CONSTITUTIONAL ORATOR - Daniel Webster Packed 'Em In

S. W. FINLEY

"Side by side with the great name of Marshall should be placed -that of Daniel Webster," an admiring biographer once wrote. "The arguments of the one were as necessary as the decisions of the other." The point is well taken; not only do great appellate advocates focus the constitutional issues before the Court, but the "godlike Daniel" was a legend in his own time. Brilliant lawyer, incisive political debater–generations of school boys in an earlier time memorized and recited his famous Reply to Hayne–and something of a ham actor as well, the Massachusetts orator had everything of which stories are made. Stephen Vincent Benet wrote a play around the common saying that Webster could argue the Devil himself out of his due, and there seems to have been at least partial basis in fact for the report that Webster once interrupted oral argument when a bevy of admiring ladies entered the courtroom to listen to him–and began again from the beginning for their benefit.

Webster and Chief Justice Marshall shared the same basic constitutional philosophy, and together with Justice Joseph Story they constituted a fortuitous triumvirate in establishing the fundamentals of American federalism in the first four decades of the nineteenth century. Webster may have gilded the lily with his oft-quoted postscript to his argument in the Dartmouth College Case ("It is, sir, as I have said, a small college–but there are those who love her"); but the abiding fact is that he presented the arguments on which the Court established its famous doctrine on the contract clause.

The fateful combination of great advocates and great jurists in this formative period is reminiscent of the epochal meeting of great minds in the previous generation of Adams, Franklin and Jefferson in the era of independence and constitutional drafting. With William Wirt as Attorney General (see article, "The Many-Sided Attorney General," by Joseph C. Robert in YEARBOOK 1976), Webster's appearance at the Supreme Court bar at this turning-point in history seemed predestined. Three weeks after his 1819 argument in Dartmouth College v. Woodward, he was again before the Court in the equally momentous case of McCulloch v. Maryland, out of which Marshall drafted the inherent powers and "necessary and proper" doctrines of the Constitution.

Two years later, Webster was retained with Senator James Barbour of Virginia in the case of Cohens v. Virginia, which established the reviewability of state criminal cases on constitutional questions. Three years after that, in the famous "steamboat case" of Gibbons v. Ogden, Webster again appeared and provided -the basic issues on which Marshall based the commerce clause holding–an opinion which, as Justice James Wayne later put it, freed "every creek and river, lake, bay, and harbor in our country from the interference of monopolies."

By 1824, Webster had emerged as the dean of the Supreme Court bar, appearing with Henry Clay in Osborn v. Bank of the United States and Bank of the United States v. Planter's Bank of Georgia, two cases dealing with lingering issues from the McCulloch decision of 1819. A third case argued in this same memorable term was Ogden v. Saunders. Although it did not receive a majority -to permit a decision to be handed down until 1827. It is significant that in this case, on the power of states to legislate on bankruptcy matters, Webster's clients lost– and John Marshall dissented. It was not that Webster consistently won his cases; indeed, the Court historian Charles Warren found from a statistical array of 170 cases in which Webster appeared before the Court between 1814 and 1851, that the great lawyer won slightly less than half. Of the constitutional cases, however, Webster either won the major ones or, like the great dissenting Justices like Oliver Wendell Holmes, Louis D. Brandeis and the first John Marshall Harlan, forecast the shape of the future even in minority.

Harriet Martineau, that keenly observant English traveler of the second quarter of the nineteenth century, described Webster and the Marshall Court in an 1835 visit and published in her Retrospect of Western Travel (1838):

I have watched the assemblage while the Chief Justice was delivering a judgment, the three Judges on either hand gazing at him more like learners than associates; Webster standing firm as a rock, in his large, deep-set eyes wide awake, his lips compressed, and his whole countenance in that intent stillness which easily fixes -the gaze of the stranger. Clay leaning against the desk in an attitude whose grace contrasts strangely with the slovenly make of his dress, his snuff box for the moment unopened in his hand, his small grey eye, and placid half-smile conveying an expression of pleasure, which redeems his face from its usual unaccountable commonness. . . [T]hese men, absorbed in what they were listening to, thinking neither of themselves nor of each other, while they are watched by the groups of idlers and listeners around them; the newspaper corps, the dark Cherokee chiefs, the stragglers from the far West, the gay ladies in -their waving plumes, and the members of either House that have stepped in to listen. . . . There is no tolerable portrait of Judge Story, and there never will be . . . the quick smile, the glistening eye, the gleeful tone, with passing touches of sentiment; the innocent self-complacency, the confiding, devoted affections of the great American lawyer. . . . It was amusing to see how the Court would fill after the entrance of Webster, and empty when he had gone back to the Senate Chamber. The chief interest to me in Webster's pleading, and also in his speaking in the Senate, was from seeing one so dreamy and nonchalant, roused into strong excitement. Webster is a lover of ease and pleasure, and has an air of the most unaffected indolence and careless self-sufficiency. It is something to see him moved with anxiety, and the toil of intellectual conflict; to see his lips tremble, his nostrils expand, the perspiration start upon his brow; to hear his voice vary with emotion.

