physiocratic agrarianism seemed to him unduly hostile to commerce. He never concerned himself, like Franklin, with humanitarian ends. His sympathies went strongly for free trade, individual initiative, and a competitive order -sympathies which to the end of his life he never wholly outgrew. In those early days the mercantile interests commanded his loyalty far more readily than the manufacturing interests. Next to his Marshfield farm he loved a full-rigged ship, and the thought of Yankee skippers plowing the seven seas in well-freighted bottoms fired his imagination and kindled his patriotism. But if in the background of his thought he remained laissez faire, with the necessary implications of a diminished political state and reliance upon the law of supply and demand above tariffs, bounties, and political regulations, unfortunately in the foreground of expediency were the loud demands of his constituents for protective tariffs, internal improvements, and a policy of governmental paternalism. His economics came into collision with politics, and under the drive of necessity he went reluctantly along the path which Hamilton had marked out a generation before. The change came between the years 1824 and 1825. In the earlier year he aroused himself to a strong defense of laissez faire economics in opposition to Clay's clever campaign cry, the American System; in the later year he endeavored half-heartedly to defend New England interests in the game of subsidies. He was honestly ashamed of the whole mess; to Webster any tariff was a "tariff of abominations"; but his mouth was stopped by the clamor of the Lowell textile masters.3 But having chosen his side, thereafter he defended his course vigorously, and joined forces with Clay in extolling the principle of protection. The same dubious shift is revealed in his changing attitude towards public finance. In 1815 he was an old-fashioned Federalist in his preference for a metallic currency and his belief that the public credit must rest on the public income; bank paper, stocks, bonds, and other agencies of the new finance he distrusted as likely to encourage speculation.4 Twenty years later he was the outstanding champion of the Bank in its mortal quarrel with Jackson. In defending his public career before his constituents in Faneuil Hall in 1842, he said: "The subject of currency has been the study of my life, in preference to all other public topics"; and the result of those studies had made him a confirmed bullionist. Nevertheless when "Old Bullion Benton" proposed to restore a metallic currency, Webster derided the plan on the ground that bank money was necessary; and when the subtreasury system was established he denounced it bitterly.5 He was a partisan to the cause of the Bank, and as its attorney he defended its case before the American public, as he defended its cases before the Supreme Court. He was no longer a free man but was deep in the subsidies of financial interests; nevertheless his old realism convinced him - as it had convinced Hamilton - of the necessity of shaping the public policy to the desires of the bankers. He justified it not only on the grounds of economic determinism, but by professing to discover in business the strong friend of national unity. The planters and farmers were local and sectional in outlook, but the "mercantile classes, the great commercial masses of the country, whose affairs connect them strongly with every State in the Union and with all the nations of the earth, whose business and profession give a sort of nationality to their character" - these men, he argued, gave solidity and stability to government - they were the cohesive force that bound the whole together.6 In serving such clients he was but serving a greater cause. After 1824 the earlier Webster with his solid understanding, his frank realism, his honest exposition of fundamental principles, slowly gave way to the lawyer, the politician, the opportunist of the unhappy later years. With the change the last authentic voice of the eighteenth century was silenced; the break with the old English tradition was complete. Immediate, domestic issues muddied his thought, and Webster and America plunged into a bitter partisanship produced by the new alignments of an equalitarian agrarianism, a capitalistic industrialism, and a feudal slavocracy. Federalism was dead and in its stead was the Whig party, patched together of odds and ends, devoid of principles, seeking only ,'expediency; and of this party Webster became an outstanding spokesman. It was an ignoble time, and his great abilities were not substantial enough to save him from the common meanness. Whoever wishes to understand how great was his fall need only compare the speech of 1820 on "The Basis of the Senate" with the "Declaration of Whig Principles and Purposes" of 1840 (Works, Vol. II, p. 41). To his contemporaries, however, his position was secure. His reputation was extraordinary, and he seemed as fixed and brilliant as the north star. After the reply to Hayne, his fame as the defender of the Constitution was in every mouth. That celebrated speech, perhaps the most celebrated in our congressional history, was delivered on the January 26, 1830, and awakened an amazing response. Men were moved to tears by its