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 .iBRARY OF CONGRESS 
 
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 iiljlliiii; 
 
Daniel Webster 
 
 The Expounder of the 
 Constitution 
 
 By 
 
 Everett Pepperrell Wheeler 
 
 (< We cannot think of America without him. We cannot think of 
 the Constitution or of the Union without him. His figure naturally 
 belongs to and mingles with all great scenes and places which belong 
 to hberty." — George Frisbie Hoar. 
 
 G. P. Putnam's Sons 
 
 New York and London 
 
 Xlbe l^ntctterbocker predd 
 
 1905 
 
Er- 
 
 •U)n 
 
 UliiHAKV of Oii'^uirttSS: 
 
 ^ Oopyrieiu > 
 
 Copyright, 1904 
 
 BY 
 
 EVERETT PEPPERRELL WHEELER 
 
 Published, January, 1905. 
 
 Ube Iknicfierboclicc prees, 'Bew Korl? 
 
PREFACE 
 
 I WAS brought up among men who knew Mr. 
 Webster personally, and loved and honored him. 
 I heard his oration before the New York Histori- 
 cal Society just before I went to college. In my 
 Freshman year I went to his funeral, and saw him 
 lie in simple state on his lawn at Marshfield. Every 
 flag was at half-mast and every street draped in 
 mourning. The hills were black with the countless 
 throngs who assembled to pay the last tribute of 
 respect to the first American of his day. The 
 country showed how deeply it felt the loss of him 
 who for fifty years had served it faithfully. My 
 soul took in something of the universal emotion. 
 
 Then again, the men who influenced me in my 
 youth were alive to the difficulties of the political 
 situation, and their talk was of Mr. Webster, and 
 the country, and the Union, and of the part he had 
 played in the long struggle that attended their 
 growth, and that finally effected their preservation. 
 I lived throueh the Civil War and saw what that 
 preservation cost when the final grapple came. 
 
 My professional studies have led me to a careful 
 examination of the great cases that Webster argued, 
 and the decisions that followed his arguments, and 
 that have moulded our Constitution and made it 
 
 III 
 
iv Preface 
 
 adequate to the needs of a great Nation. For 
 twenty years in the brief intervals afforded a busy 
 lawyer by the demands of his exacting profession, 
 I have been collecting the materials for this book. 
 It has really been an evolution, and I send it forth 
 now, invoking for it the friendly consideration 
 of my fellow-citizens, and believing that the Web- 
 ster lesson was never more needed than it is now. 
 One necessary result of free institutions is to de- 
 velop independence. But the majority of mankind 
 will always follow a leader. And the independence 
 of the leader often begets subservience on the part 
 of the follower, the result of which is injurious to 
 the Commonwealth. In these days of industrial 
 warfare, it is especially necessary to recur to the 
 principles of our Constitution, and to cultivate re- 
 spect for the rights of others as sedulously as we 
 insist upon our own. This was the motif of Mr. 
 Webster's career. 
 
 My attention was first drawn to the comparison 
 between the Seventh of March speech and Mr. Lin- 
 coln's first inaugural by my cousin Alexander S. 
 Wheeler, of Boston. He knew Mr. Webster well. 
 His suggestions and personal knowledge have been 
 of great service to me in the preparation of this 
 book. 
 
 I have made a careful examination of the Web- 
 ster manuscripts in the Congressional Library, and 
 in the Library of the New Hampshire Historical 
 Society at Concord, N. H. In both I have found 
 much important unpublished material. Probably 
 the most interesting of this is a manuscript of Mr. 
 
Preface • v 
 
 Justice Story, giving an account of the argument 
 of the Dartmouth College case, and of the case of 
 Gibbons v. Ogden, that I discovered in the Library 
 at Washington. 
 
 Most of my references to Mr. Webster's writings 
 are to the edition of his works in six volumes, pub- 
 lished by Little & Brown during Mr. Webster's 
 lifetime, and of which numerous editions have since 
 been published. This edition is referred to as 
 Webster's Works. The recent more complete edi- 
 tion, published by Little, Brown & Company, is 
 referred to in those cases in which it contains mat- 
 ter not in the original edition. This is cited as 
 Webster s Writings and Speeches. 
 
 Everett P. Wheeler. 
 
CONTENTS 
 CHAPTER I 
 
 PAGE 
 
 Introduction ........... I 
 
 CHAPTER n 
 
 Early Professional Life— Extension of Constitution to New States — 
 Town of Pawlet vs. Clark — Criminal Jurisdiction in Harbors — 
 U. S. vs. Bevans 12 
 
 CHAPTER HI 
 
 Impairing Obligation of Contracts— Law of the Land — Corporate 
 
 Franchise — Dartmouth College Case i6 
 
 CHAPTER IV 
 
 Supremacy of the National Government — Power to Charter a Bank 
 
 — McCulloch vs. Maryland 34 
 
 CHAPTER V 
 
 Interstate Commerce — Gibbons vs. Ogden 47 
 
 CHAPTER VI 
 The Slave Trade — La Jeune Eugenie 63 
 
 CHAPTER VII 
 
 State Insolvent Laws — Ogden vs. Saunders 67 
 
 vii 
 
viii Contents 
 
 CHAPTER VIII 
 
 PAGE 
 
 Acquisition of New Territory — American Insurance Company vs. 
 
 Canter . 70 
 
 CHAPTER IX 
 
 The United States not a Confederacy but a Union — Reply to Mr. 
 
 Hayne — Carver vs. Astor's Lessee ...... 76 
 
 CHAPTER X 
 
 The United States a Union, not a Confederacy — Subject Continued 
 
 — Reply to Calhoun ......... 93 
 
 CHAPTER XI 
 
 Power of the United States over Acquired Territory when Admitted 
 
 as a State — New Orleans vs. United States . . . . iiS 
 
 CHAPTER XII 
 
 Effect of Grant of One Franchise upon Power to Grant Rival Fran- 
 chise — The Charles River Bridge Case . . . . .121 
 
 CHAPTER XIII 
 
 Rights of Corporations in Other States— Comity between States — 
 
 Bank of Augusta vs. Earle 124 
 
 CHAPTER XIV 
 
 Girard Will Case— Rhode Island Boundary Case— Case of the Lex- 
 ington 129 
 
 CHAPTER XV 
 
 Eminent Domain over Franchise — West River Bridge Case . . T34 
 
 CHAPTER XVI 
 
 Power to Reorganize State Governments— Dorr Rebellion . . .137 
 
Contents ix 
 
 CHAPTER XVII 
 
 PACE 
 
 State Power over Foreign Commerce— Passenger Tax Cases . . 143 
 
 CHAPTER XVIII 
 
 Extensive Range of Webster's Legal Acquirements— Van Rensselaer 
 
 Title — Van Rensselaer vs. Kearney I54 
 
 CHAPTER XIX 
 
 The Constitution and Slavery— Seventh of March Speech . . .157 
 
 CHAPTER XX 
 Conclusion • • -177 
 
 Table of Cases iSr 
 
 Index 183 
 
Daniel Webster 
 
 The Expounder of the Constitution 
 
 CHAPTER I 
 
 INTRODUCTION 
 
 The work of a truly great man must needs be 
 permanent in its nature. To understand the true 
 character of existing systems and to value them 
 justly, it is needful to recur from time to time to 
 their development and to study the part that states- 
 men have played therein. No American has done 
 more to make our government what it is than 
 Daniel Webster. To understand the Constitution 
 of America, we must needs examine what he did 
 while it was yet — so to speak — in the gristle, and 
 this study will also teach us something of the true 
 function of the profession of law in this country. 
 
 The labors that fall to an American lawyer are 
 so varied in character that no one man can perform 
 them all. In the mother country the profession 
 for this reason is divided into ranks and grades, 
 and he who serves in one does not attempt the 
 
2 Daniel Webster 
 
 responsibilities of the other. The attorney must 
 be a shrewd and skilful man of business. The 
 proctor must be familiar with the rules of naviga- 
 tion. There is no height of intellectual attainment 
 to which the advocate may not aspire, and no 
 resource of learning or power of persuasive or 
 judicial eloquence which will not aid him in his 
 daily task. 
 
 Again, the development of our system of juris- 
 prudence to provide for the rapid changes in the 
 conditions of business and social life imposes a 
 constant duty upon the intelligent and conscien- 
 tious lawyer. The law which regulated the busi- 
 ness of a few stages and canal-boats was inadequate 
 to direct the complicated affairs of carriers by steam 
 on land and sea. The judge-made code for the 
 carrier of articles that could be weighed and meas- 
 ured, had but a limited application to the companies 
 who put at the service of the public the invisible 
 force of electricity, and have made New York and 
 Boston, Chicago and San Francisco, parts of one 
 great municipality. The English common law was 
 well adapted to the thickly settled and compact 
 island of Great Britain, but was insufficient and in 
 some particulars ill adapted to the requirements of 
 a people scattered over thirteen Commonwealths 
 just formed into one Union. 
 
 There is yet another more arduous responsibility 
 resting on the American lawyer from which our 
 English brethren are exempt. First among the 
 nations the United States established a written 
 Constitution which should be the supreme law of 
 
Introduction 3 
 
 * 
 
 the land, supreme over Executive and Legislature, 
 and which gave to the courts of justice the power to 
 enforce its supremacy, by declaring that a statute 
 which had received the votes of both houses of 
 Congress and the signature of the President, or 
 which had been adopted by a State Legislature 
 and signed by its Governor, should yet be alto- 
 gether held for naught if it violate the supreme 
 Constitution. 
 
 Well might we say when we contemplate the 
 magnitude of these labors, — Who is sufficient for 
 these things ? No doubt now, as in the Apostles' 
 time, there are many who pervert the word of God, 
 of whose justice and equity courts of justice ought 
 to be the visible embodiment. But also there are 
 many who, like St. Paul, speak in godly sincerity, 
 and fulfil with singleness of heart the true function 
 of the lawyer, which is to aid the court in the dis- 
 charge of its exalted and responsible office. 
 
 Preeminently such a man was Mr. Webster. He 
 became a member of the bar at a time when many 
 of the most important questions since determined 
 were unsettled. More than any other man, he aided 
 in their settlement.^ 
 
 Coleridge tells us that " The first man upon 
 whom the light of an idea dawned, received thereby 
 the function of a lawgiver." It was because Mr. 
 Webster, in his capacious mind, apprehended with 
 
 ' " It is impossible to overestimate the support that the court derives from 
 the bar, and in Mr. Webster's arguments fidelity to the court is as conspicu- 
 ous as fidelity to his client. It is not client first and conscience afterwards, 
 but duty to both together, one and inseparable." — Chief Justice Fuller, 
 IVebste?- Centennial, p. 275. 
 
4 Daniel Webster 
 
 such clearness the idea which was the soul of the 
 novel system our fathers established, that he was 
 able to lead our courts to formulate this idea in 
 their judgments. 
 
 But it may be asked, How can this be ? Is it 
 not the duty of judges to declare, and not to make 
 the law ? In one sense no doubt it is. The judge 
 ought not to depart from the principles of the law 
 as he finds them established. But when a case 
 comes up, as often it does, which involves a new 
 application of these principles or modification of 
 rules already settled, to adapt them to a new state 
 of facts for which no precise provision has been or 
 could have been made, the judge does, in a very 
 real and important sense, make the law and is a 
 lawgiver as well as a judge. If the lawyer who 
 presents such a case to the court is adequate to his 
 task, he must first thoroughly understand the exist- 
 ing rule and the reason for it ; next, he must appre- 
 ciate the change in circumstances and conditions 
 which makes this in its precise form no longer ap- 
 plicable. To this he must add constructive ability, 
 and be able to show how the rule, as it has hitherto 
 served, may most wisely and fitly grow to meet the 
 requirements of the present and of the future. No 
 man in America ever combined these qualities to a 
 higher degree than Mr. Webster. He understood 
 the history and character of the mother country 
 and the common law which was the necessary out- 
 growth of that character and history. He looked 
 into the very heart of the American people and 
 realized our needs. He was able to point out the 
 
Introduction 5 
 
 path by which we could most wisely be led to our 
 true growth and development. With unrivalled 
 power for making hard places easy and dark things 
 clear, he succeeded in impressing his own convic- 
 tions upon the courts before which he practised. 
 
 In dealing even with the precision of mathematics, 
 great minds can see what lesser minds fail to ap- 
 prehend. What they see they can make clear. The 
 truths which Newton and Laplace were the first to 
 behold and develop can now be taught to our col- 
 lege students ; and judges many times rightly and 
 justly laid down as law what the genius of Webster 
 perceived and demonstrated — what without the aid 
 of that genius might have remained undetermined. 
 Most important of all his public services was the 
 part he took in demonstrating the true method of 
 construing the Constitution of the country. The 
 very fact that this was the supreme law of the land 
 made it all the more important that its construction 
 should be established on the right basis. 
 
 From the begfinninof there was a school of think- 
 ers who sought to limit the scope of our great 
 charter and restrain its plain provisions within nar- 
 row bounds. It is the most brief of constitutions. 
 Its sections and articles never undertook to provide 
 in detail for all emergencies which might arise, but 
 established general provisions, which, fairly con- 
 strued, should be adequate for every occasion. If 
 the country were to be held in bondage to the 
 letter, and disregard the spirit of the Constitution, 
 the purpose stated in its preamble, " to form a more 
 perfect Union," would fail of accomplishment. 
 
6 Daniel Webster 
 
 No doubt there were thinkers who sought to 
 give such a lax interpretation to its provisions that 
 they might mean anything or nothing, as the im- 
 mediate occasion might seem to require, and the 
 strict constructionists did good service in restrain- 
 ing- the vagraries of such reasoners. The merit of 
 Mr. Webster lay in this, that he maintained the 
 golden mean, and in numerous arguments pointed 
 out clearly and convincingly the evils which led to 
 the formation of the Constitution, the objects its 
 founders sought to accomplish and the method by 
 which they had, upon fair rules of construction, 
 achieved the great end they had in view. 
 
 The celebration of the centennial of the acces- 
 sion of Chief Justice Marshall to the Supreme 
 Court of the United States called attention to the 
 leading part which the decisions of that Court have 
 played in making the nation what it is. Side by 
 side with the great name of Marshall should be 
 placed that of Webster. The arguments of the 
 one were as necessary as the decisions of the other. 
 They combined to impress upon the American 
 people a conviction of the possibilities of the 
 country, of the fitness of the government which 
 they had founded to enable them to make the most 
 of these possibilities and, above all, the conviction 
 that the thirteen Colonies had become blended 
 into one indissoluble Union. 
 
 It is hard for us to realize in the days of our 
 greatness the weakness and insignificance of our 
 beginnings. It frequently happens under Ameri- 
 can institutions that a man born of the humblest 
 
Introduction 7 
 
 parents and amid the most adverse circumstances 
 has become a man of wealth, power and influence. 
 But the rise of the most remarkable of them all is 
 not more extraordinary than the change which has 
 taken place in the condition of the American people 
 since the birth of Mr. Webster. He was born at 
 the conclusion of the Revolutionary War and just 
 before the treaty of peace was concluded between 
 the thirteen Colonies and the United Kinedom of 
 Great Britain and Ireland. His father was one of 
 the hardy settlers who had not found scope for 
 their energies in the surroundings of their child- 
 hood, and had gone into the forest, not only to 
 discover, but really to create a new world. The 
 little house in Salisbury, New Hampshire, where 
 Daniel Webster was born on the i8th day of Janu- 
 ary, 1782, was on the border of colonial civiliza- 
 tion.^ The Colonies were scattered alongr the 
 Atlantic coast and the eastern slope of the Alle- 
 ghanies. They had neither money nor credit ; were 
 deeply in debt, with an army about to be disbanded, 
 the meagre pay of which was long in arrears.' They 
 lived under a Confederation which gave to the gen- 
 eral government no real power, and which worked 
 
 ' As Mr. Webster said in his speech at Saratoga, August ig, 1840 (Web- 
 ster's IVoris, vol. ii., p. 30): 
 
 " Gentlemen, it did not happen to me to be born in a log-cabin; but my 
 elder brothers and sisters were born in a log-cabin, raised amid the snow- 
 drifts of New Hampshire, at a period so early that, when the smoke first 
 rose from its rude chimney, and curled over the frozen hills, there was no 
 similar evidence of a white man's habitation between it and the settlements 
 on the rivers of Canada." 
 
 ' See Stone's interesting Zi/e of Johti Howland, a Rhode Island soldier, 
 who, when his enlistment expired, was obliged to walk home from 
 Yorktown. 
 
8 Daniel Webster 
 
 so badly that it left the Colonies at the end of the 
 war with actually less unity that they had at the be- 
 ginning. The father of Daniel Webster had been 
 a distinguished officer in the Revolution, and in 
 common with his comrades had smarted under the 
 weakness and incompetency and consequent injus- 
 tice of the government of the Confederation, and he 
 realized, therefore, the absolute necessity for a united 
 and stable government, if the thirteen independent 
 Colonies were ever to become a united nation. 
 
 The treaty of peace concluded at Paris, Sep- 
 tember 3, 1783, contained in its first article the 
 following clause : 
 
 " His Britannic Majesty acknowledges the said United 
 States, viz: New Hampshire, Massachusetts Bay, Rhode Island 
 & Providence Plantations, Connecticut, New York, New Jer- 
 sey, Pennsylvania, Delaware, Maryland, Virginia, North Caro- 
 lina, South Carolina & Georgia." 
 
 In the breast of an American of the present 
 day, this description of his country cannot fail to 
 awaken amusement. But the description was ac- 
 curate at the time. The necessity for something 
 better led to the calling of the convention for the 
 forminpf of a new Constitution for the United 
 States. The preamble to this instrument, as finally 
 adopted, uses very different language. There are 
 no words there indicating that these " Independent 
 States " were any longer to remain independent as 
 between themselves. On the contrary, it begins 
 as follows : 
 
 " We, the people of the United States, in order to form a 
 more perfect Union, establish Justice, ensure domestic Tran- 
 
Introduction 9 
 
 quilHty, provide for the common defence, promote the general 
 Welfare, and secure the Blessings of Liberty to ourselves and 
 our Posterity, do ordain and establish this Constitution for the 
 United States of America." 
 
 In debates which took place in the conventions 
 which were held in the different States to consider 
 whether or not they would ratify this Constitution, 
 the pivot on which the discussion turned was really 
 whether this preamble expressed the national con- 
 sciousness. Patrick Henry cried in Virginia : 
 " Who gave them the right to say, — ' We, the 
 people of the United States'?" True enough, 
 that right 'had not been conferred upon the dele- 
 gates. But they assumed it, and when this assump- 
 tion of authority was ratified, that which at first was 
 but a proposition became the Constitution of a na- 
 tion. The student of the constitutional history of 
 the United States from 1789 to 1861 knows well 
 that there was a constant strife between those who 
 adhered to the old notion that the States were still 
 what the treaty declared them to be, and those 
 who maintained that the Constitution had welded 
 them into a nation. 
 
 As Mr. Webster himself said in the debate on 
 the Force Bill, February 16, 1833^ : 
 
 " The Constitution, Sir, regards itself as perpetual and im- 
 mortal. It seeks to establish a union among the people of the 
 States, which shall last through all time. Or, if the common 
 fate of things human must be expected at some period to 
 happen to it, yet that catastrophe is not anticipated. 
 
 1 Webster's Works, vol. iii., p. 471. 
 
lo Daniel Webster 
 
 " The instrument contains ample provisions for its amend- 
 ment, at all times; none for its abandonment, at any time. It 
 declares that new States may come into the Union, but it does 
 not declare that old States may go out. The Union is not a 
 temporary partnership of States." 
 
 One of the extraordinary statements in Senator 
 Lodge's Life of Webster is that all the early fathers 
 believed in the right of secession.^ No doubt 
 some of them did. But they were not the men 
 who were responsible for the Constitution. 
 
 Rufus Kine, Roeer Sherman, Alexander Hamil- 
 ton and Benjamin Franklin knew very well what 
 they were about when their great Constitution was 
 published to the world.^ 
 
 It found no warmer friends anywhere than among 
 the old soldiers of the Revolution. These men re- 
 alized the necessity of the change expressed in the 
 preamble and rallied to the support of the Con- 
 stitution which Washington signed, with as much 
 unanimity as they had stood by him during the 
 war. Among them, none was more resolute, more 
 thoroughly in earnest, than the father of Daniel 
 Webster, and the son grew up, amid the forests 
 and mountains of his native State, impressed with 
 
 ' Lodge's Zi/f ^/ Webster, pp. 176, 177. 
 
 5 James Russell Lowell in his "Essay on Abraham Lincoln," Prose 
 Works, vol. v., p. 201, states this well : 
 
 " Though it [secession] contradicts common-sense in assuming that the 
 men who framed our government did not know what they meant when they 
 substituted Union for Confederation ; though it falsifies history which shows 
 that the main opposition to the adoption of the Constitution was based on 
 the argument that it did not allow that independence in the several States 
 which alone would justify them in seceding." 
 
 See also the argument on this subject in Webster's Reply to Calhoun, 
 post, pp. 102-107. 
 
Introduction ii 
 
 the conviction that he was the citizen of a nation. 
 This conviction he finally impressed upon the great 
 majority of his fellow-citizens in the Northern States 
 and upon no small part of the people of the South- 
 ern States, It was this conviction that carried us 
 through the Civil War. Without it, our success in 
 that great struggle would have been impossible. 
 
 As well said by an American historian who him- 
 self lived through the war : 
 
 " For that magnificent popular enthusiasm for the Union — 
 an enthusiasm the like of which for blended fury and intel- 
 ligence, enlisted on behalf of an idea, the world had never be- 
 fore beheld; this, as history will explain, was by no means the 
 birth of a moment — Fort Sumter fired it, but it was otherwise 
 fuelled and prepared. Daniel Webster, by eminence, his whole 
 life long, had been continuously at work. Speech by speech, 
 year after year, the great elemental process went on. There 
 men might scoff and here men might jeer, but none the less 
 through jeer and scoff the harnessed Titan went steadily to his 
 task. Three generations, at least, of his countrymen, he im- 
 pregnated, mind and conscience and heart, with the sentiment 
 of devotion to the Union. This in a great part accounts for 
 the miracle in 1861." ' 
 
 ' Scribner's Monthly, vol. xii., p. 425 ; " Daniel Webster and the Com- 
 promise Measures of 1850," by William C. Wilkenson. 
 
 Another interesting statement of the influence of Webster's speeches upon 
 the war for the Union is to be found in Mellen Chamberlain's Jolin Adams 
 and Other Essays, p. 355 : 
 
 " The discourses at Plymouth Rock and at Bunker Hill were not for 
 an hour, nor was the Great Reply. In the days of their utterance they 
 were resplendent, unprecedented eloquence; but they spake truest when 
 they became wisdom to Lincoln and valor to Grant ; they rang loudest when 
 heard along the front of battle, and inspired deeds of immortal heroism on 
 a hundred fields." 
 
 See also Rhodes, History of the United States, vol. i., p. 161; Blaine, 
 Twenty Years in Congress, vol. i., p. 94; and Joseph H. Choate's masterly 
 oration on Rufus Choate, p. 23. 
 
CHAPTER II 
 
 EARLY PROFESSIONAL LIFE EXTENSION OF CONSTI- 
 TUTION TO NEW STATES TOWN OF PAWLET 
 
 VS. CLARK CRIMINAL JURISDICTION IN HAR- 
 BORS U. S. VS. BEVANS 
 
 So much has been written of the early life of Mr. 
 Webster that it is unnecessary here to speak further 
 of it. Three years after graduation and on the 24th 
 July, 1804, being then twenty-two years of age, he 
 became a student in the office of Christopher Gore 
 in Boston. Mr. Gore had been a member of the 
 United States Senate, and had been our Minister 
 to England. Nothing shows more clearly the ex- 
 traordinary effect which even then was produced 
 by the personality of Mr. Webster, than the fact 
 that he, without any introduction, an absolutely 
 unknown young man, should have been admitted 
 into the office of one of the leaders of the Massa- 
 chusetts bar, and one of the first men in the United 
 States.^ 
 
 In March, 1805, Mr. Webster was admitted to 
 the bar of the Suffolk Common Pleas. In the 
 same month, he opened an office at Boscawen, N. 
 H., near his father's home, where he remained 
 
 'Webster's Writings and Speeches, vol. xvii., p. 185. 
 
 12 
 
Extension of Constitution to New States 13 
 
 until that father's death. In September, 1807, he 
 removed to Portsmouth, N. H. He was married 
 on the twenty-fourth of June, 1808. On the twelfth 
 of November, 181 2, he was elected to Congress 
 from the Portsmouth District, and took his seat at 
 the extra session in the following May. In August, 
 1 8 14, he was reelected to Congress. 
 
 At the February Term of that year, he appeared 
 for the first time as counsel before the Supreme 
 Court of the United States. He argued two prize 
 cases at that Term and appeared in the same cases 
 at the following Term, additional proofs having 
 been ordered in both. At that time, the difficul- 
 ties of travel were so great, and Washington was 
 consequently so difficult of access, that the majority 
 of cases in the Supreme Court of the United States 
 were argued either by members of Congress or by 
 counsel from neighboring States, Baltimore es- 
 pecially had a brilliant bar, and the names of Pink- 
 ney, Wirt and Martin appear very frequently in 
 the reports of Cranch and Wheaton. 
 
 The first appeal of real importance that Mr. 
 Webster argued in the Supreme Court was that 
 of the Town of Pawlet vs. Clark. ^ In this case 
 the construction of that clause of the Constitution 
 which extended the judicial power of the United 
 States to controversies between citizens of the 
 same State claiming land under grants of different 
 States was involved. Here the strict construction- 
 ist appears on the scene, and claims that this phrase 
 of the Constitution meant the different States that 
 
 ' 9 Cranch, 292. 
 
14 Daniel Webster 
 
 framed the Constitution, and did not apply to any 
 States that might subsequently be admitted. Web- 
 ster convinced the Court without much difficulty 
 that this construction was too narrow, and that 
 this clause of the Constitution, and by inference all 
 similar clauses in that instrument, referred not only 
 to the thirteen States which framed the Constitu- 
 tion, but to all which they should subsequently 
 admit as integral parts of the Union. This seems 
 too plain for argument now, but in those early 
 days, when everything was in a formative condition, 
 the decision was important, and in its essence in- 
 volved many of the subsequent decisions which did 
 not appear, at the time they were made, to be so 
 clear. 
 
 The rest of the case required a consideration of 
 the character of the grants which had been made 
 by the Colonial Governor of New Hampshire to 
 the town of Pawlet, and which were precedents 
 for the subsequent grants by the various States for 
 educational purposes. This charter divided the 
 land which was set apart to the town of Pawlet 
 into sixty-eight shares, of which one was " for the 
 incorporated Society for the propagation of the 
 Gospel in foreign parts, one share for a glebe for 
 the Church of England as by law established, one 
 share for the first settled Minister of the Gospel, 
 one share for the benefit of a school in said Town." 
 
 It was held after a very careful investigation of 
 the English Ecclesiastical Law, that the town could 
 take the land as trustee, and that where no Episco- 
 pal church was established before the Revolution 
 
Extension of Constitution to New States 1 5 
 
 the State could appropriate the share which had 
 been given for such purpose by the original charter 
 and apply it to other public uses. In this case 
 Vermont had appropriated to the use of public 
 schools the glebe right which had not been taken 
 up by the Episcopal Church, and the Supreme 
 Court sustained the validity of this statute. 
 
 In a subsequent case in which Mr. Webster was 
 counsel, — Society for the Propagation of the Gos- 
 pel in Foreign Parts vs. Town of New Haven, ^ — the 
 rights of this venerable Society came further under 
 consideration by the Court. It was held that the 
 charter which reserved to that Society a share of 
 the town lands vested an interest in the Society 
 which the Legislature of Vermont had no power to 
 divest. This really was an application of the prin- 
 ciples of the Dartmouth College case stated in 
 Chapter III. 
 
 Mr. Webster does not appear to have argued 
 any cases at the February Term in 18 16. In 181 7, 
 he appeared in numerous prize cases. In 1818, he 
 had to deal with the construction of that clause of 
 the Constitution which described the judicial power 
 and extended it to cases of admiralty and maritime 
 jurisdiction.^ Here it was held that the meaning 
 of this article was a grant, not of territory, but of 
 jurisdiction, and that the harbors in the different 
 States, although within the admiralty jurisdiction 
 of the Courts of the United States, were not with- 
 drawn from the jurisdiction of the particular State 
 in which they happened to be situated. 
 
 • 8 Wheat., 464. ' U. S. vs. Bevans, 3 Wheat., 336. 
 
CHAPTER III 
 
 IMPAIRING OBLIGATION OF CONTRACTS LAW OF THE 
 
 LAND CORPORATE FRANCHISES — DARTMOUTH 
 
 COLLEGE CASE 
 
 And now in order we approach the case of Dart- 
 mouth College vs. Woodward,^ which has been 
 cited nine hundred and seventy times in subsequent 
 cases, more frequently than any other American 
 decision.^ 
 
 It is often said that the effect of subsequent con- 
 stitutional amendments and general legislation has 
 been to rob the doctrine announced in this case of 
 much of its vitality. It is doubtless true that after 
 this decision, in countless ways, public apprehen- 
 sion was aroused lest the corporations, charters for 
 which were being granted by the Legislatures, 
 or which were incorporated under general acts, 
 should become too strong for the people ; and lest, 
 also, applicants might, through political favoritism, 
 or even more ignoble methods, obtain franchises 
 the grant of which would be injurious to the public. 
 Laws were passed, and constitutional amendments 
 were adopted, the object of which was to reserve 
 
 '4 Wheat., 518. 
 
 5 Alfred Russell, in Dartmouth Centennial, p. 282. The number is made 
 up to the year 1901. It must now exceed one thousand. 
 
 16 
 
Dartmouth College Case 17 
 
 to the Legislature the power to amend or repeal 
 charters of corporations. For example, the Con- 
 stitution of the State of New York, framed and 
 adopted in 1846 (Article 8, Section i), provides as 
 follows : 
 
 " Corporations may be formed under general laws; but shall 
 not be created by special act, except for municipal purposes, 
 and in cases where, in the judgment of the legislature, the 
 objects of the corporation cannot be attained under general 
 laws. All general laws and special acts passed pursuant to 
 this section, may be altered from time to time, or repealed." 
 
 But notwithstanding the endeavors that were 
 thus made to weaken the effect and limit the scope 
 of the decision in the Dartmouth Colleofe case, the 
 principle upon which it was based, that of enforc- 
 ing constitutional guaranties for the protection of 
 vested rights, remains in full vigor, and has been 
 not only a safeguard, but an important element in 
 the growth and prosperity of the American people. 
 Wretched, indeed, is the condition of any nation 
 in which the peaceful citizen cannot enjoy in secur- 
 ity the fruits of his honest labor. No system of 
 government can justly be called a republic which 
 does not secure to all its citizens, whether rich or 
 poor, whether engaged in individual enterprise or 
 united with others in partnership or corporation, 
 the protection of the law for their lawful business. 
 The danger in every Democracy has been, that in 
 times of popular excitement this principle will be 
 forgotten, and that the property acquired by indus- 
 try and intelligence will be confiscated, wholly or 
 in part, for the benefit of the idle and improvident. 
 
1 8 Daniel Webster 
 
 With us it is otherwise. In a word, the people of 
 this Republic are sovereign, but they are a consti- 
 tutional sovereign. Their monarchy is a limited 
 monarchy. They have freely chosen to limit their 
 own power by Constitutions, which they justly hold 
 sacred. They have entrusted to the courts of jus- 
 tice, which the tradition of our race leads us to 
 reverence, the unique power of enforcing the man- 
 date of the Constitution, and saying to the repre- 
 sentatives of the people, whether in the executive 
 chair, or in the Legislature, " Thus far shalt thou 
 Q-Q and no farther." 
 
 The system which has thus been described has 
 become incorporated in the mental constitution of 
 the American people. They seldom realize the 
 difference between this and other so-called repub- 
 lics. But when we come to trace the history of 
 our system and observe the manner in which the 
 scheme, which looked well on paper, came actually 
 to be worked out and realized in action, we find 
 that this was in great measure due to the argument 
 of Mr. Webster in the Dartmouth College case and 
 to the decision of the Supreme Court which crowned 
 that argument. 
 
 The action in which that decision was rendered 
 was begun in the Supreme Court of New Hamp- 
 shire. The contention was between the trustees 
 of Dartmouth College, appointed under the provi- 
 sion of its charter, and the trustees appointed by 
 act of the Legislature, which changed that charter 
 without the consent of the College. 
 
 In the argument before the Supreme Court of 
 
Dartmouth College Case 19 
 
 New Hampshire, reference was made by the coun- 
 sel for the College to the provisions of the Bill of 
 Rights of that State, which were derived from 
 Magna Charta, 
 
 *' That no person shall be deprived of his property, immu- 
 nities or privileges, put out of the protection of the law, exiled 
 or deprived of his life, liberty or estate, but by judgment of his 
 peers or by the law of the land." 
 
 The Supreme Court of New Hampshire decided 
 that the trustees had no property, immunities, lib- 
 erty or privilege in the corporation, within the 
 scope of this prohibition in the Bill of Rights. 
 Chief Justice Richardson went further and main- 
 tained " that the law of the land meant any law 
 that the Legislature might choose to enact." In 
 other words, he contended that the object of these 
 provisions was to protect the people only against 
 the arbitrary action of the executive. 
 
 It will at once be perceived that this question 
 was fundamental. The Court of New Hampshire 
 had said : 
 
 " How a privilege can be protected from the operation of the 
 law of the land, by a clause in the Constitution declaring that 
 it shall not be taken away, but by the law of the land, is not 
 very easily understood." 
 
 The difficulty in the case as it was presented to 
 the United States Supreme Court was this. That 
 Court had no jurisdiction upon the writ of error to 
 review the decision of the State Court upon its own 
 Constitution. The writ of error was based solely 
 upon the alleged invalidity of the act of the Legis- 
 lature of New Hampshire under the Constitution 
 
20 Daniel Webster 
 
 of the United States. The guaranty of the State 
 Constitution was so much more explicit that to 
 the ordinary lawyer it would appear a hopeless 
 task to sustain the contention under the United 
 States Constitution, when that of the State Bill of 
 Rights had proved to be inadequate. It was the 
 business of the great lawyer to go below the sur- 
 face of his case and to show that the fundamental 
 error of the opinion of the Court below, was equally, 
 fatal to the validity of the act under either Consti- 
 tution. To this end, and to this end only, it be- 
 came important at the outset of Mr. Webster's 
 argument in the Supreme Court to use the Consti- 
 tution of New Hampshire as an illustration, and to 
 show in fact that the method of reasoning which 
 had been adopted by the Court below, was fatal to 
 any constitutional guaranty either to person or to 
 property. For if the act of the Legislature was 
 in itself the law of the land, and its inscription 
 on the statute-book was the limit of inquiry as to 
 what the law of the land might be, the restraint 
 of the Constitution upon the Legislature would be 
 removed altogether. 
 
 The story is, that when the Chief Justice looked 
 at the record his first impression was adverse to 
 the plaintiffs in error. But it is related that al- 
 though he and others of the Justices had prepared 
 to take notes of the argument of Mr. Webster, yet 
 it seemed so clear and convincing, as it flowed in 
 its majestic course, that the paper remained blank.^ 
 
 ' At the time of the argument of this case printed briefs were not as now 
 required to be filed. 
 
Dartmouth College Case 21 
 
 After stating the facts of the case, Mr. Webster 
 referred to the provisions of the State Constitution. 
 He said : 
 
 "I am aware of the limits which bound the jurisdiction of 
 the Court in this case, and that on this record nothing can be 
 decided but the single question, whether these acts are re- 
 pugnant to the Constitution of the United States. Yet it may 
 assist in forming an opinion of their true nature and char- 
 acter to compare them with those fundamental principles 
 introduced into the State governments for the purpose of 
 limiting the exercise of the legislative power, and which the 
 Constitution of New Hampshire expresses with great fulness 
 and accuracy." ' 
 
 He then proceeded to argue that a corporate 
 franchise was property. He cited numerous Eng- 
 lish cases in which such franchise had been recoo'- 
 nized as property, and had been held to confer 
 rights which the courts were bound to respect. He 
 showed that the word " liberties " used in Magfna 
 Charta included a franchise, and that this franchise 
 could not be taken away by arbitrary government. 
 He showed that while under the Roman law the 
 will of the prince was paramount and he even had 
 the right, by special decree, to interpret statutes in 
 reference to pending cases ^ ; with us, to use his own 
 language, 
 
 "The power of the lawgiver is limited and defined; the 
 judicial is regarded as a distinct independent power."' 
 
 •Webster's Works, vol. v., p. 46S. 
 
 ' Curiously enough in modern times this right was claimed by the Presi- 
 dent of the Boer Republic, and he removed a Judge who ventured to dis- 
 agree with him. 
 
 ^Webster's Works, vol. v., p. 486. 
 
22 Daniel Webster 
 
 "That the Legislature shall not judge by act, it shall not 
 decide by act, it shall not deprive by act, but it shall let all 
 these things be tried and judged by the law of the land." 
 
 " By the law of the land is most clearly intended the gen- 
 eral law; a law which hears before it condemns; which pro- 
 ceeds upon inquiry, and renders judgment only after trial. 
 The meaning is, that every citizen shall hold his life, liberty, 
 property, and immunities under the protection of the general 
 rules which govern society. Everything which may pass under 
 the form of an enactment is not therefore to be considered 
 the law of the land. If this were so, acts of attainder, bills of 
 pains and penalties, acts of confiscation, acts reversing judg- 
 ments, and acts directly transferring one man's estate to an- 
 other, legislative judgments, decrees and forfeitures in all 
 possible forms, would be the law of the land." "... 
 
 " If then the franchise of a corporation be property, this 
 property is a creation of a grant. To this grant, there are two 
 parties; the charter must be accepted, the acceptance of the 
 grant constitutes the contract. 
 
