Class liiiok I'RICSK.NTi;^ iiy ^- WEBSTER'S WORK FOR THE UNION BERGEN WEBSTER'S WORK FOR THE UNION Neque eniin iilla res est, in qua propius ad deonim numen virtus accedat humana, quam civitates aut condere uovas uut t'ouservare jam eoiiditas. Cicero, de Republica. /^^^.^S;. WEBSTER'S WORK FOR THE UNION A PAPER READ BEFORE THE FORTNIGHTLY CLUB, NEWARK, NEW JERSEY BY FRANK BERGEN, LL.D. XEW HAVEN PRINTED FOR THE AUTHOR UNDER THE DIRECTION OF THE YALE UNIVERSITY PRESS MDCCCCXVIII Lfeja-Cj /^ Copy 2. ' COPYRIGHT 1918 BY YALE UNIVERSITY PRESS This edition Jirst iniilished, June, 191S ikmiv- 1318 With the conipliments of Frank Bergen I NO TE '"r^IIE following paper \vas prepared for the purpose of bring- I ing out a little more distinctly than elsewhere (1) the plight from which Daniel Webster rescued the constitution; (2) the fact that in March, 1850, he was not behind the spirit of the times in dealing as a statesman with the menacing problem of slavery; and (3) that his personal opinions on the subject of slavery were quite in harmony with the sane sentiment of his countrymen in the decade before the civil war. For the use of the portrait of "Webster I am indebted to Houghton, Mifflin Co., by whom it was published in Lodge's Life of Webster; and to J. B. Lippincott Co. for the facsimile of a letter by Lincoln to Chase, published by them in Lee's True History of the Civil War. F. B. Elizabeth, N. J., June, 1918. i WEBSTER'S WORK FOR THE UNIOX MR. GLADSTONE once said: ''Tlio American constitution is the most wonderful work ever struck off at a given time ])y the l)rain and purpose of man." Gladstone often failed in Jiis efforts to tell the truth, and he seldom failed more completely than when he made that statement. If he had kno^^^l as much about the American constitution as he may have kno\\Ti about Greek, and had ever learned to make a re- mark in English with less than two meanings, he might have said that the building of the republic of the United States under the supposed or alleged authority of the constitution is one of the most wonderful works ever accomplished by the brain and purpose of man within a period of eighty years. I have never been able to find out definitely whether the draft of the constitution as it came from the conven- tion held at Philadelphia in 1787 expressed the agreement of the delegates or delegations from the states as clearly as they might have expressed it if they had dared to be candid, or was an effort to do a good thing by stealth. There is evidence to support both views ; indeed, there is so much evidence to support either view as to make con- troversy interminable and the ascertainment of the truth impossible. Important, provisions of the constitution which were rejected, when proposed in plain language in the convention, afterwards appeared in the final draft in 8 WEBSTER'S WORK covert forms of expression. The important contract clause was rejected when offered by Riifus King, and afterwards inserted by the committee on style, and so approved with the rest by the final vote. Besides, after the constitution was adopted, other provisions that prob- ably would not have been admitted if expressed in lucid paragraphs, were discovered lurking among the loose joints of other powers, which, when examined separately, did not offend the delegates of a majority of the states. The most notable instance of this kind consisted of the proposals to confer on the federal government power to annul legislation or proceedings of the states inconsistent with the constitution. The first plan of a constitution submitted (Randolph's) contained a provision to author- ize congress to negative all acts contrary, in its opinion, to the constitution or to any treaty, and to use force to compel obedience by the states. The second (Charles Pinckney's) proposed to give congress power to revise state laws supposed to conflict with the constitution, and to negative and annul them if found inconsistent. The third (Paterson's) provided that if any state or body of men should oppose or prevent the enforcement of any act of congress or a treaty, the federal executive should have power to compel obedience by force. The next (Hamilton's) declared that all laws of the states incon- sistent with the constitution and acts of congress should be null and void. This was followed by a motion of Charles Pinckney to vest in congress the power to nega- tive all laws passed by the several states interfering, in the opinion of congress, with the general interest and harmony of tlic union. Not one of these proposals was ado])ted, although some of thorn were pressed vigorously; bill tlK'ii' ol)ject was substantially accomplished by other FOR THE UNION 9 provisions fouiul in the constitution, when construed together. The second section of the sixth article declares that the constitution and all laws and treaties made under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, notwithstanding anything in the constitution or laws of any state. x\nd in the second section of the third article it is provided that the judicial power shall extend to all cases in law and equity arising under the constitu- tion, the laws of the United States, and treaties, and to some other matters. Consequently, when it was held that the courts had authority to declare acts of congress incon- sistent with the constitution to be void, and acts of the legislatures of the states inconsistent with the constitu- tion, or with acts of congress or treaties, also to be void, it was found that the stone which the builders at first rejected had become the head of the corner of the national government, and many good people marveled when they learned the fact. Moreover, the constitution contained three compro- mises relating to a dangerous matter, and as they were compromises with evil they were not likely to endure. In this way the constitution came to be charged with such stuff as storms are made of, — whether wittingly or not I cannot say. In considering this subject it should be remembered that many of the delegates who attended the convention were practical politicians — among the most useful members of the human family — equipped by long experience in the minor arts of statecraft, and who grew to the stature of statesmen after they died. One extrava- gant statement does not justify another, but in place of the remark of Gladstone it would be more accurate to 10 WEBSTER'S WORK say that for three-fourths of a century the original con- stitution was the fruitful mother of discord, which could not be suppressed permanently by the compromises of Clay, the oratory of Webster, nor by the soothing syrup compounded by Everett and labeled Washington. I do not think it is possible to obtain a correct view of Webster's work for the union without recalling the status of the constitution in the public mind prior to 1830 when the debate with Hayne occurred. Did the constitution create a national government, a federal government, or a more perfect union of the states than that which had been formed by the articles of confederation and per- petual union? Our present view of the constitution, as it tow^ers over a large part of the world, makes it some- what hard to realize how it was regarded in 1789. It is now regarded as a constitution operating directly on in- dividuals, and also on states. The government created by it is national, and has the exclusive right to define the extent and limit of