Daniel Webster and the Oratorical Tradition

William H. Rehnquist

Editor's Note: The Chief Justice gave these remarks at the Daniel Webster Symposium at Dartmouth College in Hanover, New Hampshire, on May12, 1989.

It is a great pleasure to join with you today to celebrate the completion of the publication of The Papers of Daniel Webster. I am sure that these volumes represent a major contribution to our efforts to understand and appreciate one of the giants of the nineteenth century. And surely no more fitting institution of higher learning could be imagined as a place for this celebration than Dartmouth College. As many of you know, Daniel Webster was born and raised in the Merrimack Valley of New Hampshire. He was born in the town of Salisbury in 1782--just as the Revolutionary War was ending. His father farmed and kept a tavern in Salisbury, which was then on the northern edge of the American frontier. When young Daniel was a few years old, his father moved the family to a larger farm about fifteen miles north of Concord, just off of present-day Interstate-93.

Webster was unusual in appearance even as a child--he had an unusually large head, topped with jet black hair, and large black eyes. He was called "little Black Dan." At the age of fifteen, he set off on horseback for Hanover to enter Dartmouth. At this time--1797--Dart-mouth was one of the larger colleges in the United States, but its setting was bucolic: cows grazed on the College common. (One of Webster's biographers says that he and his classmates got so tired of scraping dung off their shoes that one night a group of them rebelled and chased the cows across the Connecticut River, into Vermont.)

Although Webster was about four years younger than the average age of his classmates, he managed to distinguish himself at the College. He was admitted into one of the two leading literary societies on the campus as a freshman, and became one of its leading lights. He was elected to Phi Beta Kappa as a junior and was recognized, even then, for his oratorical abilities. (He was also showing some indication of the spendthrift qualities that would dog him later in life: by the end of his senior year he had run up one of the largest accounts of any student at the general store in Hanover.) He graduated from Dartmouth in 1801, at the age of nineteen.

In a manner typical of the time, he taught school for a while, read law for awhile, and was admitted to practice law in New Hampshire in 1805. In 1807, searching out greener fields for the practice of law, he moved to Portsmouth, which was then the largest city in the state. He married a local Salisbury woman, Grace Fletcher, and the young couple settled down in Portsmouth. Webster was elected to the United States House of Representatives in 1812 and served two terms there. But once again he began looking for greener pastures for his law practice, and in 1816 he and his family moved to Boston. It was in the Boston area that Webster spent the rest of his life. He was elected to the House of Representatives from Massachusetts in 1822 and to the United States Senate in 1827. He was a leading figure on the nation's political stage from that date until the time of his death, 25 years later, in 1852.

We need only to look around us at the automobile, the airplane, radio, television--to name only obvious material differences--to realize how different the twentieth century is from the nineteenth. One of the many ways in which the nineteenth century differed from the twentieth century was that its public figures wrote their own speeches. Both the ability to speak publicly and the ability to say something worth listening to were considered qualifications for public office. Not all public officials possessed these qualifications, but those who did were listened to with marked attention.

At first blush we may feel that when we read Webster's orations we cannot truly appreciate them in the same way that we could have had we been present to hear them delivered. In a way, of course, that is true; but most of the people who knew these orations in his own time learned of them in the same way that we do today. Only the relatively few spectators who could crowd into the Senate gallery when he spoke could actually hear his famous speeches there; only those much more numerous spectators actually present at his Bunker Hill Monument dedication or his Plymouth oration could hear those addresses. But thousands and thousands of copies of each of these speeches were gobbled up by the public (after considerable editing by Daniel Webster).

Webster was the greatest orator of his day in the United States Senate, and he was also one of the greatest advocates who has ever appeared before the Supreme Court of the United States. Let me first tell you a little bit about his advocacy before the Supreme Court.

Most practicing attorneys today, like those who practiced in Webster's time, never have an opportunity to argue a case before the Supreme Court. And most of those who do, appear there only rarely. Webster, however, argued 171 cases before the Supreme Court over a span of 37 years--an amazing achievement and a record never surpassed. Although he won slightly less than half of his cases, this is generally the lot of the lawyer who has a reputation as a great advocate before the Supreme Court. Charles Evans Hughes and John W. Davis, the great advocates before the Court during the first half of this century, were by no means always successful. The reason for their mixed success, and for that of Webster's in the nineteenth century, was that frequently "great advocates" are called in by one of the parties only when the legal situation is roughly equivalent to a baseball game in the last half of the ninth inning, when there are two outs and the home team is down by a couple of runs. Even a great batter will hit less than .500, and even the great advocate will not win a majority of these cases. But he will win more of them than the mediocre lawyer.