 " There are, in this case, all the essential constituent parts 
 of a contract. There is something to be contracted about, 
 there are parties, and there are plain terms in which the 
 agreement of the parties on the subject of the contract is ex- 
 pressed. There are mutual considerations and inducements. 
 The charter recites, that the founder, on his part, has agreed 
 to establish his seminary in New Hampshire, and to enlarge it 
 beyond its original design, among other things, for the benefit 
 of that Province: and thereupon a charter is given to him and 
 his associates, designated by himself, promising and assuring 
 to them, under the plighted faith of the state, the right of 
 governing the college, and administering its concerns in the 
 manner provided in the charter. There is a complete and 
 perfect grant to them of ali the power of superintendence, 
 visitation, and government. Is not this a contract ? If lands 
 or money had been granted to him and his associates, for the 
 same purposes, such grant could not be rescinded. And is 
 there any difference, in legal contemplation, between a grant 
 
 'Webster's Works, vol. v., p. 486. 
 
Dartmouth College Case 23 
 
 of corporate franchises, and a grant of tangible property ? 
 No such difference is recognized in any decided case, nor 
 does it exist in the common apprehension of mankind." ' 
 
 Then Mr. Webster proceeded to answer the argu- 
 ment, " That abuses might arise in the management 
 of such institutions which the ordinary courts of 
 law would be unable to correct." His reply is ap- 
 plicable in many another case : 
 
 " But this is only another instance of that habit of suppos- 
 ing extreme cases, and then of reasoning from them, which is 
 the constant refuge of those who are obliged to defend a 
 cause, which, upon its merits, is indefensible." * 
 
 This was the argument. The opinion of the 
 court was delivered at the following Term, Feb- 
 ruary, 1819. 
 
 It is related that the parties in New Hampshire 
 and their friends in other States (for the questions 
 had been perceived to be of general importance) 
 were dissatisfied with the argument in support of 
 the validity of the act which Mr. Holmes of New 
 Hampshire and Mr. Wirt^ had made, and that Mr. 
 Pinkney had been retained to apply for a re-argu- 
 ment, before the opinion of the Court should be 
 delivered. 
 
 The story goes that he was present in court at 
 the opening of the term, but that Chief Justice 
 Marshall designedly went on and delivered the 
 opinion of the Court without giving to Mr. Pinkney 
 
 ' Webster's Works, vol. v. , p. 497. 
 'Webster's Works, vol. v., p. 49S. 
 
 ' An interesting unpublished letter of Webster to Wirt on this subject 
 will be found at the end of the chapter. 
 
24 Daniel Webster 
 
 the opportunity to make the motion. This may 
 be one of the myths that are apt to cluster around 
 important decisions. But the tradition referred to 
 may be well founded. In any case, the opponents 
 of the College took nothing by their motion. The 
 opinion of the court follows closely the argument 
 of Mr. Webster. It states at the outset : 
 
 " That the framers of the Constitution did not intend to 
 restrain 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 ad- 
 mitted. The provision of the constitution never has been 
 understood to embrace other contracts than those that respect 
 property, or some object of value, and confer rights which 
 may be asserted in a court of justice." ' 
 
 The court then proceeded to show that an ed- 
 ucational institution founded by individuals and 
 endowed by them is not a public institution. Its 
 trustees are not public officers, its professors and 
 students are not members of the civil government. 
 
 X The Charter is " a contract to which the donors, the trus- 
 
 tees and the crown (to whose rights and obligations New 
 Hampshire succeeds), were the original parties. It is a con- 
 tract 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 property estate has 
 been conveyed to the corporation. It is then a contract 
 within the letter of the constitution, and within its spirit 
 also, unless the fact that the property is invested by the 
 donors in trustees, for the promotion of religion and educa- 
 tion, for the benefit of persons who are perpetually changing, 
 though the objects remain the same, shall create a particular 
 
 'Dartmouth College vs. Woodward, 4 Wheaton, 518-629. 
 
Dartmouth College Case 25 
 
 exception, taking this case out of the prohibition contained 
 in the constitution." ' 
 
 The opinion then inquired as to the relation of 
 the State of New Hampshire to the case, and held 
 that this State succeeded to the rights of the crown 
 in the grant and that all contracts and restrictions 
 on property existing at the time of the Revolution 
 were not affected by it. The franchises which had 
 been granted to Dartmouth College remained the 
 same under the new as they were under the old 
 government, subject to the limitations found in the 
 Constitution of the State and of the United States. 
 It was then held that the act in question, if en- 
 forced, would substantially change the contract, 
 and transfer the whole power of government of 
 the College from trustees appointed according to 
 the will of the founder, to the executive of New 
 Hampshire. 
 
 Mr. Justice Story delivered an opinion to the 
 same effect, which contains one passage of especial 
 interest at the present time. 
 
 " It is a principle of the common law, which has been 
 recognized as well in this as in other courts, that the division 
 of an empire works no forfeiture of previously vested rights 
 of property." 
 
 This maxim is equally consistent with the com- 
 mon-sense of mankind, and the maxims of eternal 
 justice. 
 
 In this connection it should be added that the 
 effect of the reservation by the State of the right 
 
 ' 4 Wheaton, pages 518-644. 
 
26 Daniel Webster 
 
 to alter, modify or repeal the charter of a corpora- 
 tion (which has since the Dartmouth College de- 
 cision been frequent) has often become a subject 
 of consideration by the courts. The limit of this 
 reservation is well stated by the Supreme Court of 
 the United States in Miller vs. The State ^: 
 
 " Power to legislate, founded upon such a reservation in 
 the charter of a private corporation, is certainly not without 
 limit, and it may well be admitted that it cannot be exercised 
 to take away or destroy rights acquired by virtue of such a 
 charter, and which by a legitimate use of the powers granted 
 have become vested in the corporation." 
 
 In People m. O'Brien^ it was held by the New 
 York Court of Appeals : 
 
 " That a franchise to construct and operate a railroad, was 
 property, and transferable as such. That while the Legisla- 
 ture under the reservation under the constitution in the State of 
 New York might repeal and dissolve the corporation, it could 
 not deprive the creditors and stockholders of the corporation of 
 their interest in this franchise, and that therefore this franchise 
 would pass to a receiver of the corporation." 
 
 A curious illustration of Mr. Webster's argument, 
 that if abuses were found to exist in corporate 
 management the Legislature had ample power to 
 deal with them, is to be found in the legislation of 
 New York in reference to taxes upon corporate 
 franchises.^ No doubt in many cases such fran- 
 chises have been granted upon an inadequate 
 
 ' 15 Wallace, 478. 
 « III N. Y., I. 
 
 ^ People ex r^/ Metropolitan St. R. Co. vs. Tax Commissioners, 174 N. 
 Y., 417. 
 
Dartmouth College Case 27 
 
 consideration. It is obvious that the smaller the 
 consideration for a particular franchise, the greater 
 is the value to the corporation possessing it. 
 Therefore, the Legislature, by authorizing the tax- 
 ing a franchise at its full value, can redress the 
 injustice of the original grant. 
 
 In closing this chapter, two accounts of the argu- 
 ment in this case, hitherto unpublished, are given. 
 The first is from a manuscript of Judge Story in 
 the Congressional Library at Washington, appar- 
 ently prepared as a review of a volume of Webster's 
 speeches, published in 1830. The second is from 
 a letter of Webster to Wirt, which the author has 
 
 received from a descendant of the great Attorney- 
 General. 
 
 " It was in the year 1818 that an occasion occurred, which 
 is as memorable as any in the professional life of Mr. Webster, 
 and brought him before the nation, if not in a new light, at 
 least in a more striking light than any in which he had hitherto 
 been seen. We allude to his argument in the case of the 
 Trustees of Dartmouth College vs. Woodward, before the 
 Supreme Court of the U. S. at the Jan'y Term of that year, 
 which is reported in the volume now before us (pp. no et seq.). 
 That case was in itself full of deepest interest, and as impor- 
 tant in its principles as any which belongs to our judicial 
 annals. Few cases are better known to the public; few are 
 of more varied and general application; few at the time at- 
 tracted a more intense attention, and probably few will retain, 
 so long as law continues to be a science, a more permanent 
 and enduring celebrity. It was originally commenced in the 
 State Court of New Hampshire, and having received an ad- 
 judication there in the highest State tribunal unfavorable to the 
 College, it was carried by a writ of error for a final decision to 
 the Supreme Court. The pecuniary, and personal, and political 
 
28 Daniel Webster 
 
 interests in it were of no small magnitude. But the extent 
 to which the principles involved in it touched the rights of 
 property, private and charitable, as well as the extent to which 
 a claim to exercise legislation over literary and other corpora- 
 tions on the part of state sovereignty could be maintained with 
 reference to the prohibitions of the constitution of the United 
 States gave it an importance so paramount, that every other 
 consideration seemed at the moment to be of no significance. 
 The cause had been argued with uncommon ability in the state 
 court, and a judgment supported with great ingenuity and 
 strength had there been pronounced, which gave to the State 
 Legislature an absolute discretionary control over all the cor- 
 porate rights of the college. In the state court the cause had 
 been argued by Mr. Webster in conjunction with very eminent 
 associates — Mr. Jeremiah Smith, formerly Chief Justice of the 
 State, {clarum et venerabile nometi) a man whose depth of re- 
 search and sagacity had made him equal to the labors of any 
 station, and Mr. Jeremiah Mason, a man of such rare en- 
 dowments and acuteness, that it is not easy to pronounce who 
 is his superior. Yet in the presence of such associates Mr. 
 Webster (who was much their junior) was admitted by the 
 common consent of the bar to have made a speech in the State 
 Tribunal not unworthy to the place by the side of those of his 
 colleagues. The argument was supposed to have been ex- 
 hausted; and it was thought scarcely possible to give it in 
 point of novelty or force an aspect more imposing than it had 
 then assumed. And for Mr. Webster not to surpass his former 
 exertions upon a re-argument, was, considering the excited 
 state of the public mind, to hazard everything but the fruits 
 of victory. Under such circumstances, it was not unnatural to 
 suppose that Mr. Webster should have felt the discouraging 
 influence of his prior fame travelling with him to Washington. 
 He was not indeed a novus hospes in the Supreme Court, hav- 
 ing (if our memory does not deceive us) argued, some years 
 before, one or two causes there, which did not however bring 
 into play the full powers of his mind (The Grotius, 9 Cranch 
 R., 368, was argued by him in 1815). 
 
 "Public expectation was keenly alive; and accordingly on 
 
Dartmouth College Case 29 
 
 the day set for the argument a large assemblage of ladies, of 
 eminent lawyers, and of distinguished statesmen, filled the 
 Court Room. Mr. Webster opened the cause for the plfs in 
 error, giving to his accomplished colleague Mr. Hopkinson 
 (now Judge Hopkinson) the close. Mr. Holmes and Mr. 
 Wirt were the opposing counsel and in all respects adversaries 
 worthy of the cause. The printed speech of Mr. Webster is 
 now before the public; and it may be thought wholly unneces- 
 sary to describe its character.' But it is impossible in any 
 written speech to give the form and impress, the manner and 
 the expression, glowing zeal, the brilliant terms of diction, the 
 spontaneous bursts of eloquence, the polished language of re- 
 buke, 'severe in beauty,' the sparkling eye, the quivering lip, 
 the speaking gesture, the ever changing, and ever moving tones 
 of the voice, which add such strength and pathos, and capti- 
 vating enchantment, to the orator as his words flow rapidly on 
 during actual delivery. It is then that we hear, and see and 
 feel the living and present power of his thoughts. It is then 
 that he terrifies us by his instant appeals, or melts us by his 
 touches of nature, and draws us down the willing slaves of his 
 reasoning, or bears us aloft to contemplations which seem to 
 reach the flaming boundaries of time and space. Those, who 
 were present at the argument of which we are speaking, will 
 readily understand our meaning. They cannot but remember 
 with what decorous deference he began to unfold the topics of 
 his arguments, and the lucid order and elegant arrangement, 
 by which each progressive position sustained and illustrated 
 every other. He began by unfolding the facts in that brief 
 but exact manner, for which he is so remarkable; and arriving 
 at the points, for which he meant to contend, he first presented 
 them in their general bearing and aspect; and then proceeding 
 to the more minute analysis, he brought out into singular 
 felicity and clearness all the various learning, from judicial 
 authorities, from historical archives, from parliamentary de- 
 bates, from elementary writers, which could illustrate and 
 fortify his grounds. As he went on he kindled into more 
 
 ' The peroration of this argument as reported by Chauncey A. Goodrich 
 is printed in vol. xv., Webster's Writings and Speeches p. 9. 
 
30 Daniel Webster 
 
 energetic action, and if one may so say, he scintillated at every 
 step. There was an earnestness of manner, and a depth of 
 research, and a potency of phrase, which at once convinced 
 you that his whole soul was in the cause; and that he had 
 meditated over it in the deep silence of the night and studied 
 it in the broad sunshine of the day. At times his voice rose 
 almost into startling impetuosity. It was the struggle of the 
 giant to relieve the incumbent pressure of his thoughts, to de- 
 liver over the strong workings of his soul, and to uproot the 
 very foundations of the opposing argument. There was breath- 
 less silence in the audience. Even the eagerness to hear 
 seemed at times checked by a present sense of overwhelming 
 reasoning. It was a relief even to gain in his momentary 
 pauses some short interval of repose from the intense stretch 
 of thought, by which the mind was irresistibly driven. And 
 when he came to his peroration, there was in his whole air and 
 manner, in the fiery flashings of his eye, the darkness of his 
 contracted brow, the sudden and flying flushes of his cheeks, 
 the quivering and scarcely manageable movements of his lips, 
 in the deep guttural tones of his voice, in the struggle to sup- 
 press his own emotions, in the almost convulsive clenchings of 
 his hands without a seeming consciousness of the act, there 
 was in these things what gave to his oratory an almost super- 
 human influence. There was a solemn grandeur in every 
 thought, mixed up with such pathetic tenderness and refine- 
 ment, such beautiful allusions to the past, the present, and the 
 future, such a scorn of artifice, and fervor, such an appeal to 
 all the moral and religious feelings of many, to the lover of 
 learning and literature, to the persuasive precepts of the law, 
 to the reverence for justice, to all that can exalt the under- 
 standing and sensify the heart, that it was impossible to listen 
 without increasing astonishment at the profound reaches of the 
 human intellect, and without a deep sense of the divinity that 
 stirs within us. There was a painful anxiety towards the close. 
 The whole audience had been wrought up to the highest excite- 
 ment; many were dissolved in tears; many betrayed the most 
 agitating mental struggles; many were sinking under exhaust- 
 ing efforts to conceal their own emotion. When Mr. Webster 
 
Dartmouth College Case 31 
 
 ceased to speak, it was some minutes before any one seemed 
 inclined to break the silence. The whole seemed but an 
 agonizing dream, from which the audience was slowly and 
 almost unconsciously awakening. 
 
 "Such were the circumstances under which Webster de- 
 livered his argument in the Dartmouth College case. The 
 printed argument prepared months afterwards in the cold re- 
 tirement of the closet, and with no assistance except the im- 
 perfect notes, and the faded memory of the speaker himself, 
 gives no adequate idea of the eloquence, or sudden blazes of 
 thought with which it abounded. It is true that the outline 
 of the legal reasoning and authorities is there; and the general 
 course of the topics is pursued with sufficient fidelity and ex- 
 actness. But we miss everything that was peculiar to the scene 
 and the occasion. We miss the spirit, the fervor, and the 
 masculine earnestness, which gave to the very words a potency, 
 and emphasis, before unknown. 
 
 " This argument was decisive of the future professional 
 reputation of Mr. Webster. It elevated him at once to the 
 first rank, and to the foremost competitors in that rank; the 
 post which he has ever since maintained with increasing fame, 
 and with an unquestioned title. It would not perhaps, be too 
 much to say, that it gave a new direction to his own hopes and 
 wishes. It probably led to the measure which he soon after- 
 wards adopted of transferring himself to a wider sphere of 
 professional exertion ; and it gave to the metropolis of Massa- 
 chusetts one whom she has been proud to honor with her con- 
 fidence, and satisfied to claim as her advocate. It should 
 perhaps be added for the benefit of distant readers, that the 
 judgment of the state court was reversed in 1819, and the 
 college reinstated in its original rights under its former charter. 
 
 " From this period, for it may be as well in this connection 
 to follow out what we have to say in respect to Mr. Webster's 
 professional career, his attendance on the Supreme Court was 
 almost constantly secured by retainers in the most important 
 causes. Up to this very hour in which we write, the circle of 
 his business of this sort has been continually enlarging; and 
 has never been exceeded, if it has been equalled by that of any 
 
32 Daniel Webster 
 
 other lawyer in the national forum. He naturally succeeded 
 to that place at the bar which was left vacant by the death of 
 that very eminent lawyer, the late William Pinkney, in 1822." 
 
 This ends that portion of the manuscript which 
 refers to the Dartmouth College argument. The 
 following is Webster's letter to Wirt : 
 
 " Boston, April 5th, 1818. 
 "Sir— 
 
 " I returned recently from a little visit into N. Hampshire, 
 where I learned the existence of a report which represented 
 me as having said that the deficiencies in my own argument, 
 in the cause about Dartm'o College were supplied by your 
 argument. 
 
 " I hope you suppose me incapable of talking so ridiculously. 
 I should have taken no notice of the silly falsehood, had I not 
 learned that it had been made the subject of a communication 
 to you. This induced me to write to you, for the purpose of 
 giving it a direct and emphatic contradiction. No man ever 
 heard such a remark from me, or any remark in any degree 
 like it. I am sure, if our professional labors should bring us 
 often together, I shall find enough to do to answer your argu- 
 ments, and I am equally sure that I shall have no inclination 
 to misrepresent them. 
 
 " 1 have, of course, been often asked about the argument 
 of the Atty. Gen'l, in the case alluded to. 1 have spoken 
 of it frankly, and on many occasions and to various people. 
 It is the universal opinion, in this quarter, among all those who 
 have inquired or heard about the cause, that that argument 
 was a fillip able, and most eloqiietit exposition of the rights of 
 the Defendant. I must leave it to you to infer, whether this 
 general sentiment is in concurrence with my own uniform dec- 
 larations on the subject, or whether it contradicts them. I 
 will add, that in my opinion, no future discussion of the ques- 
 tions involved in the cause, either at the Bar, or on the Bench, 
 will bring forth, on the part of the Defendant, any important 
 
Dartmouth College Case 33 
 
 idea which was not argued, expanded, and pressed, in the 
 argument alluded to. 
 
 " I beg your pardon for the trouble of this letter, and hope 
 you will ascribe it to my desire of not being misrepresented to 
 you. I hope also you will think me not quite weak enough 
 to depreciate the power of an adversary. If conquered, this 
 would but increase the mortification of defeat. If conquering, 
 it would take away the glory of victory. 
 
 " In victory, or defeat, none but a fool could boast that he 
 was warring, not with giants, but with pigmies. 
 
 " Very truly, 
 
 " Yr. Ob't serv't, 
 
 " Dan'l Webster. 
 "William Wirt, Esquire, 
 
 "Attorney General of U. S., 
 "Washington." ' 
 
 ' There are many other indications in Webster's correspondence of his 
 cordial recognition and appreciation of the ability of his brethren of the 
 bar. See his letter to Chief Justice Smith, January 9, 1818, Private Cor- 
 respondence, vol. i., p. 268, and another letter describing the argument of 
 this case, ibid., p. 276. 
 3 
 
CHAPTER IV 
 
 SUPREMACY OF THE NATIONAL GOVERNMENT POWER 
 
 TO CHARTER A BANK MCCULLOCH VS. MARYLAND 
 
 The next case of great importance in which Mr. 
 Webster appeared before the Supreme Court was 
 McCulloch against the State of Maryland.^ This 
 case involved the consideration of the character of 
 the Constitution. The question from the first had 
 been whether it was to be construed Hberally or 
 strictly ; whether it was the duty of a court, and 
 indeed of all branches of the government, to deal 
 with it as an instrument containing general grants 
 of power for the purpose of endowing the new 
 central government created by it with ample au- 
 thority for all its needs, or whether it should 
 be considered as a bargain between independent 
 states, in which each had surrendered somewhat 
 reluctantly a certain portion of power, but desired 
 to retain as much as possible, and was, therefore, 
 unwilling to admit that anything, not strictly nomi- 
 nated in the bond, was included in it. 
 
 At the second session of the first Congress ^ a 
 National Bank was chartered. The act was ap- 
 
 - Reported 4 Wheaton, 316. 
 
 ^ Act of February 25, 1791, c. 84. 
 
 34 
 
United States National Bank 35 
 
 proved by Washington. The charter expired in 
 181 1, and was not renewed. 
 
 During the War of 181 2, the financial condition 
 of the country became such that a central bank 
 was a public necessity. Mr. Webster was then a 
 member of the House of Representatives, and in- 
 sisted strenuously that any bank which might be 
 incorporated should be incorporated on sound 
 financial principles, should be required to redeem 
 its notes in specie, and should not be under obliga- 
 tion to loan fixed amounts in paper to the govern- 
 ment. To use his own language in his speech in 
 the House of Representatives, January 2, 1815^ : 
 
 " Something must be discovered which has hitherto escaped 
 the observation of mankind, before you can give to paper in- 
 tended for circulation the value of a metallic currency, any 
 longer than it represents that currency, and is convertible 
 into it, at the will of the holder. The paper of this bank, if 
 you make it, will be depreciated for the same reason that the 
 paper of other banks that have gone before it, and of those 
 which now exist around us, has been depreciated, because it 
 is not to pay specie for its notes," 
 
 The bill was lost, and another bill introduced in 
 the following Congress was amended so as to 
 strike out the authority to the Bank to suspend 
 specie payments. As amended, it passed, and thus, 
 in 1816, the second Bank of the United States 
 came into beinor. This Bank was authorized to 
 establish branches in the different States, and it 
 did establish a branch in Baltimore in 181 7. 
 
 The State banks, some of which had been in- 
 
 ' Webster's Works, vol. iii., p. 43. 
 
3^ Daniel Webster 
 
 corporated after the refusal of Congress to extend 
 the charter of the first National Bank, found the 
 competition of the new institution embarrassing. 
 Accordingly, in February, 1818, the State of Mary- 
 land passed an act to tax all banks and branches of 
 banks which were not chartered by that State, but 
 did business within its borders. The tax was im- 
 posed in the form of stamps, which banks subject 
 to its provisions were required to impress upon 
 commercial obligations issued within the State of 
 Maryland. McCuUoch, the cashier of the Balti- 
 more Branch Bank, was indicted and convicted for 
 a violation of the provisions of the Maryland law. 
 Its validity was sustained by the Maryland courts, 
 and a writ of error was sued out from the Supreme 
 Court of the United States. The case was argfued 
 by Webster, Wirt and Pinkney for the plaintiff in 
 error, and by Hopkinson, Jones and Martin for the 
 State. Martin was one of the most learned law- 
 yers of his time, and Wirt and Pinkney two of the 
 most eloquent, Hopkinson had been associated 
 with Webster in the Dartmouth College case. 
 
 It was felt that this new cause was of impor- 
 tance equal to the last named. The discussion at 
 the bar continued from the twenty-second to the 
 twenty-seventh of February, and from the first to 
 the third of March. Webster's argument is not 
 contained in the first edition of his collected works, 
 but an abstract of it is to be found in Wheaton's 
 Reports, and it is now reprinted in the national 
 edition of 1903.^ It contains the statement of the 
 
 ' Webster's Writings and Speeches, vol. xv., p. 261. 
 
United States National Bank Z7 
 
 famous proposition that "an unlimited power to 
 tax involves necessarily a power to destroy." ^ 
 
 To use Mr. Webster's phrase in his speech in 
 the Senate on an amendment to the bill for renew- 
 ing the charter of the Bank of the United States- : 
 
 " A power of taxation without fixed limits and without 
 guards, is a power to embarrass, a power to oppress, a 
 power to expel, a power to destroy." 
 
 In support of the proposition that individual 
 States had no power to tax an instrument of the 
 national government, it was necessary to maintain, 
 and Mr. Webster did maintain, that the powers of 
 the separate States were not only limited by the 
 express prohibitions of the Constitution, but that 
 such limitation could be inferred, by fair implica- 
 tion, from the grant of powers to the general gov- 
 ernment which were inconsistent with the exercise 
 of like authority by the States. It will be seen at 
 once that this proposition was of the very first im- 
 portance. For if it was within the lawful authority 
 of the separate States, by adverse legislation, to 
 limit, check and harass the exercise by the general 
 government of the powers granted to it, the latter 
 would be shorn of the authority necessary to its 
 complete efficiency. 
 
 At first sight it would seem reasonably clear that 
 an institution doing business in a State, and receiv- 
 ing the benefit of protection from the State gov- 
 ernment, should directly or indirectly pay its fair 
 
 ' Webster's Writings and Speeches, vol. xv., p. 266. 
 ' Webster's Works, vol. iii., p. 408. 
 
38 Daniel Webster 
 
 proportion of the expenses of that government. 
 As matter of equity, this is undoubtedly true, and 
 when the act for the incorporation of national 
 banks was passed during the Civil War in 1862, 
 the consent of Congress was given to the taxation 
 of the interest of the stockholders in the stock 
 of each bank by the State in which it was located, 
 provided such taxation was not at a greater rate 
 than that imposed upon capital invested in other 
 financial enterprises. 
 
 A proposition to authorize a tax upon the 
 Bank itself or its branches was considered in Con- 
 gress when the charter of the second Bank of 
 the United States was before it for consideration. 
 This was successfully opposed by Mr. Webster, 
 but he conceded that the interest of stockholders 
 might properly be taxed. To use his own words : ^ 
 
 " Every stockholder in the Bank is liable to be taxed for his 
 property therein by the State of which he is a citizen." 
 
 The need of such a bank at that time was so 
 pressing, and the disadvantages under which the 
 country was suffering from the depreciation of 
 local issues of circulating notes and the discounts 
 to which they were subject at even a small distance 
 from the place of issue were so great, that Congress 
 was naturally reluctant to impose upon the new in-, 
 stitution which it was creating, any burden that 
 was not absolutely necessary. But it was of the 
 first importance that the control over this subject 
 should remain in the hands of Congress. If a 
 
 ' Webster's Works, vol. iii., p. 411. 
 
United States National Bank 
 
 39 
 
 State might tax a bank incorporated by Congress 
 why might it not tax a post-office building ''or a 
 federal court-house ? If it had the general power 
 to tax property used for federal purposes, it could 
 exercise that power to discriminate acrainst the pro- 
 perty of the federal government. I n short, when the 
 matter is carefully considered, it will appear that the 
 whole character of the general government would 
 have been altered, if the decision in M'Culloch 
 against State of Maryland had been the reverse 
 of what it was. It would have left the general 
 government, what Calhoun afterwards claimed it 
 to be, a mere agent of the State governments for 
 a few specifically defined purposes, subject prac- 
 tically in most, if not all, respects to the control 
 of its principals. As these principals were many, 
 and often did not agree, such a conclusion would 
 have left the Constitution a rope of sand. The 
 question on the power of taxation was therefore 
 really of much greater importance than the other 
 which was also argued in the case, which was 
 whether the Constitution conferred on Congress, 
 by implication, the power to charter a bank. 
 
 Still, on the latter point also, the principle of 
 construction which Mr. Webster advocated was 
 fundamental. He states it thus ^ : 
 
 " Congress by the Constitution is invested with certain pow- 
 ers; 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 
 
 '4 Wheaton, p. 323 ; Webster's Wriiings and Speeches, vol. xv., p. 262. 
 
40 Daniel Webster 
 
 grant of powers itself necessarily implies a grant of all usual 
 and suitable means for the execution of the powers granted." 
 
 His argument on this occasion is better pre- 
 served in his speech deUvered July ii, 1832, upon 
 Jackson's veto of the bill to extend the charter of 
 the Bank of the United States. 
 
 "According to that mode of construing the Constitution 
 which was adopted by Congress in 1791, and approved by 
 Washington, and which was sanctioned by the judgment of the 
 Supreme Court, and affirmed by the practice of nearly forty 
 years, the question upon the constitutionality of the bank, in- 
 volve two inquiries. First, whether a bank, in its general 
 character and with regard to the general objects with which 
 banks are usually connected be, in itself, a fit means, a suitable 
 instrument to carry into effect the powers granted to the gov- 
 ernment. If it be so, then the second, and the only other ques- 
 tion is, whether the powers given in a particular charter are 
 appropriate for a bank. If they are powers which are appro- 
 priate for a bank, powers which Congress may fairly consider 
 to be useful to the bank or the country, then Congress may 
 confer these powers; because the discretion to be exercised in 
 framing the constitution of the bank belongs to Congress. 
 One man may think the granted powers not indispensable to the 
 particular bank; another may suppose them injudicious or in- 
 jurious; a third may imagine that other powers, if granted in 
 their stead, would be more beneficial ; but all these are matters 
 of expediency, about which men may differ; and the power of 
 deciding upon them belongs to Congress." ' 
 
 " The truth is, Mr. President, that if the general object, the 
 subject-matter, properly belongs to Congress, all its incidents 
 belong to Congress also. If Congress is to establish post- 
 offices and post-roads, it may, for that end, adopt one set of 
 regulations or another; and either would be constitutional. 
 So the details of one bank are as constitutional as those of an- 
 
 ' Webster's Works, vol. iii., p. 437. 
 
United States National Bank 41 
 
 other, if they are confined fairly and honestly to the purpose 
 of organizing the institution, and rendering it useful. One 
 batik is as constitutional as another bank. If Congress pos- 
 sesses the power to make a bank, it possesses the power to 
 make it efficient, and competent to produce the good expected 
 from it. It may clothe it with all such power and privileges 
 not otherwise inconsistent with the Constitution, as may be 
 necessary in its own judgment to make it what government 
 deems it should be. It may confer on it such immunities as 
 may induce individuals to become stockholders, and to furnish 
 the capital; and since the extent of these immunities and privi- 
 leges is matter of discretion, and matter of opinion, Congress 
 only can decide it, because Congress alone can frame or grant 
 the Charter." ' 
 
 The case was so fully argued that the Court no 
 doubt disposed of it immediately upon the conclu- 
 sion of the argument. Four days after this, and 
 on the 7th of March, 18 19, the opinion of the Court 
 was delivered by Chief Justice Marshall. Justices 
 Washington, Johnson, Brockholst Livingston, Du- 
 val and Story concurred. The decision follows 
 very closely Mr. Webster's argument. In the re- 
 port the latter is stated concisely. The opinion 
 elaborates. After pointing out that the Constitu- 
 tion was adopted by the people and not by the 
 State legislatures, and that therefore It could not 
 be said that the national government was the 
 creature of the States, but that on the contrary It 
 was the child of the people, the Chief Justice pro- 
 ceeds (p. 405) : 
 
 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 the government of all; 
 ' Webster's Works, vol. iii., p. 441. 
 
42 Daniel Webster 
 
 its powers are delegated by all; it represents all, and acts for 
 all." 
 
 And then the Chief Justice quotes the section 
 on the supremacy of the Constitution, and proceeds 
 (p. 409) : 
 
 " The government which has a right to do an act, and has 
 imposed on it the duty of performing that act, must, accord- 
 ing to the dictates of reason, be allowed to select the means." 
 
 Again, in considering the meaning of the word 
 "necessary," he says (p. 419) : 
 
 "This word, then, like others, is used in various senses; 
 and, in its construction, the subject, the context, the intention 
 of the person using them, are all to be taken into view." 
 
 Again (at p. 421) he proceeds : 
 
 "We admit, as all must admit, 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 discre- 
 tion, 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." 
 
 Having thus disposed of the arguments against 
 the constitutionaHty of the charter, he deals with 
 the question as to the power of the State, and 
 concludes (p. 431) : 
 
 " That the power to tax involves the power to destroy; that 
 
United States National Bank 43 
 
 the power to destroy may defeat and render useless the power 
 to create; that there is a plain repugnance, in conferring on 
 one government a power to control the constitutional measures 
 of another, which other, with respect to those very measures, 
 IS declared to be supreme over that which exerts the control,' 
 are propositions not to be denied." ' 
 
 The greater part of the banking business of the 
 country is now carried on by national banks. For 
 over forty years they have not only done this, but 
 have furnished a circulating medium, equally good 
 in every part of the country, and redeemable 
 everywhere in legal tender, upon demand. No 
 note holder has ever lost one dollar by the failure 
 of one of these banks. Any one who remembers 
 (as the author well does) the contrast between this 
 orderly and well-regulated financial condition and 
 
 the chaotic state of our currency before the war 
 
 notes of New York City banks not current in many 
 parts of New England— discounts of one, two or 
 three per cent, charged by brokers in handling in 
 one State the notes issued in another — constant 
 counterfeits, hard to detect and requiring the use 
 of a large volume (known, if memory serves the 
 author, as Thompson's Cotmterfeit Ba7ik-Note De- 
 tector') — will in some degree appreciate the incalcu- 
 lable value of the service rendered to the country 
 by Daniel Webster, in the masterly argument 
 which led the court to this conclusion. 
 
 ' This famous phrase of Webster's, " The power to tax is the power to de- 
 stroy," was repeated by Mr. Justice Brewer in Fairbank vs. United States, 
 181 U. S., 283, 291. In this case the rule of construction applied in 
 McCulloch vs. Maryland to the grant to Congress of certain powers, is ex- 
 tended to the prohibitions in the Constitution. 
 
44 Daniel Webster 
 
 The question of taxation of the stock in national 
 banks is one of such general interest that we con- 
 clude this chapter with two as yet unpublished 
 documents, which throw light upon the principles 
 which must control in dealing with the subject, and 
 which have since been adopted by the Supreme 
 Court in its decision upon the effect of the present 
 national banking law. 
 
 The first is an opinion given by Mr. Webster to 
 Enoch Parsons, July 29, 1830^ : 
 
 " Tax on United States Bank Stock. 
 
 " In the case of M'Culloch vs. Maryland," Judge Marshall 
 in the conclusion of his opinion, says, 'We are unanimously 
 of opinion, that the law passed by the Legislature of Maryland, 
 imposing a tax on the Bank of The United States, is unconsti- 
 tutional and void'; he then proceeds in the following words: 
 ' This opinion does not deprive the States of any resources 
 they originally possessed. It does not extend to a tax paid by 
 the real property of the Bank, in common with the other real 
 property within the State, nor to a tax imposed on the interest 
 which the citizens of Maryland may hold in this institution in 
 common with other property of the same description throughout 
 the State.' ' 
 
 " In the case of The City Council of Charlestown,* it was 
 determined by The Sup. Court ' that a tax imposed by a law 
 of any State of The United States, or under the authority of 
 such a law on stock issued for loans made to The United States 
 is unconstitutional.' 
 
 " It would seem from the above cases, that, if the Legis- 
 lature of Connecticut have taxed the income of U. S. Bank 
 
 ' The draft in Mr. Webster's own handwriting is in the collection of 
 Websteriana, Library N. H. Hist, Soc, vol. v., p. 27. 
 ' 4 Wheat., 316. 
 ' 4 Wheat., 436. 
 * 2 Peters, S. C. Rep., 449. 
 
United States National Bank 45 
 
 Stock ' in common with other property of the same description 
 throughout the State' then the law authorizing such tax is not 
 unconstitutional; but, if the law of the State specifies this 
 particular property, stock in United States Bank, eo nomine 
 and assesses a peculiar tax upon it, such a law is unconstitu- 
 tional. — 
 
 " I have made inquiry of a gentleman, who was formerly 
 assessor of Boston, respecting the practice in relation to assess- 
 ing property in this city; he informed me that in estimating a 
 person's property, stock in the United States Bank was always 
 considered the same as any other stock, or personal property, 
 and the income arising therefrom, assessed in common with all 
 the other income of the persons to be taxed. — 
 
 "D. Webster." 
 
 The second is the following letter from Chief 
 Justice Marshall to Mr. Webster^ : 
 
 " Richmond June i6th 1832. 
 " My Dear Sir 
 
 " I thank you very sincerely for the copy with which you 
 
 have favored me of your speeches on the bill for renewing the 
 
 charter of the bank of the United States. I need not say that 
 
 I consider an accommodation of the tariff question itself as 
 
 scarcely more interesting to our country than the passage of 
 
 that bill. Your argument presents the subject in its strongest 
 
 point of view, and to me seems unanswerable. Mr. Ritchie in 
 
 his Enquirer informs the people of Virginia that Mr. Tazewell 
 
 has refuted you completely. This he may have done in the 
 
 opinion of Mr. Ritchie. I have not seen Mr. Tazewell's 
 
 speech and do not understand from the Enquirer whether his 
 
 refutation applies to your speech in favor ot the bill or to that 
 
 against the amendment offered by Mr. Moor. By the way, 
 
 your argument against that amendment is founded on an idea 
 
 which is to me quite novel. I had often heard it advanced 
 
 that the states have no constitutional power to establish banks 
 
 of circulation — but never that Congress might not introduce 
 
 ' The original of this letter is in the Library of the New Hampshire His- 
 torical Society. 
 
46 Daniel Webster 
 
 into the charter a restraining principle which might prohibit 
 branches altogether, or require the assent of a state to their 
 introduction; or a principle which might subject them to state 
 taxation. This may be considered not as granting power of 
 taxation to a state, for a state possesses that power; but as 
 withdrawing a bar which the constitution opposes to the ex- 
 ercise of this power over a franchise created by Congress for 
 national purposes, unless the constitution of the franchise, in 
 its creation, has this quality ingrafted on it. 
 
 " I am however far from undertaking to dissent from your 
 proposition. I only say it is new, and I ponder on it. 
 
 " With great and respectful esteem 
 
 " I am your obedt 
 
 " J Marshall 
 
 " I only meant to express my obligation for your attention 
 and I have betrayed myself into the politics of the day." ' 
 
 ' As long ago as March 28, 1814, Webster wrote of the great Chief Jus- 
 tice : " I have never seen a man of whose intellect I had a higher opinion." 
 
