Daniel Webster and the Unfinished Constitution

Peter Charles Hoffer

• Publisher: University Press of Kansas
• Year: 2021
• ISBN:
  9780700632015
• Topic: Diritto
• Subtopic: Diritto pubblico

Daniel Webster and the Unfinished Constitution reveals Webster as the foremost constitutional lawyer of his day. Peter Charles Hoffer builds a persuasive case that Webster was more than a skilled practitioner who rose rapidly from his hardscrabble New Hampshire origins. Hoffer thoroughly documents the ways in which Webster was an innovative jurist. While Chief Justice John Marshall gets credit for much of our early constitutional jurisprudence, in fact in a series of key cases Marshall simply borrowed Webster's oral and written arguments.For Webster, Marshall, and many lawyers and jurists of their day, professions of adherence to the Constitution were universal. Yet they knew that the Constitution could not be fixed in time; its text needed to be read in light of the rapidly transforming early republic and antebellum eras or it would become irrelevant. As Chief Justice Marshall explained in Bank of the United States v. Deveaux (1809): "A constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles." But were these "broad and general principles" themselves fixed? For Webster there were landmarks: the Contract Clause and the Commerce Clause. While others were exploring and surveying the Northwest Territory and the Louisiana Purchase, Webster set out to map the spaces in the constitutional and legal landscape that were unmarked.Peter Charles Hoffer provides an insightful and timely study of how Webster's analysis of three key constitutional issues is relevant to today's constitutional conflicts: the relationship between law and politics, between public policy and private rights, and between the federal government and the states, all of which remain contentious in our constitutional jurisprudence and crucial to our constitutional order.

1. A New England Man

Most Americans know Daniel Webster as a politician first and lawyer second. To his political opponents, there seemed something shifty about Webster’s career in politics. He went from populist defender of the yeoman farmer to free trade advocate of the overseas merchants to spokesman for tariff protection for New England manufacturing. Was it political ambition that drove him; Webster looking for a popular stance to propel him from Congress to the presidency? If so, with all due respect to his actual achievements, he had no clue. He took unpopular positions, New England positions, when the region was increasingly atypical of the rest of the country. Admired as a political advocate and for a time certain of reelection to Congress, he never quite got the hang of what the mass of voters wanted. In the end, he seemed out of place—a crotchety defender of older values when successful presidential candidates spoke for more popular positions in a democratic vernacular.

Did he do it all for lucre? He was certainly not averse to charging fees equal to anyone’s in the legal profession. Yet comparing his fees against the hours he put into each case, the hourly rate was hardly exorbitant. Money seemed to seep through his hands, however. He died in debt, having burdened his estate with loans he could not repay. He owed mortgage repayments on Elm Farm in Franklin, New Hampshire, formerly Salisbury; Green Harbor, in Marshfield, Massachusetts, on the south coast; and a four-story mansion on the corner of High and Summer Streets in Boston. He furnished all of them elegantly. Growing up with ten siblings in a rustic farmhouse/tavern, he remembered being house poor. He also remembered how important the tavern was to his father’s political standing, and Daniel entertained lavishly and often. His first, frugal, wife Grace Fletcher passed away in 1828, and the next year Daniel married a New York socialite, Caroline Le Roy. He underwrote his second wife’s expensive tastes.¹

Going into debt was almost too easy for those who devoted lives to public service. Jefferson died in debt. So did Alexander Hamilton, Aaron Burr, James Wilson, and Robert Morris. Morris, the financier of the American Revolution, spent some time in debtors’ prison. Creditors pursued Wilson on his Supreme Court circuit rounds. Webster had the same penchant for overinvesting in land schemes as the previous generation of political leaders. Had Webster, who in the 1820s earned $20,000 a year for his legal work (about half a million dollars in modern terms), simply devoted himself to it, building a bigger firm, seeking out remunerative cases, and leaving politics behind, he would not have died in debt. But speculation, like politics, was his passion.²