Justice Story himself was the source of a statement that whenever Webster spoke in the Court, "a large circle of ladies, of the highest fashion, and taste, and intelligence, numerous lawyers, and gentlemen of both houses of Congress, and towards the close, the foreign ministers, or at least some two or three of them," crowded in to listen. Another contemporary English traveler, Dana Hamilton, wrote:

The person, however, who has succeeded in riveting most strongly the attention of the whole Union, is undoubtedly Mr. Webster. From the Gulf of St Lawrence to that of Mexico, from Cape Sable to Lake Superior, his name has become, as it were, a household word. Many disapprove his politics, but none deny his great talents, his unrivalled fertility of argument, or his power, even still more remarkable, of rapid and comprehensive induction. In short, it is universally believed by his countrymen that Mr. Webster is a great man; and Webster . . . is a man of whom any country might well be proud. His knowledge is at once extensive and minute, his intellectual resources very great; and whatever may be the subject of discussion, he is sure to shed on it the light of an active, acute, and powerful mind. . . .

The forehead of Mr. Webster is high, broad, and advancing. The cavity beneath the eyebrow is remarkably large. The eye is deeply set, but full, dark, and penetrating; the nose prominent, and well defined; the mouth marked by that rigid compression of the lips by which the New Englanders are distinguished. When Mr. Webster's countenance is in repose, its expression struck me as cold and forbidding, but in conversation it lightens up; and when he smiles, the whole impression it communicates is at once changed. His voice is clear, sharp, and firm, without much variety of modulation; but when animated, it rings on the ear like a clarion.

. . .In the Supreme Court he delivered several legal arguments which certainly struck me as admirable, both in regard to matter and manner. The latter was neither vehement nor subdued. It was the manner of conscious power, tranquil and self-possessed.

(Men and Manners in America [1833])

On fifteen major constitutional issues, there is a striking juxtaposition between Webster's constitutional argument and the holding of the Court, sometimes for and sometimes against him. With a keen knowledge of American history and what someone has called the logic of that history, the Senator from Massachusetts regularly divided his efforts between Capitol's upper chamber and the advocacy of public causes in the courtroom on the lower floor. (For a photograph of the restored courtroom in the Capitol, where these cases were argued and decided, see YEARBOOK 1976, page 29.) The cases which are described below, with the essence of both Webster's argument and the Court's holding, demonstrate how fundamentally, throughout the half-century before the sectional struggle of the Civil War, Daniel Webster's constitutional thought influenced the course of events.

(Ed. Note: The study of Webster's role in American constitutional history has been the subject of at least two books which both merit study, although published nearly sixty years apart: Everett Pepperrell Wheeler's Daniel Webster, the Expounder of the Constitution, published in 1905, and Maurice G. Baxter's Daniel Webster and the Supreme Court, published in 1966.)

Dartmouth College v. Woodward (1819)

The equating of a college charter, or the charter of any charitable institution, with a contract protected by the non-impairment clause of the Constitution (Article I, Sec. 10) had many political as well as legal ramifications. (See generally Walker Lewis' article, "Backstage at Dartmouth College," and the companion article, "Another Early College Charter Case," in YEARBOOK 1977.)

Webster's Argument:

It will be contended by the plaintiffs, that these acts are not valid and binding on them, without their assent,–

1. Because they are against common right, and the Constitution of New Hampshire.

2. Because they are repugnant to the Constitution of the United States.

* * *

Individuals have a right to use their own property for purposes of benevolence, either towards the public, or towards other individuals. They have a right to exercise this benevolence in such lawful manner as they may choose; and when the government has induced and excited it, by contracting to give perpetuity to the stipulated manner of exercising it, it is not law, but violence, to rescind this contract, and seize on the property. Whether the State will grant these franchises, and under what conditions it will grant them, it decides for itself. But when once granted, the constitution holds them to be sacred, till forfeited for just cause.

The granting of the corporation is but making the trust perpetual, and does not alter the nature of the charity. The very object sought in obtaining such charter, and in giving property to such a corporation, is to make and keep it private. property, and to clothe it with all the security and inviolability of private property. The intent is, that there shall be a legal private ownership, and that the legal owners shall maintain and protect the property, for the benefit of those for whose use it was designed.