CHAPTER V 
 
 INTERSTATE COMMERCE GIBBONS VS. OGDEN 
 
 Important as were the cases to which reference 
 has already been had, it may be doubted whether 
 either of them was of more consequence to the 
 country than the decision in Gibbons vs. Oo-den.^ 
 
 In 1807, Robert Fulton had constructed a steam- 
 boat named the Clermont (after Chancellor Living- 
 ston's country-seat on the banks of the Hudson), 
 which made a successful voyage from New York to 
 Albany, to the great astonishment of the people 
 on the banks of the river. Afterwards, when slow 
 communication by coach and sailing vessel had 
 made the great event known abroad, it became 
 the admiration of the civilized world. 
 
 John Fitch had previously made a small steam- 
 boat which had moved about on the Collect Pond 
 in New York City, where now the City Prison is 
 constructed. The Legislature, in 1787, granted to 
 him the sole and exclusive ricrht of making- and 
 using every kind of boat or vessel impelled by steam 
 in all the waters within the jurisdiction of New York 
 for fourteen years. But Fitch had not the capital, 
 and perhaps not the skill, to develop his invention 
 
 ' 9 Wheaton, i. 
 47 
 
48 Daniel Webster 
 
 and put it in practical operation. Meanwhile, 
 Robert Fulton, a native of Pennsylvania, a son of 
 an Irish immigrant, had been studying the question 
 of the steamboat, and had gone to France and en- 
 deavored to interest the First Consul in his plan. 
 This was referred to the Institute for examination, 
 but that learned body did not seem to think the 
 subject worth its attention. While Fulton was 
 thus engaged, the United States sent Robert R. 
 Livino-ston as Minister to France. He had been 
 experimenting in New York in the same direction as 
 Fulton. In 1798, he had obtained from the Legis- 
 lature of that State an act which on the sugges- 
 tion that " Fitch was dead or had withdrawn from 
 the State without having made any attempt to 
 use his privilege," repealed the grant to him and 
 conferred a similar privilege on Livingston for 
 the term of twenty years. Livingston met Fulton 
 and the two inventors put their heads together, 
 each benefited by what the other had done, and 
 the result was an application to the Legislature 
 of New York for an additional grant to them 
 both. This was made on the 5th day of April, 
 1803, and gave to them both the monopoly 
 of the use of the steamboat in New York and 
 all its waters for twenty years from the passing 
 of the act. After the successful trip of the Cler- 
 mont in 1807, another act was passed extending 
 the monopoly " five years for every additional 
 boat," the whole duration, however, not to ex- 
 ceed thirty years ; and forbidding any and all per- 
 sons to navigate the waters of the State with any 
 
Interstate Commerce 49 
 
 steamboat or vessel impelled by steam, without a 
 license from Livingston and Fulton, under penalty 
 of forfeiture of the boat or vessel. 
 
 In April, 1811, a further act was passed provid- 
 ing more extensive remedies, both at law and in 
 equity, for enforcing the monopoly which had been 
 granted to Livingston and Fulton. 
 
 Gibbons undertook to challenge this monopoly. 
 He built a steam ferry-boat which was duly en- 
 rolled and licensed by the United States for carry- 
 ing on all coasting trade, and employed it in that 
 trade between Elizabeth in New Jersey and the 
 city of New York. Ogden, who had a grant from 
 Livingston and Fulton, filed a bill in the New 
 York Court of Chancery to restrain Gibbons from 
 the use of the boat. The Chancellor and on ap- 
 peal the Court of Errors held that the acts of 
 the State of New York under which Ogden claimed 
 title were valid.^ Gibbons took the case to the 
 Supreme Court of the United States. As Mr. 
 Webster said at the beginning of his argument : 
 
 " The laws in question, I am aware, have been deliberately 
 re-enacted by the Legislature of New York; and they have also 
 received the sanction, at different times, of all her judicial 
 tribunals, than which there are few, if any, in the Country, 
 more justly entitled to respect and deference. The disposition 
 of the Court will be, undoubtedly, to support, if it can, laws 
 so passed and so sanctioned. I admit, therefore, that it is 
 justly expected of us that we should make out a clear case; 
 and unless we do so, we cannot hope for a reversal. It should 
 
 ' The reasons for these decisions are concisely stated by Chancellor Kent, 
 
 Comm., vol. i., p. 433. 
 4 
 
50 Daniel Webster 
 
 be remembered, however, that the whole of this branch of 
 power, as exercised by this Court, is a power of revision. The 
 question must be decided by the State Courts, and decided in 
 a particular manner, before it can be brought here at all. Such 
 decisions alone give this Court jurisdiction; and therefore 
 while they are to be respected as the judgments of learned 
 judges, they are yet in the condition of all decisions from 
 which the law allows an appeal." 
 
 He then proceeded in words which cannot be 
 abridged, to state the position of the controversy : 
 
 "By the law of New York, no one can navigate the Bay 
 of New York, the North River, the Sound, the lakes, or any 
 of the waters of the State, by steam vessels, without a license 
 from the grantees of New York, under penalty of forfeiture of 
 the vessel. 
 
 " By the law of the neighboring State of Connecticut, no 
 one can enter her waters with a steam vessel having such a 
 license. 
 
 "By the law of New Jersey, if any citizen of that State 
 shall be restrained, under the New York law, from using steam- 
 boats between the ancient shores of New Jersey and New York, 
 he shall be entitled to an action for damages, in New Jersey, 
 with treble costs against the party who thus restrains or im- 
 pedes him under the law of New York! This act of New 
 Jersey is called an act of retortion against the illegal and op- 
 pressive legislation of New York; and seems to be defended 
 on those grounds of public law which justify reprisals between 
 independent States. 
 
 "It will hardly be contended, that all these acts are con- 
 sistent with the laws and Constitution of the United States. 
 If there is no power in the general government to control this 
 extreme belligerent legislation of the States, the powers of the 
 government are essentially deficient in a most important and 
 interesting particular. The present controversy respects the 
 earliest of these State laws, those of New York. On these, 
 this Court is now to pronounce; and if they should be declared 
 
Interstate Commerce 51 
 
 to be valid and operative, I hope somebody will point out 
 where the State right stops, and on what grounds the acts of 
 other States are to be held inoperative and void. 
 
 "It maybe well to state again their general purport and 
 effect, and the purport and effect of the other State laws which 
 have been enacted by way of retaliation. 
 
 " A steam vessel of any description, going to New York, is 
 forfeited to the representatives of Livingston and Fulton, un- 
 less she have their license. Going from New York or else- 
 where to Connecticut, she is prohibited from entering the 
 waters of that State, if she have such license. 
 
 " If the representatives of Livingston and Fulton in New 
 York carry into effect, by judicial process, the provisions of 
 the New York laws, against any citizen of New Jersey, they 
 expose themselves to a statute action in New Jersey for all 
 damages, and treble costs." 
 
 " The New York laws extend to all steam vessels; to steam 
 frigates, steam ferry-boats, and all intermediate classes. They 
 extend to public as well as private ships; and to vessels em- 
 ployed in foreign commerce, as well as to those employed in 
 the coasting trade. 
 
 " The remedy is as summary as the grant itself is ample; 
 for immediate confiscation, without seizure, trial, or judgmenjt, 
 is the penalty of infringement." ' 
 
 Mr. Webster then proceeded to argue that the 
 power of Congress to regulate commerce was com- 
 plete and entire and to a certain extent necessarily 
 exclusive. 
 
 The aro-ument had been that there was a concur- 
 rent power in the States until Congress should 
 exercise the power, which might, when exercised, 
 exclude State legislation. To this Mr. Webster 
 replied : 
 
 " I do not mean to say, that all regulations which may, in 
 'Webster's JVorks, vol. vi., pp. 5-7. 
 
52 Daniel Webster 
 
 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. But it is only necessary to apply to this part of 
 the Constitution the well-settled rules of construction. Some 
 powers are held to be exclusive in Congress, from the use of 
 exclusive words in the grant; others, from the prohibitions on 
 the States to exercise similar powers; and others, again, from 
 the nature of the powers themselves. It has been by this 
 mode of reasoning that the Court has adjudicated many im- 
 portant questions; and the same mode is proper here. And, 
 as some powers have been held to be exclusive, and others not 
 so, under the same form of expression, from the nature of the 
 different powers respectively; so where the power, on any one 
 subject, is given in general words, like the power to regulate 
 commerce, the true method of construction will be to consider 
 of what parts the grant is composed, and which of those, from 
 the nature of the thing, ought to be considered exclusive. 
 The right set up in this case, under the laws of New York, is 
 a monopoly. Now I think it very reasonable to say, that the 
 Constitution never intended to leave with the States the power 
 of granting monopolies either of trade or of navigation; and 
 therefore, that as to this, the commercial power is exclusive in 
 Congress.' 
 
 " It is in vain to look for an exact and precise definition of 
 the powers of Congress on several subjects. The Consti- 
 tution does not undertake the task of making such exact 
 definitions. In conferring powers, it proceeds by the way of 
 enumeration., stating the powers conferred, one after another, 
 in few words; and where the power is general or complex in 
 its nature, the extent of the grant must necessarily be judged 
 of, and limited, by its object, and by the nature of the 
 power. * ' * 
 
 ' Webster's Works, vol. vi., p. 8. "^ Ibid., vol. vi., p. 9. 
 
Interstate Commerce 53 
 
 Again he adds : 
 
 " This doctrine of a general concurrent power in the States 
 is insidious and dangerous. If it be admitted, no one can say 
 where it will stop. The States may legislate, it is said, 
 wherever Congress has not made a plenary exercise of its 
 power. But who is to judge whether Congress has made 
 this plenary exercise of power ? Congress has acted on this 
 power; it has done all that it deemed wise; and are the States 
 now to do whatever Congress has left undone ? Congress 
 makes such rules as, in its judgment, the case requires; and 
 those rules, whatever they are, constitute the system. 
 
 " All useful regulation does not consist in restraint; and that 
 which Congress sees fit to leave free is a part of its regulation, 
 as much as the rest." ' 
 
 He further argfued that the obvious intent of the 
 legislation referred to was to give preference to the 
 citizens of some States over those of others : 
 
 " I do not mean here the advantages conferred by the grant 
 on the grantees; but the disadvantages to which it subjects all 
 the other citizens of New York. To impose an extraordinary 
 tax on steam navigation visiting the ports of New York, and 
 leaving it free everywhere else, is giving a preference to the 
 citizens of other States over those of New York. This Con- 
 gress could not do; and yet the State does it; so that this 
 power, at first subordinate, then concurrent, now becomes 
 paramount. 
 
 "The people of New York have a right to be protected 
 against this monopoly. It is one of the objects for which they 
 agreed to this Constitution, that they should stand on equality 
 in commercial regulations; and if the government should not 
 insure them that, the promises made to them in its behalf 
 would not be performed." * 
 
 It was always Mr. Webster's manner, in cases 
 involving constitutional questions, to argue them at 
 
 • Webster's Works, vol. vi., p. 13. ^ Ibid., vol. vi., p. iS, 
 
54 Daniel Webster 
 
 the outset on broad grounds. Thus having clearly 
 stated and defined the principles which should con- 
 trol the Court in deciding the case before it, he 
 proceeded on a narrower line of argument which 
 was open to him, namely : the contention that the 
 license under the coasting laws which the United 
 States had given to Gibbons was inconsistent with 
 the legislation of New York, and that the latter 
 must therefore give place to the former. It was 
 on this ground that the case was finally decided, 
 and yet the argument of the Court follows very 
 closely that of Mr. Webster and adopts its funda- 
 mental propositions. To use the language of the 
 Court : 
 
 " The appellant contends that this decree is erroneous, be- 
 cause the laws which purport to give the exclusive privilege it 
 sustains, are repugnant to the constitution and laws of the 
 United States. They are said to be repugnant. 
 
 " I. To that clause in the constitution which authorizes 
 congress to regulate commerce. 
 
 " As preliminary to the very able discussions of the consti- 
 tution which we have heard from the bar, and as having some 
 influence on its construction, reference has been made to the 
 political situation of these States, anterior to its formation. It 
 has been said that they were sovereign, were completely inde- 
 pendent, and were connected with each other only by a league. 
 This is true. But when these allied sovereigns converted their 
 league into a government, when they converted their congress 
 of ambassadors, deputed to deliberate on their common con- 
 cerns, and to recommend measures of general utility, into a 
 legislature, empowered to enact laws on the most interesting 
 subjects, the whole character in which the States appear under- 
 went a change, the extent of which must be determined by a 
 fair consideration of the instrument by which that change was 
 effected. 
 
Interstate Commerce 55 
 
 " This instrument contains an enumeration of the powers 
 expressly granted by the people to their government. It has 
 been said that these powers ought to be construed strictly. 
 But why ought they to be so construed ? Is there one sentence 
 in the Constitution which gives countenance to this rule ? In 
 the last of the enumerated powers, that which grants, expressly, 
 the means for carrying all others into execution, congress is 
 authorized to make 'all laws which shall be necessary and 
 proper for the purpose.' But this limitation on the means 
 which may be used, is not extended to the powers which are 
 conferred; nor is there one sentence in the constitution which 
 has been pointed out by the gentlemen at the bar, or which we 
 have been able to discern, that prescribes this rule." 
 
 " The words are: ' Congress shall have power to regulate 
 commerce with foreign nations, and among the several States, 
 and with the Indian Tribes.' 
 
 "The subject to be regulated is commerce; and our Con- 
 stitution being, as was aptly said at the Bar, one of enumera- 
 tion 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 ad- 
 mit that it comprehends navigation. This would restrict a 
 general term, applicable to many objects, to one of its sig- 
 nifications. Commerce undoubtedly is traffic but it is some- 
 thing more, it is intercourse. It describes the commercial 
 intercourse between nations, and parts of nations, in all its 
 branches, and is regulated by prescribing rules for carrying on 
 that intercourse. The mind can scarcely conceive a system 
 for regulating commerce between nations, which shall exclude 
 all laws concerning navigation, which shall be silent on the 
 admission of the vessels of the one nation into the ports of the 
 other, and be confined to prescribing rules for the conduct of 
 individuals in the actual employment of buying and selling, 
 or of barter." ' 
 
 " The subject is transferred to Congress and no exception 
 
 ' Gibbons vs. Ogden, 9 Wheaton, pp. 186-190. 
 
56 Daniel Webster 
 
 to the grant can be admitted which is not proved by words or 
 the nature of the thing." ' 
 
 The latest statement by the court of the rule 
 established in Gibbons vs. Ogden is to be found in 
 the case of Atlantic & Pacific Tel. Co. vs. Phila- 
 delphia,^ in which the opinion was delivered June i, 
 1903 : 
 
 " The Constitution of the United States having given to 
 Congress the power to regulate commerce, not only with for- 
 eign nations, but among the several States, that power is neces- 
 sarily exclusive whenever the subjects of it are national in 
 their character, or admit only of one uniform system, or 
 plan of regulation" ^ 
 
 Mr. Webster's own opinion of his argument in 
 Gibbons vs. Ogden is to be found in a very inter- 
 esting conversation reported by Harvey* : 
 
 " ' Mr. Webster, your speech in answer to Hayne has been 
 read, I think, by more intelligent persons than any speech in 
 the English language.' 
 
 " ' Oh, no,' replied he, ' I think you must be mistaken about 
 that. You must remember the speeches of English orators and 
 
 ' Gibbons vs. Ogden, g Wheaton, p. 215. 
 
 ' 190 U. S., 160-162 (1903). 
 
 ^ In accordance with this rule it is held that no State or municipality can 
 levy any tax, whether by license fee or otherwise, upon the doing of busi- 
 ness in one State, by the citizens of another, — Caldwell vs. North Carolina, 
 187 U. S., 622 (1903); — nor in any form upon traffic from one State to another 
 — interstate commerce as it is called, — Hanley vs. Kansas City Southern R. 
 Co., ibid.,b\l (1903). On the other hand a State may impose ordinary 
 property taxes upon property within its territory, belonging to non-resi- 
 dents, — Atlantic & Pacific Tel. Co. vs. Philadelphia supra ; — and may 
 exercise police power over the same, and tax it to provide funds for such 
 exercise, — Western Union Tel. Co. vs. Borough of New Hope, 187 U. S., 
 4i9,( 1903). 
 
 * Reminiscences of Daniel Webster, p. 140. 
 
Interstate Commerce 57 
 
 statesmen were not reported as ours are; neither were the Eng- 
 lish, to a great extent, a reading people. Everything that is 
 worth reading and is eloquent, our people read.' 
 " After a pause, he went on: 
 
 Well, I don't know; you may be right in that. But that 
 was not my best speech.' 
 
 "I said, that, if it was not the best speech, it had the 
 greatest fame. 
 
 Well,' said he, ' I suppose it has. Nevertheless, it was 
 not, in my judgment, the best speech I ever made; but, as a 
 popular effort, it was undoubtedly more read than any other 
 speech.' 
 
 What do you regard as your greatest speech ? ' I asked. 
 " ' My forensic efforts have been those which have pleased 
 me most. The two arguments that have given me the most 
 satisfaction were the arguments in the " steamboat case " and 
 the Dartmouth College argument. The steamboat case, you 
 remember, was a question of the constitutionality of the right 
 of New York State to give a monopoly to Fulton and his heirs 
 forever, of the privilege of plying the waters of the Hudson 
 with his steamboats. The value of such a right was not then 
 and could not have been, from the nature of the case, fully 
 understood. But it seemed to me to be against the very 
 essence of State rights, and a virtual dissolution of the Union 
 in a commercial sense. If New York had a right to lay tolls 
 upon her rivers for everybody that should pass, then all the 
 other great international rivers and lakes would have the same 
 right, and we could not be one as a commercial people. The 
 people of New York felt that their rights were at stake in the 
 contest; and their great lawyers — and they had many of them 
 — were engaged on that side; the Livingstons and Clintons and 
 others of like calibre. Mr. Wirt and myself were employed 
 against the monopoly. When the case came to be argued be- 
 fore the Supreme Court at Washington, Chief Justice Marshall 
 presiding, Mr. Wirt and myself met for consultation. Mr. 
 Wirt asked me upon what grounds I based my case, upon what 
 clause of the Constitution. He !iad a right to ask, as he was 
 my senior in years and professional fame. My reply was, that 
 
58 Daniel Webster 
 
 the clause of the Constitution which ceded to the general gov- 
 ernment the right to regulate commerce was that upon which 
 I based my defence. Mr. Wirt's reply to that was, that he did 
 not see, in that line of argument, any ground for our case to 
 rest upon. I said: " Very well; what is yours ? " So he told 
 me. I do not recollect what it was, but it was a totally differ- 
 ent clause in which he found the ground of his argument. I 
 said to him: " Mr. Wirt, I will be as frank with you as you 
 have been with me, and say that I do not see the slightest 
 ground to rest our case upon in your view of it." "Very 
 well," replied Mr. Wirt, " let us each argue it in our own way, 
 and we will find out which, if either, is right." 
 
 " ' The case came on for argument. Mr. Wirt made one of his 
 brilliant arguments before the Court. 1 followed with my view. 
 
 " ' I can see the Chief Justice as he looked at that moment. 
 Chief Justice Marshall always wrote with a quill. He never 
 adopted the barbarous invention of steel pens. That abomi- 
 nation had not been introduced. And always, before counsel 
 began to argue, the Chief Justice would nib his pen; and then, 
 when everything was ready, pulling up the sleeves of his gown, 
 he would nod to the counsel who was to address him, as much 
 as to say, ' 'I am ready; now you may go on." 
 
 " ' I think I never experienced more intellectual pleasure 
 than in arguing that naval question to a great man who could 
 appreciate it, and take it in ; and he did take it in, as a baby 
 takes in its mother's milk. 
 
 " ' The result of the case was this: the opinion of the Court, 
 as rendered by the Chief Justice, was little else than a recital 
 of my argument. The Chief Justice told me that he had little 
 to do but to repeat that argument, as that covered the whole 
 ground. And, which was a little curious, he never referred to 
 the fact that Mr. Wirt had made an argument. He did not 
 speak of it once.' 
 
 •' Then Mr. Webster added: 
 
 " ' That was very singular. It was an accident, I think. 
 Mr. Wirt was a great lawyer, and a great man. But some- 
 times a man gets a kink and does n't hit right. That was one 
 of the occasions. But that was nothing against Mr. Wirt.' " 
 
Interstate Commerce 59 
 
 It is not often that we have a description of a 
 great legal argument by two of the judges who 
 heard it. In the present case we have this rare 
 good fortune. In the unpublished manuscript 
 from which we have before quoted, Mr. Justice 
 Story thus describes Webster's argument in Gib- 
 bons vs. Ogden : 
 
 "Of Mr. Webster's argument in the opening of this case 
 (for it was closed by Mr. Wirt in a speech of great splendor 
 and force) it may be said to furnish as good a specimen of the 
 characteristics of his mind, as any which could be named. We 
 have here in as favorable a light as we could desire, his clear- 
 ness and downright simplicity of statement, his vast compre- 
 hensiveness of topics, his fertility in illustrations drawn from 
 practical sources; his keen analysis, and suggestion of difficul- 
 ties; his power of disentangling a complicated proposition, and 
 resolving it in elements so plain as to reach the most common 
 minds; his vigor in generalizations, planting his own argument 
 behind the whole battery of his opponents; his wariness and 
 caution not to betray himself by heat into untenable positions, 
 or to spread his forces over useless ground. Everywhere we 
 see him, as it were, fortifying himself on all sides within the 
 narrowest limits for his cause with all the limitations and auali- 
 fications belonging to it; yet still ready at every moment to 
 center, like a skillful general, at the weak points of his adver- 
 sary's position. Whoever with a view to the real difficulties 
 of the case and the known ability of his opponents, shall sit 
 down to the task of perusing this argument will find, that it is 
 equally remarkable for profoundness and sagacity, for the 
 choice, and comprehensiveness of the topics, and for the 
 delicacy and tact, with which they are handled. The reader 
 goes on and so naturally falls into the current of the argu- 
 ment, that he thinks all quite plain and indisputable, until 
 shutting the book, he attempts to frame an argument for him- 
 self on the same topics and to answer his adversaries. Like 
 Partridge in Tom J^ones, when he saw Garrick act, all seemed 
 
6o Daniel Webster 
 
 so natural, and without effort, that he is convinced that there 
 can be neither art nor address, nor genius in the affair. Yet 
 it is this very power, this naturalness and plainness of remark, 
 which makes Mr. Webster so irresistible to a jury." 
 
 It is our good fortune to have another account of 
 this argument from Mr. Justice Wayne. When 
 Mr. Webster was in Savannah, in 1847, ^ public 
 reception was given him. Mr. Justice Wayne pre- 
 sided and addressed Mr. Webster. In the course of 
 this address he said : 
 
 " From one of your constitutional suggestions, every man in 
 the land has been more or less benefited. We allude to it 
 with the greater pleasure, because it was in a controversy, be- 
 gun by a Georgian in behalf of the constitutional rights of the 
 citizen. 
 
 *' When the late Mr. Thomas Gibbons determined to hazard 
 a large part of his fortune in testing the constitutionality of the 
 laws of New York, limiting the navigation of the waters in 
 that State to steamers belonging to a company, his own interest 
 was not so much concerned as the right of every citizen to use 
 a coasting license upon the waters of the United States, in 
 whatever way his vessel was propelled. It was a sound view 
 of the law, but not broad enough for the occasion. It is not 
 unlikely that the case would have been decided upon it, if you 
 had not insisted that it should be put upon the broader con- 
 stitutional ground of commerce and navigation. The court 
 felt the application and force of your reasoning, and it made 
 a decision releasing every creek and river, lake, bay, and 
 harbor in our country from the interference of monopolies, 
 which had already provoked unfriendly legislation between 
 some of the States, and which would have been as little favor- 
 able to the interest of Fulton as they were unworthy of his 
 genius." ' 
 
 Two years later, in the course of his opinion in 
 
 ' Webster's Works, vol. ii., p 399. 
 
Interstate Commerce 6i 
 
 the Passenger cases/ Mr. Justice Wayne thus 
 spoke of the prior decision : 
 
 " The case of Gibbons v. Ogden, in the extent and variety 
 of learning, and in the acuteness of distinction with which it 
 was argued by counsel, is not surpassed by any other case in 
 the reports of courts. In the consideration given to it by the 
 court, there are proofs of judicial ability, and of close and 
 precise discrimination of most difficult points, ecpial to any 
 other judgment on record. To my mind, every proposition in 
 it has a definite and unmistakable meaning. Commentaries 
 cannot cover them up or make them doubtful. 
 
 " The case will always be a high and honorable proof of the 
 eminence of the American Bar of that day, and of the talents 
 and distinguished ability of the judges who were then in the 
 places which we now occupy. 
 
 " There were giants in those days, and 1 hope I may be 
 allowed to say, without more than judicial impressiveness of 
 manner or of words, that I rejoice that the structure raised by 
 them for the defence of the Constitution, has not this day been 
 weakened by their successors." 
 
 Chief Justice Marshall concluded his opinion in 
 Gibbons vs. Oofden with the followino- remarkable 
 statement : 
 
 " Powerful and ingenious minds, taking as postulates that 
 the powers expressly granted to the government of the Union, 
 are to be contracted by construction into the narrowest pos- 
 sible compass, and that the original powers of the States are 
 retained, if any possible construction will retain them, may, by 
 a course of well-digested but refined and metaphysical reason- 
 ing founded on these premises, explain away the constitution 
 of our country, and leave it a magnificent structure, indeed, to 
 look at, but totally unfit for use. They may so entangle and 
 perplex the understanding, as to obscure principles which were 
 before thought quite plain, and induce doubts, where, if the 
 
 ' 7 Howard, 437. 
 
62 Daniel Webster 
 
 mind were to pursue its own course, none would be perceived. 
 In such a case, it is peculiarly necessary to recur to safe and 
 fundamental principles to sustain those principles, and, when 
 sustained, to make them the tests of the arguments to be 
 examined." ' 
 
 The rule for deciding constitutional questions 
 thus laid down is a concise repetition of the more 
 elaborate statement at the beginning of the opinion. 
 It is a fundamental rule. It is not too much to 
 say that the application of the rules of construction 
 which we have quoted from this opinion has given 
 to our country that government which we now 
 enjoy, and that we owe it to Mr. Webster that the 
 conscience and judgment of the Supreme Court 
 became satisfied that the rule referred to was the 
 one unfailing test of the validity of any constitu- 
 tional argument. This contention became a part 
 of the national consciousness and sustained the 
 nation in its great struggle from 1861 to 1865. 
 
 ' Gibbons z'S. Ogden, 9 Wheaton, p. 222. 
 
CHAPTER VI 
 
 THE SLAVE TRADE " LA JEUNE EUGENIE " 
 
 The next case of maenitude which deserves 
 commemoration is that of La Jeune Eugenie} To 
 us who Hve in the day when not only the slave 
 trade but slavery itself has been abolished, it is 
 strange there ever could have been a question 
 whether the trade in slaves was in violation of the 
 law of nations. But that question was raised and 
 came for decision at about the same time before 
 those two great men who simultaneously adorned 
 the bench of England and America, Lord Stowell 
 and Judge Story. Their respective decisions illus- 
 trate what we have said as to the functions of the 
 judge and the advocate, and the essential part the 
 latter plays in the drama of justice. 
 
 There had been a time when all nations were en- 
 gaged in this traffic. Afterwards many of them 
 passed laws forbidding it to their own citizens. 
 The question arose, whether the court could take 
 these isolated enactments and construe them as in 
 the aggregate forming a general law enforcible by 
 the cruisers, and in the courts of all nations which 
 had adopted similar laws. 
 
 ' 2 Mason, 409 (1822). 
 63 
 
64 Daniel Webster 
 
 This was a question of vital importance to the 
 world. The suppression of the slave trade had be- 
 come of international importance. But it was a 
 very profitable trade and the cupidity of those en- 
 gaged in it led to constant contrivances for the 
 evasion of the laws against it. The nations which 
 had passed these laws kept naval vessels on the 
 African coast for the capture of slavers. But if 
 each vessel had the right to capture only slave 
 ships of its own nationality, the slavers would fly 
 the French flag in the presence of an American 
 frigate, and when the latter was out of sight would 
 hoist the stars and stripes as a French frigate ap- 
 proached. As Commodore Stockton wrote Mr. 
 Webster (February 5, 182 1), in reference to this 
 very case : 
 
 "If the Flag of nations who have prohibited the Trade 
 shall yet cover it so as that it can't be questioned by another, 
 for ourselves we had better keep our business at home. It is 
 perfectly well known at what rate Americans can be turned 
 into Frenchmen or Spaniards in the West Indies." ' 
 
 La Jeune Eiigenie was a slaver, flying the French 
 flag, which was captured by an American frigate 
 and brought into Boston for adjudication. 
 
 William Sullivan, one of the most brilliant law- 
 yers of that day, argued that an American frigate 
 had no rieht to seize a French vessel for the viola- 
 tion of the law of France,^ and that the American 
 
 ' 15 Webster's Writings and Speeches, 2lg. 
 
 2 It is interesting to note in this connection that the first law of France 
 prohibiting French vessels from engaging in the slave trade was a decree 
 of Napoleon, dated March, 1S15, soon after his return from Elba. Louis 
 
The Slave Trade 65 
 
 law was not binding on French vessels. Mr. 
 Webster argued " that most all of the civilized na- 
 tions of the globe had declared their sense of the 
 illegality of this trade, by enacting laws to suppress 
 it, and by various other public acts, treaties and 
 declarations. And that it micjht now therefore be 
 considered as contrary to the conventional law of 
 nations." ^ 
 
 Judge Story in his opinion characterizes the ar- 
 guments of the counsel as "very able, eloquent and 
 learned,"^ and he decided in favor of the position 
 maintained by Mr. Webster. As Commodore 
 Stockton in the letter before quoted justly said : 
 
 '* If you can maintain the great point you have taken, you 
 will have done more for the cause of humanity than all the 
 societies in the U. S. put together." ' 
 
 Unfortunately for this cause, other courts, which 
 did not have the aid of Webster's "able, eloquent 
 and learned " argument, decided differently. In the 
 case of the Antelope'^ the Supreme Court of the 
 United States ordered restitution to a Spanish sub- 
 ject of negroes captured from his slave ship by an 
 American frigate. This was, it is true, by an 
 equally divided Court, which because of such divi- 
 sion affirmed the decree of the Court below. And 
 at an earlier date (December 15, 181 7), Lord 
 
 XVIII. declared this like all the other laws of the Hundred Days (of " the 
 usurper" as Talleyrand called him) to be void. But in i8 17 Louis made a 
 decree of somewhat similar purport. 2 Dodson, Adm. Rep., 5. 
 
 ' 15 Webster's Writings and Speeches (Ed. 1903), 280. 
 
 *2 Mason Rep., 463. 
 
 3 Webster's Writings and Speeches (Ed. 1903), vol. xv., p. 279. 
 
 * 10 Wheaton, 66 (1825). 
 
66 Daniel Webster 
 
 Stowell, the great English Admiralty Judge, held 
 that the slave trade was not contrary to the law of 
 nations.^ 
 
 It is, however, to be noted that public opinion, 
 both in the United States and Great Britain, had 
 already become so strong against the slave trade, 
 that British courts had sustained the seizure by a 
 British frigate of a slaver flying the American flag.^ 
 These courts seem to have considered that these 
 two commercial nations had at least made a law for 
 themselves. 
 
 At a later date, in order to meet the need occa- 
 sioned by these adverse decisions, and in conse- 
 quence of that progressive public opinion which 
 finally caused the abolition of slavery, civilized 
 nations gradually came to an express agreement 
 by virtue of which the slave trade was suppressed. 
 The last cargo of negro slaves successfully landed 
 was in i860. But this was an exception. Few in- 
 deed were the slavers who escaped the vigilance 
 of American and British cruisers during the two 
 previous decades. 
 
 ' Le Louis, 2 Dodson Adm., 2io. 
 
 '^'X\v& Amedie, i Acton, 240 (1810), High Court of Appeals. The case 
 is also reported in note to i Dodson, Adm., 84. To the same effect is the 
 Fortuna, i Dodson, 95 (1811), decided by Sir Wm. Scott, afterwards Lord 
 Stowell. It is hard to reconcile this with his later decision in Le Louis. 
 In Madrazo vs. Willes, 3 Barn, and Aid, 358 (1820), Mr. Justice Best, in 
 the King's Bench (p. 359), said that if the law of Spain prohibited this trade, 
 a Spanish slaver could lawfully be captured by a British cruiser. But as 
 the law of Spain did not at the time of capture (iSiS) prohibit the trade, 
 damages were awarded for such capture. 
 
CHAPTER VII 
 
 STATE INSOLVENT LAWS OGDEN VS. SAUNDERS 
 
 The next case of importance that Mr. Webster 
 argued in the Supreme Court was that of Ogden 
 vs. Saunders.^ 
 
 The question involved in this case was as to the 
 vaHdity of the insolvent laws of the several States. 
 There was no federal bankruptcy act in force. 
 
 The severe financial distress which began with 
 the restrictions upon our commerce created by the 
 embargo before the War of 1812, and which was 
 intensified by the suspension of specie payments 
 and by the disorganized condition of the currency 
 at the close of that war, had led many of the States 
 to pass insolvency laws. It was contended that 
 these laws were contrary to that provision of the 
 Constitution which prohibited a State from impair- 
 ing the obligation of contracts. Mr. Webster's 
 conviction was that the whole subject could best be 
 dealt with by Congress, and that the condition of 
 trade between the different States would be bene- 
 fited by the passage of a national bankruptcy act, 
 which should protect the rights of creditors from 
 
 ' 12 Wheat., 213. Mr. Webster's argument is in Webster's Works, vol. 
 vi., p. 24. 
 
 67 
 
68 Daniel Webster 
 
 every State, and at the same time furnish to an 
 unfortunate debtor the opportunity of beginning 
 business again. 
 
 In April, 1830, Mr. Webster wrote a letter to the 
 Prison Discipline Society of Boston, advocating 
 the mitigation of the laws for the imprisonment of 
 debtors.^ He always favored the enactment of a 
 national bankruptcy law. But when the validity of 
 the State insolvent laws came before the courts, 
 he argued earnestly that the Constitution had de- 
 prived the States of the power of legislation on this 
 subject. 
 
 The case was argued at the February term in 
 1824, was continued for advisement until the Janu- 
 ary term of 1827, when a reargument was ordered, 
 and at the conclusion of the argument of this and 
 other cases which were pending, involving the ques- 
 tion in different forms, a divided Court decided that 
 an insolvent law of a State was valid so far as it 
 affected contracts which were entered into after the 
 enactment of the law. In other words, it held that 
 a contract must be presumed to be made with ref- 
 erence to the law of the State within whose limits 
 the contract itself was agreed to, and became bind- 
 ing upon the parties. But the previous decision in 
 Sturges vs. Crowninshield,^ that the contract could 
 not be affected, or its validity impaired by subse- 
 quent legislation, was reaffirmed. By a divided 
 Court it was also held that this legislation could not 
 affect the rights of creditors who were, when the 
 contract was made, citizens of a State other than 
 
 ^Letters of Webster, Van Tyne, pp. 155-157. '4 Wheat., 122. 
 
State Insolvent Laws 69 
 
 that enacting the State law. These decisions de- 
 prived the State insolvent laws of much of their 
 value, and no doubt were powerful factors in induc- 
 ing Congress to pass the national bankruptcy law 
 of 1 84 1. That law was passed in a time of general 
 financial distress, and it might almost be said of 
 general insolvency. Its object was mainly to re- 
 lieve unfortunate debtors. It failed properly to 
 recognize the rights of creditors, and for that reason 
 mainly its life was short. Subsequently a national 
 bankrupt act more carefully considered has become 
 a law, and seems likely to remain as a portion of 
 our national legislation. And thus it has come to 
 pass that the argument which Mr. Webster ad- 
 dressed to the Court, and which, like all his argu- 
 ments in cases of public importance, was read by 
 the people and reached their judgment, has finally 
 become a part of our jurisprudence, though it failed 
 to convince the Court to which it was first ad- 
 dressed. The old maxim is that " hard cases make 
 shipwreck of the law." The insolvent condition of 
 the debtors who were trying to begin business 
 life again, and the hardship to them if no legal 
 method existed by which an honest insolvent could 
 make a new start, no doubt had much to do with 
 the decision in Ogden vs. Saunders. 
 
CHAPTER VIII 
 
 ACQUISITION OF NEW TERRITORY AMERICAN INSUR- 
 ANCE COMPANY VS. CANTER 
 
 The question of the authority of Congress over 
 territory acquired by the United States in pur- 
 suance of treaty with a foreign country, either as 
 the result of war or of peaceful negotiations, has 
 attracted recent attention in consequence of the 
 war with Spain and the cession by that kingdom 
 to the United States of the Philippine Islands and 
 Porto Rico. Justices of the Supreme Court dif- 
 fered greatly in regard to the disposition of par- 
 ticular cases in which this question was argued. 
 But the principles, upon the application of which 
 depended the decision of what have been known 
 as the Insular cases, are drawn from the decision 
 of the United States Supreme Court in the case 
 of the American Insurance Company vs. Canter.* 
 Curiously enough, in this case also, the territory in 
 question had been purchased from Spain. It was 
 the peninsula of Florida, which was acquired by 
 the United States by purchase under the treaty of 
 1 8 19. In this treaty, however, unlike that of 1898, 
 the Spanish Government stipulated that the in- 
 
 ' I Peters, 511 (1828). 
 70 
 
Acquisition of New Territory 71 
 
 habitants of the territories ceded should possess 
 certain definite civil rights. The clause of the 
 treaty referred to will be quoted hereafter. After 
 the treaty, and in 1823, Congress passed an act 
 providing for a legislature in the new territory, and 
 giving to that legislature power to establish inferior 
 courts. Pursuant to this provision the legislature 
 did establish a court, consisting of a notary and 
 five jurymen, who should have jurisdiction to de- 
 termine the amount of salvage which should be 
 payable to the salvors of property. Wrecks on 
 the Florida keys have always been frequent, and 
 the Court at Key West has always been busy with 
 salvage questions. In the case under considera- 
 tion, cotton was saved from a wreck, was carried 
 into Key West, the Court there ordered it sold 
 and the purchaser claimed a valid title under the 
 judgment of this Court. It was contended on the 
 other side that the Admiralty courts of the United 
 States had exclusive jurisdiction of salvage cases, 
 and that the court created by this act of the ter- 
 ritorial legislature was without jurisdiction. Mr. 
 Webster's argument is not contained in his pub- 
 lished works, and is briefly given in the report in 
 Peters (p. 538). The following extract from this 
 report will give the reader some conception of his 
 position : 
 
 "What is Florida? It is no part of the United States. 
 How can it be ? How is it represented ? Do the laws of the 
 United States reach Florida ? Not unless by particular 
 provisions. 
 