its powers. The constitution was not so understood when it was adopted, and for many years afterwards, although for a time Hamilton was permitted, if not invited, by Washington and the first and second congress, to construe it as he pleased, in tlio hope of getting the new government under way. If the original constitution is considered as a revision of the articles of confederation, as in large part it was, and is examined from the standpoint of the historian, abundant information may be found to sustain a cogent argument that it was a compact between sovereign states creating a federal government or continuing a con- federacy, from which any state might withdraw at will. The constitution was framed bv delegates sent to the con- vention bv tlic states; tliev voted in tlie convention l'\ FOR THE UNION 11 states; their object, as declared in the constitution, was "to create a more perfect union," that is, a more perfect union of the states. The draft of the constitution was submitted to the states for adoption; it was adopted by conventions elected by the people of the several states — not by the jjeople of the United States en masse; it bound no state that did not adopt it ; and it provided that when ratified by nine states it should be established as between them. The constitution also provided that the states should be represented in congress and equally in the senate; that they might appoint presidential electors in any way they pleased; that in case of a tie in the elec- toral college a president should be elected by the house of representatives voting by states, and that it might be amended by the states. The principal arguments pre- sented to the people in favor of the adoption of the con- stitution constitute the Federalist, not the Nationalist, and the party subsequently organized to sustain the ad- ministration of Washing-ton and of the elder Adams was called the Federal party. Senator Lodge, in his life of Webster, forgetting for a moment the letter written by Madison to Hamilton while the New York convention was debating the con- stitution, says: "When the constitution was adopted it is safe to say there was not a man in the country, from Washington and Hamilton, on the one side, to George Clinton and Mason, on the other, who regarded the new system as anything but an experiment by the states, from which any state had a right practically to withdraw, a right which was very likely to be exercised." Tliat state- ment, like many others in histories of the United States and in biographies of Americans, is too l)road and em- phatic. No doubt many of the people so understood the 12 WEBSTER'S WORK constitution. Hamilton was dissatisfied with it, and probably believed that a government estabhshed under it could not endure; but as the constitution prepared by the convention offered the only chance to change the league of states into a nation, he rallied his friends around him and strove mightily to secure its adoption. Ilis splendid intelligence may have discerned possibilities in the proposed constitution which others did not or could not see. Ten years after the constitution was adopted the Kentucky resolutions were written by Jefferson, and the Virginia resolutions by Madison, declaring in substance that the constitution was a compact, the government a confederacy, and that the states might judge of any alleged infraction of the compact, and prohibit the en- forcement of any act of congress within their borders which they had decided to be a palpable and dangerous violation of the compact. These resolutions were sent to the legislatures of all the states, and within two years thereafter Jefferson was elected to the presidency by the house of representatives voting by states, and was suc- ceeded by Madison eight years later. The doctrines of the Kentucky and Virginia resolutions sank so deeply into the public mind that they received a partial endorse- ment at the Hartford convention in 1814. The collapse of the Federal party, the election of Jefferson and Madison, and the apparent approval by the people of the Kentucky and \'irginia resolutions as a correct interpretation of the constitution, discredited the opinions of Hamilton and repudiated his somewhat artificial theory that the constitution had created a con- solidated national government, at least for some impor- tant purposes, and this was done so emphatically that it FOR THE UNION 13 was said to be a brave act for AVebster, as late as 1831, to pronounce his famous eulogy on Hamilton at a banquet in New York. The view of the relation of the states and of the people to the union expressed by Jefferson and Madison in 1798, and expounded by HajTie and Calhoun in the early thirties, was sul)stantially this : The source of sovereignty is the people ; the people erected the governments of the several states and delegated part of their sovereignty to them ; the people of the several states, acting separately, also erected the federal government of the United States and delegated part of their sovereignty to that govern- ment ; all sovereignty not so delegated was retained by the people. The constitution conferred on the federal courts jurisdiction in all cases at law and in equity, that is, in all cases between suitors, and did not authorize the federal courts to decide questions that might arise between the states and the federal government. As no tribunal was created to decide such questions, it follows that each must decide for itself, just as independent governments may construe treaties which they have made. Jefferson and his disciples argued that if the federal government were permitted to determine for itself the extent of its powers, the result would be to appropriate gradually the reserved sovereignty of the people, and also that committed to the governments of the states, and so erect a despotism on the ruins of the confederacy. AVebster argued, and suc- ceeded in convincing a majority of the people, that all questions as to the meaning of the constitution arising in suits at law or in equity must be decided l)y the courts ; that the supreme court of the United States is the final tribunal to determine such questions; that its decisions declare the supreme law of the land; and that all other 11 WEBSTER'S JVORK questions as to the meaning of the constitution may be decided by congress. It must be conceded that since Webster's view came to prevail the outlines of the states have been slowly fading from the map of the country, and the government at AVashington is gradually fulfilling the prophecies of Jetferson and Callioun. "Whether the process of consolidation has proceeded or is likely to pro- ceed too far is a question not now to be considered. About a month before John Adams left the White House he appointed John Marshall chief justice, who held the office from 1801 until 1835, and during that period wrote forty-four opinions on constitutional questions. Marshall's views of the constitution concurred in the main with those that Hamilton had undertaken to ad- minister. Perhaps Marshall's most important opinions were rendered in Marhury v. Madison, holding that the supreme court, and of course any other court, has power to declare an act of congress to be invalid; Cohens v. Virginia, and the Dartmouth College Case, holding that statutes of a state were also subject to condemnation by the federal courts; McCulloch v. Maryland, in which the implied powers of the