* * *

The plaintiffs - contend, in the second place, that the acts in question are repugnant to the tenth section of the first article of the Constitution of the United States. The material words of that section are: "No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."

It has already. been decided in this court, that a grant is a contract, within the meaning of this provision; and that a grant by a State is also a contract, as much as the grant of an individual. (Fletcher v. Peck, 6 Cranch 87)

* * *

And because charters of incorporation are of the nature of contracts, they cannot be altered or varied but by consent of the original parties. If a charter be granted by the king, it may be altered by a new charter granted by the king, and accepted by the corporators. But if the first charter be granted by Parliament, the consent of Parliament must be obtained to any alteration

Court Opinion:

The general correctness of these observations cannot be controverted. That the framers of the constitution did not intend to retrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us, is not to be so construed, may be admitted. The provision of the constitution never has been understood to embrace other contracts, than those which respect property, or some object of value, and conized to pass all laws "necessary and proper" to carry into execution the powers conferred on it. These words, "necessary and proper," in such an instrument, are probably to be considered as synonimous. Necessary powers must here intend such powers as are suitable and fitted to the object; such as are best and most useful in relation to the end proposed. If this be not so, and if Congress could use no means but such as were absolutely indispensable to the existence of a granted power; the government would hardly exist; at least, it would be wholly inadequate to the purposes of its formation. A bank is a proper and suitable instrument to assist the operations of the government, in the collection and disbursement of the revenue; in the occasional anticipations of taxes and imposts; and in the regulation of the actual currency, as being a part of the trade and exchange between the States. . . .

2. The second question is, whether, if the bank be constitutionally created, the State governments have power to tax it? The people of the United States have seen fit -to divide sovereignty, and to establish a complex system. They have conferred certain powers on the State Governments, and certain other powers on the National Government. As it was easy to foresee -that questions must arise between these governments thus constituted, it became of great moment to determine upon what principle these questions should be decided, and who should decide them. The constitution, therefore, declares, that the constitution itself, and the laws passed in pursuance of its provisions, shall be the supreme law of the land, and shall control all State legislation and State constitutions, which may be incompatible therewith; and it confides to this Court the ultimate power of deciding all questions arising under the constitution and laws of the United States. The laws of the United States, then, made in pursuance of the constitution, are to be the supreme law of the land, any thing in the laws of any State to the contrary notwithstanding. . . .

Court Opinion:

The first question made in the cause is, has Congress power to incorporate a bank?

It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation.

* * *

The government of the Union, then, (whatever may be the influence of this fact on the case,) is emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.

This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required -to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist. . . .

If any one proposition could command the universal assent of mankind, we might expect it would be this–that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is fer rights which may be asserted in a court of justice. . . .

According to the theory of the British constitution, their parliament is omnipotent. To annul corporate rights might give a shock to public opinion, which that government has chosen to avoid; but its power is not questioned. Had parliament, immediately after the emanation of this charter, and the execution of those conveyances which followed it, annulled the instrument, so that the living donors would have witnessed the disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged. Yet then, as now, the donors would have had no interest in the property; then, as now, those who might be students would have had no rights to be violated; then, as now, it might be said, that the trustees, in whom the rights of all were combined, possessed no private, individual, beneficial interest in the property confided to their protection. Yet the contract would at that time have been deemed sacred by all. What has since occurred to strip it of its inviolability? Circumstances have not changed it. In reason, in justice, and in law, it is now what it was in 1769.

This is plainly a contract to which the donors, the trustees, and the crown, (to whose rights and obligations New Hampshire succeeds,) were the original parties. It is a contract made on a valuable consideration. It is a contract for the security and disposition of property. It is a contract, on the faith of which, real and personal estate has been conveyed to the corporation.

McCulloch v. Maryland (1819)

The famous case of the Bank of the United States, and the attempt of Maryland and other states to subject its banknotes to a state tax, provided both Webster and Marshall with the opportunity they had long awaited, to establish the proposition that powers vested by the Constitution were supreme powers, not subject to state burdens. Webster understood precisely what Marshall was seeking to establish as -the rule of law, and prepared the arguments on behalf of the Bank which enabled the Court to accomplish its objective.