 ' ' The territory and all within it, are to be governed by 
 
72 Daniel Webster 
 
 the acquiring power, except where there are reservations by 
 treaty. 
 
 " By the law of England, when possession is taken of terri- 
 tories, the King, yure Coroner, has the power of legislation 
 until Parliament shall interfere. Congress have the Jus 
 Coronce in this case, and Florida was to be governed by 
 Congress as she thought proper. 
 
 " What has Congress done ? She might have done anything 
 — she might have refused trial by jury and refused a legisla- 
 ture. She has given a legislature to be exercised at her will; 
 and a government of a mixed nature in which she has en- 
 deavored to distinguish between State and United States juris- 
 diction, anticipating the future erection of the territory into a 
 State. 
 
 " Does the law establishing the court at Key West come 
 within the restrictions of the Constitution of the United States ? 
 If the Constitution does not extend over this territory the law 
 cannot be inconsistent with the national Constitution." 
 
 The decision of the Court followed this argument 
 very closely. It is on the following passage in the 
 opinion delivered by Chief Justice Marshall that 
 the decisions in the Insular cases are really based. ^ 
 
 " The course which the argument has taken will require that 
 in deciding this question, the court should take into view the 
 relation in which Florida stands to the United States. 
 
 " The constitution confers absolutely on the government of 
 the Union the powers of making war and of making treaties; 
 consequently, that government possesses the power of acquir- 
 ing territory either by conquest or by treaty. 
 
 " The usage of the world is, if a nation be not entirely sub- 
 dued, to consider the holding of conquered territory as a mere 
 military occupation, until its fate shall be determined at the 
 treaty of peace. If it be ceded by the treaty the acquisition is 
 confirmed, and the ceded territory becomes a part of the nation 
 to which it is annexed, either on the terms submitted in the 
 
 ' I Peters, 541, 542. 
 
Acquisition of New Territory yz 
 
 treaty of cession, or on such as its new master shall impose. 
 On such transfer of territory it has never been held that the 
 relations of the inhabitants with each other undergo any 
 change. Their relations with their former sovereign are dis- 
 solved, and new relations are created between them and the 
 government which has acquired their territory. The same act 
 which transfers their country transfers the allegiance of those 
 who remain in it; and the law, which may be denominated 
 political, is necessarily changed, although that which regulates 
 the intercourse and general conduct of individuals remains in 
 force until altered by the newly created power of the state. 
 
 " On the 2nd of February, 1819, Spain ceded Florida to the 
 United States. The sixth article of the treaty of cession con- 
 tains the following provision — ' The inhabitants of the territories 
 which his Catholic Majesty cedes to the United States by this 
 treaty, shall be incorporated in the Union of the United States 
 as soon as may be consistent with the principles of the federal 
 constitution, and admitted to the enjoyment of the privileges, 
 rights, and immunities of the citizens of the United States.' 
 
 " This treaty is the law of the land, and admits the inhabi- 
 tants of Florida to the enjoyment of the privileges rights and 
 immunities of the citizens of the United States. It is unneces- 
 sary to inquire whether this is not their condition, independent 
 of stipulation. They do not, however, participate in political 
 power; they do not share in the government till Florida shall 
 become a State. In the meantime, Florida continues to be a 
 territory of the United States, governed by virtue of that 
 clause in the Constitution which empowers Congress ' to make 
 all needful rules and regulations respecting the territory or 
 other property belonging to the United States.' 
 
 "Perhaps the power of governing a territory belonging to 
 the United States, which has not, by becoming a State, acquired 
 the means of self-government, may result necessarily from the 
 facts that it is not within the jurisdiction of any particular State 
 and is within the power and jurisdiction of the United States. 
 The right to govern may be the inevitable consequence of the 
 right to acquire territory. Whichever may be the source whence 
 the power is derived, the possession of it is unquestioned. In 
 
74 Daniel Webster 
 
 execution of it. Congress in 1822, passed 'an act for the estab- 
 lishment of a territorial government in Florida,' and on the 
 3rd of March, 1823, passed another act to amend the act of 
 1822. Under this act the territorial jurisdiction enacted the 
 law now under consideration." 
 
 It is not within the scope of this work to con- 
 sider in detail the decisions in the Insular cases. 
 To do so would require a volume. But in 
 general it may be said that they establish two 
 propositions : 
 
 1. Territory acquired by the United States by 
 purchase is not "a foreign country," nor are its 
 citizens aliens, 
 
 2. It is subject only to the law-making power of 
 Congress, and the restrictions of the Constitution 
 of the United States do not limit this power.^ 
 
 This question became important with reference to 
 the subject of slavery. It was claimed by Calhoun, 
 in opposition to the decision of the Supreme Court 
 in the case just referred to, that the various pro- 
 visions of the Constitution of the United States in 
 regard to the rights of their citizens were in force 
 throughout all the territory belonging to the United 
 States. He further contended that the Constitu- 
 tion recognized the rights of citizens of the several 
 States to hold slaves, and that consequently until a 
 territory was admitted into the Union and thereby 
 
 ' For convenience of the reader, reference is made to the leading de- 
 cisions on this subject : De Lima vs. Bidwell, 182 U. S., i (1901) ; Downes 
 vs. Bidwell, ibid., 244(1901); Huus vs. N. Y. and Porto Rico SS. Co., 
 ibid., 392 (1901); Dooley x)j. United States, 1S3 U. S., 151 (1901) ; Four- 
 teen Diamond Rings, ibid., iy6 (1901) ; Hawaii vs. Mankichi, 190 U. S., 
 197 (1903) ; Gonzales vs. Williams, 192 U. S. i (1904). 
 
Acquisition of New Territory 75 
 
 vested with the exclusive control over its \e<~ni\ 
 affairs, citizens of those States within which slavery 
 was authorized by law had the right to take their 
 slaves into all parts of the United States territory, 
 not admitted into the Union as a State. 
 
 On the other hand, Mr. Webster maintained, as 
 he did in the Canter case, that the only clause of 
 the Constitution which by its own force was ap- 
 plicable to the territories was that which provides 
 that " the Congress shall have power to dispose of 
 and make all needful rules and regulations respect- 
 ing the territory or other property, belonging to 
 the United States." Congress, therefore, had the 
 right to exclude slavery from the territories, and to 
 make all needful provision for their government 
 until they should be admitted as States.^ 
 
 ^ The debate between Webster and Calhoun on that subject in the Senate 
 in February, 1849, states the argument on both sides clearly and has an im- 
 portant bearing on the relation of the United States to its Insular posses- 
 sions. The editor of the last edition of Webster's Writittgs and Speeches 
 has done public service in reproducing it (vol. xiv., pp. 323-335). 
 
 X, 
 
CHAPTER IX 
 
 THE UNITED STATES NOT A CONFEDERACY BUT A 
 
 UNION REPLY TO MR. HAYNE CARVER 
 
 VS. ASTOR's LESSEE 
 
 There is one case of a purely technical nature, 
 havinof no connection whatever with constitutional 
 law, which will yet be forever associated with that 
 one of Mr. Webster's speeches in Congress which 
 at the time of its delivery probably produced the 
 greatest impression of any of his speeches. This 
 was his reply to Hayne. 
 
 There was under consideration in the Senate a 
 resolution introduced December 29, 1829, by Mr. 
 Foot, a Senator from Connecticut, instructing the 
 Committee of Public Lands to consider the ex- 
 pediency of limiting for a certain period the sales 
 of public lands. Mr. Benton, of Missouri, took 
 up the resolution as an affront to the new States of 
 the West, and Mr. Hayne, of South Carolina, on 
 the 19th day of January, 1830, made it the occasion 
 for an attack upon the East. 
 
 The argument of the case of Carver against John 
 Jacob Astor's Lessee and others^ involved, on the 
 other hand, the construction of a marriage set- 
 
 ' Reported 4 Peters, i, 
 76 
 
United States a Union ^^ 
 
 dement and the old Entjlish law of shiftine uses 
 and executory limitations. It also involved ques- 
 tions purely technical, as to the delivery of a deed 
 and the effect of recitals in it. The argument in 
 the Supreme Court was commenced on the 20th of 
 January, 1830. Mr. Webster was in court the day 
 before waiting for the case to come on. After the 
 adjournment he went into the Senate and heard 
 the greater part of Mr. Hayne's speech. He rose 
 to reply as soon as it was completed, but the Sen- 
 ate adjourned without hearing him, and he spoke 
 the following morning. Mr. Hayne's attack was 
 entirely unexpected, and Webster's speech on his 
 first reply was made with no opportunity of prep- 
 aration. It was, however, an effective defence of 
 New England, and showed the great benefits that 
 a citizen of Massachusetts, Nathan Dane, the author 
 of the celebrated ordinance of 1787, for establish- 
 ing a government in the territory northwest of the 
 Ohio, had conferred upon that portion of the West 
 by this admirable constitutional instrument.^ 
 
 The next day some of Mr. Webster's friends 
 endeavored to obtain an adjournment of the Senate 
 until after the completion of the argument of Car- 
 ver against Astor's Lessee, but Mr. Hayne refused 
 to consent. He said: " He would not deny that 
 some things had fallen from him [Mr. Webster] 
 which rankled here [touching his breast] from which 
 he would desire at once to relieve himself. The 
 
 ' Those who are fond of coincidences may be interested to note that this 
 first reply to Hayne was delivered on the same day as Chatham's speech for 
 the Colonies in 1775 — January 20th. 
 
78 Daniel Webster 
 
 gentleman had discharged his fire in the presence 
 of the Senate. He hoped he would now afford him 
 an opportunity of returning the shot." 
 
 Thereupon Mr. Webster arose and said : 
 
 " Let the discussion proceed. I am ready. I 
 am ready now to receive the gentleman's fire." 
 
 A member of Congress from the South, who was 
 present, said it was impossible to describe *' the 
 true grandeur that then marked his manner and 
 countenance." ^ 
 
 As soon as Mr. Benton had finished the speech 
 upon the resolution, which he had begun the day 
 before, Mr. Hayne arose and spoke for about an 
 hour. By this time, presumably, his emotions had 
 somewhat relieved themselves, and the Senate 
 granted the courtesy which its great member had 
 requested and adjourned until the following Mon- 
 day. So Mr. Webster went back to the Supreme 
 Court. He delivered his own argument there in 
 the Carver case on the 2 2d, and on Monday, the 
 25th, Mr. Hayne completed his speech. 
 
 Beside the attack on New England, which has 
 no longer anything but a remote historical interest, 
 this speech contained a statement of the argument 
 which had by this time come to be an article of 
 faith in South Carolina, and was obtaining credence 
 in other parts of the country, namely, that the 
 Constitution was a compact between sovereign 
 States, that there was no power supreme over 
 these sovereigns to determine whether or not a 
 particular act of Congress was an infraction of the 
 
 ' March, Reminiscences of Congress, 115. 
 
United States a Union 79 
 
 compact ; that each State, therefore, must judge 
 for itself, and that if, in the exercise of this sover- 
 eign right and judgment, it came to the conclusion 
 that a particular act was in violation of the com- 
 pact, and therefore void, it could lawfully refuse 
 obedience to the obnoxious statute, or, in other 
 words, nullify it. This argument was advanced 
 with especial reference to the tariff laws which had 
 been passed in 1824 and 1828, and which were 
 avowedly intended to encourage the development 
 of American manufactures by the imposition of 
 duties upon the importation of foreign goods. Mr. 
 Calhoun had originally favored this so-called pro- 
 tective system^ and Mr. Webster had opposed it.^ 
 At the beginning of the tariff controversy it seems 
 to have been supposed that manufactures might be 
 introduced successfully in the South, At that time 
 practically the entire commerce of the country was 
 carried on by New England ships and sailors, and 
 anything that tended to impose shackles upon this 
 commerce was naturally obnoxious in the New Eng- 
 land States. But when the policy of a high protective 
 tariff was decided upon, and bills for that purpose 
 were passed, in 1824 and 1828, large amounts of capi- 
 tal in New Engfland were invested in manufactures. 
 
 ' See extracts from his speeches in House of Representatives in April, 
 1816, Webster's Works, vol. iii., pp. 348-351. 
 
 ^ His reasons for this are fully stated in his speech in the House of Rep- 
 resentatives, April, 1824 (Webster's Works, vol. iii., p. 94). See also his 
 second speech on the tariff, delivered in the Senate May 9, 1828 {Ibid., 
 pp. 228-231). I know of nothing on the subject of a protective tariff better 
 worth study than those two speeches. The argument for free wool, for ex- 
 ample, has never been better or more temperately stated than at p. 135 of 
 the same volume. 
 
8o Daniel Webster 
 
 The Hope Mills, in Rhode Island, for example, 
 were originally built at that time, and were named 
 for the ship Hope, which the original proprietors 
 of those mills owned, and which they sold for the 
 purpose of investing the proceeds in the manufac- 
 tures which were then being encouraged by acts 
 of Congress. 
 
 On the other hand the business of the South 
 remained agricultural The system of slavery did 
 not lend itself to any other kind of business 
 activity. The Southern planters discovered that 
 the effect of the tariff laws was to increase the 
 prices of the goods which they had to buy for 
 their own families and for their negroes, and a great 
 change of sentiment took place in the South, very 
 naturally, on the subject of the tariff laws. 
 
 An examination of the Constitution showed 
 plainly enough that the power to impose tariff 
 duties for a purpose other than that of revenue 
 was not specifically granted. The strict construc- 
 tionists therefore denied the validity of the tariff 
 laws, and the State of South Carolina passed acts 
 intended to prevent their enforcement at the port 
 of Charleston. 
 
 The question of secession had not yet come to 
 the front. The burdens which the embargo im- 
 posed upon the commerce of New England had in- 
 deed led some of the New England people, before 
 the War of 1812, to consider the expediency of a 
 dissolution of the Union.^ But still the right of 
 
 •It is worth noting, however, that when, in 1811, one of the New 
 England representatives spoke of secession as a probable consequence of the 
 
United States a Union 8i 
 
 secession, as it was subsequently discussed and 
 advocated, can hardly be said to have been 
 brought prominently to the public attention dur- 
 ing the years before 1830. Nullification was the 
 most prominent claim at that time. It seemed less 
 drastic, and was maintained by its advocates to be 
 consistent with the continuance of the union of the 
 States. Hayne had put the argument for it with 
 great plausibility, and a certain apprehension cre- 
 ated by his speech spread rapidly through the 
 country.^ 
 
 It was on the 26th of January that Mr. Webster 
 rose to reply. He spoke in what was then the 
 Senate Chamber, and is now the court-room of the 
 Supreme Court of the United States. The news 
 that he was to speak, and on such a topic, had 
 spread abroad, and the room was crowded almost 
 to suffocation. Indeed to any one now standing in 
 the room, it seems impossible that even with the 
 former gallery, it could have ever contained so 
 many people, as those who are said to have assem- 
 bled to hear Webster's speech in reply to Hayne. 
 That speech is so familiar, that it is unnecessary here 
 to quote from it at length. It is really a statement, 
 in eloquent and popular form, of propositions that 
 
 passage of the bill for the admission of Louisiana as a State, the Speaker, 
 Joseph B. Varnum, of Massachusetts, a soldier of the Revolution, held 
 that "it was not in order to use words in debate which threaten the 
 stability of the Union." — March, Remijiiscences of Congress, 202. 
 
 ^ A curious instance of this is to be found in a letter to Mr. Webster, 
 dated March 10, 1S30, from George Hay, Judge of the United States Court 
 for the Eastern District of Virginia, in which he considers the constitutional 
 rights of the general government in case of secession, and what would 
 constitute treason. The original letter is in the Congressional Library. 
 
82 Daniel Webster 
 
 Mr. Webster had frequently argued in the Supreme 
 Court of the United States. 
 
 What Chancellor Kent said of it in the city of 
 New York at a public dinner given on the loth of 
 March, 1831, "to express the sense of our citizens 
 of the importance of Mr. Webster's Congressional 
 argument " is strictly true.^ 
 
 " The consequences of that discussion have been extremely 
 beneficial. It turned the attention of the public to the great 
 doctrines of national rights and national union. Constitutional 
 law ceased to remain wrapt up in the breasts and taught only 
 by the responses of the living oracles of the law. Socrates 
 was said to have drawn down philosophy from the skies and 
 scattered it among the schools. It may with equal truth be 
 said that constitutional law, by means of those senatorial 
 discussions, and the master genius that guided them, was res- 
 cued from the archives of our tribunals and the libraries of 
 lawyers, and placed under the eye and submitted to the judg- 
 ment of the American people. Their verdict is with us and 
 from it there lies no appeal. 
 
 In Mr. Webster's speech at this dinner, he gives 
 an admirable summary of the questions which had 
 been under consideration in Congress, and of the 
 debate upon them. He shows very clearly, that 
 
 "the judicial power under the Constitution of the United 
 States was made co-extensive with the legislative power. It 
 was extended to all cases arising under the Constitution and 
 the laws of Congress. The Judiciary became thus possessed 
 of the authority of deciding in the last resort, in all cases of 
 alleged interference between State laws and the Constitution 
 and laws of Congress. Gentlemen, this is the actual Constitu- 
 tion, this is the law of the land." 
 
 'Webster's Works, vol. i., p. 194. 
 
United States a Union 83 
 
 He then proceeds to show, in language which it 
 is almost impossible to abbreviate, that the argu- 
 ment to the contrary is a perverse construction of 
 plain language in the body of the Constitution itself, 
 and then goes on : 
 
 "At the very moment when our Government was quoted, 
 praised, and commended all over the world, and when the 
 friends of Republican Hberty everywhere were gazing at it with 
 delight and were in perfect admiration at the harmony of its 
 movements, one State steps forth, and by the power of nullifi- 
 cation, breaks up the whole system and scatters the bright chain 
 of the Union into as many sundered links as there are separate 
 States. 
 
 " Seeing the true grounds of the Constitution thus attacked I 
 raised my voice in its favor, I must confess, with no prepara- 
 tion or previous intention. I can hardly say that I embarked 
 in the contest from a sense of duty. It was an instantaneous 
 impulse of inclination, not acting against duty, I trust, but 
 hardly waiting for its suggestions. I felt it to be a contest for 
 the integrity of the Constitution, and I was ready to enter into 
 it, not thinking or caring personally how I might come out." 
 
 He then proceeds to express what must have 
 been to him an almost inexpressible satisfaction at 
 the success of the arg-ument : 
 
 " The doctrines of nullification have received a severe and 
 stern rebuke from public opinion. The general reprobation 
 of the country has been cast upon them. Recent expressions 
 of the most numerous branch of the national legislature are 
 decisive and imposing. Everywhere the general tone of public 
 feeling is for the Constitution." ' 
 
 Perhaps there is no more terse expression of the 
 great effect of this speech than is to be found in a 
 
 ' Webster's Works, vol. i., pp. 209-211. 
 
84 Daniel Webster 
 
 letter from a leading citizen of Richmond, John H. 
 Pleasants.^ It is dated Richmond, 4th March, 
 1830: 
 
 "Dear Sir: 
 
 "Permit me to congratulate you on the speech, on the great 
 sensation it has produced in this quarter, so flattering to your 
 feelings, and the effect so honorable to the consistency of your 
 public conduct and your ability to defend it. The knowledge 
 that you have completely vindicated yourself, floored your an- 
 tagonist, and gained a complete victory so far as argument 
 goes, is nearly universal." 
 
 In our day it would be thought that this letter 
 was somewhat remote in date from the speech. 
 But in 1830 there were neither telegraphs nor 
 railroads. The circulation of the speech was 
 necessarily slow. No doubt the readers had more 
 leisure to examine it and meditate upon it, and 
 probably in the end the results were as great as 
 those which are produced by our immediate tele- 
 graphic reports.^ 
 
 The comparison between the language of the 
 speech as Webster uttered it (or at least as it was 
 taken down by the shorthand reporter), and that in 
 which he printed the speech for circulation, is so 
 interesting that I cannot refrain from giving them 
 both. The first is as follows ^ : 
 
 "While the nation lasts we have a great prospect of pros- 
 perity, and when this Union breaks up there is nothing in 
 
 ' Curtis's Life of Webster, vol. i., p. 370. 
 
 ' The great impression which this reply produced upon Mr. Lincoln is 
 described in Herndon's Lincoln (Ed. 1889), pp. 400, 478 ; Thorpe, Const. 
 Hist. U. S., vol. ii., p. 396. 
 
 ' Webster Centennial, Dartmouth, p. 135. 
 
United States a Union 85 
 
 prospect for us to look at, but what I regard with horror and 
 despair. God forbid; yes sir, God forbid that I should live 
 to see this cord broken; to behold the state of things which 
 carries us back to disunion, calamity and civil war. When 
 my eyes shall be turned for the last time on the meridian sun, 
 I hope I may see him shining bright upon my united, free and 
 happy country. I hope I shall not live to see his beams fall- 
 ing upon the dispersed fragments of the structure of this once 
 glorious Union. I hope I may not see the flag of my country 
 with its stars separated or obliterated, torn by commotion, 
 smoking with the blood of civil war. I hope I may not see the 
 standard raised of separate state rights, star against star, and 
 stripe against stripe; but that the flag of the Union may keep 
 its stars and its stripes corded and bound together in indis- 
 soluble ties. I hope I shall not see written as its motto 
 ^ First Liberty and then Union.' I hope I shall see no such 
 delusive and deluded motto on the flag of that country. I 
 hope to see spread all over it, blazoned in letters of light, and 
 proudly floating over land and sea, that other sentiment, 
 dear to my heart, 'Union and Liberty, Now and Forever, One 
 and Inseparable.' " 
 
 As the speech was pubHshed, the peroration was 
 in the following form ^ : 
 
 "While the Union lasts, we have high, exciting, gratifying 
 prospects spread out before us, for us and our children. Be- 
 yond 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 dis- 
 honored fragments of a once glorious Union; on States dis- 
 severed, 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 en- 
 sign of the republic, now known and honored throughout the 
 
 'Webster's Works ^ vol. iii., p. 342. 
 
86 Daniel Webster 
 
 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.' " 
 
 An illustration of the careful way in which Mr. 
 Webster prepared the oration for publication is to 
 be found in a letter of Edward Everett, dated Janu- 
 ary 26, 1830 ^ : 
 
 "When you come to the ' standard of the Union ' in the 
 peroration, look at what was floating in your mind — Milton's 
 description of the infernal banner in the lower regions, float- 
 ing across the immensity of space, which is in turn borrowed 
 from Tasso's description of the banner of the Crusades, when 
 first unfolded in Palestine." 
 
 Another reference to the revision for the press 
 of the shorthand notes is to be found in a letter 
 from Mr. Webster to his old friend, Jeremiah 
 Mason, written in Washington, February 27, 
 1830: 
 
 "The press has sent abroad all I said in the late debate, 
 and you will have seen it. I have paid what attention I could 
 to the reporter's notes; but in the midst of other pressing en- 
 gagements, I have not made either speech what it ought to be; 
 but let them go. The whole matter was quite unexpected. I 
 was busy with the Court, and paying no attention to the de- 
 bate, which was going on sluggishly in the Senate, without 
 
 • Letters of Webster, Van Tyne, p. 146. 
 
United States a Union 87 
 
 exciting any interest. Happening to have nothing to do for 
 the moment in Court I went into the Senate and Mr. Hayne, 
 so it turned out, just then rose. When he sat down, my 
 friends said he must be answered, and I thought so too, and 
 being thus got in, thought I must go through. It is singular 
 enough, though perhaps not unaccountable, that the feeling of 
 this little public is all on our side. I may say to you that I 
 never before spoke in the hearing of an audience, so excited, 
 so eager and so sympathetic. " ' 
 
 In a brief reply to Mr. Hayne's rejoinder, Mr. 
 Webster summed up the argument in a speech com- 
 prising only five pages of his printed works, from 
 which we must quote briefly, for it summarizes the 
 argument on both sides in masterly fashion. Of 
 Mr. Hayne's argument he says : 
 
 " His propositions are: 
 
 " I. That the Constitution is a compact between the States: 
 
 " 2. That a compact between two, with authority reserved 
 to one to interpret its terms, would be a surrender to that one 
 of all power whatever. 
 
 "3. Therefore (such is his inference,) the general govern- 
 ment does not possess the authority to construe its own 
 powers." 
 
 To this Webster replies : 
 
 " The Constitution, it is said, is a compact between States. 
 The States then, and the States only, are parties to the com- 
 pact. How comes the general government itself a party. 
 Upon the honorable gentleman's hypothesis, the general gov- 
 ernment, is the result of the compact, the creature of the 
 compact, not one of the parties to it. Yet the argument as the 
 gentleman has now stated it, makes the government itself one 
 of its own creators. It makes it a party to that compact to 
 which it owes its own existence. 
 
 ' Webster's Private Correspondence, vol. i., p. 488. 
 
88 Daniel Webster 
 
 " While the gentleman is contending against construction, 
 he himself is setting up the most loose and dangerous con- 
 struction. The Constitution declares that the laws of Congress 
 passed in pursuafice of the Constitution, shall be the supreme law 
 of the land. No construction is necessary here. " It de- 
 clares also, with equal plainness and precision, that the judicial 
 power of the United States shall extend to eziery case arising 
 under the laws of Congress. This needs no construction. 
 Here is a law, then, which is declared to be supreme; and 
 here is a power established, which is to interpret that law. 
 Now Sir, how has the gentleman met this ? Suppose the Con- 
 stitution to be a compact, yet here are its terms, and how does 
 the gentleman get rid of them ? He cannot argue the seal off 
 the bond, nor the words out of the instrument. Here they are. 
 What answer does he give to them? None in the world, Sir, 
 except that the effect of this would be to place the states in a 
 condition of inferiority; and that it results from the very 
 nature of things, there being no superior, that the parties must 
 be their own judges. 
 
 " So then, Sir, even supposing the Constitution to be a com- 
 pact between the states, the gentleman's doctrine nevertheless, 
 is not maintainable, because — first, the general government is 
 not a party to that compact, but a. government established by it 
 and vested by it with the powers of trying and deciding doubt- 
 ful questions; and secondly, because, if the Constitution be 
 regarded as a compact, not one state only, but all the states, 
 are parties to that compact, and one can have no right to fix 
 upon it her own peculiar construction. 
 
 " But Sir, the gentleman has failed to maintain his leading 
 proposition. He has not shown — it cannot be shown that the 
 Constitution is a compact between state governments. The 
 Constitution itself, in its very front, refutes that idea; it de- 
 clares that it is ordained and established by the people of the 
 United States. . . . The gentleman says, it must mean no 
 more than the people of the several states. Doubtless, the 
 people of the several states, taken collectively, constitute the 
 people of the United States; but it is in this, their collective 
 capacity, it is as all the people of the United States, that they 
 
United States a Union 89 
 
 establish the Constitution. So they declare ; and words cannot 
 be plainer than the words used. 
 
 " When the gentleman says the Constitution is a compact 
 between the States, he uses language exactly applicable to the 
 old Confederation. He speaks as if he were in Congress before 
 1 789. He describes fully that old state of things then existing. 
 The Confederation was, in strictness, a compact; the States, as 
 states, were parties to it. We had no other general govern- 
 ment. But that was found insufficient, and inadequate to the 
 public exigencies. The people were not satisfied with it, and 
 undertook to establish a better. They undertook to form a 
 general government, which should stand on a new basis; not 
 a confederacy, not a league, not a compact between States, but 
 a Constitution; a popular government founded in popular 
 election, directly responsible to the people themselves, and 
 divided into branches with prescribed limits of power, and 
 prescribed duties. They ordained such a government, they 
 gave it the name of a Constitution, and therein they established 
 a distribution of powers between this, their general govern- 
 ment, and their several State governments. When they shall 
 become dissatisfied with this distribution, they can alter it. 
 Their own power over their own instrument remains. But 
 until they shall alter it, it must stand as their will, and is 
 equally binding on the general government and on the 
 states." ' 
 
 In an unpublished letter to William Pope, of 
 Virginia, written April 13, 1830, occurs the follow- 
 ing passage which may be compared with Webster's 
 statement in the Senate twenty years later {post, 
 p. 172). During all these twenty years he never 
 wavered in his devotion to the spirit of nation- 
 ality, felt and expressed alike at forty-eight and at 
 sixty-eight. 
 
 The letter itself illustrates very well the cor- 
 
 ' Webster's Works, vol. iii., pp. 343, 346. 
 
90 Daniel Webster 
 
 respondence occasioned by the great reply to 
 Hayne : 
 
 "Washington, April 13, 1830. 
 " My dear Sir: 
 
 " I thank you for your kind and friendly letter of the 12th 
 inst. The incidents you narrate, relative to the campaign of 
 1 781, are interesting, and excite strong patriotic feeling. In- 
 deed, my dear Sir, 'of all unnatural things, spleen and jeal- 
 ousy, between the Southern States and New England, are the 
 most unnatural. They have been excited, ex industria, for 
 paltry party purposes. 
 
 " I hope you will obtain Mr. Wirt's consent to publish parts 
 of his letter. He is a great favorite with us in New England. 
 In truth there is not a distinguished Virginian in being, Mr. 
 Madison, Mr. Jus. Marshall, Mr. Wirt, or any other promi- 
 nent man, who has kept clear of the topics of modern strife, 
 who is not as highly regarded in New England, as in Virginia 
 herself. And why should it not be so ? Why should we 
 localize our feelings ? Why should we cut up and divide our 
 patriotism as we do the public lands, into sections, half 
 sections, quarter sections, and half quarter sections ? 
 
 " For my part Americanus sum et nihil Americanum fnihi 
 alietium puto. 
 
 • ••••••• 
 
 ' ' I am with much regard, 
 
 "Yours, 
 
 "Danl, Webster, 
 " Wm. Pope, Esq. 
 
 " I believe some of our friends intend to send you a dozen 
 copies of my speech, for any of yr. neighbors who may desire 
 to read it." 
 
 The practice of circulating speeches, printed at a 
 government printing-office, had not at that time 
 begun. Congressmen or their friends printed any 
 speeches they chose to pay for. Of this second 
 
United States a Union 91 
 
 speech the National Intelligencer alone printed 
 forty thousand copies, and twenty editions were 
 printed by other papers. 
 
 A curious illustration of the effect upon the 
 minds of the young men of America produced by 
 these speeches on Foot's resolution, is to be found 
 in a letter from Webster's son, Fletcher, to his 
 father, dated March 23, 1830: 
 
 " I never knew what the Constitution really was till your last 
 short speech. I thought it was a compact between states. I 
 like that last reply better than all the rest, for it comes out so 
 a propos and conclusive, that Mr. Hayne has nothing more to 
 say. It is the coup de grace. It winds him up, as we boys 
 used to say." ' 
 
 At this same January term of the Supreme 
 Court, Mr. Webster argued twelve other cases, in- 
 volving a great variety of questions, besides con- 
 stant attention to his duties as a Senator. 
 
 Nothing illustrates more vividly the extraordinary 
 variety of Mr. Webster's acquirements and powers, 
 than a comparison between his legal arguments and 
 his speeches in Congress. The former related to 
 every branch of the law, even to that involving the 
 validity and construction of patents. The latter 
 related not only to the Constitution of his country, 
 but to her foreign relations, the tariff, finance, pub- 
 lic improvements. He touched no subject that he 
 did not illumine. He was in truth a myriad-minded 
 man, and of all the lawyers and statesmen of his 
 time left the most permanent impression. Every 
 
 ' Letters of Webster, Van Tyne, p. 151. 
 
92 Daniel Webster 
 
 student of the political questions of to-day should 
 consult his works. 
 
 In the latest of his cases at this term, he appeared 
 for his old client " The Society for the Propagation 
 of the Gospel in Foreign Parts." ^ In this case he 
 maintained successfully that a foreign corporation, 
 all the members of which are beyond seas, is within 
 the exception of the statute of limitations. Refer- 
 ence is made to this here, as it was to the case 
 of Carver against Astor's Lessee, solely for the 
 purpose of drawing attention to the fact that Web- 
 ster was not only a constitutional lawyer and states- 
 man, but a thoroughly trained and equipped master 
 of all branches of his great profession. 
 
 ' Society, etc. vs. The Town of Pawlet, 4 Peters, 480. 
 
CHAPTER X 
 
 THE UNITED STATES A UNION, NOT A CONFED- 
 ERACY SUBJECT CONTINUED REPLY 
 
 TO CALHOUN 
 
 Chancellor Kent, on the tenth of March, 1831, 
 expressed the sentiment of probably a majority of 
 the American people when he addressed Mr. Web- 
 ster in the language already quoted {a^ite, p. 82 ).^ 
 His concluding sentence (referring to the American 
 people) : " Their verdict is with us, and from it, 
 there lies no appeal," was unfortunately too opti- 
 mistic. If we may follow the Chancellor's exam- 
 ple, and adopt a legal figure, the nullifiers moved 
 for a new trial. The States' Rights party in South 
 Carolina held a celebration on the Fourth of July, 
 1 83 1, in which their claims were stoutly maintained. 
 The agitation continued in other States besides 
 South Carolina. As Webster wrote Clay from 
 Boston, on the fifth of October (183 1), in refer- 
 ence to the approaching session of Congress : 
 
 " The Constitution itself in its elementary and fundamental 
 provisions will be assailed with talent, vigor and union. 
 Everything is to be debated as if nothing had ever been settled. 
 
 'Webster's Works, vol. i., p. 194. 
 93 
 
94 Daniel Webster 
 
 . . . Everything valuable in the Government is to be fought 
 for, and we need your arm in the fight." ' 
 
 Unfortunately, Clay's arm at this time was em- 
 ployed in the task of compromise. Although he 
 was the father of the so-called "American protective 
 system," yet he was willing to give it up, in order 
 to pacify the nullifiers. In 1833, he did frame a 
 tariff bill in which provision was made for a gradual 
 reduction of the tariff to a revenue basis only. 
 
 Meanwhile, in November, 1832, the State of 
 South Carolina adopted what was commonly called 
 the Nullification Ordinance. This declared that 
 the tariff acts of 1828 and 1832 were null and void, 
 and named the first day of February, 1833, as the 
 day when they should cease to be " binding upon 
 this State, its officers or citizens." On the tenth 
 day of December, 1832, Andrew Jackson, who was 
 then President of the United States, issued a pro- 
 clamation, in which he declared that this Nullifica- 
 tion Ordinance would be entirely disregarded by 
 the federal authorities, and that he would enforce 
 the laws for the collection of duties upon imports 
 in South Carolina, in spite of it. Of the effect of 
 this proclamation, Mr. Webster writes to William 
 Sullivan, January 3, i833~: 
 
 " At the present moment it would seem that public opinion, 
 and the stern rebuke by the executive government, had, in a 
 great measure, suppressed the immediate danger of nullifica- 
 tion. As far as we see the results of the legislation of South 
 Carolina, her laws limp far behind her ordinance. For aught 
 that appears, nothing will interrupt the ordinary collection of 
 
 ' Clay's Works, vol. iv., p. 318. "^Private Corr., vol. i., p. 328. 
 
United States a Union 95 
 
 duties after February ist, unless some individual chooses to 
 try the nullifying remedy." 
 
 Shortly before this, Colonel Hayne had resigned 
 his seat in the Senate and been elected Governor 
 of South Carolina. Calhoun, who had been elected 
 Vice-President on the same ticket with Jackson in 
 1828, but had broken off friendly relations with 
 his chief, resigned the Vice-Presidency, was elected 
 Senator from South Carolina and took his seat 
 January 4, 1833. It was felt by his friends that he 
 was the ablest advocate of the States' Riofhts doc- 
 trine, and that he could measure swords with Web- 
 ster without fear of defeat. He opened fire on the 
 Administration on the sixteenth of January. On 
 the twenty-first of that month, Mr. Wilkins, of 
 Pennsylvania, the Chairman of the Judiciary Com- 
 mittee, introduced in the Senate a bill to enlarge 
 the power of the Executive in enforcing the laws 
 for the collection of duties on imports. This bill 
 was commonly known as the Force Bill. Calhoun 
 was the leader of the opposition. He introduced 
 in the Senate resolutions expressing his theory of 
 the nature of our government, and delivered an 
 acute and skilfully reasoned speech in their sup- 
 port. In reply to him, and on the sixteenth of 
 February, 1833, Webster made one of his most 
 carefully considered and effective arguments, of 
 which the following brief extract will give the main 
 points as Webster himself stated them : 
 
 "The gentleman's resolutions, then, affirm in effect that 
 these twenty-four United States are held together, only by a 
 
9^ Daniel Webster 
 
 subsisting treaty, resting for the fulfilment and continuance on 
 no inherent power of its own, but on the plighted faith of each 
 State." . . . 
 
 "And now, Sir, against all these theories and opinions, I 
 maintain: 
 
 " I. That the Constitution of the United States is not a 
 league, confederacy or compact between the people of the 
 several States in their sovereign capacities; but a government 
 proper, founded on the adoption of the people, and creating 
 direct relations between itself and individuals. 
 