constitution were developed at the expense of the states, and in Gibbons r. Ogden, asserting the omnipotent power of congress over interstate com- merce. Wel)ster participated in the argmnent of these cases, except the first, and Marshall's opinions concur with the arguments that Webster presented. By the arguments and opinions in these and many other cases in which Webster appeared, the dormant or hidden things in the constitution M'ere brought forth slowly and estab- lished as part of the constitutional jurisprudence of the countrv, much to the annovance of Jefferson and the pupils of his school. The opinions of Marshall no doubt FOR THE UNION ir, (lid somethini>- to create the sentiment which made Web- ster's reply to Hayne grateful to the public mind, al- though the masses of the people seldom take much inter- est in lawsuits. The controversy between Webster and Hayne in Janu- ary, 1830, arose nominally over a harmless resolution in- troduced by Senator Foote relating to the public lands. Hayne evidently was looking for an opportunity to assail New^ England, and Webster as its foremost statesman. He charged that New England had been unfriendly to the west in dealing with the public lands and entertained views of the constitution that were unsound, and pur- poses, indicated by the protective tariff law of 1828, that were hostile to the true interests of the rest of the country. His effort evidently was to persuade the west that the east was its enemy, and the south its friend. Both Wel)ster and Hayne made two elaborate speeches, and a few minor remarks on Foote 's resolution. Hayne 's first speech was aggravating, but not personally offen- sive, and Webster made a dignified and convincing reply. Thereupon Hayne lost his temper. His second speech was elaborate, and in it he expounded, for the first time, Calhoun's curious doctrine of constitutional nullification, based on the Kentucky and Virginia resolutions. Besides, his speech w^as highly exasperating, and contained many sharp and angry thrusts at Webster, who on the two fol- lo^^^ng days (January twenty-six and twenty-seven) de- livered his immortal reply. It is difficult to describe the reply of Webster in lan- guage that seems to be temperate and judicial. It made a profound impression on those who heard it, and con- vinced millions who read it in print. Its admirable rhetoric appealed alike to scholars who had spent their lives groping among the remains of dead languages; to 16 WEBSTER'S WORK people of limited education, and to school l)oys who had just learned to read; and it appealed so forcibly to a latent sentiment for nationality that it really established the constitution in the public mind, and placed the union for the first time on a permanent foundation. Its bene- ficial effects perhaps never were equaled by a sin,2:le speech, before or since. Parts that now seem to be defects had the effect of merits in 1830, and for many years after. Webster's pu.^iiacious attitude towards Hayne charmed multitudes who were fond of a personal combat, and induced them to read the speech repeatedly from be,2:innin2: to end, and as they read they learned to realize the value and srrandeur of the union. It tauglit Americans "to think continentally." The apostrophe to Massachusetts was a terrific effort to overcome Ha>Tie's biting, and not entirely unjust criticism, by tlie force of concussion alone. The extravagant peroration, which Webster himself in after years had the good sense to criticise, was declaimed in school houses all over the north, and planted national patriotism deep into the mind of the generation that was called on to preserve the union in the civil war. Governor Long of Massachusetts said in January, 1882— a hundred years after Webster was born: "The great rebellion of 1861 went down hardly more before the cannon of Grant and Farrag-ut than the thunder of Wel)ster's reply to Hayne." And the late Senator Hoar said in a speech at Plymouth in August, 1889: "Webster's great argument was behind every bayonet, and was carried home with every cannon-shot in tli(> wai- which saved the union." The perfect taste of Daniel Webster excluded from his speeches such clumsy efforts as these to generate poetry. I imagine the gov- ernor and the senator intended to say tliat Ihe re]>ly to FOR THE UNION 17 Ha^^le created and sustained a sentiment for nationality in the pn])lic mind that prol)a])ly turned the tide of vic- toiy from the south to the nortli in the war for the pres- ervation of the union. So interpreted I shoukl say their remarks are true. In the autumn of 1832 Hayne was elected <>overnor of South Carolina, and retired from the senate. Calhoun near the same time resigned the vice-presidency and was elected to the senate. On November 24th South Carolina adopted the memorable ordinance to nullify the tariff act of 1828. The ordinance denounced the act as a violation of the constitution highly injurious to the interests of South Carolina, and forbade every citizen of the state to obey or enforce it. Ironclad oaths to observe the ordi- nance were required of public officials, and severe penal- ties were prescribed for its violation. Thereupon Jack- son issued a proclamation (written, or at least revised, it is said, by Edward Livingston) in whicli he forcibly denied the right of a state to nullify or prohibit the en- forcement of an act of congress, or to secede from the union. The proclamation was based largely on the view of the constitution and the union that Webster had pre- sented ill liis reply to Hayne. In January, 1833, a bill was introduced in congress, commonly called the force bill, to enable the president to enforce more readily the tariff laws in South Carolina. The following day Calhoun introduced a series of resolu- tions in the senate, setting forth his views of the right of a state to nullify an act of congress Avhich in its opinion was a palj^alile and dangerous violation of the constitu- tion, and also to withdraw from the union. Sliortly after, Calhoun made a speech in the senate against the force l)ill, and in support of his resolutions; and on the six- 18 WEBSTER'S WORK teenth of February, 1833, Webster replied in a speech en- titled, "The Union Not a Compact Between Sovereiirii States. ' ' In that speech the fallacy of the theory of nnlli- fication and secession was reviewed and controverted still more skilfully than in the reply to Ha>Tie; but the speech failed to attract the attention excited by the earlier effort, V)ecause it did not contain the elements that appealed so powerfully to the public mind three years before. Webster's argument based on the text of the constitu- tion was invincil)le. It was a wonderful display of his power to reason lucidly; but in so far as the discussion proceeded on historical lirounds it must be said that Cal- houn had the better of the argimient. His rejoinder to Webster contained many sharp points, and in his dis- course on the constitution, written near the close of his life, Calhoun presented an amazini? variety of arcnmients with consummate skill to show that the constitution was a compact between sovereign states; that every state might judge for itself of an infraction of the constitution, and withdraw from the union when it pleased, having of course what Jefferson called a decent respect to the opinions of mankind. It is impossible to read it without admiration even now — half a century after the unholy cause for which Calhoun wrecked his life and nearly wrecked the country was lost forever. In estimating the value of Webster's work for the union in the thirties it should be remembered that he not oidy ex])ounded the constitution, but to some extent rrratrd a constitution for the country.