eloquence, and its circulation in pamphlet form exceeded that of any other pamphlet since the founding of the government. It is not a great constitutional argument, but it better served the purpose of inspiring in the public a grandiose conception of national unity under the organic law, than any reasoned statement could have done. For political purposes rhetoric was more effective than historical argument, and its sonorous sentences, and in particular the stately conclusion, vastly appealed to the taste of the generation. Three years later Webster applied himself more closely to the subtleties of the question. Calhoun's masterly argument with its exposition of the theory of concurrent majorities could not be answered by rhetoric, and on February 16, 1833, Webster spoke on "The Constitution not a Compact between Sovereign States" (Works, Vol. III, p. 449). His argument is strictly legal and rests on four theses: that sovereignty inheres in the people; that as individuals actin collectively in their sovereign capacity, they ordained and established the Constitution; that the Constitution thus established is the supreme law of the land, acting immediately upon the individual citizen and recognizing no intermediary sovereign state; and that as an "executed contract" it is irrevocable and final, with the necessary functions to construe its powers and execute its will. Of these four theses, two may be regarded as Webster's chief contribution to the great debate: the doctrine of immediacy, and the doctrine of an executed contract. The latter, quite obviously, is no more than Burke's theory of the British constitution as founded on a compact entered into following the Revolution of 1688, and as such, by analogy from the Common Law, inviolable without the consent of both parties to the instrument. As developed by Burke the theory is somewhat tenuous, but as applied by Webster to the interpretation of a written document it is extraordinarily plausible to the legal mind. The doctrine of immediacy, on the other hand, would seem to have been derived from judge Story. The argument of Webster in expounding the principle of immediate contact between the individual citizen and the Constitution follows the argument of Story's Commentaries too closely to escape comment. Theodore Parker explicitly states that Webster got his argument from Story, and circumstances bear out his assertion. The two men had long been close friends. Webster's speech was delivered a month after the Commentaries was finished. In his earlier speeches such principle found no place, and it is reasonable to suppose that, confronted by the Calhoun resolutions, Webster should have turned to the materials gathered by his learned friend and frequent adviser. Here was his reply ready to hand, a mass of legal fact and constitutional exposition, together with a clear and simple theory. Nearly a month elapsed before Webster rose to speak, and then he threw Story on the Constitution at Calhoun's theory of compact. Whether such an interpretation is reasonable or not, the speech added greatly to Webster's reputation as an expounder of the Constitution. In 1833 he stood at the meridian of his renown; thereafter the westering sun of his fame went slowly down. He had come to evil times when opportunism and compromise - so imperative if the country were to hold together at all - seemed immoral to men who insisted that righteousness be legislated upon America, and weakness to men who demanded their pound of flesh. The black shadow of slavery fell across his path, and despite his wish to avoid all controversy on the subject, he could not evade the issue. It drove him into a corner, and the sword of the Constitution that he sought to defend himself with was turned in the end against him. Webster's antipathy to slavery was of long standing and he gave frank expression to it in his speeches. The position which he finally came to assume, in face of the growing abolition sentiment in Massachusetts, was taken deliberately and was worthy of a lawyer. He would oppose the extension of slave territory, but he would not interfere with slavery in the old slave states. The Constitution, he argued, recognized slavery as existing in certain commonwealths by virtue of state laws, but those laws did not run beyond the confines of the state. The territories were under Federal law, and no injunction was laid upon Congress to extend the laws or institutions of any state or group of states over the territorial domain. In his speech on "Exclusion of Slavery from the Territories," on August 12, 1848, he stated his position thus: It will not be contended that this sort of slavery exists by general law. It exists only by local law. I do not mean to deny the validity of that local law where it is established; but I say it is, after all, local law. It is nothing more. And wherever that local law does not extend, property in persons does not exist. Well, Sir, what is now the demand on the part of our Southern friends? They say, "We will carry our local laws with us wherever we go. We insist that Congress does us injustice unless it establishes in the territory in which we wish to go our own local law." This demand I for one resist, and shall resist. It goes upon the idea that there is an