 " 2. That no State authority has power to dissolve these 
 relations; that nothing can dissolve them but revolution; and 
 that consequently there can be no such thing as secession 
 without revolution. 
 
 " 3. That there is a supreme law, consisting of the Constitu- 
 tion of the United States, acts of Congress passed in pursuance 
 of it, and treaties; and that in cases not capable of assuming 
 the character of a suit in law or equity. Congress must judge 
 of and finally interpret this supreme law so often as it has 
 occasion to pass acts of legislation; and in cases capable of 
 assuming, and actually assuming, the character of a suit, the 
 Supreme Court of the United States is the final interpreter. 
 
 " 4. That an attempt by a State to abrogate, annul, or nullify 
 an act of Congress, or to arrest its operation within her limits, 
 on the ground that, in her opinion, such law is unconstitutional, 
 is a direct usurpation on the just powers of the general govern- 
 ment, and on the equal rights of other States, a plain violation 
 of the Constitution, and a proceeding essentially revolutionary 
 in its character and tendency." ' 
 
 He puts the questions thus : 
 
 " The people have ordained a Constitution: can they reject 
 it without revolution ? They have established a form of gov- 
 ernment ; can they overthrow it without revolution ? These 
 are the true questions." 
 
 1 Webster's Works, vol. iii., p. 457. 
 
 * Webster's Works, vol. iii., pp. 464, 465. 
 
United States a Union 97 
 
 There still remains in Mr. Webster's own hand- 
 writing his brief for this speech.^ It is perhaps the 
 most elaborate brief, now extant, of any of his ar- 
 guments, and deserves to be printed in full. 
 
 "Two first Resolutions affirm these propositions. 
 
 " I. That the system, under which we live, and under which 
 Congress is assembled, is a compact, to which the people of 
 the several States, as separate and sovereign communities, are 
 the parties. 
 
 "2. That these Sovereign Parties have a right to judge, 
 each for itself, of any alleged violation of the Constitution by 
 Congress, and to choose their own mode of redress. 
 
 '' '^S^ 'Constitutional Compact.' 'Accede' . . . a compact 
 between Sovereign Communities, however qualified as being a 
 constitutional compact, is, after all, but a /eague. As between 
 communities, entirely sovereign, there is no difference between, 
 a compact, a confederacy, and league. They all rest on plighted 
 sovereign faith. A league is no more than a continuing, sub- 
 sisting treaty. 
 
 ". . . The Resolutions, then, affirm, ist that these U. 
 States are connected together solely, by a continuing, or sub- 
 sisting treaty ... by a icague. 
 
 ". . . The next proposition is, that as sovereigns are 
 subject to no superior power, they must of course judge, and 
 decide, each for itself, of any alleged violation of the obhga- 
 tions subsisting between them; and if such violation be sup- 
 posed to have occurred, each may adopt any mode or measure 
 of redress, which it thinks proper. 
 
 "If a league, between sovereigns, have no limitation, in 
 point of time, and contain nothing making it perpetual, it sub- 
 sists only during the good pleasure of the parties, altho no 
 violation of it be complained of. 
 
 " • • • If, in the opinion of either party it be broken, 
 then the injured party has a right to say, he will not per- 
 form any or see her own obHgations under it; or to consider 
 
 * Library N. H. Historical Soc, Websteriana, vol. xvi., pp 40-43. 
 
98 Daniel Webster 
 
 altogether at an end, tho' it were professsed to be perpetual; 
 so Congress considered the French Treaty, in 1798. 
 
 " . . . And if this violation of the league be accom- 
 panied with serious and aggravated injuries, the suffering party 
 has a right to make reprisals, and to make war; because he 
 is himself to judge of his own mode and measure of redress. 
 
 " The plain and necessary import of the Resolutions, then, 
 is, 
 
 " That the States are connected only by a league; that any 
 State may determine when the league is violated ; and that she 
 may redress the violation herself, in any way, fit for a sovereign 
 power; and an equally plain consequence from the Resolutions 
 is, that the league may be abandoned w't. cause, at the pleasure 
 of either party. So. Carolina may make reprisals on Georgia; 
 and seize g'l. p'py of all the States. 
 
 " . . . If this be our political condition, it is time the 
 people knew it. Secession is one mode of redress. 
 
 " . . . One State, holding the embargo law unconstitu- 
 tional, may so declare her opinion, and withdraw: she secedes^ 
 and makes reprisal, another, having the same opinion of the 
 revenue laws, withdraws, for the same reason. . . . She 
 secedes^ and makes reprisals for ' Robbery.'' 
 
 " . . . But, the Constitution, in the opinion of a third 
 State, may be violated by omitting to pass laws. She may 
 say, she went into the Constitution, and gave up her own 
 power over imposts, because Genl. Govt, undertook to exercise, 
 for protection. This was the clear opinion of Congress. Con- 
 stitutional law is broken by the relinquishment of this power 
 and so, she secedes. 
 
 " . . . No law, therefore, can be binding on all the 
 States, the constitutionality of which is not admitted by all the 
 States. 
 
 " Under the old Confederation, all the States were bound, 
 by the decision of p, on any question under it. Under this 
 'more perfect union,' the consent of all, on constitutional 
 questions, is necessary to bind all. 
 
 " . . . Va. may secede, and hold the fortress in the 
 Chesapeake. 
 
United States a Union 99 
 
 "... Mass. may secede, and hold the forts in her 
 harbours and the pubhc arsenals and armories 
 
 " . . . The Western States may secede, and hold the 
 public lands. 
 
 ' . . . Louisiana may secede, and hold the mouth of the 
 Mississippi. 
 
 "If one State may secede, ten may — 20 may 
 Twenty-three may. What constitutes, then, the U. S. ? 
 Where will be the army ? where the Navy? ... If So. 
 Carolina goes off, does she mean to demand partition, and 
 take a schooner and a sloop with her ? Who will pay the debts ? 
 Who fulfil the public Treaties ? We have treaties, by which 
 the ports of Carolina, are open, on specific terms, to the 
 nations of Europe. Who fulfils them, after secession ? 
 Who will guaranty to S. Carolitta a Republican Govt. ? 
 
 " Everybody must see, that these are questions which arise 
 only after a Revolution. Nothing but a Revolution can give 
 rise to them. Secession, therefore, is Revolution: ad- 
 mitted., I think. 
 
 " Nullification is Revolutionary. What is Revolu- 
 tion ? That which overturns, or controls, the existing public 
 authority; that which arrests the exercise of the supreme 
 power; that which introduces a new permanent power, into 
 the rule of the State. 
 
 " Now, this is the object of nullification. 
 
 " It supersedes the Supreme Legislative Authority. It ar- 
 rests the arm of Executive officers. ... It interrupts the 
 operation of the judicial powers?. ... Is not this Revo- 
 lutionary ? Within So. C. it accomplishes, portends, a 
 Revolution. 
 
 "Alter sec, U. S. Legislation, in its principal pt. has no 
 favor there . , . nor the Prest. nor the Courts. 
 
 " fi^^So soon as ordinance executed, as complete a Rev. as 
 American Rev. 
 
 " And its direct tendency is to break up the whole union. 
 
 " Constitution of U. S. was accepted as a luhole. On the 
 whole Instrument, as a whole, a majority of the people and of 
 the States have given an interpretation. 
 
 LafC. 
 
loo Daniel Webster 
 
 " . . . S. C. opposes this. She opposes what the ma- 
 jority says is the Constitution, and the laws. 
 
 " . . . She resists, as to herself, an Act of Congress, 
 bearing on all the States, as well as herself. 
 
 " S^^ ... If unconstitutional, as to her, the same as to 
 the rest. She construes the law for all, and breaks it for 
 all. 
 
 " If successfully resisted by So. Carolina, it must be sur- 
 rendered everywhere. This plain. And it is the whole 
 Revenue of U. S. 
 
 "She aims a blow, therefore, at the vitality of the whole 
 system. 
 
 " The direct tendency of her act, is to overthrow the Govt. 
 
 " If her ordinance and law are not suppressed, they neces- 
 sarily produce a Revolution. 
 
 " B^" What shows this more clearly, still, is, that So. Caro- 
 lina nullifies, that very precise power, for which the Const, 
 was formed, viz. : the levying of imposts., independent of the will 
 of the States. 
 
 " Nullification is Revolutionary, because Nullification by 
 force (and this, as will appear is by force) is treason. In what 
 does treason consist ? 
 
 " These are plain results of the principles of the Rev. altho 
 So. Carolina complains that she is misunderstood; and Va. 
 resolves that she is misunderstood. 
 
 " . . . A right to judge, by a State, for itself, necessarily 
 leads to force. 
 
 " . . . Because every State must have the same right, 
 and they will differ in their contentions. 
 
 " . , . Each State, on entering into the Union, gave up 
 a part of its own exclusive power over itself. 
 
 " . . . The consideration for this, was, that it gained a 
 partial power in legislating for other States. 
 
 " . . . Mass. gave up the right to levy imposts ; because 
 she claimed the right of uniting with others, in levying im- 
 posts, for the whole union. 
 
 " . . . If So. Carolina denies this., she breaks the condition 
 only on which Mass. entered into the union. 
 
United States a Union loi 
 
 If one State may declare a law unconstitutional 
 another may declare it constitutional ... if each may 
 claim its own mode of redress . . . each may make war. 
 
 " '^o presumption, in favor of unconstitutionality. 
 
 " . . . This doctrine, instead of being favorable to mi- 
 norities is destructive of their rights . , . because it ulti- 
 mately refers to some. Polyglot. 
 
 " Two sides of the Union: 
 
 " Mr. Calhoun's proposition: States may judge of extent of 
 individual obligation. 
 
 " If so, then of Individual Right. State Right — Guaranty 
 and State obligation. Laws imposing contracts. Bills of 
 credit . 
 
 ' ' // annihilates the whole list of prohibitives. 
 
 This is a controversy between States . . . 2j vs. one. 
 One State tnay sue another a?id might under the confederation. 
 
 " Is she here, to be own judge. 
 
 " I maintain 
 
 " I. That the Constitution of U. S. is not a league, con- 
 federacy, or compact between the States, in their sovereign 
 capacities; but a Government, proper; founded on the adop- 
 tion of the People, and creating direct relations between itself 
 and individuals. 
 
 " 2. That no State authority has power, to dissolve these 
 Relations; that nothing can dissolve them, but Revolution; 
 and that consequently there can be no such thing as secession, 
 without Revolution. 
 
 " 3. That there is a Supreme Law, consisting of the Con- 
 stitution of the U. S. Acts of Congress passed in pursuance of 
 it, and Treaties; and that in cases, not capable of assuming 
 the character of a suit, in law or equity, Congress must judge 
 of, and interpret this paramount law; and in cases capable of 
 assuming, and actually assuming, that character, the Supreme 
 Court of the U. S. is the final interpreter. 
 
 " 4. That an attempt by a State to abrogate, annul, or nullify 
 an Act of Congress, or to arrest its operation within her limits, 
 on the ground that in her own opinion such law is unconstitu- 
 tional, is a direct usurpation upon the just powers of the Genl. 
 
I02 Daniel Webster 
 
 Government, a plain violation of the Constitution, and a 
 
 proceeding essentially Revolutionary, in its character and 
 
 tendency . 
 
 I. 
 
 "No compact between States, but a Govt, creating direct 
 relations with individuals . . . 
 
 " Ji^°. . . Must be argued, mainly on face of Constitu- 
 tion itself. 
 
 " . . . We must not turn our backs to the light. 
 
 " All agree, that it speaks with authority and is, some how 
 adopted. 
 
 " Great question is, what does it say of itself? what does it 
 purport 7 
 
 "It is to be remembered, that it speaks only, after its adoption. 
 
 ' ' Till ratified in 9 States, it was but a proposal, a draft. 
 
 "Convention framed the Const. . . . laid it before 
 Old Congress . . . Congress transmitted it to the Legis- 
 latures of the States, to be laid before Conventions of the 
 People — St. Legis. called these Conventions . . . 
 
 " As yet, it was but 2^ proposal. It spake no language . . . 
 when 9 States ratified, it then spake, authoritatively. 
 
 ' ' What it says of itself is as conclusive, as what it says on any 
 other subject. 
 
 " What does it say of itself? 
 
 "I. It is a Constitution; not a compact, not a confederacy, 
 not a league, but a Constitution. 
 
 [On the margin is written, " No State shall enter into a 
 compact."] 
 
 " What is a Constitution 7 Do we need information on this 
 point ? Public law. Vattell. Locke. 
 
 " What is the Constitution of one of our own States ? 
 
 "Constitution of U. S. speaks of itself, in same sense. 6 
 Art. 2 section. 
 
 [On margin " Vid So. Carolina Ratification, p. 409 and 
 
 N. C. p. 452."] 
 
 " And it speaks for itself in contradistinction to confedera- 
 tion. Art. 6. 
 
 Between States ratifying Constitution is a law. It is 
 
United States a Union 103 
 
 assumed to be the Supreme Lmv. What is a law ? . . . 
 not a compact . . . but a rule, prescribed by a Supreme 
 power, commanding what is right, etc. 
 
 " Mr. Madison 
 
 "MS. The Constitution, then, is the prescribed Supreme 
 rule. As if People had said, ' We, the People of U. S. pre- 
 scribe the following Supreme law. ' 
 
 " Is a law, a contract, or compact? 
 
 "Again; the language, it is ordained . . . established. 
 This not the language of compact. 
 
 " J8^" The great difference is; a Constitution, a law, acts by 
 its own power of execution. A compact is between superior 
 powers. 
 
 " II. The Constitution speaks of the political system which 
 it establishes, as ' the Govt, of the U. S.' 
 
 ''What is a Govt. Is a league, a compact between Sov. 
 States a Govt. 
 
 " Is a treaty, however close, a Gov. ? 
 
 " A Govt, of a State is the Supreme power of that State. It 
 is that precisely which constitutes sovereignty . 
 
 Every nation, or State, that governs itself, is a sovereign 
 State.' 
 
 " Vattell p. 60. It is the frame of political power which, 
 prescribes the laws etc. 
 
 " B^ Difference between a Govt. . . . and a treaty or 
 compact . . . Consolidation. 
 
 "III. What are its sanctions? Does it rest in plighted 
 faith., Does it operate propria vigore. Mr. Bibb says the 
 former. But not so. vid Arts of Confederation. 
 
 "Constitution operates, by its own means, and own power. 
 It has its own Legislature . . . Executive . . . and 
 'judicature. It enforces its own decisions, by its own proper 
 power. This is not compact, but Govt. Vid prohibitions on 
 Congress. 
 
 No answer, to say the Constitution is founded, 
 on restraints or powers of Govt, in the consent of the peo- 
 ple. So it is; but when so founded, it becomes law, not com- 
 pact. It is contract, executed. Statutes are founded on 
 
104 Daniel Webster 
 
 the agreement of ye Senate and House; but when passed, they 
 are no longer agreements, but law. 
 
 " It defines treason. It tries for treason, and punishes for 
 treason, by its own authority. 
 
 " How can there be treason agt. a compact, a league. It in- 
 corporates the States, as a sovereign power; by name ' U. S.' 
 ' treason agt. U. S.' * U. S.' ' Several States.' 
 
 "IV. It creates a direct relation, between itself, and indi- 
 viduals. This has been denied, but is true. 
 
 " Contracts. 
 
 " It has a corporate character, i. It punishes him for 
 treason, and all other crimes in the code. 
 
 "2. It taxes him, directly and indirectly, and in all forms. 
 
 "3. It demands of him military service; and subjects him 
 to the rules of war. 
 
 "Are not these direct relations? Can closer relations, 
 exist, between any man, and his Govt. 
 
 " It protects him, also. 
 
 " I. It makes war, for his protection; and no other Govt 
 can do it. 
 
 "2. It makes peace, for his protection; and no other Govt, 
 can do it. 
 
 "3. It maintains armies and navies, for his protection; and 
 no other Govt, can maintain them. 
 
 "4. He sails under its flag, and can sail under no other 
 In every thing, that connects him with foreign States 
 it is his only Govt. 
 
 "He can be known abroad, only as its citizen . 
 Suppose a S. Carolinian to go abroad. He rejects the char- 
 acter of Am. citz. 
 
 "V, If this be nothing but a compact between sovereign 
 States, or parties, where are the rights and duties of these par- 
 ties pointed out. What are the rights of parties. What have 
 the States protnised to do ? Nothing. What promised not to 
 do? Nothing. They do not promise to appoint Electors, and 
 Senators; they are directed to do it. . . . 
 
 " They do not stipulate, they will not make war, nor coin 
 money: . . . they are prohibited from doing it. 
 
United States a Union 105 
 
 " They are spoken to by a Superior power, the People. 
 There is no one portion of compact, a contract by the States, 
 in the whole instrument, 
 
 " Constitution does not rely on the compact, for the fulfil- 
 ment of her duty by the State. It requires no State pledge. 
 It requires individual oaths. 
 
 " VI. Still reverting to the terms of the Constitution, we 
 find that its great apparent purpose is, to unite the people of 
 all the States, under one Govt, for certain purposes and to the 
 extent of this union, to abrogate the separate authority of the 
 State Govts. 
 
 " I. In foreign relations. 
 
 " Congress only can declare war. Ergo, when citizens of 
 one State at war, all must be. In this respect, one people. 
 
 "2. Prest. and Senate only can make Peace. ... A 
 State cannot continue in war. In this respect, one people. 
 
 "3. Common coin ? Citizens of each State to have privileges 
 of citizens in all others. 
 
 "4. In all that relates to common defence, one. Ergo, in 
 
 the common defence ... in Peace ... in war 
 
 in common — in coin and standard, and in mutuality 
 
 of rights of citizenship, the people of all the States are 
 
 ONE PEOPLE. 
 
 " Proclamation rights, ergo, in them. Mr. Monroe . . . 
 Nobody disputed Mr. Monroe. Even Va. did not com- 
 plain. 
 
 " VII. The very object of the Constitution was, to get rid 
 of a league, and make a Govt. This very matter of revenue 
 and imposts formed the difficulty. The States cd. not comply 
 with the requirements of Congress. All was capricious, from 
 beginning of Confd. 
 
 " Mr. Monroe's Rep't. July 1785, read. p. 50, 52. 
 
 " First Resolution of Convention p. IJ4, ig June lySj. 
 
 " Here is a Govt, a national Govt, with power to execute 
 itself. This Reso. always the basis of all subsequent proceed- 
 ings, ahvays at the head vid. p. 207. Vid: journal. Mr. 
 Patterson's proposition to mend the league rejected. Con- 
 federacy is a league, and so called. Here, Resolved to have 
 
io6 Daniel Webster 
 
 a Govt. . . . T\i& wery oh]Qc\. vidiS, to get rid of the power 
 of State Votes. 
 
 "Under Confederacy, Congress advised the States; they 
 might act or not. 
 
 " If they refused, no remedy but war. 
 
 " However inexpedient, this remedy did exist and did alone 
 exist. Mr. Jefferson. 
 
 " The Constitution has reversed this whole state of things. 
 We cannot now, make war on the States. We cannot blockade 
 Chstn [Charleston] We can only execute the laws. 
 
 " Constitution has given power to make laws, binding on 
 individuals. To execute these laws, to make it criminal to 
 oppose them . . . and to punish opposers . . . The 
 plain object was, to avoid collision with States. 
 
 " Mr. Ellsworth. . . . and Johnson. 
 
 ' ' Look to all contemporary history . . . the Federalist 
 Debates in the States etc. 
 
 "On one side, object was, to prove necessity of turning 
 league into a Govt. 
 
 " On the other, this necessity denied. 
 
 ' ' All agreed, that this precise thing was done. 
 
 "In all Debates, in all propositions to amend; not one 
 suggestion, anywhere, that this was a compact between 
 States. 
 
 " Elliotts Deb. 286, 7, 8. Judge Wilson. 
 
 " Fed. No. 22 p. 139. read. Mr. Madison on population. 
 
 " Why is secession Revolutionary . 
 
 "VIII. History and form of ratification, shows it to be a 
 Govt, and not a league. 
 
 "States do not plight faith, as under Confederacy. But 
 people of the States adopt, consent to, ratify. Not one single 
 case, in which the State accedes to the compact. 
 
 " Accede wd. be a proper word, if it were a league . . . 
 was proper, in case of Canada . . . and perhaps of N. O. 
 The States have done nothing, of which secession is the 
 converse. 
 
 ' ' They never acceded to the union ; and can never secede 
 from it. 
 
United States a Union 107 
 
 " The People must reject, what they have adopted; they must 
 break up, what they have ratified. 
 
 " 5^" His. of 10 Art. of Amendment, i vol. S. Journal. 
 Report 64-73. 
 
 " IX. Finally the People, of each and all the States, 
 adopted the Constitution, as an act binding upon all. 
 
 Not that States lines were broken down, and the 
 whole people in mass. 
 
 " Not that Va. could outvote Maryland, and leg' her 
 in. . . . 
 
 " Question put was, 'will you form a new Govt, over all the 
 people . . . with certain powers ... as far as this 
 new Govt, extends, will you all become one people.' 
 
 ' Instead of the States creating this Govt, will you create 
 it yourselves, on yr. own authority? 
 
 " ' If you say yes, here is the Instrument. Agree to this, 
 and it is done. 
 
 " It was ratified by the people. St. Govts, would not agree 
 to it, beyond their power . . . tho they agreed to old 
 Confederacy. 
 
 " ' Shall the Instrument itself contain a declaration that it is 
 ordained, not by States, but by the People? // shall.' 
 
 " Here, then is the declaration. 
 
 " Contemporary history shows this to have been the under- 
 standing. J^ed. 22. Mr. Madison 104. 
 
 "All agreed, it was founded, if at all, in a grant by the 
 people. 
 
 " Some approved this; and some disapproved it. Mr. 
 Henry. Va. Ratification. Giles- Tyler. 
 
 " Lastly, these very words, ' We the people.' 
 
 "This, then, is «^/ a league, compact, or confederacy, be- 
 tween States, in their separate and sovereign capacities . . . 
 
 " It is a Constitution. It is a Govt., proper: with Legisla- 
 tive, Executive, and Judicial powers, of its own. It is founded 
 on the adoption and ratification of the People. It creates 
 direct relations, of protection on one side, and obedience on 
 the other, between itself, and individuals. 
 
io8 Daniel Webster 
 
 II. 
 
 "No State can dissolve these relations; nor anything but 
 Revolution. Can be no secession without Revolution. 
 
 " This follows, of course, if there be an individual tie. 
 
 " The people live under two Govts. . . . owe allegiance 
 and obedience to each . . . One cannot break up the 
 other. Both are popular and elective. The people rely on 
 themselves, to keep each in its sphere. Both created by the 
 people . . . both constantly maintained by the People — 
 both responsible to the People. 
 
 " The People cannot break up this Govt., but by Revolution. 
 
 " Constitution is without limitation of time. 
 
 " . . . Intended to be perpetual . . . Even Con- 
 federacy called perpetual . . . this stronger, or meant to 
 be; its objects were of a permanent nature. Adopted for the 
 People, and their posterity. It lasts thro all time. 
 
 " . . . There are provisions for its amendfnentj none for 
 its abandonnie?it. 
 
 " . . . Provision for letting new States inj none for 
 letting old States out. 
 
 " It was intended that under this Constitution, Govt, should 
 enter into permanent arrangements with Foreign States; and 
 for our commerce. If Congress makes war; may one State 
 secede, and make peace. 
 
 " If Prest. makes peace, may one State continue the 
 war. 
 
 " Secession, as a Revolutionary Right, is intelligible. 
 
 " As a right under the Constitution, it is a plain absurdity. 
 
 " Even if Cons, a compact between States, there could be 
 no legal or moral right to secede. 
 
 " It wd. only be a right, because there wd. be no power but 
 that of war, to restrain it. 
 
 ' ' We hear much of the Reserved Rights of the States. What 
 are they ? Proclamation is right; to know what is reserved, 
 we must see what is given. 
 
 " Powers are given; and no right reserved to withdraw, but 
 by amendment. Govt, power to retract what ? Negation. . . . 
 
United States a Union 109 
 
 "Allegiance is given; and no right reserved to withdraw 
 it. 
 
 " The right of secession, is a right to break up the Govt. It 
 wd. destroy all its great objects. 
 
 " How could we carry on war . . . how make treaties ? 
 Who wd. treat with us ? Who credit us ? 
 
 "All the pretence for secession is, that States, by reserved 
 power may judge of infraction of Consn. 
 
 " She has reserved no such power. No proof, or intimation 
 of any such reservation. 
 
 " Not the slightest evidence, that any such intention was 
 entertained by people; but e contra. 
 
 III. 
 
 " There is a Supreme law, consisting of Constitution, Acts 
 of Congress, and Treaties; and in cases, not assuming Judicial 
 form etc., Congress is the judge; where Judicial form is as- 
 sumed, Judiciary is Judge. 
 
 "I. It was intended to make Congress, and the Nat. Ju- 
 diciary final arbiters . 
 
 " Resolution . . . Supreme Legislature etc. p. 134. 
 13 Reso. p. 137. . . . 
 
 " I. It was universally understood they had done that. 
 Both friends and foes sd. that. 
 
 " Fed. 3 No. p. 20 as to treaties and laws of nations, read 
 No. 39. p. 241; read. No. 80. p. 495.; read, as marked. 
 
 "2. Elliot's Deb. 390. Mr. Madison 3 Do. 44.5 Yates 
 minutes. Grimke 86.7 . . . Mr. Martin . . . Mr. 
 Pinkney friends and foes, then, told the People, that this 
 power 7vas in the Constitution. 
 
 " 5^" What was the jud. power created for ? 
 
 ' ' Jg®"- Vid. : Negative of State Laws etc. 
 
 "3. It is in the Constitution, of necessity it is in every 
 Govt. 
 
 " French Treaty. It is in every State Constitution. It is 
 an attribute of Govt. It is a part of the old question . . . 
 if a league, St. continues. If a Govt. Govt, continues. 
 
no Daniel Webster 
 
 " There can be no govt. wt. it. whoever acts, must judge 
 of their authority. 
 
 " Govt, will act only on one side of the question. 
 
 " This is the alternative; either this Govt, must decide on 
 its own power, or those powers must be judged of by 24 
 States . 
 
 "Which is fittest? That the agents of all, should decide 
 for all, or that one shd. decide for all ? 
 
 " Every agt. that refers acts of Congress to State judgt, 
 appeals from the majority to the minority . . . Appeals from 
 a comtnon int. to a particular int. 
 
 " The right is sd. to be limited to cases of deliberate pal- 
 pable and dangerous violation . . . And this is thought to 
 make it safe. But who judges of all this ? What proof is 
 reqd. of such violation ? ... It is all opinion, and the 
 opinion of one State, by a small majority. 
 
 " The agt. always takes for granted, that in a disputed case, 
 the State must be right, and Congress wrong. 
 
 " But suppose the State wrong, what then? Must 23 yield 
 to one ? 
 
 " Questions, not assuming a Jud. shape, must be decided, 
 and ought to be, by Congress: on the common principle, that 
 
 A MAJORITY MUST GOVERN. 
 
 " . . . Like cases cited by Mr. Bill; and apportionment 
 Bill. 
 
 " ' Majority Govt.' 
 
 "Cases assuming Jud. shape must be, and ought to be, 
 judged by Sup. court. Ellsworth . 
 
 "No better mode of establishing a final interpretation (?) 
 . . . nominated by the Prest. . . . approved by the 
 Senate. 
 
 "The very first Congress passed laws, providing for the 
 exercise of this jurisdiction. 
 
 " The provisions of the Con. are plain . . . Con. and 
 laws, and treaties are suprevie . . . 
 
 " . . , President shall execute them . 
 
 "And Jud. power sJiall extend to every case occurring under 
 them. 
 
United States a Union 1 1 1 
 
 "The whole argt. assumes, always, that Congress acts wt. 
 responsibility ... It will not admit that we are Reps 
 It thinks only of State power. 
 
 " Members of Congress are amenable to their constituents. 
 The remedy for any evil, lies in election, and in amend- 
 ment ... 
 
 "If the proved intention of the Convention proves any- 
 thing . 
 
 " Or the contemporary admission, of friends and foes . . . 
 
 " Or a course of Jud. decisions, acquiesced in by all the 
 States, for 40 years. 
 
 " Or the present opinion of a great majority of the whole 
 Country . 
 
 " Or the plain words of the Constitution itself. 
 
 ' ' Then there is a Supreme la w and a final interpreta- 
 tion. 
 
 IV. Nullification. 
 
 " An attempt by a State to abrogate, annul, or nullify an 
 act of Congress etc., or arrest it etc. . . . is a usurpation 
 on the genl. Govt. — violates the Constitution and is Revolu- 
 tionary . 
 
 " If the Govt, were a cotnpact, the tendency of this proceed- 
 ing would be to break it up; because, if one St. not bound., 
 others not bound. 
 
 " If one State resists one law, others may resist others. 
 
 " But it is a direct attack on the authority of Govt. It is 
 overturning the Govt. 
 
 "To resist the execution of the laws, by force is treason. 
 ' Can a State commit treason ' — no . . . nor authorize 
 others. 
 
 " Treason may be committed agt. So. Carolina ? cd. U. S. 
 justify it. 
 
 " Nullification is the same in principle, but less respectable, 
 in its general character than entire Secession. It seeks to keep 
 in the Govt, while it destroys it. . . . 
 
 "... It enjoys its benefits, while it rejects its burdens . . . 
 
112 Daniel Webster 
 
 " . . . It partakes of the common counsels, but will not 
 submit to their results. 
 
 " . . . It acts as a suspension, over laws of Congress and 
 accepts and rejects what it pleases . 
 
 " So. Carolina herself hardly pretends it is a Constitutional 
 right, vid. address to People of S. Ca. p. 46. 
 
 ' ' These very Resolutions show it no constitutional right. 
 
 " Why is secession Revolutionary i 
 
 " Because there is a Govt. 
 
 *' But to overturn Govt, by NuUification is Equally Revo. 
 
 NIAGARA. 
 
 " What justification /^i;- this Revolution, who does it ? half a 
 dozen Ge?it. On what ground ? 
 
 "That protection laws are unconstitutional., plain, deliber- 
 ate . . . palpable, dangerous. 
 
 ' * Who entertains this opinion. 
 
 " g@" Paper marked ' What cause.' 
 
 "If friends of Nullification could succeed, would prove 
 themselves 'Architects of Ruin," and blasters of human 
 hope. 
 
 " They stand up to undeceive the world ... to pro- 
 nounce the weakness of our system. 
 
 " They declare, that seeds of dissolution are in the Govt. 
 — and that it is wonderful it has lasted so long. 
 
 "They deceive themselves. The evil tendency of this 
 doctrine is understood. They cannot but see how the cur- 
 rent of opinion sets . . . Who is for Nullification, one 
 out of 24 . . . and that only by a small majority. 
 
 " No man cheers it. no one cries God save it. 
 
 " It is a subject, either of deep dislike, or habitual ridicule, 
 with 9-ioths of the People. 
 
 " This tone of public opinion, and the stand taken by the 
 Executive Govt, have annihilated it . . . 
 
 " People will perceive this intention It is not liberty, but 
 American Liberty. Liberty bringing with it recollections. . . . 
 
 "Rescue." 
 
United States a Union 113 
 
 It is interesting to compare the actual peroration 
 with the notes at the end of this brief. As a 
 prophecy of the uprising of a great people in 1861 
 it is one of the most notable in history. 
 
 Mr. Webster concluded his speech as follows : 
 
 " But, Sir, if the government do its duty, if it act with firm- 
 ness and with moderation, these opinions cannot prevail. Be 
 assured, Sir, be assured, that, among the poHtical sentiments 
 of this people, the love of union is still uppermost. They will 
 stand fast by the Constitution, and by those who defend it. I 
 rely on no temporary expedients, on no political combination; 
 but I rely on the true American feeling, the genuine patriotism 
 of the people, and the imperative decision of the public voice. 
 Disorder and confusion, indeed, may arise; scenes of commo- 
 tion and contest are threatened, and perhaps may come. 
 With my whole heart, I pray for the continuance of the do- 
 mestic peace and quiet of the country. I desire, most 
 ardently, the restoration of affection and harmony to all its 
 parts. I desire that every citizen of the whole country may 
 look to this government with no other sentiments than those 
 of grateful respect and attachment. But I cannot yield even 
 to kind feelings the cause of the Constitution, the true glory 
 of the country, and the great trust which we hold in our hands 
 for succeeding ages. If the Constitution cannot be maintained 
 without meeting these scenes of commotion and contest, how- 
 ever unwelcome, they must come. We cannot, we must not, 
 we dare not, omit to do that which, in our judgment, the 
 safety of the Union requires. Not regardless of conse- 
 quences, we must yet meet consequences; seeing the hazards 
 which surround the discharge of public duty, it must yet be 
 discharged. For myself. Sir, I shun no responsibility justly 
 devolving on me, here or elsewhere, in attempting to maintain 
 the cause. I am bound to it by indissoluble ties of affection 
 and duty, and I shall cheerfully partake in its fortunes and its 
 fate. I am ready to perform my own appropriate part, when- 
 ever and wherever the occasion may call on me, and to take 
 
 8 
 
114 Daniel Webster 
 
 my chance among those upon whom blows may fall first and 
 fall thickest. I shall exert every faculty I possess in aiding 
 to prevent the Constitution from being nullified, destroyed, or 
 impaired ; and even should I see it fall, I will still, with a voice 
 feeble, perhaps, but earnest as ever issued from human lips, 
 and with fidelity and zeal which nothing shall extinguish call 
 on the PEOPLE to come to its rescue.'" 
 
 The Force Bill passed the Senate on the 20th of 
 February, 1833. It is not too much to say that 
 the success of that measure was due to the support 
 of Mr. Webster. 
 
 The debate on this measure, its adoption, and 
 the well-known character of the President, con- 
 vinced the nullifiers that they would have to reckon 
 with the whole power of the general government' 
 if they should persist in their refusal to obey the 
 laws for the collection of duties on imports. Mr. 
 Clay's compromise tariff law, which was passed 
 just before the end of the session, no doubt made 
 it easier for them to yield, and they yielded. Mr. 
 Clayton, of Delaware, insisted that it should not 
 pass unless Mr. Calhoun himself and all his asso- 
 ciates voted for it, and vote for it they did." 
 
 Andrew Jackson's opinion of the situation cre- 
 ated by the passage of the two bills is contained in 
 the following letter to his wife's nephew : 
 
 " Private. 
 
 "Washington, May ist, 1833. 
 
 "My Dr. Sir, 
 
 " I have just received your letter of the 6th ultimo, and 
 
 have only time, in reply, to say that Genl. Coffee well under- 
 
 • Webster's Writings and Speeches, vol. vi., p. 237. 
 
 "^ A very interesting account of the framing of this compromise is con- 
 tained in Benton's Thirty Years' View, vol. i., pp. 313, 334- 
 
United States a Union 115 
 
 • 
 
 stood Mr. Shackleford, and urged your nomination in his 
 stead. I had nominated you, but on the serious importunity 
 of Col. King, your Senator, with Genl. Coffee, the change was 
 adopted, and you nominated for the office you now fill. Be- 
 fore the receipt of yours Genl. Coffee had written me and re- 
 quested that I would appoint you to the office vacated by Mr. 
 Shackleford — if we had a Senate on whose principles we could 
 rely, this would have been done, but I did not believe it would 
 be prudent to bring your name before the Senate again, and 
 am happy you are content where you are. 
 
 " The Senate can not remove you, and I am sure your faith- 
 fulness and honesty will never permit you to do an act that 
 will give good cause for your removal, and if Moor and Poin- 
 dexter discovered that you were related to me, that would be 
 sufficient cause for them to reject you, therefore it is that I let 
 well enough alone, 'altho' I know it would be a convenience to 
 you to be located where you are. Still a rejection by the 
 Senate might prove a greater inconvenience, and for the 
 reasons assigned it was not done. 
 
 " I have had a laborious task here, but nullification is dead, 
 and its actors and abettors will only be remembered by the 
 people to be execrated for their wicked designs to sever and 
 destroy the only good government on the globe, and that 
 prosperity and happiness we enjoy over every other portion of 
 the world. Haman's gallows ought to be the fate of all such 
 ambitious men who would involve their country in civil war 
 and all the evils in its train, that they might reign, and ride on 
 the whirlwind and direct the storm. The free people of these 
 United States have spoken, and consigned these wicked dema- 
 gogues to their proper doom. Take care of your nullifiers, 
 you have them amongst you — let them meet with the indignant 
 frowns of every man who loves his country. 
 
 " The Tariff, it is now well known was a mere pretext — its 
 burthen was on your coarse woollens — by the law of July, 1S32 
 — coarse woollens was reduced to five per cent, for the benefit 
 of the South. Mr. Clay's bill takes it up and drops it with 
 woollens at 50 per cent. — reduces it gradually down to 20 per 
 cent., and there it is to remain, and Mr. Calhoun and all the 
 
ii6 Daniel Webster 
 
 nullifiers agree to the principle. The cash duties and home 
 valuation will be equal to 15 per cent, more, and after the year 
 1842 you pay on coarse woollens 35 per cent. — if this is not 
 protection I cannot understand, and therefore the tariff was 
 only the pretext, and disunion and a Southern Confederacy 
 the real object — the next pretext will be the negro or slavery 
 question. My health is not good but is improving a little. 
 Present me kindly to your lady and family, and believe me to 
 be your friend. I will always be happy to hear from you. 
 
 " Andrew Jackson. 
 "The Revd. Andrew J. Crawford.'" 
 