* At the beginning of the century the Hamilton regime, as already observed, • In a debate with Douglas at Ottawa, Illinois, in 1838, Lincoln expressed one of the maxims of onr politics as follows: "In this. aii' to apply the doctrine of the Wilmot proviso to that territory. To do so, he argued, would irritate the south, and do nothing to aid the anti- slavery cause. "I look upon it," he said, "as a fixed fact, to use the current expression of the day, that both California and New Mexico are destined to be free." To put a provision in a bill to provide territorial govern- ment for New Mexico which should exclude slavery, he said, "would be idle as it respects any effect it would have upon the territory, and I would not take pains uselessly to re-affirm an ordinance of nature, nor to re- enact the will of God." It has been said that Webster was in error when he de- clared that nature had barred slavery from New Mexico, because the territory contained minerals and slaves worked in mines in ancient times, and in modern times serfs and criminals worked in the mines of Siberia. This criticism overlooks important facts: — Slavery in Web- ster's time had died out in the northern states where minerals abounded. In 1850 there was a strong anti- slavery sentiment in all civilized countries, including the border states. California, as we have seen, had applied for admission to the union with an anti-slavery constitu- tion, and there was good reason to suppose that New Mexico would do the same.* But if Webster had not been confident "that California and New Mexico were destined * In 1850, and after Webster's seventh of March speech, a con- vention met at Santa Fe, New Mexico, and drafted a state consti- tution prohibiting slavery. Tliis constitution was ratified by the 24 WEBSTER'S WORK to be freo," it is clear that he would not have favored the provision in the compromise relating to New Mexico and Utah. Of this, his consistent record of hostility to the extension of slavery is abundant proof; but there is still more. In June, 1850, in reply to a letter received from a number of citizens living along the Kennebec, Webster wrote: "One of the exciting questions of the present moment respects the necessity of excluding slavery by law from the territories lately acquired from Mexico. If I believed in such a necessity, I should, of course, sup- port such a law. I could not do otherwise consistently with opinions very many times expressed, and which I have no inclination to change, and shall not change." It was the opinion of some of Webster's intimate friends, and millions of his countrymen, that his seventh of March speech was a dreadful mistake. Before con- curring in that opinion I should like to liear at least a plausible answer to the question : What other course should Webster have taken in dealing with Clay's com- promise measures in 1850? Webster's opposition might easily have defeated the compromise, but: What then? He had op])osed Clay's compromise of 1833, and insisted that the strength and dignity of the government should be vindicated; but Jackson, after blustering and threaten- people, and state officials were chosen. The military governor of the territory refused, however, to abdicate in favor of the state government without authority of congress. In December of that year congress passed an act creating a territorial form of govern- ment for New IMexico as part of the compromise measures, and after a struggle the embryo state government disappeared. The incident illustrates the correctness of Webster's judgment as to the couree likely to l)e taken by tbc people of New ^lexico when the territory slioukl l)e permitti'd to enter the union as a state. FOR THE UNION 25 ing for three years, allowed Clay to surrender to Calhoun nearly all South Carolina demanded. In 1850 not South Carolina alone, but several other southern states, threat- ened to secede unless their wishes, or rii^hts as defined by themselves, were respected and secured by law. The teachings of Calhoun had been as potent in the south as Webster's in the north, and Webster in those gloomy days no doubt foresaw the conflict impending which actually occurred ten years later.* To avert it if pos- sible, or, if inevitable, to postpone it as long as possil)le, he believed to be the supreme duty of the hour. Probably he knew that a generation was rising with a disposition to fight for the union, but he could not have known that the young Americans of 1850 were more courageous than Jackson was in 1833. The latent sentiment in the north that Webster had created by his speeches in reply to Hayne and Calhoun perhaps was stronger than he knew or could have known, and much of the thoughtless rage that his seventh of March speech aroused came from the deep feeling among the people that their teacher, by whose arguments they had been convinced that a nation had been born, should have taken a defiant attitude in defence of the union instead of marking time. Webster, \\iser than his critics, was not sure that the union could be saved by war. The south was united and exasperated by its failure to establish slaverv in the territorv wrested from Mexico, and a convention had been called to meet at Nashville in June to consider the supposed grievances of the slave-holding states. The north was not united. Intemperate abolitionists were denouncing the constitu- * I append, at page 51, an extract from Calhoun's speech on tlie compromise measures read in the senate on March 4, 1850. Calhoun was present, l)ut too ill to deliver the speech himself. 26 WEBSTER'S WORK tion as "a compact with hell," and demanding a dissolu- tion of the union with slave-holders, and Clay was urging compromise. A wise statesman cannot disregard the sentiment of the hour in which he is called upon to act in an emergency, and his conduct often must be influenced by his responsibility. Indeed, during the winter of 1860-1861, after the union had begun to dissolve, the Re- pul)lican party raised the white flag at Washington re- peatedly, but (lid not succeed in surrendering to the slave power, and so averting or postponing war. It would require many portly volumes to hold all that has been said in condemnation and approval of Webster's speech on the seventh of March, and of his subsequent support of the compromise measures. Those who con- sider the matter under the impression that Webster was arguing in favor of the institution of slavery find no diffi- culty in reaching the conclusion that Wliittier hastily expressed in ''Ichabod" and retracted in "The Lost Occasion." Book men generally have inclined to the opinion tliat Webster's course in 1850 was inconsistent witli his previous record on slavery and a dark shadow on his fame. The late Professor Von Hoist is conspicu- ous among those who have judged Webster unjustly by letters and lamplight alone ; but Carl Sehurz, with a stronger congenital disposition to find fault, was saved from falling so deeply into the same error by the fact tiiat l)efore passing judgment on Wel)ster, in his life of Clay, he had been a senator himself, and partly realized the truth of Burke's familiar observation that "all