Webster's Argument:

Congress, by the constitution, is invested with certain powers; and, as to the objects, and within the scope of these powers, it is sovereign. Even without the aid of the general clause in the constitution, empowering Congress to pass all necessary and proper laws for carrying its powers into execution, the grant of powers itself necessarily implies the grant of all usual and suitable means for the execution of the powers granted. Congress may declare war; it may consequently carry on war, by armies and navies, and other suitable means and methods of warfare. So it has power to raise a revenue, and to apply it in the support of the government; and defence of the country. It may, of course, use all proper and suitable means, not specially prohibited, in the raising and disbursement of the revenue. And if, in the progress of society and the arts, new means arise, either of carrying on war, or of raising revenue, these new means doubtless would be properly considered as within the grant. Stream frigates, for example, were not in the minds of those who framed the constitution, as among the means of naval warfare; but no one doubts the power of Congress to use them, as means to an authorized end. It is not enough to say, that it does not appear that a bank was in the contemplation of the framers of the constitution. It was not their intention, in these cases, to enumerate particulars. The true view of the subject is, that if it be a fit instrument to an authorized purpose, it may be used, not being specially prohibited. Congress is author- the government of all; its powers are delegated by all; it represents all, and acts for all. .

[The "necessary and proper" clause is] made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. .

The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, "any thing in the constitution or laws of any State to the contrary notwithstanding."

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people;" thus leaving the question, whether the particular power which may become -the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . .

We admit, as all must, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Gibbons v. Ogden (1824)

Once having established the principle of plenary power in the national government, in subject-areas in which the Constitution had vested such power, the Marshall Court, with Webster as the advocate of the concept, now looked to a case in which the implement of such power–the commerce clause–could be unequivocally identified. The opportunity came in the famous "steamboat case" in which the claims of a state to ~exercise exclusive commerce power in navigable water was confronted with the declaration that Congress' power over commerce between states was paramount.

Webster's Argument:

I shall contend that the power of Congress to regulate commerce is complete and entire, and, to a certain extent, necessarily exclusive; that the acts in question are regulations of commerce, in a most important particular, affecting it in those respects in which it is under the exclusive authority of Congress. I state this first proposition guardedly. I do not mean to say, that all regulations which may, in their operation, affect commerce, are exclusively in the power of Congress; but that such power as has been exercised in this case does not remain with the States. Nothing is more complex than commerce; and in such an age as this, no words embrace a wider field than commercial regulation. Almost all the business and intercourse of life may be connected incidentally, more or less, with commercial regulations.

I contend, therefore, that the people intended, in establishing the Constitution, to transfer from the several States to a general government those high and important powers over commerce, which, in their exercise, were to maintain a uniform and general system. From the very nature of the case, these powers must be exclusive; that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be a unit; and the system by which it was to exist and be governed must necessarily be complete, entire, and uniform. Its character was to be described in the flag which waved over it, E PLURIBUS UNUM. Now, how could individual States assert a right of concurrent legislation, in a case of this sort, without manifest encroachment and confusion? It should be repeated, that the words used in the Constitution, "to regulate commerce," are so very general and extensive, that they may be construed to cover a vast field of legislation, part of which has always been occupied by State laws; and therefore the words must have a reasonable construction, and the power should be considered as exclusively vested in Congress so far, and so far only, as the nature of the power requires. And I insist, that the nature of the case, and of the power, did imperiously require, that such important authority as that of granting monopolies of trade and navigation should not be considered as still retained by the States. . . .

Court's Opinion:

The subject to be regulated is commerce; and our constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. . . .

But, in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power, if it could not pass those lines. The commerce of the United States with foreign nations, is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction, pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State. . . .

We are now arrived at the inquiry– What is this power?

It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. . . .

The sum of Daniel Webster's constitutional philosophy–one which Benet liked so well that he incorporated portions of it into the hero's speech in The Devil and Daniel Webster–was not given in a courtroom but on the floor of the Senate, perhaps, in the final analysis, Webster's natural arena. In an 1830 debate over an otherwise routine bill, a Senator for South Carolina, Robert Young Hayne, extolled the standard state's rights position of the Old South in a florid speech which ended with a demand that the Massachusetts Senator answer one ultimate question: If the issue of American federalism ever came to a choice between liberty or union, which should it be?

Webster seized the opportunity to make, before packed galleries, an equally florid reply, which nonetheless sincerely expressed his own conviction as forcefully as Chief Justice Marshall ever phrased it:

While the Union lasts, we have high, exciting, gratifying prospects spread out before us, and our children. Beyond that I seek not to penetrate the veil. God grant that in my day at least that curtain may not rise. God grant that on my vision never may be opened what lies behind. 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 gorgeous ensign of the republic, now known and honored throughout the earth, still full high advanced, its arms and trophies streaming in their original lustre, not a stripe erased or polluted, nor a single star obscured, bearing for its motto, no such miserable interrogatory as "What is all this worth?" nor those other words of delusion and folly, "Liberty first and Union afterwards"; but everywhere, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart–"Liberty and Union, Now and Forever, One and Inseparable."