inequality, unless persons under this local law, and holding property by authority of that law, can go into new territory and there establish that local law, to the exclusion of the general law. (Works, Vol. V, p. 309.) It was the unfortunate Seventh of March Speech that proved Webster's undoing - this and the Fugitive Slave Bill in which he was deeply implicated. The situation was desperately critical, Webster was pessimistic, and this was a last gesture of reconciliation with the South. Presidential ambitions and runaway slaves were stewing in a common political pot with Abolition societies and northern mercantile interests. Webster was puzzled, hesitated, emptied another glass of the wine of the Constitution, and went for the Fugitive Slave Bill. It was a tragic political mistake. To be sure a tremendous address was presented to him, signed by the most respectable persons in Boston and Cambridge, but it was an empty honor. Webster's influence was gone, never to be regained. There is something pathetic in his futile attempt to stifle the New England conscience by ramming the Constitution down its throat: Sir, the principle of the restitution of runaway slaves is not objectionable, unless the Constitution is objectionable. If the Constitution is right in that respect, the principle is right, and the law providing for carrying it into effect is right. If that be so, and if there is no abuse of the right under any law of Congress, or any other law, then what is there to complain of? ("Speech on the Compromise Measures," in Works, Vol. V, p. 433.) And there is something pathetic also in the hurt vanity of the old man that his judgment should be questioned. His self-pride was offended when the Abolitionists rejected his legal dogmatisms, and set up their own dogmatisms. He regarded them as mischief-makers. "I am against agitators, north and south," he exclaimed petulantly. He recognized no higher law than the Constitution and Blackstone, and he would suffer no popular interference with Congress.
Then, Sir, there are the Abolition societies, of which I am unwilling to speak, but in regard to which I have very clear notions and opinions. I do not think them useful. I think their operations for the last twenty years have produced nothing good or valuable. . . . They have excited feelings. . . . I cannot but see what mischiefs their interference with the South has produced . . . everything that these agitating people have done has been, not to enlarge, but to restrain, not to set free, but to bind faster, the slave population of the South. ("Seventh of March Speech," in Works, Vol. V, p. 357.) I desire to call the attention of all sober-minded men at the North, of all conscientious men, of all men who are not carried away by some fanatical idea or some false impression, to their constitutional obligations. I put it to all the sober and sound minds at the North as a question of morals and a question of conscience. What right have they, in their legislative capacity or any other capacity, to endeavour to get around this Constitution, or to embarrass the free exercise of the rights secured by the Constitution to the persons whose slaves escape from them? None at all; none at all. Neither in the forum of conscience, nor before the face of the Constitution, are they, in my opinion, justified in such attempt. (Ibid., p. 355.)If the later Webster had no message for the conscience of New England, neither had he any for the intelligence of New England. The realistic Federalism that had listened to him in 1820 was gone, submerged by the flood waters of the renaissance; and the current transcendentalism seemed to him insubstantial and dangerous. The rising liberalism of the forties left him wholly untouched; it could not leaven the heavy materialism of his nature. He was quite unacquainted with the new Massachusetts that was coming to expression; he had lived too long with "the lawyers, the politicians, and rich merchants and manufacturers," to understand the greater world of Concord. While he had been living on the subsidies of State Street, and contracting his mind to the compass of a banker's, the intellect of Massachusetts had become liberal. And in becoming liberal it aroused him from indifference to hostility. Writing to a friend in explanation of his refusal to visit Concord in his later years, he said: Many of those whom I so highly regarded in your beautiful and quiet village have become a good deal estranged, to my great grief, by abolitionism, free-soilism, transcendentalism, and other notions which I cannot but regard as so many vagaries of the imagination. (Quoted in Sanborn, Life of Thoreau.) But if he was scarcely acquainted with the little group of thinkers and liberals - Emerson, Thoreau, Charming, Parker, Garrison, Phillips, Edmund Quincy, Whittier, Lowell, Higginson, Harriet Beecher Stowe, Margaret Fuller - they were well acquainted with him and took his measure exactly. The intellect of Massachusetts - so long ignored by Webster - had its revenge. Its voice carried farther than his, and it painted his portrait in no flattering strokes. The fierce storm that suddenly beat upon him broke the old man's spirit. He had fed too long on adulation to endure censure. No doubt that censure was severe, but it was far juster than the earlier adulation had been. Whittier's Ichabod is familiar to every American schoolboy. Lowell, then in his liberal mood, characterized him as "a statesman who had communicated no impulse to any of the great ideas of the century, as a statesman whose soul had been absorbed in tariff, banks, and the Constitution, instead of devoting himself to the freedom of the future." Emerson, who had long studied him critically, gave an extraordinarily dust analysis of his character:
Mr. Webster is a man who lives by his memory, a man of the past, not a man of faith or of hope. He obeys his powerful animal nature; and his finely developed understanding only works freely and with all its force, when it stands for animal good; that is, for property. He believes, in so many words, that government exists for the protection of property. He looks to the Union as an estate, a large farm, and is excellent in the completeness of his defence of it so far. He adheres to the letter. . . .What he finds already written, he will defend. Lucky that so much had got well written when he came. For he has no faith in the power of self-government. Not the smallest municipal provision, if it were new, would receive his sanction. In Massachusetts, in 1776, he would, beyond all question, have been a refugee. He praises Adams and Jefferson, but it is a past Adams and Jefferson, that his mind can entertain. A present Adams and Jefferson he would denounce. So with the eulogies of liberty in his writings,-they are sentimentalism and youthful rhetoric. He can celebrate it, but it means as much from him as from Metternich or Talleyrand. This is all inevitable from his constitution. All the drops of his blood have eyes that look downward. ("The Fugitive Slave Law.")To the transcendental mind Webster's economic realism was peculiarly repugnant, and it was this which inspired Theodore Parker's critical analysis of Webster's career-the most scathing and explicit of all contemporary estimates. What Parker discovers most hateful in Webster's career was his adherence to the principles of Federalism, from the "Basis of the Senate" speech in 1820, to the New York speech on November 18, 1850. The persistence of his economic realism was an affront to the liberals of the humanitarian school that had moved far from the position of Fisher Ames. Webster might do lip service to humanitarian ideals, Parker asserted, but always he came back in the end to his polar conception - "The great object of government is the protection of property at home, and respect and renown abroad" (Works: Additional Speeches, Vol. I, p. 220). It was this same persistent realism that made Webster so useful to the rising capitalism. His work in the Senate was supplemented by his work in the court room. He was the greatest corporation lawyer of the day, certain to be found defending vested interests, never on the side of the leaner purse. Probably more than any other man except John Marshall, he contributed to the work of bringing the Constitution under the sovereignty of the judiciary. His most significant contribution, certainly, was his argument in the celebrated Dartmouth College case, delivered before the Supreme Court in i8i8, which resulted in one of the foundation decisions on which later has been erected the solid structure of our corporation law.7 By engrafting upon the Constitution the principle that a contract lies beyond the reach of legislative power to annul, the decision assured greater security for private property than exists under any other judicial system in the world. Alexander Hamilton could not have asked for more. It was the singular ill fortune of Webster to have been born too late to profit from the old mercantile Federalism to which his affections were always attached, and too early to profit by the industrial Federalism that came to greatness after the Civil War. If fate had been kinder to him, and he had appeared on the political horizon a generation earlier or a generation later, he would have reaped in far greater abundance those high civic honors he so foolishly coveted. The economic groups whom he served would have been in position to reward a servant so conspicuously able and useful. As a contemporary of John Adams he might have become a notable political philosopher - provided always that he had not turned Tory as Emerson suggested. But unhappily for his fame he was launched between tides on a stormy sea and his stately bark foundered in the squall of Abolitionism. 1Quoted in Theodore Parker, Daniel Webster: Additional Speeches, Vol. I, p. 195. Considerable information will be found in this excellent study.
2 See "The Tariff," in Works, Vol. III, pp. 118 - 122.
3 See his "Apology and Defense," in Works, Vol. V, pp. 146, 240.
4See "The Bank of the United States," Works, Vol. III, p. 35.
5See "Speech in Wall Street," in Works, Vol. II, p. 55.
6See "The Landing at Plymouth," in Works, Vol. II, pp. 204 - 205.
7Theodore Parker denied Webster credit for the argument, pointing out that "the facts, the law, the precedents, the ideas, and the conclusions of that argument, had almost all of them been presented by Messrs. Mason and Smith in the previous trial of the case" (Additional Speeches, Vol. 1, p. 171). The statement is confirmed by Beveridge.