Perhaps insecurity drove Webster to excess? His arguments in court were excruciatingly long and detailed. His speeches in Congress were similarly exhaustive. He repeated himself, a sign that he was not always sure of his influence. Before he acted on an issue, he had his speeches on that issue printed and sent to influential clients, political allies, and members of the legal fraternity. He needed their approval. He longed for public respectability. He never quite departed that rough country start, working for but not sitting at the head table with the entrepreneurs, although in no way was he a “country lawyer.” He loved applause and sought it; and oratory was something that he could control. No outside influence save illness could stop him from preparing and delivering an oration. The words were his; the pauses, intonations, pace, and meter were his. If oratory was the only thing in his life he could control, perhaps that was enough. Galvanizing audiences in Congress with his oratory, he nevertheless was not invited to the back room where the party moguls determined who would be president. One cannot entirely separate Webster’s career as a politician from his career as a lawyer, but the latter reveals a different and more interesting Webster.

Daniel Webster was born five years before the federal Constitutional Convention met, and his entire adult and professional life was played out in its shadow. Unlike the members of the New Hampshire delegation to Philadelphia, Nicholas Gilman and John Langdon (both men were later US senators), Webster did not come from an already prominent family. His origins lay in the self-sufficient yeomanry of New Hampshire. His ancestors had migrated to the new colony in the 1630s, and his family were small landowners, farmers, tavern keepers, and local officials. Like many of their kin, his father fought in the French and Indian War and the American Revolution. Again, like many who farmed the land, his father had other occupations—tavern keeper, town clerk, coroner, and local judge. The family was large, like most farm households.

Daniel, who arrived on January 18, 1782, was one of ten children (five from his father’s former marriage). Never much of a fan of hard physical labor, he was sickly in his childhood, though he grew to a solid nearly six-foot height. Extraordinarily bookish, he was home tutored—an expense for his father but one that Daniel used to great advantage. At fourteen, he entered Phillips Exeter Academy, and a year he later enrolled at Dartmouth College, in Hanover, New Hampshire. There he developed his oratorical skills and joined the Federalist Party. In later years, he would recall his attachment to the college.³

Rhetoric, including public speaking, was one of the classic college subjects. Its instruction aimed to assist those students in future legal and ministerial careers. Webster already excelled at oratory because he was long used to entertain customers in his father’s tavern with recitation of bible passages from memory. Little “Black Dan” (like his father, Daniel’s complexion was dark, and that is how he introduced himself when he stood for entrance to Dartmouth), seemed a born orator. Whether innate or learned, he honed his abilities in public speaking in college. It was a heady time for oratory in the nation, changing from an exercise in “decorum, rational persuasion, and controlled appeals to the sentiments” to emotional excess. Law students especially absorbed the new canon of energy and expressiveness.⁴

Speaking in public, “Godlike Daniel” could shift rhythms, tones, and vocabulary so effortlessly that listeners did not perceive the many hours he put into the preparation of each oration. In maturity, Webster’s voice was described as rich and deep, always controlled, “majestic, almost superhuman.” Compared to some of his congressional and courtroom peers, he spoke slowly, and that may have enabled him to go on for hours, sometimes for days (although he could not match Thomas Hart Benton in the Senate or William Pinkney in the Court). There was a dark side to the voice too, a fierceness that was almost out of place in public discourse.

Not quite attractive, but muscular, with a Roman brow, dark hair and eyes, and imposing features, his face “could show disgust, and contempt, smiling in ridicule” even as his “voice rose with eloquence.” Galleries in the Senate and seats in the Supreme Court chamber below filled with visitors when Webster was scheduled to speak. One thinks of the mythical giant Golem, or some other being whose presence is so riveting that one cannot take one’s eyes off them.⁵

At Dartmouth College Webster’s interest in politics was indefatigable. His interest in law was not. The road to political office led through public speaking and civic activity. This was also a road to a legal career, however. The connection between the two was well known. Famous Roman public speakers included notable lawyer/politicians like Cicero and Cato. Lawyering in the Roman Republic was largely reliant on swaying listeners with speeches. Law and oratory seemed to move in opposite directions in the era of Justinian, when precedent and code were reduced to writing, but in the English common law tradition, the ability to plead for a client was once again vitalized. Lawyers like Patrick Henry and Alexander Hamilton could mesmerize a jury for hours. They were the epigones of Cicero and Demosthenes—the orator statesmen of the republic.⁶