 Nothinof is more honorable in Mr. Webster's 
 career than the courage and determination with 
 which he went to the support of the President of 
 the United States in the emergency created by the 
 Nullification Ordinance. Webster had been one 
 of the most formidable opponents of Jackson's 
 arbitrary policy. He had especially condemned in 
 the most vigorous and effective language the presi- 
 dential veto of the bill to continue the charter of 
 the Bank of the United States. The President's 
 course in reference to this bank led to great finan- 
 cial suffering throughout the whole Union. His re- 
 
 ' This letter is published at length, because of its intrinsic interest. It 
 was made public by Charles Sumner in December, i860. Its publication 
 caused Mr. Crawford, who still resided in the South, so much annoyance, 
 that he destroyed it. Before its destruction a few fac-similes were made. 
 One was presented by Charles Francis Adams to the Massachusetts Histori- 
 cal Society. Another is in the author's possession. Pierce, Life of Sumner, 
 vol. iv., pp. 18, 19. Mass. Hist. Soc. Proceedings, vol. xiv. (Second Series), 
 p. 370. 
 
 The way in which the duty on coarse woollens, referred to in the letter, 
 came to be inserted in the bill, is related in Benton's Thirty Years' View, 
 vol. i., p. 319. It was done to favor two or three manufacturers in Con- 
 necticut, and thereby to get votes from that State. It shows that tariff 
 bills were arranged in 1833 much as they were in 1897, except that the 
 rates are much higher now than they were in 1833. 
 
United States a Union 1 1 7 
 
 moval of the government deposits from that bank 
 was an act of arbitrary power. The Whig party 
 opposed these measures, both in Congress and out 
 of it. Yet we find the great Whig leader, when the 
 nation's life was in peril, hastening with all his 
 resources to the support of a political opponent' 
 It is a melancholy reflection that at a later period 
 of the history of the United States, when President 
 Cleveland was confronted with the emergency 
 caused by the constant withdrawals of gold from 
 the treasury, to an extent which within three weeks 
 would have depleted the treasury of gold and put 
 the country upon a silver basis, he was obliged to 
 exert the powers conferred by a previous statute 
 without any support from his political opponents 
 in Congress. Nothing in their whole course was 
 more discreditable to them than this absolute re- 
 fusal to aid the President in his struggle to main- 
 tain the honor and good faith of their common 
 country.^ 
 
 > A just tribute from a political opponent to Mr. Webster's patriotism, in 
 this emergency, is to be found in Benton's Thirty Years' View, vol. i., p. 333. 
 
CHAPTER XI 
 
 POWER OF THE UNITED STATES OVER ACQUIRED TER- 
 RITORY WHEN ADMITTED AS A STATE 
 
 NEW ORLEANS VS. UNITED STATES 
 
 In 1836, Mr. Webster argued successfully one 
 other case in which the effect of cession of territory 
 to the United States was involved. This was the 
 case of New Orleans vs. The United States.^ When 
 Napoleon ceded Louisiana to the United States it 
 was declared in the treaty (Article Second) that 
 " in the cession are included the adjacent islands 
 belonging to Louisiana, and all public lots and 
 squares, vacant lands and all public buildings." In 
 the city of New Orleans there was a strip of vacant 
 land between the buildings of the city and the river. 
 This was used as a quay. It was protected from 
 the waters of the Mississippi by a levee. This 
 strip became very much enlarged by alluvial de- 
 posits. Mr. Webster, in his argument, states the 
 facts clearly^: 
 
 " The sinking of a frame of lumber, at the expense of the 
 inhabitants of New Orleans, at a particular place in the river, 
 opposite to the city, for the protection of the ground, has con- 
 tributed to the rapid and extensive enlargement of the open 
 
 * Reported 10 Peters, 662 (1836). 
 ^ 10 Peters, 672. 
 
 118 
 
Power over Acquired Territory 119 
 
 space in front of the City. This enlargement has placed the 
 levee, used for the purposes of trade farther in advance of the 
 City, and has left the ground now in controversy, in such a 
 situation as not to be reijuired for the uses of commerce. The 
 corporation of New Orleans therefore proposes to sell and dis- 
 pose of it, to be occupied and improved by those who may de- 
 sire to purchase it." 
 
 The United States claimed the title to this strip 
 of land under the treaty before mentioned. It was 
 clearly shown that the Spanish government, and 
 afterwards the French government, had exercised 
 authority over this quay. To quote again from 
 Mr. Webster's argument (p. 673) : 
 
 " The plans referred to show that there was always an open 
 space fronting on the river, and the uses of it were only such 
 as were consistent with the public use. A custom house; a 
 parade ground for the military; barracks for the soldiers, were 
 erected upon it. These were permitted; but they did not 
 destroy the title of the citizens to it, nor did such uses convert 
 it into public domain." 
 
 With this statement of facts it is easy to appre- 
 ciate the force of Mr. Webster's argument (p. 674) 
 upon the law : 
 
 " The sovereignty of Spain over this property existed before 
 the cession, for the sole purpose of enforcing the uses to which 
 it was appropriated. This right and the obligations imposed 
 upon it became vested in the State of Louisiana and did not 
 continue in the United States after the State was formed. 
 Acquiesced in by the United States under the treaty in the 
 first instance, it necessarily afterwards passed to the State. 
 The United States cannot now enforce this use and could not 
 take the quay and dispose of it; and unless this can be done 
 there is nothing to support this action. The preservation and 
 
I20 Daniel Webster 
 
 the enforcement of the use must be by the state government. 
 By the act of Congress incorporating the City of New Orleans 
 all the use of property became vested in the city." 
 
 The Supreme Court held that the federal juris- 
 diction could not be enlarged by the treaty-making 
 power, and that when the State of Louisiana was 
 admitted into the Union she was admitted on the 
 same footing as the original States. Consequently 
 whatever general jurisdiction over localities had 
 been vested in Spain or France, was then vested 
 in the State of Louisiana and not in the federal 
 government. 
 
CHAPTER XII 
 
 EFFECT OF GRANT OF ONE FRANCHISE UPON POWER 
 
 TO GRANT RIVAL FRANCHISE THE CHARLES 
 
 RIVER BRIDGE CASE 
 
 In the January term of 1837, the case of the 
 Charles River bridg^e was decided.^ As lonor aeo 
 as 1826, Webster had been consulted in reference 
 to a bill pending before the Legislature of Massa- 
 chusetts, for the construction of a new bridge over 
 the Charles River. At that time he declined to 
 give an opinion, though he called attention to 
 some of the difficulties in the case.^ 
 
 The case was this. Even before 1640, a ferry- 
 had been maintained between Boston and Charles- 
 town over the Charles River. This continued, 
 until, in 1785, a corporation was incorporated by the 
 Commonwealth of Massachusetts with authority 
 to build a bridge in the place where the ferry was 
 then run, and to take tolls. It was accordingly 
 built, and was opened for passengers on the 1 7th of 
 June, 1786. In 1792, the charter was extended to 
 seventy years from the opening of the bridge, and 
 it was enacted that at the expiration of that time 
 the bridge was to belong to the Commonwealth. 
 
 ' Charles River Bridge vs. Warren Bridge, ii Peters, 420. 
 'Webster's Letters, Van Tyne, p. 117. 
 
 121 
 
122 Daniel Webster 
 
 In 1828, the Legislature of Massachusetts incor- 
 porated a new company for the purpose of build- 
 ing a bridge, near that of the old company, to be 
 known as the Warren bridge. 
 
 " The Warren bridge, by the terms of its charter, was to be 
 surrendered to the State as soon as the expenses of the pro- 
 prietors in building and supporting it should be reimbursed, 
 but this period was not in any event to exceed six years from 
 the time the Company commenced receiving toll. . . . " 
 
 " In the argument here," said Chief Justice Taney, " it was 
 admitted that since the filing of the supplemental bill a suffi- 
 cient amount of toll had been received by the proprietors of 
 the Warren bridge to reimburse all their expenses, and that 
 the bridge is now the property of the State and has been made 
 a free bridge, and that the value of the franchise granted to 
 the proprietors of the Charles River bridge has by this means 
 been entirely destroyed." ' 
 
 Mr. Webster's argument was based upon two 
 propositions. First, that the grant to the proprie- 
 tors of the Charles River bridge was a contract and 
 that it could not be impaired by subsequent legis- 
 lation. Second, that to destroy the value of the 
 franchise was to take the franchise itself, and 
 that the State could not do this without making 
 compensation. 
 
 The Supreme Court did not deny the soundness 
 of the first proposition, but held that the contract 
 involved in that grant was to be strictly construed 
 and that the grantee could claim nothing that was 
 not clearly given by the charter. The conclusion 
 was drawn that as no express grant was made of an 
 exclusive privilege, none was to be implied. 
 
 '11 Peters, 537, 538. 
 
Power to Grant Rival Franchises 123 
 
 This was the first important constitutional argu- 
 ment in which Mr. Webster was unsuccessful. The 
 case itself was both important and difhcult. The 
 Massachusetts Supreme Judicial Court was equally 
 divided upon the questions involved, and for that 
 reason the original suit brought by the Charles 
 River Bridge Company to enjoin the construction 
 of a parallel bridge from Boston to Charlestown 
 was dismissed. In the Supreme Court of the 
 United States three of the Justices thought the 
 right of the plaintiff to an injunction clear. Four 
 were of the opinion that the act of the legislature 
 of Massachusetts, authorizing the construction of a 
 new bridge, did not impair the obligation of the 
 contract contained in the charter of the old bridge 
 company, and for that reason, affirmed the judg- 
 ment of the court below. 
 
CHAPTER XIII 
 
 RIGHTS OF CORPORATIONS IN OTHER STATES — COMITY 
 BETWEEN STATES BANK OF AUGUSTA V. EARLE 
 
 There are many other causes which will be for- 
 ever associated with the name of Webster and to 
 which he gave the full force of his keen logic, the 
 vivid clearness of his masterly analysis, the pictur- 
 esque beauty of his felicitous statement, which in 
 itself was argument, and above all, the power of 
 that eloquence which he has himself so perfectly 
 described, — " The clear conception outrunning the 
 deductions of logic, the high purpose, the firm 
 resolve, the dauntless spirit." But the scope of 
 this volume is limited mainly to his arguments on 
 questions of constitutional and international law. 
 One of the most notable is The Bank of Augusta 
 against Earle, as it is reported ^ ; The Bank of the 
 United States against Primrose, as his argument 
 is entitled in his public speeches.^ The cases in- 
 volved the same questions, were argued in succes- 
 sion in February, 1839, and decided simultaneously. 
 
 The judgments of the courts below were re- 
 versed, and the right of a corporation chartered 
 under the laws of one State of this Union to do 
 business in any other State was sustained. Thus 
 
 1 13 Peters, 519. ^ Webster's Works, vol. v., p. 106, 
 
 124 
 
Comity between States 125 
 
 was associated enterprise freed from unjust dis- 
 crimination. To curb the unlawful ambition of these 
 associations has fallen to the lot of a later genera- 
 tion. In Webster's day the country needed strength. 
 To-day it needs restraint. The power and authority 
 which he vindicated are adequate to this restraint. 
 
 It is to be observed that the effect of this de- 
 cision is not to deprive the several States of the right 
 to regulate corporations doing business within their 
 limits, because they are incorporated under the laws 
 of another State. On the contrary, State legislation 
 regulating the transaction within such State of bank- 
 ing, insurance and other business, by corporations of 
 other States, is very common and is constitutional.^ 
 
 Were it otherwise, a corporation incorporated 
 under the laws of New Jersey might be more free 
 from restraint in New York than one of its own 
 corporations. This, certainly, was not the inten- 
 tion of the Constitution. Indeed, in many respects 
 these intangible beings, the creation of law, are 
 subject to more varied regulation by the State 
 than are the individuals who compose them. This 
 is but just, for their actual powers are far greater ; 
 and in many cases their charters are perpetual. 
 
 The decisions of the courts in Alabama had 
 been that a corporation incorporated under the 
 laws of one State had no right to do business in 
 another. Corporations had not then attained the 
 proportions they have since reached. But, never- 
 theless, the advantages derivable from corporate 
 
 ' Diamond Glue Company vs. United States Glue Co., 187 U. S. Rep., 
 611 (1903). 
 
126 Daniel Webster 
 
 franchises were appreciated and the importance of 
 this question attracted pubHc attention and gave 
 to the review in the Supreme Court the name of 
 " The Great Appeal Case from Alabama." 
 
 Mr. Webster argued, in the first place, that the 
 right of a citizen of one State to sue citizens of 
 another State in the federal courts was secured 
 by the Constitution ; that the Supreme Court had 
 held that under this provision a corporation incor- 
 porated under the law of one State might sue in 
 another ; that to bring a suit was certainly a cor- 
 porate act, and that the right to do business in one 
 State, of the citizens of another who had become 
 stockholders in a corporation incorporated under 
 the laws of the latter, was not divested because 
 of the corporate form under which they acted. 
 
 Secondly, he argued that independently of spe- 
 cific constitutional guaranties the courts must hold 
 that at least the same comity existed between the 
 several States of the Union as that between them 
 and foreign nations ; and that by this comity a 
 corporation incorporated in one State could make 
 a contract in another. 
 
 To quote briefly from this argument •} 
 
 " The law of comity is a part of the law of nations; and it 
 authorizes a corporation of any State to make contracts beyond 
 the limits of that State. 
 
 " How does a State contract ? How many of the States of 
 this Union have made contracts for loans in England! A State 
 is sovereign, in a certain sense. But when a State sues, it sues 
 as a corporation. When it enters into contracts with the citi- 
 zens of foreign nations, it does so in its corporate character. 
 
 ' Webster's Works ^ vol. vi., pp. 120, 122. 
 
Comity between States 127 
 
 I now say, that it is the adjudged and admitted law of the 
 world, that corporations have the same right to contract and 
 to sue in foreign countries that individuals have. By the law 
 of nations, individuals of other countries are allowed in this 
 country to contract and sue; and we make no distinction, in 
 the case of individuals, between the right to sue and the right 
 to contract. Nor can any such distinction be sustained in law 
 in the case of corporations. Where, in history, in the books, 
 is any law or dictum to be found, (except the disputed case 
 from Virginia,) in which a distinction is drawn between the 
 rights of individuals and of corporations to contract and sue 
 in foreign countries in regard to things generally free and open 
 to everybody ? In the whole civilized world, at home and 
 abroad, in England, Holland, and other countries of Europe, 
 the equal rights of corporations and individuals, in this respect, 
 have been undisputed until now, and in this case; and if a dis- 
 tinction is to be set up between them at this day, it lies with 
 the counsel on the other side to produce some semblance of 
 authority or show of reason for it. 
 
 " The term ' sovereignty ' does not occur in the Constitution 
 at all. The Constitution treats States as States, and the 
 United States as the United States; and, by a careful enu- 
 meration, declares all the powers that are granted to the 
 United States, and all the rest are reserved to the States. If 
 we pursue to the extreme point the powers granted and the 
 powers reserved, the powers of the general and State govern- 
 ments will be found, it is to be feared, impinging and in con- 
 flict. Our hope is, that the prudence and patriotism of the 
 States, and the wisdom of this government, will prevent that 
 catastrophe. For myself, I will pursue the advice of the court 
 of Deveaux's case; I will avoid nice metaphysical subtilties, 
 and all useless theories ; I will keep my feet out of the traps in 
 general definition; I will keep my feet out of all traps; I will 
 keep to things as they are, and go no farther to inquire what 
 they might be, if they were not what they are. The States 
 of this Union, as States, are subject to all the voluntary and 
 customary law of nations." 
 
128 Daniel Webster 
 
 The opinion of the court in the case of the Bank 
 of Augusta vs. Earle was dehvered by Chief 
 Justice Taney, who had been appointed by Presi- 
 dent Jackson to succeed Chief Justice Marshall. 
 The court sustained the position secondly main- 
 tained by Webster in the following language : 
 
 " It has, however, been supposed that the rules of comity 
 between foreign nations do not apply to the states of this 
 Union; that they extend to one another no other rights than 
 those which are given by the Constitution of the United 
 States; and that the courts of the general government are not 
 at liberty to presume, in the absence of all legislation on the 
 subject, that a state has adopted the comity of nations towards 
 the other states, as a part of its jurisprudence; or that it ac- 
 knowledges any rights but those which are secured by the Con- 
 stitution of the United States. The Court thinks otherwise. 
 The intimate union of these States, as members of the same 
 great political family; the deep and vital interests which bind 
 them so closely together, should lead us, in the absence of 
 proof to the contrary, to presume a greater degree of comity 
 and friendship, and kindness towards one another, than we 
 should be authorized to presume between foreign nations. 
 And when (as without doubt must occasionally happen), the 
 interest or policy of any State requires it to restrict the rule, 
 it has but to declare its will, and the legal presumption is at 
 once at an end. But until this is done, upon what grounds 
 could this Court refuse to administer the law of international 
 comity between these States ? They are sovereign States; and 
 the history of the past, and the events which are daily occur- 
 ring, furnish the strongest evidence that they have adopted 
 towards each other the laws of comity in their fullest extent." ' 
 
 ' 13 Peters, 590. This opinion was in 1903 quoted and applied by the 
 New York Court of Appeals to support the validity of a statute punishing 
 as perjury the making in New York of a false affidavit required by the laws 
 of another State. People vs. OTarrell, 175 N. Y., 323. 
 
CHAPTER XIV 
 
 GIRARD WILL CASE RHODE ISLAND BOUNDARY CASE 
 
 CASE OF " THE LEXINGTON " 
 
 During the administration of Harrison and Ty- 
 ler, Mr. Webster rarely appeared in the Supreme 
 Court. During most of that time he was Secretary 
 of State, and was negotiating the Ashburton treaty 
 with Great Britain. When he resigned and re- 
 turned to Boston, he was engrossed with his prac- 
 tice in Massachusetts. 
 
 There were three cases decided at the January 
 term of 1841 in which he appeared, one in 1842, 
 one in 1843 and two in 1844. In one of these 
 latter, the Girard Will case,^ he made his famous 
 argument in support of the proposition that a will, 
 which by necessary effect compelled the instruction 
 of young men without any religious teaching what- 
 ever, was opposed to public policy, and invalid. 
 The Court, however, construed the will differently, 
 so as to hold that no such prohibition was to be 
 implied, and the main question which he argued 
 was not decided.^ 
 
 Another of the cases argued during this time 
 was the boundary controversy between the State of 
 
 ' Vidal vs. Girard's Executors, 2 How., 127. 
 
 ' His speech is in 6 Webster's IVorl-s, p. 133. 
 
 9 
 
 129 
 
I30 Daniel Webster 
 
 Rhode Island and the Commonwealth of Massa- 
 chusetts/ The final argument in this case was at 
 the December term of 1845.' ^^i this case Web- 
 ster and Choate were together, and succeeded in de- 
 feating the claim of the State of Rhode Island to 
 
 o 
 
 a revision of the boundary line which had been run 
 by Joint Commission in 1711. This was the case 
 in which Rufus Choate gave the famous description 
 of the line as laid down by the original charter : 
 " beginning at a hive of bees in swarming time and 
 runningf thence to a hundred foxes with firebrands 
 tied to their tails." 
 
 In 1845, Webster succeeded Choate as Senator 
 from Massachusetts. Two years later, he argued 
 for the libellants the famous case of the New Jersey 
 Steam Navigation Company against the Merchants 
 Bank of Boston, decided early in 1848.^ In this 
 case his contention was sustained by the Court, 
 and it was held that the Admiralty jurisdiction of 
 the courts of the United States extended to a libel 
 in personam upon a contract for the transportation 
 of specie upon the waters of Long Island Sound, 
 from New York to Stonington, and thence by land 
 to Boston, and that an agreement in the bill of 
 lading, purporting to exempt the carrier from the 
 consequences of negligence, was void, as against 
 public policy ; although it was conceded in the 
 opinion delivered by Mr. Justice Nelson that the 
 
 1 15 Peters, 233. * 4 Howard, 591. 
 
 ' 6 Howard, 344. It may be noted here for the benefit of the lay reader, 
 that in the Admiralty courts the plaintiff is known as libellant. He files his 
 libel at the beginning of the suit. 
 
Admiralty Jurisdiction Inland Waters 131 
 
 exemption would be valid if the loss had not been 
 occasioned by negligence. 
 
 This litigation grew out of the burning of the 
 steamboat Lexington, upon Long Island Sound. 
 The evidence showed that the vessel was im- 
 properly constructed, and inadequately equipped, 
 that no safeguards were used against overheating 
 of the smokestacks, that the combustible cargo was 
 stowed in dangerous proximity to them, and that 
 there were no suitable appliances for extinguishing 
 the fire which broke out. In fact, the only buckets 
 that appeared to be available were the little barrels 
 in which the silver dollars of the libellant were 
 packed. These were broken open, the contents 
 emptied and the barrels filled with water, which 
 was thrown on the flames. But these gained too 
 rapidly, the boat herself was consumed, and most 
 of her passengers suffocated, or drowned. In such 
 a case even the statute for the limitation of the 
 liability of carriers would have been no defence. 
 
 Mr. Webster's argument in this case is not con- 
 tained in any edition of his works, and the report in 
 Howard ' is meagre. But enough appears to show 
 that he illuminated the grant in the Constitution of 
 Admiralty jurisdiction to the courts of the United 
 States by a clear exposition, not only of the Eng- 
 lish, but of the European Admiralty law, and a dem- 
 onstration of the importance to the commerce of 
 the country of a liberal interpretation of the grant. 
 Mr. Justice Daniels was at that time the adver- 
 sary of the Admiralty, and in several dissenting 
 
 ' 6 Howard, 344. 
 
132 Daniel Webster 
 
 opinions did his best to convince the Court that 
 the jurisdiction of the Admiralty ought to be re- 
 stricted within the narrowest limits. Lord Coke 
 himself could not have done better. 
 
 But Webster's argument prevailed. A portion 
 of this argument should be quoted here. The 
 principles stated in it, which the reporter says he 
 " illustrated " in his argument, have been followed 
 by the Supreme Court ever since : 
 
 " The court having decided that the constitutional grant of 
 admiralty and maritime jurisdiction to the government of the 
 United States is not to be limited by the rules which restrained 
 the English admiralty in 1789, it follows of course, that the 
 jurisdiction of the courts of the United States should naturally 
 be coextensive with the granted power, unless Congress has 
 otherwise declared; and as the Judiciary Act of 1789, section 
 ninth, expressly vests in the District Courts of the United 
 States original cognizance of all civil causes of admiralty and 
 maritime jurisdiction, then whatever this court adjudges to be 
 a case of admiralty and maritime jurisdiction belongs originally 
 to the District Court, and invests that court necessarily with 
 the power of all process and proceedings fit and proper for the 
 exercise of its jurisdiction, subject to regulation by Congress. 
 
 "It is not, probably, doubted that the grant of admiralty 
 and maritime jurisdiction to the government of the United 
 States is exclusive, or that no State now retains any such 
 power; and so absolutely indispensable has such a jurisdiction 
 been found to be on the interior lakes and rivers, that Con- 
 gress has been obliged to provide, and has provided, for its 
 exercise on those waters. See Act of 1845. 
 
 " The only objection to this necessary law seems to be, that 
 Congress, in passing it, was shivering and trembling under the 
 apprehension of what might be the ultimate consequence of 
 the decision of this court in the case of the Thomas j^efferson. 
 It pitched the power upon a wrong location. 
 
Admiralty Jurisdiction Inland Waters 133 
 
 " Its proper home was in the admiralty and maritime grant, 
 as in all reason, and in the common sense of all mankind out 
 of England, admiralty and maritime jurisdiction ought to ex- 
 tend, and does extend, to all navigable waters, fresh or salt.'" 
 
 From the time of the decision of this case to the 
 present, most maritime causes have been brought 
 in the federal courts of Admiralty. Their decisions 
 constitute a body of commercial law, relating es- 
 pecially to bills of lading, charter parties, marine 
 insurance and collisions, which is liberal in its char- 
 ter, harmonious in most respects with the jurispru- 
 dence of England and the continent of Europe and 
 which has played no small part In the expansion of 
 American commerce. It is true that the more nar- 
 row spirit which has prevailed in federal legislation 
 forbids American citizens to buy foreign-built ships. 
 But their charter is not forbidden, and American 
 citizens, under foreign flags, and in chartered ves- 
 sels, already reap their share of the harvest of ocean 
 commerce. That their business has not been re- 
 stricted by the conflicting decisions of the courts 
 of diff^erent States, is due in large degree, not only 
 to Mr. Webster's argument in this case of the Lex- 
 ington, but to the canons of interpretation, just, be- 
 cause broad and liberal, which, more than any other 
 man, he aided to establish. 
 
 •6 Howard, U. S. Rep. 378. 
 
CHAPTER XV 
 
 EMINENT DOMAIN OVER FRANCHISE WEST RIVER 
 
 BRIDGE CASE 
 
 At the December term, 1847, Mr. Webster ar- 
 gued the case of the West River Bridge Co. vs. 
 Dix and the Towns of Brattleboro and Dum- 
 merston.^ In this case it was held that the consti- 
 tutional power of eminent domain extended to a 
 franchise which had been given by the State to a 
 private corporation, and that therefore the State 
 could take a toll-bridge which had been built by a 
 private corporation, appropriate it to the public 
 use, and make it a free bridge, upon making the 
 original owner compensation in the manner regu- 
 lated by law, and that this did not impair the obli- 
 gation of the contract between the State and the 
 original grantee. 
 
 In this case the judgment of the Supreme Court 
 of Vermont was affirmed. The Supreme Court of 
 the United States was of opinion that the rights of 
 the citizen were sufficiently protected by the pro- 
 visions of the statute for ascertaining and paying 
 the value of the franchise. Webster's argument, 
 which is not included in his published works, puts 
 the case so clearly that it deserves to be extracted 
 
 ' 6 Howard, 507. 
 134 
 
Eminent Domain over Franchise 135 
 
 from the volume of the reports in which it is now 
 laid away.^ 
 
 "All the power of the States, as sovereign States, must 
 always be subject to the limitations expressed in the United 
 States Constitution, nor can they any more be permitted to 
 overstep such limitations of power by the exercise of one 
 branch of sovereignty than another. What is forbidden to 
 them, and which they cannot do directly, they should not be 
 permitted to do by color, pretence, or oblique indirection. 
 Among other matters limiting and restricting State sovereignty 
 is this: — No State shall pass ' any law impairing the obligation 
 of contracts.' The power of eminent domain, like every other 
 sovereign power in the State, is subject to this limitation and 
 prohibition. Laws creating corporations, with powers for the 
 benefit of the individual corporators, even though for public pur- 
 poses, like turnpikes, railroads, toll-bridges, etc., have always, 
 and by almost every court in the Union, and by this court, 
 been decided to be contracts between the government and the 
 corporators. The plaintiff's grant and franchise was a con- 
 tract of the State for one hundred years, and by this act 
 of 1839, and the proceedings under it, that contract is not 
 only impaired, but utterly destroyed; and this a State can no 
 more do under the power of eminent domain, than under the 
 law-making power, or any other power of sovereignty. It is 
 said, the citizen is safe, because, under the exercise of the 
 eminent domain, he is to receive compensation for whatever is 
 taken. That furnishes no security, for the mode and amount 
 of compensaion is fixed ex parte by the government and its 
 agents; and, besides that, the prohibition of the Constitution 
 is general, and contains no exception for this exercise of this 
 power of eminent domain as to contracts. 
 
 " If the provision of the Constitution, which forbids the im- 
 pairing of contracts, does not extend to the contracts of the 
 State governments, and they are left subject to be destroyed 
 by the eminent domain, then there is an end of public faith. 
 It is said, by every writer, and by almost every court which 
 
 '6 Howard U. S. Rep., 517. 
 
136 Daniel Webster 
 
 has passed on this subject, the eminent domain, that it must 
 rest with ' the legislative power to determine when public uses 
 require the assumption of private property,' and to regulate 
 the mode of compensation. (2 Kent's Comm., 340.) If to 
 this it be holden that this extends even to contracts of the gov- 
 ernment itself, then it follows, that the State of Mississippi, or 
 any other State indebted, has but by law to declare that the 
 public good requires that the State debts, bonds, etc., shall be 
 taken for the public use, and appoint commissioners to fix 
 their present market value to the holders, and, on payment 
 thereof, declare them extinguished. Such is the real character 
 of this transaction. ' ' 
 
CHAPTER XVI 
 
 POWER TO REORGANIZE STATE GOVERNMENTS DORR 
 
 REBELLION 
 
 The Colonial Charter of Rhode Island had, in 
 1 84 1, become in many particulars inapplicable to 
 the changed conditions of the State. Attempts to 
 amend it, in the manner prescribed by law, had 
 failed. Then those who were dissatisfied attempted 
 to establish a new government by calling a consti- 
 tutional convention without any express authority 
 of law. A constitution was framed and submitted 
 to the people at an election. The opponents of 
 the new constitution refused to recoofnize the elec- 
 tion or to vote. An election did, however, take 
 place, which was claimed to be valid by the par- 
 ties interested in it, and at which they claimed 
 that a majority of male citizens of twenty-one 
 years of age voted for the new constitution. 
 They elected a new set of officials, Governor, 
 Legislature and all. Thomas W. Dorr was the 
 head of the new government, and from him it 
 took its name. The government under the old 
 charter maintained its own authority, declared 
 martial law, suppressed the new government and 
 Dorr himself was tried for treason in 1844, in 
 
 137 
 
138 Daniel Webster 
 
 the Supreme Court of Rhode Island, was con- 
 victed and sentenced to imprisonment for life.^ 
 The President of the United States recognized the 
 old and not the new government. Nevertheless, 
 Dorr's adherents finally tested the question as to 
 the validity of their proceedings, in an action of 
 trespass brought in the Circuit Court of the United 
 States, and reviewed on writ of error in the Su- 
 preme Court in 1848.^ 
 
 That court followed Webster's argument and 
 held that the determination of what was the duly 
 constituted government of a State was a political 
 and not a judicial question ; that Congress by the 
 Act of February 28, 1795, had authorized the Presi- 
 dent to decide this question, and that his decision 
 was final. It further held that a State Legislature, 
 in the presence of armed rebellion, had the power 
 to declare martial law, and that it was for the 
 Legislature to judge whether the exigency was 
 such as to require this declaration.^ 
 
 Mr. Webster's argument in this case is included 
 in his published works.^ A brief extract from it 
 will show his mastery of the principles underlying 
 the case and which were decisive of the controversy. 
 Equally decisive were they of the later controversy 
 
 ^ Dorr was a member of one of the old patrician families of Rhode Island. 
 His zealous advocacy of the popular cause alienated his friends and kins- 
 folk, and although he was pardoned, after a short imprisonment, he died 
 soon after, a heartbroken man, 
 
 ^An interesting account of this "Dorr Rebellion" is to tie found in a 
 speech of Henry Clay, delivered at Lexington, Ky,, June 9, 1842. Clay's 
 Works, vol. vi., p. 380. 
 
 ^Luther vs. Borden, 7 How., U. S. Rep., i (184S). 
 
 * Webster's Works, vol. vi., p. 217. 
 
Dorr Rebellion 139 
 
 between North and South. As his argument is 
 reported by Howard, he said ' : 
 
 " This is an unusual case. During the years 1841 and 1842, 
 great agitation existed in Rhode Ishmd. In June, 1842, it sub- 
 sided. The Legislature passed laws for the punishment of 
 offenders, and declared martial law. The grand jury indicted 
 Dorr for treason. His trial came on in 1844, when he was con- 
 victed and sentenced to imprisonment for life. Here is a suit 
 in which the opposite counsel say that a great mistake has hap- 
 pened in the Courts of Rhode Island; that Governor King 
 should have been indicted. They wish the Governor and the 
 rebel to change places. If the Court can take cognizance of 
 this question, which I do not think, it is not to be regretted 
 that it has been brought here. It is said to involve the funda- 
 mental principles of American liberty. This is true. It is 
 always proper to discuss these, if the appeal be made to reason, 
 and not to the passions. There are certain principles of lib- 
 erty which have existed in other countries, such as life, the 
 right of property, trial by jury, etc. Our ancestors brought 
 with them all which they thought valuable in England, and 
 left behind them all which they thought were not. Whilst 
 colonies, they sympathized with Englishmen in the Revolution 
 of 1688. There was a general rejoicing. But in 1776 the 
 American people adopted principles more especially adapted 
 to their condition. They can be traced through the Confed- 
 eration and the present Constitution, and our principles of 
 liberty have now become exclusively American. They are 
 distinctly marked. We changed the government where it 
 required change; where we found a good one, we left it. 
 Conservatism is visible throughout. Let me state what I 
 understand these principles to be. 
 
 " The first is, that the people are the source of all political 
 power. Every one believes this. Where else is there any 
 power ? There is no hereditary legislature, no large property, 
 
 ' 7 Howard, U. S. Rep., 29. Whether this abstract was prepared by Web- 
 ster himself cannot be ascertained. But it is a fair summary of his argument. 
 
HO Daniel Webster 
 
 no throne, no primogeniture. Everybody may buy and sell. 
 There is an equality of rights. Any one who should look to 
 any other source of power than the people would be as much 
 out of his mind as Don Quixote, who imagined that he saw 
 things which did not exist. Let us all admit that the people 
 are sovereign. Jay said that in this country there were many 
 sovereigns and no subject. A portion of this sovereign power 
 has been delegated to government, which represents and speaks 
 the will of the people as far as they chose to delegate their 
 power. Congress have not all. The State Governments have 
 not all. The Constitution of the United States does not speak 
 of the government. It says the United States. Nor does it 
 speak of State governments. It says the States; but it recog- 
 nizes governments as existing. The people must have repre- 
 sentatives. In England, the representative system originated, 
 not as a matter of right, but because it was called by the king. 
 The people complained sometimes that they had to send up 
 burgesses. At last there grew up a constitutional representa- 
 tion of the people. In our system it grew up differently. It 
 was because the people could not act in mass, and the right to 
 choose a representative is every man's portion of sovereign 
 power. Suffrage is a delegation of political power to some in- 
 dividual. Hence the right must be guarded and protected 
 against force or fraud. That is one principle. Another is, 
 that the qualification which entitles a man to vote must be 
 prescribed by previous laws, directing how it is to be exercised, 
 and also that the results shall be certified to some central 
 power so that the vote may tell. We know no other principle. 
 If you go beyond these, you go wide of the American track. 
 One principle is, that the people often limit their government; 
 another, that they often limit themselves. They secure them- 
 selves against sudden changes by mere majorities. The fifth 
 article of the Constitution of the United States is a clear proof 
 of this. The necessity of having a concurrence of two thirds 
 of both houses of Congress to propose amendments, and of 
 their subsequent ratification by three fourths of the States, 
 gives no countenance to the principles of the Dorr men, be- 
 cause the people have chosen so to limit themselves. All 
 
Dorr Rebellion 141 
 
 qualifications which persons are required to possess before 
 they can be elected are, in fact, limitations upon the power of 
 the electors; and so are rules recjuiring them to vote only at 
 particular times and places. Our American mode of govern- 
 ment does not draw any power from tumultuous assemblages. 
 If anything is established in that way, it is deceptive. It is 
 true that at the Revolution governments were forcibly de- 
 stroyed. But what did the people then do ? They got to- 
 gether and took the necessary steps to frame new governments, 
 as they did in England when James the Second abdicated. 
 William asked Parliament to assemble and provide for the case. 
 It was a revolution, not because there was a change in the per- 
 son of the sovereign, but because there was a hiatus which 
 must be filled. It has been said by the opposing counsel, that 
 the people can get together, call themselves so many thou- 
 sands, and establish whatever government they please. But 
 others must have the same right. We have then a stormy 
 South American liberty, supported by arms to-day and crushed 
 by arms to-morrow. Our theory places a beautiful face on 
 liberty, and makes it powerful for good, producing no tumults. 
 When it is necessary to ascertain the will of the people, the 
 legislature must provide the means of ascertaining it. The 
 Constitution of the United States was established in this way. 
 It was recommended to the States to send delegates to a con- 
 vention. They did so. Then it was recommended that the 
 States should ascertain the will of the people. Nobody sug- 
 gested any other mode." 
 
 A curious reference to this case, and to Mr. 
 Webster's practice in the Supreme Court, is to be 
 found in a letter to his son, dated Washington, 
 January 29, 1848 ^ : 
 
 " Neither the Senate nor the court sit to-day; so I am at 
 home all day, preparing for a long cause from Mississippi, 
 
 ^Private Correspondence, vol. ii., p. 267. His argument was made the 
 day before. 
 
142 Daniel Webster 
 
 which comes on for argument on Monday morning. I be- 
 lieve we have pretty effectually suppressed the Rhode Island 
 insurrection. 
 
 "It so happens that I have a great deal more to do in court 
 this year than at any time since I went into the Department of 
 State. The work is hard, not so much in the preparation of 
 causes, as in sitting and taking notes of arguments for seven or 
 eight days, as sometimes happens. I do not see that I shall 
 be able to be out of Court much for a month to come. 
 
 " I attend to causes pretty closely, although, now that I am 
 sixty-six years old, I take it for granted that people begin to 
 say, ' He is not the man he was.' In some respects it is cer- 
 tainly true, perhaps in many." 
 
 It should be noted that the Dorr rebellion, with 
 its unsuccessful military attempt, in May, 1842, to 
 get possession of the State Arsenal, did lead, in the 
 following year, to the making of a new constitution 
 in the manner authorized by law. This relieved 
 much of the inequality and injustice of the old 
 charter. This new constitution was framed by a 
 convention called by the charter government and 
 ratified by the people. All of which happened be- 
 fore the argument and decision of the Supreme 
 Court. Such is "the law's delay." The truth is 
 that, under our system of jurisprudence, the deci- 
 sion of important cases is vastly more important 
 to the public than to the litigants. There is some 
 excuse, therefore, for the deliberation with which 
 they are commonly brought to a final hearing in 
 the courts of last resort. This is eminently true 
 of the case under consideration. The rules estab- 
 lished in it are often invoked, and make continually 
 for order and obedience to law. 
 