Oral arguments before the Supreme Court in Webster's time were far different than they are now. Today, the Court receives extensive written briefs, containing the contentions of the parties, well before argument, and each attorney is given only half an hour to present the client's case orally. A red light on the podium dramatically indicates when this time has expired.

In Webster's day, by contrast, the caseload of the Supreme Court was far less than it is today. In the early days of his advocacy, the Court would sit in Washington for only a couple of months, in the late winter and early spring, in order to finish its business, and oral argument was a more leisurely affair.

Arguments frequently lasted not merely for hours on end, but in the great cases, sometimes for several days. An attorney with a gift of eloquence, a knowledge of the law and, last but by no means least, a good deal of stamina, could hold the attention of Justices and spectators for an entire day as he played a leading role on the stage where great issues were debated.

It is interesting to note, parenthetically, that in countries other than the United States which have inherited the English common-law tradition, oral advocacy is even today much like it was in Webster's time before our Supreme Court. In the House of Lords in England and in the High Court of Australia, there is no time limit on oral argument; in an important case, it can go on for days. The Supreme Court of Canada only departed from this tradition within the past couple of years.

Among the cases Webster argued are some with which all students of the Constitution are familiar. He was on the winning side in Gibbons v. Ogden in 1824, when Chief Justice Marshall spoke for the Court in giving a broad interpretation to the Commerce Clause. He was also on the winning side in McCulloch v. Maryland in 1819, when the Court, again speaking through Chief Justice Marshall, upheld the authority of Congress to charter a national bank. (The arguments in those cases lasted five days and nine days, respectively.) But surely the most interesting of Webster's cases to the present audience is the case of Dartmouth College v. Woodward, which he argued before the Supreme Court of the United States in 1818.

The case arose from a dispute between the president and trustees of Dartmouth College. The College had received a royal charter from the Crown before the American Revolution. The charter provided for twelve trustees to govern the College and authorized them to fill vacancies occurring among their own number. The trustees had exercised their authority to turn the president of the College out of office, only to see his cause become a burning political issue in the state of New Hampshire. In 1816, the state legislature converted Dartmouth College into Dartmouth University (some issues never go away, I gather), raised the number of trustees from 12 to 21, and made other changes in the governance of the institution. The majority of the old trustees refused to accept the amendment to the charter and sued in the state court, claiming that the changes "impaired the obligation of contract," in violation of the United States Constitution. Meanwhile, they continued to operate Dartmouth College in makeshift quarters, after being evicted from the "University" buildings.

The New Hampshire state courts ruled against the claims of the old trustees, and they retained Webster to present their case to the Supreme Court of the United States. He was then 36 years old and had just moved to Boston; he had already argued several cases in the Supreme Court. But despite the fact that this case presented a new point of constitutional law--whether a corporate charter was a "contract"-and that the political infighting that gave rise to the dispute was a hot issue in New Hampshire, the case attracted little attention or interest from the legal profession or the general public in other parts of the country.

Arguments were heard in March 1818, in the cramped, temporary quarters to which the Supreme Court had been relegated after its courtroom in the United States Capitol had been burned by the British during the War of 1812. Arguments began at 11 o'clock on the morning of March 10, with Webster's argument consuming most of the first day. The audience consisted of only a few interested lawyers and a small band of New Englanders--an assemblage which Webster later described as "small and unsympathetic."

Webster spoke in a calm, deliberate manner. As one observer wrote:

It was hardly eloquence, in the strict sense of the term, it was pure reason. Now and then, for a sentence or two, his eye flashed and his voice swelled into a bolder note, as he uttered some emphatic thought; but he instantly fell back into the tone of earnest conversation....

Drawing upon not only prior Supreme Court decisions, but also such varied sources as New Hampshire law, the Federalist Payers, Black-stone's Commentaries and English precedent dating back to the reign of Queen Elizabeth, Webster endeavored to persuade the Court that under the United States Constitution the rights and property of private corporations were beyond legislative interference. He argued that if Dartmouth College, his alma mater, could be destroyed by legislative fiat, so could Yale and Harvard. (Some here might not think that a bad idea.)

After four hours of intricate legal reasoning, Webster paused for a moment, then made a dramatic, emotional appeal to the Justices' sympathies for the cause of higher education. He stated, according to one surviving account of the oration:

Sir, you may destroy this little institution; it is weak; it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out. But if you do so, you must carry through your work! You must extinguish, one after another, all those great lights of science which, for more than a century, have thrown their radiance over our land!

No doubt there are many in this audience today, as there may have been in the audience who heard Webster in 1818, who would disagree as to Dartmouth being a "lesser light" on the literary horizon of our country. But in any event, Webster was just laying the foundation for his next line, which I am sure is known well by many in this audience:

It is, sir, as I have said, a small college. And yet, there are those who love it--.