gov- ernment — indeed, every liuman benefit and onjo^nnent, every virtue and every ))ru(lent act — is founded on com- promise and barter." ir official action, which necessarily recogniztMl shivery. FOR THE UNION 27 were convincing evidence of ap])roval of slavery, even Washington was not faultless. The noble Virginian was the first to sign the constitution with its provision for return of fugitive slaves ; he also signed the fugitive slave law of 1793, and, besides, was a slave-holder himself. But Washington so disliked slavery that he set his slaves free by his will, and his fame has survived his connection with an institution that came to be regarded as "the sum of all villainies" by the quickened conscience of a later day. The problem Webster had to deal with was not whether slavery was right or wrong. He never ceased to call it a moral and political wrong, that should not be extended beyond the states where it existed. A fair judgment of the compromise measures of 1850 can only be rendered after considering all of the elements of the transaction. Whoever, being opposed to slavery, looks at the California incident alone would no doubt regard it as a highly grat- ifying victory in the cause of freedom, because the best part of the territory taken from Mexico by the slave power for the purpose of sustaining and extending slavery was promptly organized as a free state, and for the first time gave to the free states a majority of the members of the senate; but any one who should fonn an opinion of the compromise by studjdng the fugitive slave law alone might well borrow the language of the aboli- tionist to express his conclusion. The provisions of the compromise relating to New Mexico and Utah gave a chance for the extension of slavery, such as was afforded a few vears later bv the Kansas-Nebraska law; but the probability that slavery should ever be established in those territories was remote. The location of the Texas boundary line, another part of the compromise, was in favor of freedom, and, besides, the slave trade in the Dis- 28 IVEBSTERS WORK trict of Coliiiiil)ia was abolished. The controlling con- sideration in the mind of AVebster was the presei'\'ation of the union, and the accomplishment of that object jus- tified all that he said. What he said was necessary to save the union, and it had that effect. Considering the transaction as a whole, after sixty years, it would be difficult for impartial history to find a reason to speak harshly of the statesmen who contrived and supported the compromise. The opinion that the compromise was a finality, if ever seriously entertained, turned out to be unfounded ; but it gave a chance for the milder influences of civilization to abolish slavery, if possible, and many hoped and some believed, and history encouraged tlu' l)elief, that it was possible. The statesmen of the north- ern and the border states were justified in deciding in 1850 that it was better to endure the ills of slavery for a season than to hazard the existence of the constitution and the union in the wild lottery of war. There is an impression — nuide by volleys of vitupera- tion more than sixty years ago and still lingering in the public mind — that Webster was an ardent advocate of the infamous fugitive slave law of 1850. The truth is that he was opposed to it from the first, and did not vote for it in the senate. He was in favor of a congressional fugitive slave law after the decision of the supreme court that congress had the exclusive power to legislate for the return of fugitive slaves, although his personal opinion was that the duty to return fugitive slaves had been im- posed by the constitution on the states and should be exercised by tliem.* An accurate statement of Webster's opinion and action relating to the fugitive slave law is * Woi-ks. vol. V, J). 354. FOR THE i'MON 29 sufficient to viiulicate l)otli, except in tlic jndii-nient of those who think that tlie union with shivery was not worth savin.ii:. Garrison, Phiilii)s, and many other im- petuous abolitionists, hehl that opinion, l)ut it was not the opinion of the judicious people in the free states who were opposed to slavery. Para^-raph three of section two of article IV of the con- stitution states that — "No person held to service or labor in one state, under the laws thereof, escapin.u: into another, shall, in consequence of any law or rei>ulation therein, be discharged from such service or labor, but shall be delivered up on claim of tlie party to whom such service or labor may be due." That provision is one of the compromises of the constitution, and without it the constitution could not have been adopted. It was held by the supreme court of the United States in the case of Prigg v. Pennsylvania, decided in 1842, that by virtue of that provision "the owner of a slave is clothed with entire authority, in every state of the union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or without any illeiial violence." It was also held in the same case that the clause conferred on congress exclusive power to legislate concerning the extradition of fugitive slaves; that the fugitive slave law of 1793 was constitutional; and that an act of the legislature of Pennsylvania passed in 1S26, which forbade the forcible removal of any negro or nmlatto from that state with a (h'sigii of selling or detain- ing him as a slave, was in conflict with the constitution of the United States. The object of the Pennsylvania stat- ute was to require judicial proceedings before removal, if a fugitive resisted. In our humane age it is impossible to justify the fugi- 30 WEBSTER'S WORK live slave laws except, possibly, as a dire necessity. The first fugitive slave law was passed in 1793; the second and last was passed in 1850. The earlier act related both to fugitives from justice and fugitives from lal)or. For a generation prior to 1850 not more than three or four fugitive slaves were returned to the south from New England, and many slaves in various parts of the country were aided in their efforts to escape to Canada by people opposed to slavery. In many northern states personal liberty laws were passed for the purpose of making it difficult or impossible to recover fugitive slaves. The act of 1850 grew out of a demand liy the slave states for a more effective law. It contained two damnable provi- sions not expressed in the former act — one prohibiting an alleged slave from testifying in a proceeding to extra- dite him, and another giving to the commissioner who heard a fugitive slave case ten dollars if he decided in favor of the claimant, and five dollars if he decided in favor of the fugitive. It also made ex parte affidavits plenary evidence for the claimant. Such affidavits, how- ever, were used, and fugitives were not allowed to testify, in proceedings under the act of 1793.