The vote was then reconsidered, the bill recommitted and brought back, with a reduced capital, and freed from the government power to force loans and suspend specie payments. This measure was passed by a large majority, composed of the Federalists and the friends of the government, but it was the plan of the former which had prevailed. The President vetoed the bill for a variety of reasons, duly stated, but really, as Mr. Webster said, because a sound bank of this sort was not in favor with the administration. Another paper-money scheme was introduced, and the conflict began again, but was abruptly terminated by the news of peace, and on March 4 the thirteenth Congress came to an end.

The fourteenth Congress, to which he had been reelected, Mr. Webster said many years afterward, was the most remarkable for talents of any he had ever seen. To the leaders of marked ability in the previous Congress, most of whom had been reelected, several others were added. Mr. Clay returned from Europe to take again an active part. Mr. Pinkney, the most eminent practising lawyer in the country, recently Attorney-General and Minister to England, whom John Randolph, with characteristic insolence, "believed to be from Maryland," was there until his appointment to the Russian mission. Last, but not least, there was John Randolph himself, wildly eccentric and venomously eloquent,—sometimes witty, always odd and amusing, talking incessantly on everything, so that the reporters gave him up in despair, and with whom Mr. Webster came to a definite understanding before the close of the session.

Mr. Webster did not take his seat until February, being detained at the North by the illness of his daughter Grace. When he arrived he found Congress at work upon a bank bill possessing the same objectionable features of paper money and large capital as the former schemes which he had helped to overthrow. He began his attack upon this dangerous plan by considering the evil condition of the currency. He showed that the currency of the United States was sound because it was gold and silver, in his opinion the only constitutional medium, but that the country was flooded by the irredeemable paper of the state banks. Congress could not regulate the state banks, but they could force them to specie payments by refusing to receive any notes which were not paid in specie by the bank which issued them. Passing to the proposed national bank, he reiterated the able arguments which he had made in the previous Congress against the large capital, the power to suspend specie payments, and the stock feature of the bank, which he thought would lead to speculation and control by the state banks. This last point is the first instance of that financial foresight for which Mr. Webster was so remarkable, and which shows so plainly the soundness of his knowledge in regard to economical matters. A violent speculation in bank stock did ensue, and the first years of the new institution were troubled, disorderly, and anything but creditable. The opposition of Mr. Webster and those who thought with him, resulted in the reduction of the capital and the removal of the power to suspend specie payments. But although shorn of its most obnoxious features, Mr. Webster voted against the bill on its final passage on account of the participation permitted to the government in its management. He was quite right, but, after the bank was well established, he supported it as Lord Thurlow promised to do in regard to the dissenter's religion. Indeed, Mr. Webster ultimately so far lost his original dislike to this bank that he became one of its warmest adherents. The plan was defective, but the scheme, on the whole, worked better than had been expected.

Immediately after the passage of the bank bill, Mr. Calhoun introduced a bill requiring the revenue to be collected in lawful money of the United States. A sharp debate ensued, and the bill was lost. Mr. Webster at once offered resolutions requiring all government dues to be paid in coin, in Treasury notes, or in notes of the Bank of the United States. He supported these resolutions, thus daringly put forward just after the principle they involved had been voted down, in a speech of singular power, clear, convincing, and full of information and illustration. He elaborated the ideas contained in his previous remarks on the currency, displaying with great force the evils of irredeemable paper, and the absolute necessity of a sound currency based on specie payments. He won a signal victory by the passage of his resolutions, which brought about resumption, and, after the bank was firmly established, gave us a sound currency and a safe medium of exchange. This was one of the most conspicuous services ever rendered by Mr. Webster to the business interests and good government of the country, and he deserves the full credit, for he triumphed where Mr. Calhoun had just been defeated.

Mr. Webster took more or less part in all the questions which afterwards arose in the House, especially on the tariff, but his great efforts were those devoted to the bank and the currency. The only other incident of the session was an invitation to fight a duel sent him by John Randolph. This was the only challenge ever received by Mr. Webster. He never could have seemed a very happy subject for such missives, and, moreover, he never indulged in language calculated to provoke them. Randolph, however, would have challenged anybody or anything, from Henry Clay to a field-mouse, if the fancy happened to strike him. Mr. Webster's reply is a model of dignity and veiled contempt. He refused to admit Randolph's right to an explanation, alluded to that gentleman's lack of courtesy in the House, denied his right to call him out, and wound up by saying that he did not feel bound to risk his life at any one's bidding, but should "always be prepared to repel, in a suitable manner, the aggression of any man who may presume on this refusal." One cannot help smiling over this last clause, with its suggestion of personal violence, as the two men rise before the fancy,—the big, swarthy black-haired son of the northern hills, with his robust common sense, and the sallow, lean, sickly Virginia planter, not many degrees removed mentally from the patients in Bedlam.