The power of persuasive speaking was a skill that could translate into political office when the auditory was the electorate. “It was a sound-conscious” political culture, the effect of which “was a stirrer primarily of common sentiments between a speaker and a listener.” If strong at the beginning of the century, the power of oratory in the public imagination only grew as the decades passed, in what one scholar has called “an atmosphere of debate” in which “oratorical wishes” became “legal documents.”⁷

Webster graduated Dartmouth College in 1800, a year of electoral turmoil. During Webster’s college years, president John Adams and vice president Thomas Jefferson, both lawyers, led opposing political parties, Adams (although he despised political parties) the Federalists, and Jefferson the Republicans. The Federalists, a pro-English, conservative, anti-French party, were the dominant political organization in New England, and during the later 1790s, party rivalry between the Federalists and the Jefferson Republicans heated to fever pitch.

The Federalist majority in Congress passed a series of acts, including a sedition law to criminalize criticism of the government (truth was a defense, but who could prove a political opinion true?), and under it successfully prosecuted over a dozen Republican editors and political writers. Was that law, or partisanship masquerading as law? Was Congress taking onto itself the role of courts? Did the law politicize criminal procedure in the federal courts? Hamilton, no mean partisan himself, warned that the seditious libel law went too far—that is, it was no longer law but partisanship. Both Jefferson and James Madison authored protests against the seditious libel law, arguing that it was a violation of Congress’s enumerated powers in the Constitution. The essence of their resolves was that the law had impermissibly moved the boundary between private rights (in this case freedom of the press) and government power in the direction of the latter.⁸

The 1800 presidential election itself was chaotic, with two Republican candidates, Jefferson and New York’s Aaron Burr, receiving the same number of electoral votes. The Constitution sent the choice to the House of Representatives. Here again the law did not determine a result, however. Instead, the constitutional provision led to intense politicking in the House of Representatives. New Hampshire’s congressional delegation voted for Burr, the Federalists’ preferred candidate, although Burr’s rival in New York politics, Alexander Hamilton, convinced Federalists in other delegations to abstain, throwing the vote (by state delegation) to Jefferson, ten to four. Webster surely took note of these proceedings and of the way that both the public/private and the political/legal questions were not addressed in the Constitution itself.⁹

The sedition law expired in 1801, and with the victory of the Jeffersonian Republicans in the 1800 elections, the time of the Federalist domination of the federal government was coming to an end—with one exception. President John Adams, with the aid of the lame duck Federalist majority in Congress and secretary of state John Marshall of Virginia, managed to find federal judicial offices for Federalists leaving Congress. Marshall himself was appointed and confirmed as the new chief justice of the US Supreme Court, joining other Federalists on the bench. The district courts, sitting in each state over which a district judge presided; circuit courts, created by the Judiciary Act of 1801, in which a newly named corps of circuit judges sat; and the Supreme Court, consisting of seven justices, were entirely Federalist in character. Had the line between law and politics been redrawn, or was the staffing of the federal courts with tried and true Federalists a proof that law and politics were never separable? Republican majorities in the House and Senate repealed the Judiciary Act of 1801 in 1802, shortly after the new Congress met. The Constitution had no answer to that question, and neither did the politicians or the lawyers.¹⁰

In 1801, once more in Salisbury, Webster decided to read law in the office of Thomas Thompson. Webster had political ambitions, but there were few hints in his correspondence that he was already thinking about the places where the two realms overlapped. For reading law was literally that—memorizing passages in books, talking about cases, copying documents. Webster, given to bouts of depression, wrote to one correspondent, “The language of the law is dry, hard, and stubborn as an old maid.” The English cases in abridgements and manuals of forms dominated legal education. For Thompson and others of the revolutionary generation of lawyers, the emphasis was on pleading a case, that is, on the forms of action (grounds for bringing or defending a suit). By the beginning of the nineteenth century, a new concept of law, and consequently in legal education, was making its influence felt: the idea of categories of substantive law. Instead of the writs of trover, conversion, covenant, and the like, one learned about contracts for sale and purchase of property. Still, one had to read the classic English treatises on law, Edward Coke’s Institutes, William Blackstone’s Commentaries, organize rules and principles of the various categories of law, and then help perform the onerous duty of preparing cases for trial.¹¹