* * The earliest fugitive slave law enaeted in this eoiuitry was inserted in the articles of confederation of the united colonies of New England in 1643. It provided for the return of fugitive slaves upon the certificate of a magistrate in the jurisdiction from whicli the slave had fled, and no trial liy jury was permitted. There was also a provision relating to fugitive slaves in the ordinance of 1787 for the government of the northwest territory, stating that any person escaping into that territory from whom labor or service was lawfully claimed in any one of the original states might be "lawfully reclaimed and conveyed to the person claiming his or her labor or service." FOR THE UMOX 31 In Fe))riiary, ISfjO, Webster prepared an amendment to the fngitive slave law of 1793, or, rather, a revision of that act so far as it related to fugitive slaves, and pro- vided 111 liis hill that every judge of the federal courts and every commissioner appointed hy those courts should, on complaint, issue a warrant for the arrest of an alleged fugitive slave, and cause him to ho taken hefore any federal judge or commissioner within the state or territory where found ''that the right of the person claim- ing the service of such fugitive may be examined" on ' ' depositions duly authenticated and parol proof. ' ' AVeb- ster's bill also contained a provision that if the fugitive should deny that he owed service to the claimant the judge or commissioner must forth\\dtli summon a jury to try the issue so raised and preside at the trial and determine the competency of the proof. There could be no sound objection to such a law, if any fugitive slave law was required by the constitution. In June, 1850, Webster introduced his liill in the senate, but it received no sup- port. He also prepared an amendment to the bill intro- duced by Senator Mason (and which finally became a law), providing for a trial by jury chosen from the neigh- borhood where the fugitive was arrested. Dayton offered the amendment after Webster had resigned from the senate. Clay offered a substitute, provichng for a trial by a jury of the vicinity from which the fugitive had escaped. Both amendments failed. Although Webster (lid not vote for the fugitive slave law of 1850, he said in his seventh of March speech that he intended to vote for Senator Mason's bill with some amendments. He retired from the senate in July of that year, and accepted the office of secretary of state. The fugitive slave law was enacted in September following. It is true, however. 32 WEBSTER'S WORK that Webster supported the compromise measures after they became laws; but if he defended tlie fuuitive slave law because he liked it, or if he did uot believe that its support was necessary to save the union, he desen^ed all that was ever said against him. The situation presented to Webster the single question whether the presentation of the union was important enough to justify the support of measures which it was supposed at the time would strengthen the position of slavery. He decided the fate- ful (luestioii hi favor of the union, and precisely as Lincoln would have decided it. In a speech at Peoria, Illinois, in October, 1854, Lincoln said: "Much as I hate slavery, I would consent to the extension of it rather than see the union dissolved, just as I would consent to any great evil to avoid a greater one." Two or three weeks after Webster delivered his seventh of March speech, Theodore Parker at a meeting in Faneuil Hall, intimated broadly, although he did not charge directly, that AVebster's speech was a bid for the presidency, to which it was kno^^^l he had long aspired, and certaiidy had a clear right to aspir(\ In the following month Horace Mann made the same unjust accusation. Defamation loves a shining mark, and so the accusation ran over the country with all the fleetness of falsehood, and there are many good people who believe even now that AVebster crooked the hinges of his knee to the slave power that political thrift might follow fawning. It is oidy necessary to credit We))ster with ordinary intelli- gence to realize that he nnist have known that his speech could not aid his political fortunes either in the north or south, and in fact it did not. It may be that AVebster underestimated the strength of the anti-slavery sentiment in the north in 1850. For FOR THE UNION 33 twenty years tliere had been much fierce denunciation of slavery, and increasing hostility to the enforcement of the fugitive slave law, especially in New England. This feeling had been much aggravated by the Wilmot proviso and the purpose and outcome of the war witli Mexico; and although Webster was in favor of respecting the pro- vision in the constitution relating to persons held to ser- vice and of obeying the fugitive slave law, it required courage for him to say so in the senate as the most con- spicuous representative of Massachusetts. Such a dec- laration seemed to an excited or excitable mind to be inconsistent with his lifelong dislike of slavery and hos- tility to its extension into territory where it did not law- fully exist. The re])uke which Wel)ster administered to the north for refusing to obey the fugitive slave law, and the declaration of his purpose to vote after some amend- ments for a more effective statute for the rendition of slaves, then pending in the senate, coupled with a candid admission that he had no plan to propose for the aboli- tion of slavery, all in the same speech, certainly could not increase his strength in the north as a candidate for the presidency. On the contrary, it promptly caused a wide- spread storm of fierce denunciation that tarnished his fame for half a century and has not yet ceased entirely to beat upon his tomb. It is commonly supposed that Seward in his speech on the compromise measures announced the "higher law" as a new discovery, but thirteen years earlier almost to a day, Webster in a speech at New York declared im- pressively that the conscience of the conmmnity was marshaling its^ forces to go to the rescue of the slave. He said: "On* the general question of slavery, a great portion of the coinmunity is already strongly excited. 3t WEBSTER'S WORK The subject has not only attracted attention as a ques- tion of politics, but it has struck a far deeper-toned chord. It has arrested the religious feeling of the country; it has taken strong hold on the consciences of men. He is a rash man, indeed, and little conversant with human nature, and especially has he a very erroneous estimate of the character of the people of this country, who sup- poses that a feeling of this kind is to be trifled with or despised. It will assuredly cause itself to be respected. It mav be reasoned ^vith, it may be made willing, I believe it is entirely willing, to fulfil all existing engagements and all existing duties, to uphold and defend the constitution as it is established, with whatever regrets about some provisions which it does actually contain. But to coerce it into silence, to endeavor to restrain its free expression, to seek to compress and confine it, wann as it is, and more heated as such endeavors would inevitably render it,_should this be attempted, I know nothing, even in the constitution or in the union itself, which would not be endangered by the explosion which might follow." This was an extremely dangerous feeling for AVebster to reason with or oppose, — even to confine it within the compass of the constitution and the law. After much reflection and consultation with friends, in which he learned that he could count on no support by his col- leagues from Massachusetts and but little by the members of congress from the New England states, Webster })ravely made his final effort to save the union, saying: ''I have made up my mind to embark alone on what I am aware will prove a stormy sea, because, in tliat case, if filial disaster shall ensue, there will be but one life lost." He believed, however, that his jud.srment would be vindicated in the course of time. In his speech he FOR