In the affairs of the next session of the fourteenth Congress Mr. Webster took scarcely any part. He voted for Mr. Calhoun's internal improvement bill, although without entering the debate, and he also voted to pass the bill over Mr. Madison's veto. This was sound Hamiltonian Federalism, and in entire consonance with the national sentiments of Mr. Webster. On the constitutional point, which he is said to have examined with some care, he decided in accordance with the opinions of his party, and with the doctrine of liberal construction, to which he always adhered.

On March 4, 1817, the fourteenth Congress expired, and with it the term of Mr. Webster's service. Five years were to intervene before he again appeared in the arena of national politics. This retirement from active public life was due to professional reasons. In nine years Mr. Webster had attained to the very summit of his profession in New Hampshire. He was earning two thousand dollars a year, and in that hardy and poor community he could not hope to earn more. To a man with such great and productive talents, and with a growing family, a larger field had become an absolute necessity. In June, 1816, therefore, Mr. Webster removed from Portsmouth to Boston. That he gained by the change is apparent from the fact that the first year after his removal his professional income did not fall short of twenty thousand dollars. The first suggestion of the possibilities of wealth offered to his abilities in a suitable field came from his going to Washington. There, in the winter of 1813 and 1814, he was admitted to the bar of the Supreme Court of the United States, before which he tried two or three cases, and this opened the vista of a professional career, which he felt would give him verge and room enough, as well as fit remuneration. From this beginning the Supreme Court practice, which soon led to the removal to Boston, rapidly increased, until, in the last session of his term, it occupied most of his time. This withdrawal from the duties of Congress, however, was not due to a sacrifice of his time to his professional engagements, but to the depression caused by his first great grief, which must have rendered the noise and dust of debate most distasteful to him. Mr. and Mrs. Webster had arrived in Washington for this last session, in December, 1816, and were recalled to Boston by the illness of their little daughter Grace, who was their oldest child, singularly bright and precocious, with much of her father's look and talent, and of her mother's sensibility. She was a favorite with her father, and tenderly beloved by him. After her parents' return she sank rapidly, the victim of consumption. When the last hour was at hand, the child, rousing from sleep, asked for her father. He came, raised her upon his arm, and, as he did so, she smiled upon him and died. It is a little incident in the life of a great man, but a child's instinct does not err at such a moment, and her dying smile sheds a flood of soft light upon the deep and warm affections of Mr. Webster's solemn and reserved nature. It was the first great grief. Mr. Webster wept convulsively as he stood beside the dead, and those who saw that stately creature so wrung by anguish of the heart never forgot the sight.

Thus the period which began at Portsmouth in 1807 closed in Boston, in 1817, with the death of the eldest born. In that decade Mr. Webster had advanced with great strides from the position of a raw and youthful lawyer in a back country town of New Hampshire. He had reached the highest professional eminence in his own State, and had removed to a wider sphere, where he at once took rank with the best lawyers. He was a leading practitioner in the highest national court. During his two terms in Congress he had become a leader of his party, and had won a solid national reputation. In those years he had rendered conspicuous service to the business interests of the nation, and had established himself as one of the ablest statesmen of the country in matters of finance. He had defined his position on the tariff as a free-trader in theory and a very moderate protectionist when protection was unavoidable, a true representative of the doctrine of the New England Federalists. He had taken up his ground as the champion of specie payments and of the liberal interpretation of the Constitution, which authorized internal improvements. While he had not shrunk from extreme opposition to the administration during the war, he had kept himself entirely clear from the separatist sentiment of New England in the year 1814. He left Congress with a realizing sense of his own growing powers, and, rejoicing in his strength, he turned to his profession and to his new duties in his new home.



CHAPTER III.

THE DARTMOUTH COLLEGE CASE.—MR. WEBSTER AS A LAWYER.