CHAPTER XVII 
 
 STATE POWER OVER FOREIGN COMMERCE PASSEN- 
 GER TAX CASES 
 
 At a later period in his life, and when that sun 
 was drawing near the horizon, which was at meri- 
 dian when Gibbons and Ogden was argued, Mr. 
 Webster, with equal force of logic and power of 
 conviction, vindicated the right of our foreign com- 
 merce to be free from the exactions of the several 
 States. The Passenger Tax cases, as they are 
 called, were appeals from judgments sustaining the 
 power of the States to impose taxes upon immigra- 
 tion. Massachusetts and New York had enacted 
 statutes levying a tax upon every immigrant com- 
 ing into their ports. The amount was not great, — 
 neither was the tax on tea. But the importance of 
 the principle was supreme. One main object in 
 the formation of our government was that com- 
 mercial intercourse between this country and foreign 
 countries should be open alike to all, and that no 
 citizen or State should directly or indirectly ac- 
 quire a monopoly of it. 
 
 The position of the controversy in these cases 
 was this : 
 
 In New York vs. Miln, the Supreme Court had 
 held that it was competent for a State Legislature, 
 
 143 
 
144 Daniel Webster 
 
 in the absence of Congressional legislation on the 
 subject, to require each master of a vessel, arriving 
 in a port of the United States, to make to the local 
 authorities of the State a report giving the names 
 of the passengers on board, with sundry particulars 
 concerning them. Mr. Justice Story dissented from 
 the decision, and stated that Chief Justice Marshall, 
 who had died since the appeal was first argued, 
 concurred in this dissent.^ 
 
 After this. New York and Massachusetts claimed 
 that this decision of the court permitted the several 
 States to regulate the entrance of passengers into 
 their respective ports, until Congress should pro- 
 vide to the contrary. Accordingly, they imposed 
 a tax upon each foreigner entering the United 
 States, and applied the proceeds of the taxes thus 
 levied to the maintenance of their immigration 
 offices. 
 
 The shipowners contested the validity of these 
 laws. The New York appeal ^ was argued by Mr. 
 Webster at the December term, 1845, and again at 
 the December term, 1847. He argued the Massa- 
 chusetts case^ at the December term, 1846, and 
 again in December, 1 848. These re-arguments were 
 required by the diversity of opinion that developed 
 among the judges. The constitutional law of the 
 country was still in process of formation. Only 
 two judges, McLean of Ohio and Wayne of 
 Georgia, were left of those who sat with Marshall. 
 
 ' II Peters, i6i. 
 
 ' Smith vs. Turner, Health Commissioner of the Port of New York. 
 
 * Norris vs. The City of Boston. 
 
State Power over Foreign Commerce 145 
 
 Jackson and Van Buren had placed some strict con- 
 structionists upon the bench. It was well that the 
 commanding genius of Webster remained, to main- 
 tain the principles of construction which he and 
 Marshall had united to establish. Taney, who had 
 been chosen by Jackson as his Attorney-General, 
 and was appointed by him Chief Justice, when 
 Marshall died, led the new school that was aiming 
 to limit and explain away the long series of de- 
 cisions to which we have already called attention. 
 He maintained that the power to regulate com- 
 merce remained in the States, and could be exer- 
 cised until Congress should intervene, and that 
 passenger travel was not commerce, but that this 
 word in the Constitution applied only to traffic in 
 goods. 
 
 The only part of Webster's argument that is pre- 
 served in the reports of Mr. Howard is the brief 
 statement of points then required by the rules of 
 the Court, which is as follows : 
 
 " Norris v. City of Boston.' 
 
 " On the part of the plaintiff in error it will be contended: 
 
 " I. That the act in question is a regulation of commerce of 
 the strictest and most important class, and that Congress pos- 
 sesses the exclusive power of making such a regulation. 
 
 "And hereunder will be cited ii Pet. 102; 4 Wash. C. C. 
 379; 3 How. 212; 14 Pet. 541; 4 Met. 285; 2 Pet. 245; 9 
 Wheat, i; 12 Wheat. 436; Federalist, No. 42; 3 Cow. 473; i 
 Kent, 5th ed. ; 2 Story's Com. on Const. 506; 15 Pet. 506; 3 
 N. H. 499. 
 
 " 2. That the act is an impost or duty on imports, and so 
 expressly prohibited by the Constitution, or is in fraud of that 
 prohibition. 
 
 ■ 7 Howard, 288, 289. 
 
146 Daniel Webster 
 
 " And hereunder will be cited 4 Met. 285; 12 Wheat. 436; 
 Dig. Lib. I, tit. 3, De Leg. et Senat. Cons. Sect. 29; 3 Cow, 
 738; 14 Pet. 570. 
 
 "3. That it is repugnant to the actual regulations and 
 legally manifested will of Congress. 9 Wheat. 210; 4 Met. 
 295; II Pet, 137; 12 Wheat, 446; 5 Wheat. 22; 6 Pet, 515; 
 15 Pet. 509; 14 Pet. 576; Laws U, S. 1799, c 128, Sec. 46; 
 I Story's Laws, 612, 1819, c, 170; 3 Story's Laws, 1722, 
 Laws of Naturalization, 1802, c, 28; 1816, c. 32; 1824, c, 186, 
 
 " D, Webster, 
 "R, Choate," 
 
 There is also a brief newspaper account of 
 the argument, reprinted in the last edition of his 
 Works} 
 
 In a letter written to Mr, Blatchford from Wash- 
 ington, on Saturday, the third of February, 1849, 
 Mr, Webster thus speaks of the cases and his 
 share in them ^ : 
 
 " There is great interest here to hear the opinions of the 
 judges on Tuesday. I wish you could be here. Several 
 opinions will be read, drawn with the best abilities of the 
 writers. In my poor judgment, the decision will be more im- 
 portant to the country than any decision since that in the 
 steamboat cause. That was one of my earliest arguments of a 
 constitutional question. This will probably be, and I am 
 content it should be, the last. I am willing to confess to the 
 vanity of thinking that my efforts in these two cases have done 
 something toward explaining and upholding the just powers of 
 the Government of the United States on the great subject of 
 commerce. The last, though by far the most laborious and 
 persevering, has been made under great discouragements and 
 evil auspices. Whatever I may think of the ability of my 
 
 ' Webster's Writings and Speeches, vol. xv. , p. 402. 
 ' Curtis's Life of Webster, vol. ii., p. 373, 
 
State Power over Foreign Commerce 147 
 
 argument, and I do not think highly of it, I yet feel pleasure 
 in reflecting that I have held on and held out to the end." 
 
 A majority of the Court, Justices McLean (Ohio), 
 Wayne (Georgia), Catron (Tennessee), Grier(Penn- 
 sylvania) and McKinley (Alabama), concurred in 
 holding that the transportation of passengers was 
 commerce, and that the acts in question were both 
 unconstitutional. 
 
 The Chief Justice (Maryland), and Justices Nel- 
 son (New York), Daniels (Virginia) and Woodbury 
 (New Hampshire) dissented. Daniels was the strict- 
 est of strict constructionists. Calhoun must have 
 felt that this Virginia judge was as strenuous as 
 himself. They maintained that the acts in question 
 were a valid exercise of the police power and also 
 of the power of taxation, both of which, they said, 
 remained in the States, unimpaired by the Consti- 
 tution of the United States, except where it con- 
 tained a specific prohibition. In opposition to this 
 the Court held, as stated by Mr. Justice Wayne ^: 
 
 " I. That the acts of New York and Massachusetts impos- 
 ing a tax upon passengers, either foreigners or citizens, com- 
 ing into the ports in those States, either in foreign vessels or 
 vessels of the United States, from foreign nations or from 
 ports in the United States, are unconstitutional and void, be- 
 ing in their nature regulations of commerce contrary to the 
 grant in the constitution to congress of the power to regulate 
 commerce with foreign nations and among the several States. 
 
 " 2. That the States of this Union cannot constitutionally 
 tax the commerce of the United States for the purpose of pay- 
 ing any expense incident to the execution of their police laws; 
 
 ' 7 Howard, 283, 412. 
 
148 Daniel Webster 
 
 and that the commerce of the United States includes an inter- 
 course of persons, as well as the importation of merchandise. 
 
 " 3. That the acts of Massachusetts and New York in ques- 
 tion in these cases conflict with treaty stipulations existing be- 
 tween the United States and Great Britain, permitting the 
 inhabitants of the two countries ' freely and securely to come, 
 with their ships and cargoes, to all places, ports, and rivers in 
 the territories of each country to which other foreigners are 
 permitted to come, to enter into the same, and to remain and 
 reside in any parts of said territories, respectively; also, to 
 hire and occupy houses and warehouses for the purposes of 
 their commerce, and generally the merchants and traders of 
 each nation respectively shall enjoy the most complete pro- 
 tection and security for their commerce, but subject always to 
 the laws and statutes of the two countries respectively ' ; and 
 that said laws are therefore unconstitutional and void. 
 
 " 4. That the congress of the United States having by sun- 
 dry acts, passed at different times, admitted foreigners into the 
 United States with their personal luggage and tools of trade, 
 free from all duty or imposts, the acts of Massachusetts and 
 New York, imposing any tax upon foreigners or immigrants 
 for any purpose whatever, whilst the vessel is in transitu to her 
 port of destination, though said vessel may have arrived within 
 the jurisdictional limits of either of the States of Massachu- 
 setts and New York, and before the passengers have been 
 landed, are in violation of said acts of congress, and therefore 
 unconstitutional and void. 
 
 "5. That the acts of Massachusetts and New York, so far 
 as they impose any obligation upon the owners or consignees 
 of vessels, or upon the captains of vessels or freighters of the 
 same, arriving in the ports of the United States within the said 
 States, to pay any tax or duty of any kind whatever, or to be 
 in any way responsible for the same, for passengers arriving in 
 the United States, or coming from a port in the United States? 
 are unconstitutional and void, being contrary to the constitu- 
 tional grant to congress of the power to regulate commerce 
 with foreign nations and among the several States, and to the 
 legislation of congress under the said power, by which the 
 
State Power over Foreign Commerce 149 
 
 United States have been laid off into collection districts, and 
 ports of entry established within the same, and commercial 
 regulations prescribed, under which vessels, their cargoes and 
 passengers, are to be admitted into the ports of the United 
 States, as well from abroad as from other ports of the United 
 States. That the act of New York now in question, so far as 
 it imposes a tax upon passengers arriving in vessels from other 
 ports in the United States, is properly in this case before this 
 court for construction, and that the said tax is unconstitutional 
 and void. That the 9th section of the ist article of the con- 
 stitution includes within it the migration of other persons, as 
 well as the importation of slaves, and in terms recognizes that 
 other persons, as well as slaves, may be the subjects of im- 
 portation and commerce. 
 
 " 6. That the 5th clause of the 9th section of the ist article 
 of the constitution, which declares that ' no preference shall be 
 given by any regulation of commerce or revenue to the ports 
 of one State over those of another State; nor shall vessels 
 bound to or from one State, be obliged to enter, clear, or pay 
 duties in another,' is a limitation upon the power of congress 
 to regulate commerce for the purpose of producing entire 
 commercial equality within the United States, and also a pro- 
 hibition upon the States to destroy such equality by any legis- 
 lation prescribing a condition upon which vessels bound from 
 one State, shall enter the ports of another State. 
 
 "7. That the acts of Massachusetts and New York, so far 
 as they impose a tax upon passengers, are unconstitutional 
 and void, because each of them so far conflicts with the ist 
 clause of the 8th section of the ist article of the constitution, 
 which enjoins that all duties, imposts, and excises shall be 
 uniform throughout the United States; because the constitu- 
 tional uniformity enjoined in respect to duties and imposts is 
 as real and obligatory upon the States, in the absence of all 
 legislation by congress, as if the uniformity had been made by 
 the legislation of congress; and that such constitutional uni- 
 formity is interfered with and destroyed by any State imposing 
 any tax upon the intercourse of persons from State to State, 
 or from foreign countries to the United States. 
 
I50 Daniel Webster 
 
 " 8, That the power in congress to regulate commerce with 
 foreign nations and among the several States, includes naviga- 
 tion upon the high seas, and in the bays, harbors, lakes, and 
 navigable waters within the United States, and that any tax by 
 a State in any way affecting the right of navigation, or sub- 
 jecting the exercise of the right to a condition is contrary to 
 the aforesaid grant. 
 
 " 9. That the States of this Union may, in the exercise of 
 their police powers, pass quarantine and health laws, interdict- 
 ing vessels coming from foreign ports, or ports within the 
 United States, from landing passengers and goods, prescribe 
 the places and time for vessels to quarantine, and impose 
 penalties upon persons for violating the same; and that such 
 laws, though affecting commerce in its transit, are not regula- 
 tions of commerce prescribing terms upon which merchandise 
 and persons shall be admitted into the ports of the United 
 States, but precautionary regulations to prevent vessels en- 
 gaged in commerce from introducing disease into the ports to 
 which they are bound; and that the States may, in the exercise 
 of such police power, without any violation of the power in 
 congress to regulate commerce, exact from the owner or con- 
 signee of a quarantined vessel, and from the passengers on 
 board of her, such fees as will pay to the State the cost of their 
 detention and of the purification of the vessel, cargo, and 
 apparel of the persons on board." 
 
 After this decision, the New York lawyers en- 
 deavored to find, and did suggest, what was cer- 
 tainly a very ingenious device for the purpose of 
 evading the force of the decision. An act was 
 passed, requiring every captain to report to the 
 mayor the name, last residence and occupation of 
 every alien passenger. It directed the mayor to 
 require the owner or consignee of the ship to give 
 a bond with sureties in a penalty of $300 — to in- 
 demnify the State against any such person becoming 
 
State Power over Foreign Commerce 151 
 
 a public charge. From this onerous requirement, 
 the owner could be relieved by paying a dollar and 
 a half for each passenger, within twenty-four hours 
 after he landed. 
 
 The shipowners submitted to this system for 
 twenty years. They then decided to contest it. 
 In 1875, in the case of Henderson against the 
 Mayor of New York,^ it was unanimously held that 
 the transportation of passengers was as much a part 
 of commerce as that of goods ; that a tax upon pas- 
 sengers was a tax on commerce, and that the Court 
 would look through the device by which the city 
 apparently only required a report and security 
 against pauperism. "In whatever language," said 
 Mr. Justice Miller, "a statute may be framed, its 
 purpose must be determined by its natural and rea- 
 sonable effect." And the Court concludes (p. 
 274) : 
 
 " We are of opinion that this whole subject has been con- 
 fided to Congress by the Constitution; that Congress can more 
 appropriately and with more acceptance exercise it than any 
 other body known to our law, state or national; that by pro- 
 viding a system of laws in these matters, applicable to all ports 
 and to all vessels, a serious question, which has long been 
 matter of contest and complaint, may be effectually and satis- 
 factorily settled." 
 
 Congress adopted the suggestion, and in 1882 
 passed an act ^ to regulate immigration. This 
 levied a tax of fifty cents upon each alien passen- 
 ger who should enter any United States port by 
 steam or sail vessel. The proceeds of this tax 
 
 • 92 United States Rep., 259. * 22 U. S. Stat, at Large, 214. 
 
152 Daniel Webster 
 
 constitute an immigrant fund, which is used to de- 
 fray the expense of regulating immigration, and for 
 the care of immigrants and the relief of such as 
 are in distress. This act was held constitutional 
 in the Head money cases, decided in 1884/ Thus 
 the question was finally set at rest. Uniformity 
 in the administration of immigration throughout 
 our ocean frontier has been found to be of great 
 public advantage. It is the natural development 
 of the principle of national control over national 
 commerce, for which Mr. Webster contended in 
 Gibbons vs. Ogden, as well as in the Passenger Tax 
 cases. Without it, we should not be a Nation. 
 It is interesting to trace the gradual extinction of 
 the doubts on this subject, which had been raised 
 by acute and vigorous advocates of the rights of 
 the States. Chief Justice Taney had maintained^ 
 that passengers were not imports, that the word 
 "imports" in the Constitution, must be given a 
 meaning, restricted to its common use, at the time 
 the Constitution was adopted, and that therefore 
 Cono-ress could not, and the several States could 
 impose a tax upon passengers. He adds : 
 
 " And if it is to be hereafter the law of this Court, that the 
 power to regulate commerce has abridged the taxing power 
 of the States upon the vehicles or instruments of commerce, I 
 cannot foresee to jvhat it may lead; whether the same prohibi- 
 tion, upon the same principle, may not be carried out in re- 
 spect to ship owners and merchandise in a way seriously to 
 impair the powers of taxation, which have heretofore been 
 exercised by the States." 
 
 ' 112 U. S., 5S0. ' 7 Howard, 477-482. 
 
State Power over Foreign Commerce 153 
 
 But the vague evils, the extent of which the 
 Chief Justice could not foresee, have proved to be 
 imaginary. In one of the later cases,^ in which 
 another attempt of the State of New York to levy 
 a tax on commerce under guise of a harbor regula- 
 tion was frustrated, Mr. Justice Swayne well ex- 
 presses the result of our national experience : 
 
 " The commerce clauses of the Constitution had their origin 
 in a wise and salutary policy. They give to Congress the en- 
 tire control of the foreign and interstate commerce of the 
 country. They were intended to secure harmony and uni- 
 formity in the regulations by which they should be governed. 
 Wherever such commerce goes, the power of the nation ac- 
 companies it, ready and competent, as far as possible, to pro- 
 mote its prosperity and redress the wrongs and evils to which 
 it may be subjected. It was deemed especially important that 
 the States should not impose tonnage taxes. Hence the pro- 
 hibition in the Constitution, without the assent of Congress 
 previously given. The confusion and mischiefs that would 
 ensue if this restriction were removed are too obvious to re- 
 quire comment. The lesson upon the subject taught by the 
 law before us is an impressive one." 
 
 ■ Inman S. S. Co. vs. Tinker, 94 U. S., 238, 245, 
 
CHAPTER XVIII 
 
 EXTENSIVE RANGE OF WEBSTER's LEGAL ACQUIRE- 
 MENTS VAN RENSSELAER TITLE — VAN 
 
 RENSSELAER VS. KEARNEY 
 
 The last case argued by Mr. Webster in the 
 Supreme Court was Van Rensselaer vs. Kearney/ 
 It was argued by him February ii, 1851. It is 
 noted here because it illustrates what has been 
 already referred to — the extent of Webster's legal 
 acquirements, and the thoroughness with which he 
 did his work. 
 
 The case involved the title to the great Van 
 Rensselaer estate in New York. In 1782, John 
 Van Rensselaer made a will by which he entailed 
 the whole manor, comprising 34,000 acres, to the 
 oldest son of his grandson, and his male descend- 
 ants, or failing them, to the male descendants of 
 his other sons. The Legislature of New York, in 
 1782, and again in 1786, enacted statutes by which 
 entailed estates were converted into an absolute 
 fee. This grandson, John J. Van Rensselaer, 
 claimed that this law gave him an absolute title, 
 and proceeded to make sales of the estate. Sub- 
 sequently, however, it was held that he and his pro- 
 
 ' II Howard, 297. 
 154 
 
Extensive Range Legal Acquirements 155 
 
 fessional advisers were mistaken in supposing that 
 the statute vested the absolute title in him, and 
 that he had only a life estate. His oldest son died 
 before his father, leaving no children, and the 
 second son, Jeremiah, claimed that it was in him 
 that the absolute title vested, and brought an 
 action of ejectment against the grantees of his 
 father. His first suit in the Supreme Court of 
 New York was decided against him, and he ac- 
 quired citizenship in New Jersey, and brought an 
 action in the Circuit Court of the United States, 
 in a different form, for the purpose of raising the 
 question of title before the United States Supreme 
 Court. That Court followed the New York de- 
 cisions upon the title, and held that the absolute 
 title vested in the grandson when his oldest son 
 died, and that this title thereupon passed to the 
 previous grantees, and that the other heirs of the 
 grandson could not claim it. 
 
 The late John Jay was in this case. When Mr. 
 Webster began his argument and proceeded to 
 state the differences between the case as presented 
 to the Supreme Court, and the former case in New 
 York, Mr. Jay thought the statement erroneous 
 and asked Mr. Wood, the senior counsel (who was 
 one of the leaders of the New York bar), to correct 
 him. Mr. Wood replied: "I do not know any 
 man who would venture to interrupt Mr. Web- 
 ster." Mr. Jay said, "I will," and he did.^ Webster 
 
 ' The author's authority for this statement is Mr. Jay himself. He 
 seemed to be as proud of this success of his youth as of any achievement of 
 his long and useful life. 
 
 Mr. Webster's notes of his argument in this case are in the Library of 
 
156 Daniel Webster 
 
 frowned at his young opponent, but the latter held 
 to his point and, as he was right, carried it, to the 
 great surprise of the Court and bar. 
 
 the New Hampshire Historical Society. They are detailed and thorough, 
 written in the neat and compact hand which characterizes his notes and 
 briefs, and on the square letter paper with which practitioners in the Su- 
 preme Court are familiar. 
 
CHAPTER XIX 
 
 THE CONSTITUTION AND SLAVERY SEVENTH OF 
 
 MARCH SPEECH 
 
 Mr. Webster's position on the seventh of March, 
 1850, was unique. To no man in America did the 
 country look with such confidence. The story of 
 his great arguments, which has just been rehearsed, 
 was fresh in every breast. The Senate Chamber 
 was thronged to hear him. But his audience was 
 in every one of the thirty States then composing 
 the Union. The difficulties of the situation seemed 
 insurmountable, and it was generally felt that he was 
 the Lewis and Clark who could find a practicable 
 pass through these Rocky Mountains. Clay, the 
 compromiser, was engaged in the preparation of 
 compromise measures. But men looked to Web- 
 ster to convince the judgment and the conscience 
 of the country. 
 
 In the nature of the case, it was impossible that 
 he should satisfy every one. Gabriel himself could 
 not have done that. 
 
 Any one who reads carefully the contemporary 
 literature, as, for example, Emerson's lecture on 
 the Fugitive Slave Law,^ will perceive that the real 
 
 ' Delivered March 7, 1854. 
 157 
 
158 Daniel Webster 
 
 difference between Webster and his critics was this. 
 They beheved that slavery, everywhere and under 
 all circumstances, was wrong, and that therefore 
 any stipulation in its favor in the Constitution was 
 void. He thought it an evil, he opposed its exten- 
 sion, he hoped for its termination, but he did not 
 think that at all times and under all circumstances 
 it was morally wrong. Therefore he judged that 
 it was right to recognize the existence of slavery, 
 and to submit to the agreement which bound the 
 federal government to tolerate that existence in 
 the Southern States. His position was analogous 
 to that of James Russell Lowell in the winter of 
 1876-77. There can be little doubt that Lowell's 
 conscience revolted against the proceedings of the 
 Returning Boards in Louisiana and Florida, which 
 suppressed and altered returns from various dis- 
 tricts, and thereby converted a popular majority for 
 Tilden into an electoral majority for Hayes. The 
 Electoral Commission held that it had no power to 
 inquire into the Democratic allegations of fraud in 
 the proceedings of these Returning Boards. Under 
 these circumstances, some of Mr. Lowell's friends 
 urged upon him that, in his position as Elector 
 from the State of Massachusetts, it was his duty to 
 redress the fraud thus committed, and to deprive 
 those who had committed it of the fruit of their 
 conduct, by voting in the Electoral College for 
 Tilden. This would have given Tilden a majority 
 in that College. But Lowell, in opposition to this 
 solicitation, declared that he was commissioned by 
 the State of Massachusetts to vote for Hayes. It 
 
The Constitution and Slavery 159 
 
 could not be denied that he had constitutionally 
 the right to vote differently. But he did not feel 
 at liberty to disregard the mandate which unbroken 
 custom had given to the members of the Electoral 
 College. In short, while he saw the wrong, he did 
 not feel called upon to redress it, although he had 
 the clear constitutional right so to do. 
 
 Mr. Webster, with equal clearness, saw the 
 wrong of slavery. But his case was stronger than 
 Lowell's, for as Senator from the State of Massa- 
 chusetts, he had no constitutional right to interfere 
 with slavery in the Southern States, and he felt it 
 his duty to convince his countrymen, if possible, 
 that the observance of the obligations which they 
 had assumed when they adopted the Federal Con- 
 stitution was consistent with good conscience. But 
 it was natural that those who did not ao^ree with 
 him in this should condemn his course. It was a 
 distinct disappointment to them. And it is not 
 surprising that those who were disappointed should 
 have expressed that disappointment in bitter words. 
 Some of them, like Whittier and Lowell, were men 
 of extraordinary literary gifts, and embalmed their 
 indignant thoughts in the clear amber of their 
 style. Then came the war, and the epoch of re- 
 construction, warped and embittered by the tragi- 
 cal death of our great Captain, just as his ship was 
 entering port after the stormy four years of his 
 first Administration. It was then too soon to 
 judge fairly of Webster's position in 1850. But 
 the experience of the last thirty years has not been 
 in vain. We have learned that the earnest men 
 
i6o Daniel Webster 
 
 were mistaken who thought the solution of the 
 negro question easy — who declared, as the author 
 heard Roswell D. Hitchcock say — "Do you ask 
 what is to become of the negroes ? I answer — 
 What is to become of the red-headed men ? " 
 
 Webster vividly described the situation in 1850 
 in this very speech ^ : 
 
 "It is not to be denied that we live in the midst of strong 
 agitations, and are surrounded by very considerable dangers 
 to our institutions and government. The imprisoned winds 
 are let loose. The East, the North, and the stormy South 
 combine to throw the whole sea into commotion, to toss its 
 billows to the skies, and to disclose its profoundest depths." 
 
 The nature of this commotion can best be appre- 
 ciated by a brief reference to the character of the 
 conflicting elements. 
 
 The Northern abolitionists imagined that the 
 Southern negroes had reached the full standard of 
 manhood, and were capable of self-government. To 
 them the Southern whites were cruel oppressors. 
 No one did more to impress these ideas upon the 
 last generation than James Russell Lowell. The 
 indignation which others vehemently but coarsely 
 uttered, he expressed with the skill and fire of 
 genius. Uncle Toins Cabin, too, was read through- 
 out the world, and was regarded by many as a true 
 picture of the South, as a whole. 
 
 On the farther side of Mason and Dixon's line, 
 the Southern people smarted under and resented 
 these attacks, which they knew to be, in the main, 
 unjust. They were well aware that, while there 
 
 ' Webster's Works, vol. v., p. 325. 
 
The Constitution and Slavery i6i 
 
 were many individual exceptions, the negroes as a 
 race were backward in development, childish in 
 taste and feeling, incapable of the proper exercise 
 of the duties of citizenship. 
 
 In the light of our experience since the war, we 
 ought to revise the traditional opinions as to its 
 causes. The great discovery of Darwin — the law 
 of evolution — was not understood before the war. 
 The Northern abolitionists did not realize that the 
 negroes who had been brought from Africa had 
 existed in their native country in a state of the 
 lowest barbarism, not far removed from the ape, 
 and that what Wordsworth calls the '* discipline 
 of slavery " was a stage in the evolution of the race. 
 " Hateful though it is to us," says Herbert Spen- 
 cer, ^ '* and injurious as it would be now, slavery 
 was once beneficial, was one of the necessary 
 phases of human progress." 
 
 On the other hand, the Southern people did not 
 know, or failed to realize, that slavery was only a 
 transitory stage, and that it was the part of wise 
 statesmanship to train these blacks for something 
 better than slavery. So they did their utmost to 
 keep their slaves just as they were, and discouraged 
 or prohibited education of every sort, except that 
 actually necessary for the daily work of the town 
 or of the plantation. And with unspeakable folly, 
 under the leadership of Calhoun, they claimed, as 
 has been shown,^ that the Constitution itself carried 
 
 ' Herbert Spencer, Illustrations of Universal Progress, p. 444 (Ed. D. 
 Appleton & Co., 1890). See also Shaler, 7'^^ Individual, p. 135. 
 ^Ante, pp. 74, 75. 
 
i62 Daniel Webster 
 
 slavery into the Territories, and they were constantly 
 aiming to extend its area, not merely by this pro- 
 cess of colonization, but by the acquisition of new 
 territory, adapted for the cultivation of cotton by 
 slave labor. To this end Texas had been annexed. 
 This led to the war with Mexico. That resulted 
 in the annexation of California and New Mexico. 
 And now California stood at the doors of Congress, 
 askinor for admission as a State with a constitution 
 that prohibited slavery. New Mexico needed a 
 territorial government. Should Congress prohibit 
 slavery there ? And the District of Columbia, over 
 which Congress had exclusive jurisdiction — Should 
 slavery be prohibited there? Should the sale of 
 slaves be longer tolerated at the national Capital ? 
 And what was to be done with fugitives who es- 
 caped from slavery to the North ? The Constitu- 
 tion contained an agreement that they should be 
 returned. For this reason Garrison called it a 
 "covenant with hell." And when United States 
 soldiers in Boston were ordered out to protect the 
 United States marshal in executing the process of 
 the federal court for the return of a fugitive, the 
 flag under which they marched was greeted with 
 the following verse, which seems shocking to us 
 to-day, after that flag has been consecrated by un- 
 told blood and suffering, but which then expressed 
 the sentiments of thousands of sincere lovers of 
 
 liberty. 
 
 " Tear down the flaunting lie, 
 Half-mast the starry flag, 
 Defile not sea and sky 
 
 With hate's polluted rag." 
 
The Constitution and Slavery i6 
 
 So it came to pass that both abolitionists and pro- 
 slavery men were for disunion. 
 
 Mr. Webster saw clearly to what this conflict 
 would lead, unless wiser counsels could prevail. 
 An incident which the author is enabled to relate 
 on the word of an eye-witness tells the story faith- 
 fully. One day at Marshfield, in 1849, he was 
 oppressed by sadness. Usually cheerful and full 
 of varied anecdote, he was silent. After dinner he 
 stood in front of the fire and said in his deep tones : 
 " If this slavery agitation goes on, we shall have 
 war between the North and South. And who is 
 ready for that ? " 
 
 To prevent that, he delivered this great address, 
 which is not the least of his titles to the gratitude 
 of his countrymen. If the War of Secession had 
 come in 1850, the South would probably have suc- 
 ceeded. The increase of the Northern States in 
 population during the succeeding decade was far 
 greater than that of the Southern States. But 
 more important than this was the rapid develop- 
 ment of railroads and telegraphs, and of innu- 
 merable manufacturinor industries. The mines of 
 California enriched us as well as those of Pennsyl- 
 vania and Michigan. Together they upheld the 
 war by " its two main nerves, iron and gold." 
 
 If secession therefore was to come, anything that 
 should postpone its advent was of vital importance 
 to the Union. This speech of Webster's was the 
 most important factor in producing that result. 
 And had Douglas and his supporters in the 
 North, and Davis and his associates in the South, 
 
164 Daniel Webster 
 
 acquiesced in the compromise which followed, we 
 might have been spared the blood and suffering of 
 the Civil War, and emancipated our slaves peace- 
 ably and gradually, as the British did in 1833, with 
 compensation to the Southern States. Let no man, 
 therefore, now attribute to our great statesman 
 ignoble motives for this, his final great effort " for 
 the Constitution and the Union." 
 
 Webster is now justly entitled to full belief when 
 he himself declared in this memorable speech his 
 purposes and motives. He said : 
 
 " I wish to speak to-day, not as a Massachusetts man, nor 
 as a Northern man, but as an American, and a member of the 
 Senate of the United States.' ... I have a part to act, 
 not for my own security or safety, for I am looking out for no 
 fragment upon which to float away from the wreck, if wreck 
 there must be, but for the good of the whole, and the preserva- 
 tion of all; and there is that which will keep me to my duty 
 during this struggle, whether the sun and stars shall appear, 
 or shall not appear for many days. I speak to-day for the 
 preservation of the Union. ' Hear me for my cause.' I speak 
 to-day, out of a solicitous and anxious heart, for the restora- 
 tion to the country of that quiet and that harmony which make 
 the blessings of this Union so rich and so dear to us all. 
 These are the topics that I propose to myself to discuss; these 
 are the motives, and the sole motives, that influence me in the 
 wish to communicate my opinions to the Senate and the coun- 
 try; and if I can do anything, however little, for the promotion 
 of these ends, I shall have accomplished all that I expect. ' ' ' 
 
 It must be noted here that only three days before 
 Webster spoke, Calhoun's last important speech 
 
 ' It must be remembered that there were then in the Senate the first law- 
 yers and statesmen in the United States. 
 
 * Blaine frankly concedes Webster's sincerity and patriotism in this speech. 
 Twenty Years in Congress, vol. i., p. 94. 
 
The Constitution and Slavery 165 
 
 was heard in the Senate. He was too feeble to 
 deliver it, and it was read by Mr. Mason of Vir- 
 ginia.^ A brief extract from this will illustrate 
 the position of Calhoun and his associates at this 
 time : 
 
 "That the Government claims, and practically maintains, 
 the right to decide in the last resort, as to the extent of its 
 powers will hardly be denied by any one conversant with the 
 political history of the country. That it also claims the right 
 to resort to force, to maintain whatever power she claims, 
 against all opposition, is equally certain. Indeed it is appar- 
 ent, from what we daily hear, that this has become the prevail- 
 ing and fixed opinion of a great majority of the community." ^ 
 
 Calhoun then went on to show how the great 
 religious bodies had been broken asunder by the 
 slavery discussion. 
 
 He attacked the doctrine of the right of a Terri- 
 tory to legislate on the subject as worse than the 
 Wilmot proviso. It seems that Senator Houston 
 of Texas had favored this local legislation. 
 
 He puts the case thus to the Senate : 
 
 "It is time, Senators, that there should be an open and manly 
 avowal on all sides as to what is intended to be done. If the 
 question is not now settled, it is uncertain whether it ever can 
 hereafter be; and we, as the representatives of the States of this 
 Union, regarded as Governments, should come to a distinct 
 understanding as to our respective views, in order to ascertain 
 whether the great questions at issue can be settled or not. If 
 you, who represent the stronger portion, cannot agree to settle 
 them on the broad principle of justice and duty, say so, and 
 
 ' Calhoun died in Washington on the 31st of March, 1850. 
 " Page 6 of a pamphlet copy of this speech, among the Webster papers in 
 the Library of the N. H. Historical Society. 
 
1 66 Daniel Webster 
 
 let the States we both represent, agree to separate and part in 
 peace. If you are unwilling we should part in peace, tell us 
 so, and we shall know what to do, when you reduce the ques- 
 tion to submission or resistance." ' 
 
 The principal propositions which Webster main- 
 tained in his reply to this speech of Calhoun's were 
 these : 
 
 1. That at the time the Constitution was adopted, 
 slavery existed in the United States, but was gen- 
 erally looked upon as an evil which would gradually 
 pass away. 
 
 2. That public sentiment in the South on this 
 subject had changed, and that the change " was 
 owing to the rapid growth and sudden extension of 
 the COTTON plantations of the South. So far as 
 any motive consistent with honor, justice and gen- 
 eral judgment could act, it was the cotton interest 
 that gave a new desire to promote slavery, to spread 
 it, and to use its labor." ^ 
 
 3. That the Constitution found slavery " in the 
 Union ; it recognized it, and gave it solemn guar- 
 anties. To the full extent of these guaranties we 
 are all bound in honor, in justice, and by the 
 Constitution." ^ 
 
 4. " That there is not at this moment within the 
 United States, or any territory of the United States, 
 a single foot of land, the character of which, in re- 
 
 ' Page 16 of a pamphlet copy of this speech, among the Webster papers in 
 the Library of the N. H. Historical Society. 
 
 ^ Webster's Works, vol. v., p. 338. The emphasis on COTTON is given as 
 it is in the published speech. 
 
 ^ Ibid., vol. v., p. 347. See also his argument in Passenger-Tax cases, 
 Writitigs and Speeches, vol. xv., p. 404. 
 
The Constitution and Slavery 167 
 
 gard to its being free territory or slave territory, is 
 not fixed by some law, beyond the power of the 
 action of the Government." ^ As to Texas he 
 showed that, by the compact for its admission, it 
 was entitled to be divided into four States, every 
 part of which lying south of "thirty-six degrees 
 thirty minutes north latitude, commonly known as 
 the Missouri Compromise line, shall be admitted 
 into the Union with or without slavery, as the peo- 
 ple of each State asking admission may desire." 
 North of that line, in any State formed out of 
 Texas, slavery was to be prohibited, as it had been 
 by the compromise of 1820, in every State to be 
 admitted north of that line. As to New Mexico 
 (of which the State now called Utah was then a 
 part), the mountainous character of the country 
 was such that slavery was impossible. " Such a 
 prohibition would be idle, as it respects any effect 
 it would have upon the territory, and I would not 
 take pains uselessly to reaffirm an ordinance of 
 nature, nor to re-enact the will of God."^ 
 
 5. That he himself had always opposed the an- 
 nexation of Texas, because inevitably it would 
 lead to the extension of the area of slavery, but 
 that it had been carried by the votes of Northern 
 representatives. 
 
 6. That he himself had always, and still opposed 
 the extension of the area of slavery. 
 
 7. That the Supreme Court had decided ^ " that 
 the power to cause fugitives from service to be 
 
 'Webster's Works, vol. v., p. 340. "^ Ibid., vol. v., p. 352. 
 
 ^ Prigg vs. Pennsylvania, 16 Peters, 610. 
 
1 68 Daniel Webster 
 
 delivered up, was a power to be exercised under the 
 authority of this [the national] government," and 
 that the oath to support the Constitution bound all 
 who took it, at least not " to endeavor to get round 
 this Constitution, or to embarrass the free exercise 
 of the rights secured by the Constitution to the 
 persons whose slaves escape from them." 
 