THE UNION 35 denoiineod the anti-slavery societies, because he believed them to be enemies of the union, as many abolitionists openly professed to be, and he scolded the people who were opposed to the enforcement of the fugitive slave law, because he believed that its enforcement was indis- pensable to the preservation of the union. It may be observed in passing tliat in the last century, as in our day, much was said in politics that was not felt by the speakers. Many no doubt advocated the enforcement of the fugitive slave law who could never have been per- suaded or forced to join in a hue and cry to apprehend a slave running toward the north star, and it was not the least of the curses of slavery that it often compelled the pure in heart to speak falsely. Nor is there anything in the speech that could be con- strued as a bid for the southern vote for the presidency. It needs but a slight acquaintance with the dominant sentiment in the slave states in 1850 to realize that fact. Speaking on the seventh of March Webster read extracts from a speech he had made at Niblo's Garden in 1837, in which he said: "When I sav that I regard slaverv in itself as a great moral, social and political evil, I only use lang-uage which has been adopted by distinguished men, themselves citizens of slave-holding states. I shall do nothing, therefore, to favor or encourage its further extension. We have slaverv alreadv among us. The con- stitution found it in the union ; it recognized it, and gave it solemn guaranties. To the full extent of these guaran- ties we are all bound, in honor, in justice, and by the constitution." After reciting this remark, Webster con- tinued : '*I have nothing to add to, or to take from, those sentiments. ' ' Ten years later, speaking at a convention in Spring- 36 BE ESTER'S WORK field, Massachusetts, Webster declared: "AVe are to use the first and the last and every occasion which offers to oppose the extension of slave power." He also quoted that expression on the seventh of March, and added: "I know no change in my sentiments, or my purposes, in that respect." And again, after insisting that slavery could not thrive in New Mexico, he said: "Wherever there is a substantive good to be done, wherever there is a foot of land to be prevented from becoming slave terri- tory, T am ready to assert the principle of the exclusion of slavery. I am pledged to it from the year 1837 ; I have been pledged to it again and again ; and I will perform those pledges ; but I will not do a thing unnecessarily that wounds the feelings of others, or that does discredit to my own understanding." Those remarks constitute a fair statement of the position taken l)y the Republican party on the subject of slavery in its platform adopted at Chicago in 1860. I cannot see how it is possible to condemn Webster for his seventh of March speech without passing a similar judginent on Lincoln. In 1858 Lincoln said in a speech at Springfield, Illinois: " 'A house divided against itself cannot stand.' I do not believe this government can endure, permanently, half slave and half free. I do not expect the union to be dissolved ; I do not expect the house to fall: but I do expect that it will cease to be divided. It will become all one thing or all the other. Either the o])ponents of slavery will nrrcst the further s])read of it, mid ])lace it where the public iiiiud shall rest in the lielief that it is in the course of ultimate extinction, or its advocates will ))usli it forwnr-, — I have always hated it; but I have always l)een (juiet about it until this new era of the introduction of the Nebraska l»ill began. I always believed that everybody was ai^'ainst it, and that it was in course of ultimate extinction. * * * The gTeat mass of the nation have rested in the belief that slavery was in course of ultimate extinction. They had reason so to believe. * * * i have said a hundred times, and I have now no inclination to take it back, that I believe there is no right, and ought to be no inclina- tion, in the people of the free states to enter into the slave states, and interfere with the question of slavery at all. I have said that always; Judge Douglas has heard me say it, if not quite a hundred times, at least as good as a hundred times ; and when it is said that I am in favor of interfering with slavery where it exists, I know it is unwarranted by anything I have ever intended, and, as I believe, by anything I have ever said. If, by any means, T have ever used language which could fairly be so con- strued (as, however, I believe I never have), I now correct it." In a speech at Freeport, Illinois, August '27, 1858, during the debate with Douglas, Lincoln said: "I have never hesitated to say, and I do not now hesitate to say, that I think, under the constitution of the United States, the people of the southern states are entitled to a con- 46 WEBSTER'S WORK gressional fugitive slave law. Having said that, I have had nothing to say in regard to the existing fugitive slave law, further than that I think it should have been framed so as to be free from some of the objections that pertain to it, witliout lessening its eflficioncy, " On October 15, 1858, at Alton, Illinois, Lincoln said, in reply to Douglas: "I suppose most of us (T know it of myself) believe that the people of the southern states are entitled to a congressional fugitive slave law, — that is a right fixed in the constitution. But it cannot be made available to them witliout congressional legislation. In the Judge's language it is a 'barren right,' which needs legislation before it can become efficient and valual)le to the persons to whom it is guaranteed. And as the right is constitutional, I agree that the legislation shall be granted to it, — and that, not that we like the institution of slavery. We profess to have no taste for running and catching niggers, — at least, I profess no taste for that job at all. Why then do I ^'ield support to a fugitive slave law? Because I do not understand that the constitution, which guarantees that right, can be supported without it." I'hc following letter written bv Jjincoln to Chase in 1859 illustrates the state of opinion then prevailing in the north in respect of slavery in the states where it existed. It also expresses the opinion of the fugitive slave law of 1850 entertained by many people in the northern states who were opposed to slavery: — /-»/t*" />K^ IV^*M.J-I^ .•J^C^-^OV^^ if 'C^fCl^jfj (Zff\~f,.UL,^ '^.0<^^,^ y2-«^ ^Ctf.gg'^^ o^.yvo '^ ^2-w-*/ -^^a-* LETTER FROM ABRAHAM LINCOLN TO SALMON P. CHASK / rJ.-.'