It was an extraordinary presentation. Though the peroration appears to have been planned, Webster was overcome with emotion; tears clouded the eyes of the Chief Justice; the audience and the Associate Justices sat spellbound. As Justice Joseph Story wrote years later:

[Webster's] whole air and manner...gave to his oratory an almost superhuman influence.... The whole audience had been wrought up to the highest excitement; many were dissolved in tears; many betrayed the most agitating mental struggles; many were sinking under exhausting efforts to conceal their own emotion.

When the Court met for its 1819 Term, it convened for the first time in what one newspaper described as a "splendid room provided for it in the Capitol." The decision in the Dartmouth College case was announced at the Court's first session. When Chief Justice John Marshall began to deliver his opinion from the Bench, it was soon clear that Webster's advocacy had proved persuasive. The Chief Justice stated that the colonial charter of Dartmouth College was indeed a "contract" which the New Hampshire state legislature could not impair without violating the Constitution. One Justice dissented without opinion, and another was absent, but the remaining four of the seven Justices who then served on the Court concurred with the Chief Justice.

Before this audience, it would be tempting to say that the Dartmouth College case was in the very first rank of constitutional importance among those cases which Webster argued. That, however, would be something of an overstatement. The principle that a corporate charter issued by the Crown in colonial days was a "contract" within the meaning of the Constitution was an important one, but later decisions of the Supreme Court cut back on some of the language of Chief Justice Marshall, as to what actions by the state would constitute an "impairment" of such a contract. Yet, there is no doubt that the case had a tremendous impact on Webster's career, establishing him among the outstanding members of the bar of the Supreme Court.

Webster would be accounted a supporter of the Constitution and the Union throughout his time in the Senate, and in his several unsuccessful bids for the Presidency. His first great speech on this subject in the Senate occurred in January 1830. The previous day he had walked into the Senate chamber while waiting to argue another case before the Supreme Court (one floor below). Though the topic under consideration was a resolution to restrict the sale of public, lands, the debate had begun to encompass other subjects, including the raising of revenues under the national tariff, sectional differences, and even the nature of the Union itself. The political interests of the East, South and West frequently differed, and Senator Robert Y. Hayne of South Carolina sought to forge an alliance between the Southern and Western interests.

From the floor of the Senate, Senator Hayne attacked the East as being opposed to low land prices that would favor the West. He also asserted that Eastern exploitation of the protectionist tariff victimized both the South and the West, by cheapening Southern exports and making imports more expensive. A states' rights proponent, Hayne asserted that the tariff was unconstitutional and that individual states had the power to nullify such national legislation.

Astonished by the virulence of Hayne's remarks, Webster, an Easterner from Massachusetts, rose the following day to reply. Thus began what has since been described as "the greatest debate in the history of the Senate." At length, Webster aggressively contested Hayne's charge of Eastern hostility to the West, then launched into vigorous defense of the Union. To those politicians who believed that the Union was merely an arrangement of convenience which could easily be dispensed with, Webster proclaimed:

I deem far otherwise the union of the States.... I believe, fully and sincerely believe, that the union of the States is essential to the prosperity and safety of the States. lam a unionist, and.... would strengthen the ties that hold us together

Hayne's response to Webster was extensive and consumed most of the two days. Some believed that his eloquence was so effective that he had demolished Webster's argument. By the time that Webster rose to reply, the following day, the debate had aroused unusual interest--perhaps more because of the personalities involved than because of the issues. The ornate Senate chamber was full to overflowing, and as Webster later remembered, he "never spoke in the presence of an audience so eager and so sympathetic." Webster's response ran for three hours the first day, and almost as long on the next, as he rose to a level of oratorical excellence which he never exceeded and that few others have attained.

Answering Hayne point by point, Webster eventually turned to the subject of the Union and the Constitution. He rejected the idea that the Union was merely a creature of the states, whose actions any state could declare to be constitutionally invalid. It was for the Supreme Court, and not the individual states, to decide whether an Act of Congress violated the Constitution. Turning directly toward Hayne, for his peroration, Webster proclaimed his faith that the United States could have both liberty and union:

When my eyes shall be turned to behold for the last time the sun in heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on States dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood! Let their last feeble and lingering glance rather behold the glorious ensign of the republic... Liberty and Union, now and forever, one and inseparable!

Webster's speech, by fortunate chance, had been taken down in shorthand by a spectator in the Senate gallery. It soon went through more than twenty printings, and thousands of copies were distributed throughout the country, particularly to the Western states, where Webster's reputation now spread. According to one historian, "The speech touched the craving of the American imagination for the heroic and the fabulous." In later years, Hayne himself acknowledged Webster as "the most consummate orator of either ancient or modern times."