 8. And then, to conclude in his own words ^ : 
 
 "Secession! Peaceable secession ! Sir, your eyes and mine 
 are never destined to see that miracle. The dismemberment 
 of this vast country without convulsion! The breaking up of 
 the fountains of the great deep without ruffling the surface! 
 Who is so foolish, I beg everybody's pardon, as to expect to 
 see any such thing ? Sir, he who sees these States, now re- 
 volving in harmony around a common centre, and expects to 
 see them quit their places and fly off without convulsion, may 
 look the next hour to see the heavenly bodies rush from their 
 spheres, and jostle against each other in the realms of space, 
 without causing the wreck of the universe. There can be no 
 such thing as a peaceable secession. Peaceable secession is 
 an utter impossibility. Is the great Constitution under which 
 we live, covering this whole country, is it to be thawed and 
 melted away by secession, as the snows on the mountain melt 
 under the influence of a vernal sun, disappear almost unob- 
 served, and run off ? No sir! No sir! I will not state what 
 might produce the disruption of the Union, but Sir, I see as 
 plainly as I see the sun in heaven, what that disruption itself 
 must produce. I see that it must produce war, and such a 
 war as I will not describe, in its twofold character ""^ 
 
 There were many arguments in the speech 
 adapted to produce a more friendly understand- 
 
 ' Webster's Works, vol. v., p. 361. 
 
 * A remarkable statement of the duty and right of the national government 
 to put down secession by force is in a circular submitted by him to the 
 Cabinet when he was Secretary of State, October, 1850 ( Writings and 
 Speeches, vol. xv., p. 232). 
 
The Constitution and Slavery 169 
 
 ing between the North and the South. But the 
 eight propositions I have thus stated were the prin- 
 cipal topics. It is difificuh now to reaHze the offence 
 that their statement gave to many good people at 
 the North. Apparently some had expected that 
 Mr. Webster would head a crusade against the 
 South. For a time the doors of Faneuil Hall 
 were closed against him by the Boston Common 
 Council, though they afterwards swung wide open 
 by the unanimous invitation of the Mayor and 
 Council to welcome the first citizen of Massachu- 
 setts.^ On the whole, the great majority of the 
 Northern and Southern people approved his course.^ 
 The speech was circulated by the hundred thou- 
 sand. It was entitled, a speech " for the Constitu- 
 tion and the Union." " With the highest respect 
 and the deepest sense of obligation, I dedicate this 
 speech," he said, " to the People of Massachusetts." 
 The motto he prefixed to the pamphlet edition 
 expresses tersely the spirit of the whole. Its apt- 
 ness illustrates his familiarity with the Latin histo- 
 rians, whom he discussed sympathetically in his 
 address before the New York Historical Society 
 on the 23d of February, 1852.^ 
 
 "I know that there are things more pleasing to be spoken, 
 but I speak that which is true rather than that which is pleas- 
 ing; and even if my judgment did not warn me to do this, 
 necessity compels me to do it. I purpose, indeed, to please 
 
 ' Webster's Writings and Speeches, vol. xiii., p. 510. 
 
 'On the 30th of April, 1850, a resolution condemning his course was 
 rejected in the Massachusetts Legislature by a vote of 77 yeas to 139 nays ; 
 see Burgess, The Middle Period, p. 359. 
 
 2 Webster's Writings and Speeches, vol. xiii., p. 463. 
 
I70 Daniel Webster 
 
 you, but I purpose much more that you should be saved, how- 
 ever you may in the future regard me." ' 
 
 Great public meetings were held in various parts 
 of the Union to express approbation of the positions 
 taken in this speech. Some of the letters of grati- 
 tude which Webster received are in print. But 
 there are many more in the collections of Webster 
 manuscripts. Perhaps none pleased him better 
 than the following letter from Francis Lieber, who 
 was then Professor in the University at Columbia, 
 South Carolina, and who came North before 1861 
 and rendered signal service in that war which may 
 justly be named — as was the seventh of March 
 speech, — "for the Constitution and the Union." 
 
 Columbia S. C. 6 June 1850 
 *' My dear Sir 
 
 " I received last night the three pamphlets which you have 
 had the kindness of sending to me, and for which I beg you to 
 accept my thanks. I had read and read with deep interest, 
 your Letter before, but I am glad I now possess that masculine 
 and substantial paper in pamphlet form, and feel proud to 
 have a copy of it with your name inscribed. Sir, I trust in 
 God, that all these papers may not receive an additional and 
 most melancholy interest by being looked upon, a few years 
 hence, as belonging to the closed period of the once existing 
 Union. I confess, I do not believe in an immediate dissolu- 
 
 ' This quotation, which Webster prefixed to the widely circulated pamphlet 
 edition of this speech, is from the third book of Livy, Cap. 68. It is part 
 of a speech of the Consul Titus Quinctius Capitolinus, to the Roman people, 
 rebuking them for their dissensions while the ^qui and Volsci were rav- 
 aging the Campagna, up to the very gates of Rome : 
 
 " His ego gratiora dictu alia esse scio ; sed me vera pro gratis loqui, etsi 
 meum ingenium non moneret. necessitas cogit. Vellem, equidem, vobis pla- 
 cere, sed multo male vos salvos esse, qualicumque erga me animo futuri 
 estis." 
 
The Constitution and Slavery 171 
 
 tion of the Union — though everything is possible with reckless 
 fanatics, and the power of mischief is incalculable in every 
 being, even in the mouse which perforates a dyke — but this 
 shaking and rude handling — this, tabefacere, may make our 
 Union so rickety a thing that we may suffer nearly all the 
 misery and disgrace under which Germany has staggered for 
 centuries in consequence of her wretched federal constitution 
 and of her ' particularism,' as the body of those tendencies is 
 there called, which tears that unhappy country — destined for 
 great things but cheated out of her history. I find that I feel 
 far deeper upon this subject of the Union than very many of 
 the native citizens, perhaps because I am not a native Ameri- 
 can, and ther'^fore naturally and necessarily a Pan-American, 
 and because I am a native German, who knows by heart the 
 commentary which his country has furnished and is furnish- 
 ing for the text of querulous, angry, selfseeking, unpatriotic 
 confederacies, and who finds in the history of his native coun- 
 try the key clearly and plainly to decipher every line of Grecian 
 decay. While I am writing these sad lines to you, they may 
 be engaged at Nashville in a ' torch-dance ' which — God avert 
 it — may end as that which concluded with the end of Persepolis 
 and the glory of Alexander — with a conflagration. 
 
 " But all this is very sad; for as the weeping Persian said, 
 ' the saddest of all things is to see the ruin of your country and 
 to see how it ought to be averted, but to have no power.' 
 
 " I am with the highest regard 
 
 " my dear Sir 
 
 " Your very obdt 
 
 " Francis Lieber, 
 
 *' Fan-American " ' 
 
 Just after the receipt of this letter, on the seven- 
 teenth of June (which we may remember is Bunker 
 Hill Day), in the debate on the admission of Cali- 
 fornia, Mr. Webster declared that he had, in 
 deference to the critics who had assailed him, re- 
 
 ' The original of this letter is in the Congressional Library. 
 
172 Daniel Webster 
 
 examined his opinions, and rejudged his own judg- 
 ments, but that he could not part from his own 
 settled opinions, and must " leave consequences to 
 themselves." He concluded his five minutes' 
 speech with the following patriotic words : 
 
 " Sir, My object is peace. My object is reconciliation. My 
 purpose is not to make up a case for the North or to make up 
 a case for the South. My object is not to continue useless and 
 irritating controversies, I am against agitators North and 
 South, and against all narrow and local contests. I am an 
 American and I know no locality in America; that is my 
 country. My heart, my sentiments, my judgment, demand of 
 me that I shall pursue such a course as shall promote the good 
 and the harmony and the Union of the whole Country — This 
 I shall do, God willing, to the end of the chapter." * 
 
 The legislation which was adopted in 1850 was 
 on the lines of the Seventh of March speech : Cali- 
 fornia was admitted as a free State. And here we 
 must pause to note that this for the first time gave 
 the free States a majority in the Senate. It was 
 this circumstance that had alarmed Calhoun. For 
 thirty years the number of Senators from the slave 
 States had equalled that from the free States. 
 Massachusetts was divided in 1820, and Maine ad- 
 mitted as a separate State, in order to counter- 
 balance the admission of Missouri as a slave State. 
 
 To New Mexico and Utah was oriven a terri- 
 torial government. Its organic law contained no 
 prohibition of slavery. 
 
 A fugitive slave law was passed. Webster in- 
 troduced and endeavored in vain to secure the 
 
 'Webster's Works, vol. v., p. 385. 
 
The Constitution and Slavery 173 
 
 passage of an act giving to the alleged fugitive 
 the right of trial by jury.^ This, however, did 
 not pass. 
 
 The traffic in slaves in the District of Columbia 
 was prohibited. 
 
 In addition to the measures thus briefly stated, 
 the compromise included the settlement of the dis- 
 pute between the United States and Texas as to 
 the boundaries of that State. Texas was paid ten 
 million dollars, and she ceded to the United States 
 the disputed territory — now a part of Wyoming, 
 Colorado, Kansas, Oklahoma and New Mexico. 
 The country generally acquiesced in this Com- 
 promise of 1850. When, in 1852, General Scott 
 was nominated for the Presidency by the dissatisfied 
 section of the Whig party, he carried but four 
 States, Vermont, Massachusetts, Kentucky, and 
 Tennessee. Every other of the thirty-one States 
 voted for Franklin Pierce. He had been brought 
 forward as " a dark horse," to use a modern phrase, 
 because he was known to be a colorless man against 
 whom there was no prejudice. He stood on a 
 platform pledged to the approval and maintenance 
 of the Compromise of 1850. The desire for peace 
 was almost universal, and the peace candidate was 
 triumphantly elected. 
 
 In an evil hour, Douglas revived the agitation in 
 1854. A fundamental element in the Compromise 
 of 1850 was that there should be no further exten- 
 sion of the area of slavery. When Douglas pro- 
 posed that the voters of Kansas and Nebraska 
 
 ■ Webster's Works, vol. v., p. 373. 
 
174 Daniel Webster 
 
 should decide this question for themselves, and in- 
 troduced a bill which repealed the prohibition of 
 slavery contained in the Missouri Compromise of 
 1820, it became plain that this essential considera- 
 tion for the Northern concessions was to be repu- 
 diated. The fountains of the great deep were 
 broken up. War came, and that war gave us ab- 
 solute emancipation. 
 
 In that war our great leader was Abraham Lin- 
 coln. He in his time received as much abuse from 
 extreme men on both sides as did Mr. Webster. 
 But his assassination made him a martyr. His- 
 tory has told the truth of him. And when a curi- 
 ous poll was made of one hundred prominent 
 Americans to determine the names that should be 
 inscribed on the Hall of Fame of the New York 
 University, the three names that obtained their 
 unanimous verdict were Washington, Webster and 
 Lincoln. Let us therefore compare the positions 
 taken in the seventh of March speech, with Mr. 
 Lincoln's first inaugural.^ In this the President 
 distinctly declares in favor of the maintenance in- 
 violate of " the rieht of each State to order and 
 control its own domestic institutions according to 
 its own judgment exclusively." He declares that 
 the Constitution requires " the reclaiming of what 
 we call fugitive slaves " and that an oath to support 
 the Constitution is an oath to give support " to this 
 provision as much as any other." 
 
 When Mr. Lincoln on the 6th of March, 1862, 
 sent to Congress his message recommending Con- 
 
 ' Lincoln's Works, vol. ii., pp, 1-7. 
 
The Constitution and Slavery 175 
 
 gress to provide for pecuniary aid to any State 
 which should abolish slavery/ he advocated the 
 true policy, which it would have been wise for both 
 North and South to have adopted. In his message 
 of December ist, he renews this recommendation,^ 
 describing it as "compensated emancipation." 
 
 And as late as the 5th of February, 1865, Lincoln 
 presented to his Cabinet a message to Congress 
 offering four hundred million dollars to the fifteen 
 slave States (as they were in i860), to be distributed 
 pro rata on their respective slave populations, as 
 shown by the Census of i860, on condition that 
 " all resistance to the National authority shall be 
 abandoned and cease on or before the ist of April 
 next."-^ 
 
 He recommended this plan, as he had his prior 
 plan,* by calling attention to the fact that its cost 
 would be much less than the cost of the war. It 
 seems strange that this proposition of Mr. Lincoln's, 
 so fair, and so frequently renewed, should not have 
 been accepted by a single slave State. It seems 
 strange that such a solution does not appear to 
 have occurred to any of the great men, who in 1850 
 were endeavoring to adjust amicably the differences 
 between the North and the South. Colonization 
 in Africa was proposed. Liberia was founded as a 
 nucleus for this movement. In the speech we are 
 now considering, Webster declared that if the South 
 should propose "a scheme to be carried on by this 
 Government, upon a large scale, for the transporta- 
 
 ' Lincoln's IVorks, vol. ii., p. 129. "^ Ibid., p. 268. 
 
 ^ Ibid., p. 635. ^ Ibid., p. 210. 
 
176 Daniel Webster 
 
 tion of free colored people to any colony, or any 
 place in the world," he would favor the use for this 
 purpose of a sum equal to the amount already re- 
 ceived by the United States from the proceeds of 
 lands ceded by Virginia, amounting then to eighty 
 milHon dollars, and likely to reach the sum of two 
 hundred millions.^ But the South needed and still 
 needs the colored people. Their development as 
 a race has progressed and will progress better here 
 than in Africa. They were fated to be free here in 
 America. And, as the South refused voluntary 
 emancipation, it came with fire and sword. Never- 
 theless, it did come. The difficulties that the more 
 intelligent Southerners foresaw, and which we must 
 now admit palliated their refusal, are now upon us. 
 They can only be overcome by the exercise of the 
 same spirit of moderation, of sympathy, of mutual 
 consideration, which characterizes the seventh of 
 March speech, and which always has been the most 
 odious spirit to zealots on both sides.^ 
 
 'Webster's Works, vol. v., p. 364. 
 
 '' It is a notable fact that in the winter of 1860-61, " with a Republican 
 majority in both branches, Acts organizing the Territories of Colorado, 
 Dakota and Nevada were passed without containing a word of prohibition 
 on the subject of slavery . . . the Republican party took precisely the 
 same ground held by Mr. Webster in 1850, and acted from precisely the 
 same motives that inspired the 7th of March speech." — Blaine, Twenty 
 Years in Congress, vol. i., pp. 269-271. 
 
CHAPTER XX 
 
 CONCLUSION 
 
 The principles which in the leading cases, sum- 
 marized in the foregoing chapters, Webster suc- 
 cessfully maintained against the adverse decisions 
 of the courts below, underlie our whole American 
 system. Mr. Everett tells us that what gave to 
 Lafayette his spotless fame was "the living love of 
 liberty protected by law." What has given to this 
 country its greatness is its well-ordered freedom, 
 protected and secured by the Union ; liberty secure, 
 union equal. No individual or citizen of one State 
 may have privileges secured to him by law superior 
 to the privileges of others. On the other hand, 
 every citizen is protected by law in the acquisition 
 of property and in the enjoyment of his personal 
 rights. So long as American courts respect the 
 principles thus established, and America combines 
 public freedom with individual security, so long 
 shall a grateful people cherish the memory of the 
 Expounder of the Constitution, the farmer boy of 
 Salisbury, the eloquent, farseeing lawgiver and 
 lawyer, Daniel Webster. 
 
 He was the one man in American history to 
 whom during his lifetime the epithet of godlike 
 was applied. It did not, in his case, arouse any 
 
 12 
 
178 Daniel Webster 
 
 feeling of surprise. His character, his features and 
 his form alike justified its application. 
 
 Whittier aptly describes his personal appearance : 
 
 / " New England's stateliest type of man, 
 In port and speech Olympian: 
 Whom the rich heavens did so endow 
 With eyes of power and Jove's own brow, 
 
 ■ Whom no one met, at first, but took 
 
 A second awed and wondering look! " 
 
 Ball's Statue in the New York Central Park gives 
 us Webster's shape and figure. But, unfortunately, 
 the artist had not the genius of St. Gaudens, whose 
 Lincoln and Farragut seem on the point of speak- 
 ing-. It needs imagination to breathe into this 
 statue the breath of life. 
 
 Webster's voice both in volume and quality was 
 unsurpassed by that of any American orator. Even 
 at the age of seventy, when he delivered his ora- 
 tion before the Historical Society, his peroration 
 rose and swelled and reverberated in perfect har- 
 mony through the great hall. The sonorous Greek 
 of his quotation from the book of Revelation re- 
 sounded as if the angel himself were there, who 
 " came down from heaven, having great power, and 
 the earth was lightened with his glory." 
 
 All the living force of this personality, the con- 
 structive genius of the lawgiver, the learning of the 
 lawyer, he put at the service of his country. 
 
 There are some who think that it elevates the 
 race to underrate the influence of individuals. It 
 has been said that the greatest man is but little in 
 advance of his time, and is to the advancing flood 
 
Conclusion 179 
 
 what the crest of the wave is to the billow below. 
 The proposition is pleasing to small minds. Since 
 they cannot rise themselves, it flatters their vanity 
 to diminish the interval which separates them from 
 the leaders of mankind. But the plainest teachings 
 of history and the most ordinary facts of everyday 
 life must be disregarded in order to maintain this 
 ingenious hypothesis. 
 
 The traveller who stands in the Union Station at 
 Chicago beholds numerous tracks side by side, all 
 apparently leading in the same direction. A man 
 at one end of the station moves an iron rod, and 
 one train, obedient to the steel ribbons on which it 
 rolls, passes away to the East. He moves another, 
 and the next train departs for the West ; and so 
 they go, parallel at first, but diverging as far as the 
 waters of the Atlantic are from the Golden Gate 
 of the Pacific. Such is the influence of individuals 
 upon nations. The bigotry and cruelty of Philip 
 brought the proud Castilian monarchy of Ferdi- 
 nand and Isabella to the dust. The weakness and 
 selfishness of Charles humiliated and degraded the 
 great nation which with Cromwell at its head re- 
 ceived the respect and deference of all Europe. The 
 same army which was discomfited and driven back 
 at Chancellorsville carried the banners of the Repub- 
 lic in triumph upon the bloody field of Gettysburg. 
 
 Great men elevate and ennoble their countrymen. 
 In the glory of our Webster, we find the glory of 
 our whole country. His name and his fame are the 
 birthright of every American citizen. 
 
TABLE OF CASES 
 
 PAGE 
 
 Amedie, The . ...... . , 66 
 
 American Insurance Co. vs. Canter .... 70 
 
 Antelope, The ........ 65 
 
 Atlantic and Pacific Telegraph Co. vs. Philadelphia . 56 
 
 Bank of Augusta vs. Earle ...... 124 
 
 Caldwell vs. North Carolina ...... 56 
 
 Carver vs. Astor's Lessee ...... 76 
 
 Charles River Bridge vs. Warren Bridge . . .121 
 
 Charleston, City Council of, ads. Weston ... 44 
 
 Dartmouth College vs. Woodward .... 16 
 
 De Lima vs. Bidwell ....... 74 
 
 Diamond Glue Co. vs. United States Glue Co. . . 125 
 
 Dooley vs. United States ...... 74 
 
 Downes vs. Bidwell ....... 74 
 
 Fairbanks vs. United States 43 
 
 Fortuna, The ......... 66 
 
 Fourteen Diamond Rings vs. United States ... 74 
 
 Gibbons vs. Ogden 47, 152 
 
 Gonzales vs. Williams ....... 74 
 
 Hanley vs. Kansas City Southern Ry. Co. ... 56 
 
 Hawaii vs. Mankichi ....... 74 
 
 Head Money Cases 152 
 
 Henderson vs. Mayor of New York . . . -151 
 
 Huus vs. New York and Porto Rico Steamship Co. . 74 
 
 Inman S. S. Co. vs. Tinker 153 
 
 La Jeune Eugenie ........ 63 
 
 Le Louis .......... 66 
 
 Lexington, The 129 
 
 Luther vs. Borden 13^ 
 
 Madrazo vs. Willes (id 
 
 181 
 
I 82 
 
 Table of Cases 
 
 McCuUoch vs. Maryland 
 
 Miller vs. The State 
 
 New Jersey Steam Navigation Co. vs. Merchants Bank 
 
 of Boston 
 New Orleans vs. United States 
 New York vs. Miln 
 Norris vs. City of Boston 
 Ogden vs. Saunders 
 Passenger Tax Cases ..... 143, 15 
 Pawlet, Town of, vs. Clark 
 People ex rel. Metropolitan Street Railway Co. vs Tax 
 
 Commissioner . 
 People vs. O'Brien 
 People z'j. O'Farrell 
 Prigg vs. Pennsylvania . 
 Rhode Island, State of, vs. Commonwealth of Massa 
 
 chusetts . 
 Smith vs. Turner 
 Society for Propagation of the Gospel in Foreign Parts 
 
 vs. Town of New Haven 
 Society for Propagation of the Gospel in Foreign Parts 
 
 vs. Town of Pawlet 
 Sturges vs. Crowninshield 
 United States vs. Bevans 
 Van Rensselaer vs. Kearney 
 Vidal vs. Girard's Executors 
 West River Bridge vs. Dix and Towns of Brattleboro 
 
 and Dummerston 
 Western Union Telegraph Co. vs. Borough of New 
 
 Hope 
 
 Weston vs. City Council of Charleston 
 
 PAGE 
 
 34 
 26 
 
 130 
 118 
 
 143 
 144 
 
 67 
 
 166 
 
 13 
 
 26 
 
 26 
 
 128 
 
 167 
 
 130 
 144 
 
 15 
 
 92 
 68 
 
 15 
 154 
 129 
 
 134 
 
 56 
 
 44 
 
INDEX 
 
 Admiralty jurisdiction, 15, 71 ; in 
 
 inland waters, 130 
 Amendments, Constitutional, 140 
 American Insurance Co. vs. Canter, 
 
 70 
 Atlantic & Pacific Telegraph Co. 
 
 vs. Philadelphia, 56 
 
 B 
 
 Ball, Thomas, Statue of Webster 
 by, 178 
 
 Bank, Baltimore Branch, 36 
 
 Bank of Augusta vs. Earle, 124 
 
 Bank of the United States, 34; 
 Power of Congress to charter, 39 
 
 Bank of the United States vs. 
 Primrose, 124 
 
 Bankruptcy law, 67 
 
 Banks, Act to tax. State of Mary- 
 land, 36 
 
 Banks, State, 36, 43 
 
 Benton, Thomas H., sales of public 
 lands, 76, 78 
 ' Best, Justice, on slave trade, 66 
 
 Blaine, James G., action Republi- 
 can party, i860, 176 ; opinion 
 on 7th of March speech, 164 
 
 Blatchford, R. M., letter from 
 Webster on Passenger Tax cases, 
 146 
 
 Boundary controversy, Rhode Island 
 and Massachusetts, 130 
 
 Bridge, Charles River, vs. Warren, 
 121 
 
 Calhoun, John C, last speech in 
 Senate, 165 ; opposing Force Bill, 
 95 ; slavery in U. S. territory, 74, 
 161 ; vote for Force Bill, 114 
 
 California, annexation and admis- 
 sion, 162; debate on admission, 
 171 
 
 Carver vs. Astor's Lessee, 76 
 
 Catron, Justice, 147 
 
 Choate, Rufus, Norris vs. City of 
 Boston, 145; Rhode Island 
 boundary case, 130 
 
 Clay, Henry, 157; letter from 
 Webster on approaching Congress 
 (1831), 93; tariff bill, 114 
 
 Clayton, John M., tariff bill, 114 
 
 Cleveland, Grover, Failure of Con- 
 gress to support, 117 
 
 Colonization, Negro, 175 
 
 Commerce, American, in foreign- 
 built ships, 133 ; passenger travel 
 as, 145 ; power of Congress to 
 regulate, 51 
 
 Compromise of 1S50, 172 
 
 Congress, Power of, to charter a 
 bank, 39 ; to govern acquired ter- 
 ritory, 70; to regulate commerce, 
 145 ; to regulate immigration. 
 
 145 
 Constitution, New Hampshire, 19 ; 
 Rhode Island (Dorr Rebellion), 
 137; State of New York, 1S46, 
 formation of corporations, 17 
 
 i83 
 
1 84 
 
 Index 
 
 Constitution United States, accepted 
 as a whole, gg; analysis of, g7 ; 
 first to recognize supremacy of 
 courts, 2; not a compact but a 
 union, 102; not a league but a 
 government, g6, loi ; supremacy 
 of, 87 
 
 Corporation, State as a, 126 
 
 Corporations, Formation of, under 
 Constitution of State of New 
 York, 17; right of, to transact busi- 
 ness and bring suit in other States, 
 124 ; right of State to repeal 
 charter, 26; rights of, under power 
 of eminent domain, 135 ; taxation 
 of a franchise in New York, 26 ; 
 Webster on franchise as property, 
 22 
 
 Cotton, Interests of, demand slavery, 
 166 
 
 Crawford, Rev. Andrew J., letter 
 from Andrew Jackson, 114 
 
 Currency, State Bank, Disadvan- 
 tages of, 43 
 
 D 
 
 Dane, Nathan, Ordinance of 1787, 
 
 77 
 Daniels, Justice, 147 ; in case of 
 
 the Lexington, 1 31 
 Dartmouth College Case, 15 ; Story 
 
 manuscript, 27 
 Dorr, Thomas W., Rebellion, 137 
 Douglas, Stephen A., bill to repeal 
 
 Missouri Compromise, 173 
 Duval, Justice, 41 
 
 Emancipation, Lincoln's plan for, 
 
 175 
 Emerson, R. W., Fugitive Slave 
 
 Law, 157 
 Everett, Edward, letter to Webster 
 
 on reply to Hayne, 86 
 
 Faneuil Hall, closed against Web- 
 ster, i6g ; opened again, i6g 
 
 Fitch, John, right to use steam 
 vessels in New York waters, 47 
 
 Florida, Webster on government of, 
 
 71 
 
 Foot, S. A., resolution to limit sales 
 of public lands, 76 
 
 Force Bill, brief for reply to Cal- 
 houn, g7 ; debate on, g ; intro- 
 duced, gs ; passed, 114; Webster's 
 reply to Calhoun, gs 
 
 Franchise, as property, 122 ; emi- 
 nent domain over, 134 
 
 Free States, majority in Senate, 172 
 
 Fugitive Slave Law, binding on all, 
 167 ; passed, 172 ; trial by jury, 
 
 173 
 Fulton, Robert, right to use steam 
 vessels in New York waters, 47 
 
 G 
 
 Garrison, William Lloyd, Fugitive 
 
 Slave Law, 162 
 Gibbons vs. Ogden, 47 
 Girard Will case, I2g 
 Gore, Christopher, Webster student 
 
 in office of, 12 
 Great Appeal Case from Alabama, 
 
 126 
 Grier, Justice, 147 
 
 H 
 
 Harvey, Peter, report of conversa- 
 tion with Webster on Gibbons vs. 
 Ogden, 56 
 
 Hayes, R. B., election of 1876, 
 158 
 
 Hayne, R. Y., speech on Foot reso- 
 lutions, 76 ; Webster's reply to, 
 uttered and printed language com- 
 pared, 85 ; Webster's summary of 
 Hayne's argument, 87 
 
Index 
 
 185 
 
 Henderson vs. Mayor of New York, 
 151 
 
 Henry, Patrick, on preamble to 
 Constitution, 9 
 
 Hitchcock, Roswell D., negro 
 question, 160 
 
 Holmes (of New Hampshire), coun- 
 sel in Dartmouth College vs. 
 Woodward, 29 
 
 Hope Mills, 80 
 
 Hopkinson, Joseph, counsel in 
 Dartmouth College vs. Wood- 
 ward, 29 ; counsel in McCuUoch 
 vs. Maryland, 36 
 
 Houston, Samuel, right of Territory 
 to legislate, 165 
 
 Immigration, 143 
 
 Inman Steamship Co. vs. Tinker, 
 153 
 
 Jackson, Andrew, letter to Rev. S. 
 
 J. Crawford, 114; Webster on 
 
 veto of bill to extend charter of 
 
 U. S. Bank, 40, 1 16 
 Jay, John, corrects Webster in Van 
 
 Rensselaer vs. Kearney, 155 
 Johnson, Justice, 41 
 Jones, Mr., opposing counsel in 
 
 McCuUoch vs. Maryland, 36 
 
 K 
 
 Kent, Chancellor, on Webster's re- 
 ply to Hayne, 82, 93 
 Key West, Salvage court at, 71 
 Kruger, Oom Paul, right to inter- 
 pret statutes, 21 
 
 Land grant. Governor of New 
 Hampshire to town of Pawlet, 14 
 
 Letter, Edward Everett to Webster, 
 86 ; Andrew Jackson to A. J. 
 Crawford, 114 ; Chief Justice 
 Marshall to Webster, 45 ; Fran- 
 cis Lieber to Webster, 170; 
 John H. Pleasants to Webster, 
 84 ; Stockton to Webster, 65 ; 
 Fletcher Webster to Webster, 91; 
 Webster, to Blatchford, 146 ; to 
 Clay, 93 ; to Jeremiah Mason, 
 86 ; to Enoch Parsons, 44 ; to 
 William Pope, 90 ; to William 
 Sullivan, 94 ; to Fletcher Web- 
 ster, 141; to William Wirt, 32 
 
 Lexington, the, Case of, 130 
 
 Lieber, Francis, letter to Webster 
 on speech for Constitution and 
 Union, 170 
 
 Lincoln, Abraham, comparison with 
 Webster's 7th of March speech, 
 iv., 174 ; compensated emancipa- 
 tion, 175 
 
 Livingston, Brockholst, in McCul- 
 loch vs. Maryland, 41 
 
 Livingston, Robert R., right to 
 use steam vessels in New York 
 waters, 48 
 
 Livy, motto for speech for Constitu- 
 tion and Union, 169 
 
 Lodge, Henry Cabot, right of seces- 
 sion, 10 
 
 Lowell, James Russell, slavery, 160 ; 
 vote as elector in 1876, 158 ; 
 Webster's attitude on slavery, 159 
 
 M 
 
 Marshall, Chief Justice, American 
 Insurance Co. vs. Canter, on 
 government of acquired territory, 
 72 ; centennial of accession, 6 ; 
 Dartmouth College vs. Wood- 
 ward, 24 ; Gibbons vs. Ogden, 
 54, 61; letter to Webster, 45; 
 McCuUoch vs. Maryland, 41,- 
 New York vs. Miln, 144 
 
1 86 
 
 Index 
 
 Martin, Luther, Counsel in Mc- 
 CuUoch vs. Maryland, 36 
 
 Mason, Jeremiah, Dartmouth Col- 
 lege vs. Woodward, 28 ; letter 
 from Webster on reply to Hayne, 
 86 
 
 McCulloch vs. Maryland, 34 ; Jus- 
 tices concurring with Chief Justice 
 MarshaR, 41 
 
 McKinley, Justice, Passenger Tax 
 cases, 147 
 
 McLean, Justice, Passenger Tax 
 cases, 144, 147 
 
 Mexico, Cause of war with, 162 
 
 Mexico, New, see New Mexico 
 
 Miller, Justice, Henderson vs. 
 Mayor of New York, 151 
 
 Miller vs. The State, charter of cor- 
 poration, 26 
 
 Missouri Compromise line in Texas, 
 167 
 
 N 
 
 Napoleon, decree against slave 
 
 trade, 64 
 Negro question, colonization, 175 
 Nelson, Justice, Passenger Tax 
 
 cases, 147 
 New Hampshire, Bill of Rights, 19 
 New Jersey Steam Navigation Co. 
 vs. Merchants Bank of Boston, 
 130 
 New Mexico, annexation, 162 ; sla- 
 very impossible in, 167 
 New Orleans vs. United States, iiS 
 New York vs. Miln, 143 
 Norris vs. City of Boston, 144 
 Nullification, 78, 81, 93, 96, 99, 
 III, 115 
 
 Parsons, Enoch, letter from Web- 
 ster to, 44 
 
 Pauper immigration, 150 
 
 People, source of all political power, 
 
 139 
 People vs. O'Brien, franchise as 
 
 property, 26 
 Pierce, Franklin, election of 1852, 
 
 173 
 
 Pinkney, William, counsel in Mc- 
 Culloch vs. Maryland, 36 ; motion 
 for re-argument, Dartmouth Col- 
 lege case, 23 
 
 Pleasants, John H., letter to D. 
 Webster on reply to Hayne, 84 
 
 Pope, William, letter from Webster 
 on reply to Hayne, 90 
 
 Prigg vs. Pennsylvania, 167 
 
 Primrose vs. United States Bank, 
 124 
 
 Quarantine, power of State to pass 
 laws, 150 
 
 R 
 
 Religious instruction, Girard Will 
 case, 129 
 
 Representative government, Growth 
 and formation of, 140 
 
 Revolution, English (1688), 141 
 
 Richardson, Chief Justice, in Dart- 
 mouth College case, 19 
 
 Scott, Sir William, Lord Stowell, 
 
 66 
 Scott, General, election of 1852, 
 
 173 
 Secession, 80, 98, 106 ; abolitionists 
 in favor of disunion, 162 ; Peace- 
 able, impossible, 168 ; Webster's 
 prophecy of war, importance of 
 postponing, 163 
 
Index 
 
 187 
 
 Slavery, 157 ; in U. S. territory, 
 74 ; situation in 1850, 160 ; stage 
 of evolution, 161 ; Webster's view 
 of, 158, 166 
 
 Slave trade, cases cited. La Jeune 
 Eugenie, Antelope, 65 ; Amedie, 
 Fortiina, Le Louis, Madrazo vs. 
 Willes, 66 ; question of suppress- 
 ing, 63 
 
 Smith, Jeremiah, Dartmouth Col- 
 lege vs. Woodward, 28 
 
 Smith vs. Turner (port of New 
 York), 144 
 
 Society for the Propagation of the 
 Gospel in Foreign Parts vs. Town 
 of New Haven, 15 ; vs. Town of 
 Pawlet, 92 
 
 Specie payments, 35 
 
 Spencer. Herbert, slavery as evolu- 
 tion, 161 
 
 State rights, 100, 127 
 
 States' Rights party celebration, 
 July 4, 1831, 93 
 
 States, Power of, to tax immigrant 
 passengers, 143 ; to tax instru- 
 ment of National Government, 
 
 37, 43 
 
 Steam vessels, Right to use, in New 
 York waters, 47 
 
 Stockton, Commodore, letter to 
 Webster on slave trade, 64 
 
 Story, Justice, Dartmouth College 
 vs. Woodward, 25 ; La Jeune 
 Eugenie, 65 ; McCulloch vs, 
 Maryland, 41; manuscript review 
 on Webster in Dartmouth Col- 
 lege case. Preface iv., 29 ; New 
 York vs, Miln, 144 ; Webster's 
 argument. Gibbons vs. Ogden, 59 
 
 Stowell, Lord, Sir William Scott, 
 on slave trade, 63 
 
 Sullivan, William, Counsel in La 
 yeune Eugenie, 64 ; letter from 
 Webster on Nullification Ordi- 
 nance, 94 
 
 Swayne, Justice, in Inman S. S. Co. 
 vs. Tinker, 153 
 
 Taney, Chief Justice, great Appeal 
 Case from Alabama, 128 ; Passen- 
 ger Tax cases, 145 
 
 Tariff, Clay's bill, 1833, 94 ; Nulli- 
 fication Ordinance, 94 ; Jackson's 
 opinion of, 115 ; Passenger Tax, 
 145 ; protective tariff claimed to 
 be unconstitutional, 80 
 
 Tax, power of States to tax immi- 
 grant passengers, 143 ; to tax in- 
 strument of National Government, 
 37, 43 
 
 Taxation, of banks, 37 ; Uniformity 
 of, in United States, 149 
 
 Texas, Annexation of,i62 ; Missouri 
 Compromise line in, 167 
 
 Tilden, Samuel J., election of 1876, 
 158 
 
 Town of Pawlet vs. Clark, 13 
 
 Treaty, Louisiana, 118; Paris, 
 1783, 8 ; Spain, Florida Purchase, 
 70, 73 ; United States and Great 
 Britain, Passenger Tax conflicts 
 with, 148 
 
 U 
 
 United States Bank, see Bank 
 United States Bank, Second, 35 ; 
 Jackson's veto, 40, 116 
 
 Van Rensselaer vs. Kearney, 154 
 Van Rensselaer, John J. and Jere- 
 miah, 154 
 Vidal vs. Girard's Executors, 129 
 
 W 
 
 Warren Bridge, 122 
 Washington, Justice, McCulloch vs. 
 Maryland, 41 
 
1 88 
 
 Index 
 
 Wayne, Justice, in Passenger Tax 
 cases, 144; on Webster's argu- 
 ments. Gibbons vs. Ogden, 60 
 
 Webster, Daniel, birth, early condi- 
 tions, 7 ; student, early profes- 
 sional life, marriage, election to 
 Congress, 12 ; criticism and ap- 
 probation of speech for the Con- 
 stitution and the Union, 169, 170 ; 
 funeral. Preface iii. ; letter to 
 Wirt on Dartmouth College case, 
 32 ; on his own argument in Gib- 
 bons vs. Ogden, 56 ; personal at- 
 tributes, 178 ; Secretary of State, 
 129; speech at dinner in New 
 York, March 10, 1831, 82 ; speech 
 before New York Historical So- 
 ciety, 178 ; variety of talent, 91 
 
 Webster, Fletcher, letter to D. 
 Webster on reply to Hayne, 91; 
 letter from Webster, 141 
 
 West River Bridge Co. vs. Dix and 
 Towns of Brattleboro and Dum- 
 merston, 134 
 
 Whittier, J. G., Webster's attitude 
 on slavery, 159 ; lines on Web- 
 ster, 178 
 
 Wilkins, William, introduces Force 
 Bill, 95 
 
 Wirt, William, Counsel Dartmouth 
 College Case, 29 ; in McCulloch 
 vs, Maryland, 36 ; letter from 
 Webster on Dartmouth College 
 case, 32 
 
 Wood, George, counsel in Van 
 Rensselaer vs. Kearney, 155 
 
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THE UNITED 5TATE5: A HISTORY 
 
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Christopher Columbus 
 
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