Thompson was Boston bred, educated at Harvard, but removed to Salisbury, near to the Webster family homestead. Courtly and polished, he was different from Webster’s neighbors and the Dartmouth crowd. Whether this rubbed off on Webster, or his rough country ways had already been polished by his time at Dartmouth, observers noticed that he was beginning to show something of the tastes of a gentleman. He was also learning something fundamental about lawyering that would, many years after his passing, mislead his biographers. They seemed to agree that he was inconsistent, if not outright duplicitous, in his politics, because he would shift from a pro-agrarian, free trade stance to a protectionist, pro-manufacturing position in Congress. Even in these early years of his practice, fellow lawyers knew that Webster was a consummate advocate for his clients’ interests. As those clients changed, so did his epitomization of the public good.¹²

New Hampshire had abolished slavery during the revolution. No former slave owners in New Hampshire brought suit against Great Britain for wartime runaway slaves. Portsmouth ship owners did engage in the overseas slave trade, but they could not bring slaves back into the state. Webster rarely defended a slave owner, trader, or slavery itself in court. His law practice showed that the nation could thrive without slavery. In 1804, taking time from his clerking duties, he published a newspaper piece denouncing the Three-Fifths Clause of the Constitution. At the outset of the controversy over the admission of Missouri as a slave state, Webster drafted a memorial from Boston calling the institution a “great evil” and demanded that it not be extended into the West. A year later, in 1820, Webster interrupted his address commemorating the arrival of the Pilgrims with concluding remarks on slavery:

In the sight of our law, the African slave-trader is a pirate and a felon; and in the sight of Heaven, an offender beyond the ordinary depth of human guilt. There is no brighter page of our history, than that which records the measures which have been adopted by the government at an early day, and at different times since, for the suppression of this traffic; and I would call on all the true sons of New England to cooperate with the laws of man, and the justice of Heaven. If there be, within the extent of our knowledge or influence, any participation in this traffic, let us pledge ourselves here, upon the rock of Plymouth, to extirpate and destroy it. It is not fit that the land of the Pilgrims should bear the shame longer. I hear the sound of the hammer, I see the smoke of the furnaces where manacles and fetters are still forged for human limbs. I see the visages of those who by stealth and at midnight labor in this work of hell, foul and dark, as may become the artificers of such instruments of misery and torture. Let that spot be purified, or let it cease to be of New England. Let it be purified, or let it be set aside from the Christian world; let it be put out of the circle of human sympathies and human regards, and let civilized man henceforth have no communion with it.

He added, “I care not of what complexion, white or brown” when he extolled the virtues of New Englanders. The printed version of the oration was widely disseminated in the North and widely admired. Webster was never an abolitionist; he preferred voluntary colonization. In 1822, joined by the attorney general of the United States, Webster argued that the slave trade was piracy under international law and congressional acts. In 1847, near the end of his life, he responded to opposing counsel in the Passenger Cases (1847) on the issue of slaves taken into the port of Boston. He was reported to have said, in an aside, that slavery was a “peculiar institution, the existence of which was recognized by the constitution of the United States. There it was placed by those who favored its existence, and he did not wish to disrobe it, nor should he lift his finger to do so. It belonged not to him, but to those alone who had power over it.” It was clear as well that he believed, as did most New Englanders, in white supremacy.¹³

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Though unenthusiastic about studying the details of book law, Webster believed that becoming a lawyer would allow him to “live comfortably” and avoid the poverty that periodically visited yeomen families. As for choices, he “fell into a law office,” he later recalled. His father, now old and enfeebled by years of toil, was immersed in debt (sending Daniel and his brother Ezekiel to college had not helped) and needed Daniel’s assistance. Webster even set aside his legal studies for a short time (six months was all he could manage) to teach school at Fryeburg ...