-JU aJ t^f<~-e^<^ />--«rU ^^o-CO (>gr^ £^^ /^'f--, A"^ FOR THE UNION 47 Finally, in his first inangiiral, Lincoln said: "I do but quote from one of those speeches [referring to his public speeches], when I declare that 'I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so; and I have no inclination to do so.' Those who nominated and elected me did so with the full knowledge that I had made this and many similar declarations, and had never recanted them. And more than this, they placed in the platform, for my acceptance, and as a law to themselves and to me, the clear and em- phatic resolution wdiich I now^ read : — '' 'Resolved, That the maintenance inviolate of the rights of the states, and especially the right of each state to order and control its o\vti domestic institutions accord- ing to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend ; and we denounce the law- less invasion by armed force of the soil of any state or territory, no matter under what pretext, as among the gravest of crimes. ' ''I now reiterate these sentiments; and in doing so I only press upon the public attention the most conclusive evidence of which the case is susceptible, that the prop- erty, peace, and security of no section are to be in any- wise endangered bv the now incoming administration. '*I add, too, that all the protection, which, consistently with the constitution and the laws, can be given, will be cheerfully given to all the states when lawfully demanded, for whatever cause — as cheerfully to one section as to another. ** There is much controversy about the delivering up of fugitives from service or lal)or. The clause I now read 48 WEBSTER'S WORK is as j)lainly written in the constitution as any other of its provisions : — " 'No person held to sen'ice or labor in one state under the laws thereof, eseapinof into another, shall, in conse- quence of any law or regulation therein, be dischar2:ed from such service or labor, but shall l)e delivered up on claim of the party to whom such service or labor may be due. ' "It is scarcely questioned that this provision was in- tended by those who made it for the reclaiming' of what we call fugitive slaves ; and the intention of the lawgiver is the law. "All members of congress swear their support to the whole constitution — to this provision as well as any other. To the proposition, then, that slaves whose cases come within the terms of this clause 'shall be delivered up,' their oaths are unanimous. Now, if they would nuike the effort in good temper, could they not, with nearly equal unanimity, frame and pass a law by means of which to keep good that unanimous oath? "There is some difference of opinion whether this clause should be enforced by national or by state author- itv: but surelv that difference is not a verv material one. If the slave is to be surrendered, it can be of but little consequence to him or to others, by which authority it is done; and should anyone, in any case, be content that his oath shall go unkept on a merely unsubstantial contro- versy as to how it shall be kept ? "Again, in any law on this subject, ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not, in any case, surrendered as a slave? And might it not ))e well at the same time to provide by law for the FOR THE UNION t9 enforcement of that clause in the constitution which guarantees that 'the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states'? "I take the official oath todaj' with no mental reserva- tions, and with no purpose to construe the constitution or laws by any hypercritical rules ; and while I do not choose now to specify particular acts of congress as proper to be enforced, I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those acts which stand unrepealed, than to violate any of them trusting to find impunity in having them held to be unconstitutional." After the inauguration of Lincoln, and with both houses of congress controlled by the Republican party, repeated efforts were made to repeal the fugitive slave law of 1850, but without success until June, 1864. In a letter to the Rev. Mr. Furness of Philadelphia, February 15, 1850, Webster said: "From my earliest youth, I have regarded slavery as a great moral and political evil. I think it unjust, repugnant to the natural equality of mankind, founded only in superior power; a standing and permanent conquest by the stronger over the weaker. * * * I do what I can to restrain it; to pre- vent its spread and diffusion ; but I cannot disregard the oracles which instruct me not to do evil that good may come. I cannot co-operate in l)reaking up social and political systems, on the warmth, rather than the strength, of a hope that, in such convulsions, the cause of emancipation may be promoted. And, even if the end would justify the means, I confess I do not see the rele- vancy of such a means to such an end. I confess, my dear sir, that, in my judgment, confusion, confliet, embittered 50 WEBSTER'S WORK controversy, violence, bloodshed, and civil war, would only rivet the chains of slavery the more strongly. "In my opinion, it is the mild influence of Christianity, the softening and melting power of the Sun of Kighteous- ness, and not the storms and tempests of heated contro- versy, that are, in the course of those events which an all- \vise Providence overrules, to dissolve the iron fetters by which man is made the slave of man." In a letter to Mr. Coll)y, November 11, 1850, Webster said: "Experience has taught me how useless it is to attempt to stop the allegations of political adversaries by denials of their statements. For your sake, however, I will say, that my public speeches show my opinion to have been decidedly in favor of a proper, efficient, and Avell-guarded law, for the recovery of fugitive slaves ; that while I was in the senate, I proposed a bill, as is well known, with provisions different from those contained in the present law ; that I was not a member of that body, when the present law passed; and that, if I had been, I should have moved, as a substitute for it, the bill pro- posed by myself. I feel bound to add that, in my judg- ment, the present law is constitutional; and that all good citizens are bound to respect and obey it, just as freeh- and readily as if they had voted for it themselves. If experience shall show that, in its operation, the law inflicts wrong, or endangers tiie liberty of any whose libertv is secured bv the constitution, then congress ought to be called on to amend or modify it. But, as I think, agitation on the su))ject ought to cease. AVo have had enough of strif(> on a single question, and tliat, in a great measure, merely theoretical. It is our duty, in my opinion, to attend to otlier great and practical questions, in wliich all |)ni1s of ilic country have an interest. ? ) FOR THE UNION 51 EXTRACT FROM SPEPXH OF CALHOUN Calhoun in closing his spoecli in the senate on the fourth of March, 1850, declared: "It is time, senators, that there should l)e 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 be hereafter ; 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 prin- ciple of justice and duty, say so; and 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 question to submission or resistance. If you remain silent, you will compel us to infer by your acts what you intend. In that case California will become the test question. If you admit her, under all the difficulties that oppose her ad- mission, you compel us to infer that you intend to exclude us from the whole of the acquired territories, with the in- tention of destroying irretrievably the equilibrium l)e- tween the two sections. We would be blind not to per- ceive, in that case, that your objects are power and aggrandizement, and infatuated not to act accordingly." A year or two before this speech was delivered Cal- houn wrote to a friend in Alabama that, instead of shun- ning the issue with the north on the slavery question, it should be courted. "I will go even one step farther," he said, "and add that it is our duty to force the issue on the north. AVe are now stronger than we shall be here- 52 WEBSTER'S WORK after, politically and morally. Unless we bring on the issue, delay to us will Ije dangerous indeed. It is the true policy of those who seek our destruction. ' ' 6 >. !i I H