Webster would remain in the Senate for more than 16 years after his "Reply to Hayne," but he never gave a better speech there. During these succeeding years he would be known as a member of the "Great Triumvirate," along with John C. Calhoun of South Carolina and Henry Clay of Kentucky. These three would dominate the senatorial horizon for 20 years, and would amount to a major force in the nation's government, by reason of their political skills and the force of their personalities. They had entered Congress at roughly the same time. They were last gathered together in the United States Senate during the winter of 1850, when sectional antagonism over the institution of slavery had once more reared its head.

With the end of the Mexican War, in 1848, the United States had acquired a huge amount of territory from Mexico--what is now virtually the entire Southwestern part of our country. Out of this territory, California wished admission as a free state, but the Southerners m Congress demanded concessions from the North m exchange. That body turned to the difficult task of fashioning what would be called the "Compromise of 1850." Physically, the Great Triumvirate was on its collective last legs (if I may use that expression). Clay, 73, was frail and constantly coughing, sometimes appearing too ill to climb the steps of the Capitol. Calhoun, 67, and near death, "already seemed a disembodied spirit." Webster, 68, was far from well, "nearly broken down with labor and anxiety."

In a speech to the Senate, in late January of 1850, Clay outlined a comprehensive solution which He believed would form a basis upon which the warring factions could get together. In early March, Calhoun undertook to respond on behalf of the diehard Southerners, but was so infirm that he had to listen to another Senator read his speech, as he slumped huddled in a blanket. (In a matter of months, he would be dead.)

Against this background, Webster's response was eagerly awaited, and on March 7 he took up the cudgels once more for the Union. But this time he was pleading not only with the Southerners, but with the Northerners, to compromise on issues that were very important to them. He spoke for more than three hours, seldom looking at his extensive notes. According to one commentator, "No utterance by an American statesman created more excitement at the time of its delivery or has been more fiercely discussed by historians."

The Compromise of 1850 was passed later that year. Some two years later Webster died at his estate in Marshfield, Massachusetts, at the age of 70.

Shortly after I began practicing law in Arizona, 35 years ago, I noticed hanging on the wall of the office of the United States Attorney a lithograph of someone who was obviously Daniel Webster making a speech to a group of people who looked like other Senators. I asked the U.S. Attorney what the occasion was, and he said that it depicted Webster's reply to Senator Hayne. I did not know much more about Webster's "Reply to Hayne" than the peroration, to which I had been exposed somewhere during my education--and I think the same was true of the U.S. Attorney.

As I was preparing my remarks for today I thought back to this incident, and realized that it took place about a century and a quarter after Webster delivered that speech. Then I asked myself, "Is it conceivable that 125 years from now--indeed, 25 years from now--people would have pictures of a present-day Senator or Representative delivering a speech in the legislative chamber while colleagues crowded in to hear?" The answer is obviously "No."

In a way, this summarizes the difference between the times of Daniel Webster and our own times. It is easy to make too much of these differences and to exaggerate them, often to the benefit of the dead and departed. Neither Webster, Clay, nor Calhoun were consistent in the views they expressed throughout their long lives. Indeed, each of them seemed to exemplify Emerson's maxim that "a foolish consistency is the hobgoblin of little minds." None of them was above reproach in keeping the political bargains he made. Webster was venal even by the standards of his own day, since he encouraged the solicitation of funds from wealthy Bostonian constituents to maintain his lavish life-style in Washington. All three of the Triumvirate--Webster, Clay and Calhoun--were badly bitten by the presidential bug, and it showed in their conduct.

But when all of this debunking is given its due, there does, it seems to me, remain a difference between these three giants of the first half of the nineteenth century and public figures of more recent times. Calhoun, Clay and Webster all sat down by themselves on numerous occasions and either wrote out a speech or, at least, notes which would be used in delivering a speech on some great issue. By the standards of our times, these speeches were often incredibly long, and reading them today, it can be fairly said, is, in places, incredibly dull. But we must also remember that at the time these speeches were given there were far fewer competing modes of entertainment or enlightenment than there are today. In this the orators of the nineteenth century were fortunate; those exposed to the emotional roller coasters of today's talk shows would hardly be likely to weep at Webster's peroration in the Dartmouth College case.

These statesmen were at least willing to stand up and publicly say what they thought about an important public question, and to give the reasons why they thought the way they did. And the speeches or articles or letters which bore their names were more likely than not to be their own work products. As a result, people listened when they spoke; these men did not need a "Meet the Press" format to obtain a public hearing. That this is not so today, it seems to me, is a singular loss to our society but it is all the more reason for celebrating on this happy occasion the completion of The Papers of Daniel Webster.