There is a vague tradition that when Mr. Webster took up his residence in Boston, some of the worthies of that ancient Puritan town were disposed at first to treat him rather cavalierly and make him understand that because he was great in New Hampshire it did not follow that he was also great in Massachusetts. They found very quickly, however, that it was worse than useless to attempt anything of this sort with a man who, by his mere look and presence whenever he entered a room, drew all eyes to himself and hushed the murmur of conversation. It is certain that Mr. Webster soon found himself the friend and associate of all the agreeable and distinguished men of the town, and that he rapidly acquired that general popularity which, in those days, went with him everywhere. It is also certain that he at once and without effort assumed the highest position at the bar as the recognized equal of its most eminent leaders. With an income increased tenfold and promising still further enlargement, a practice in which one fee probably surpassed the earnings of three months in New Hampshire, with an agreeable society about him, popular abroad, happy and beloved at home, nothing could have been more auspicious than these opening years of his life in Boston.

The period upon which he then entered, and during which he withdrew from active public service to devote himself to his profession, was a very important one in his career. It was a period marked by a rapid intellectual growth and by the first exhibition of his talents on a large scale. It embraces, moreover, two events, landmarks in the life of Mr. Webster, which placed him before the country as one of the first and the most eloquent of her constitutional lawyers, and as the great master in the art of occasional oratory. The first of these events was the argument in the Dartmouth College case; the second was the delivery of the Plymouth oration.

I do not propose to enter into or discuss the merits or demerits of the constitutional and legal theories and principles involved in the famous "college causes," or in any other of the great cases subsequently argued by Mr. Webster. In a biography of this kind it is sufficient to examine Mr. Webster's connection with the Dartmouth College case, and endeavor, by a study of his arguments in that and in certain other hardly less important causes, to estimate properly the character and quality of his abilities as a lawyer, both in the ordinary acceptation of the term and in dealing with constitutional questions.

The complete history of the Dartmouth College case is very curious and deserves more than a passing notice. Until within three years it is not too much to say that it was quite unknown, and its condition is but little better now. In 1879 Mr. John M. Shirley published a volume entitled the "Dartmouth College Causes," which is a monument of careful study and thorough research. Most persons would conclude that it was a work of merely legal interest, appealing to a limited class of professional readers. Even those into whose hands it chanced to come have probably been deterred from examining it as it deserves by the first chapter, which is very obscure, and by the confusion of the narrative which follows. Yet this monograph, which has so unfortunately suffered from a defective arrangement of material, is of very great value, not only to our legal and constitutional history, but to the political history of the time and to a knowledge of the distinguished actors in a series of events which resulted in the establishment of one of the most far-reaching of constitutional doctrines, one that has been a living question ever since the year 1819, and is at this moment of vast practical importance. Mr. Shirley has drawn forth from the oblivion of manuscript a collection of documents which, taken in conjunction with those already in print, throws a flood of light upon a dark place of the past and gives to a dry constitutional question the vital and human interest of political and personal history.

In his early days, Eleazer Wheelock, the founder of Dartmouth College, had had much religious controversy with Dr. Bellamy of Connecticut, who was like himself a graduate of Yale. Wheelock was a Presbyterian and a liberal, Bellamy a Congregationalist and strictly orthodox. The charter of Dartmouth was free from any kind of religious discrimination. By his will the elder Wheelock provided in such a way that his son succeeded him in the presidency of the college. In 1793 Judge Niles, a pupil of Bellamy, became a trustee of the college, and he and John Wheelock represented the opposite views which they respectively inherited from tutor and father. They were formed for mutual hostility, and the contest began some twelve years before it reached the public. The trustees and the president were then all Federalists, and there would seem to have been no differences of either a political or a religious nature. The trouble arose from the resistance of a minority of the trustees to what they termed the "family dynasty." Wheelock, however, maintained his ascendency until 1809, when his enemies obtained a majority in the board of trustees, and thereafter admitted no friend of the president to the government, and used every effort to subdue the dominant dynasty.

In New Hampshire, at that period, the Federalists were the ruling party, and the Congregationalists formed the state church. The people were, in practice, taxed to support Congregational churches, and the clergy of that denomination were exempted from taxation. All the Congregational ministers were stanch Federalists and most of their parishioners were of the same party. The college, the only seat of learning in the State, was one of the Federalist and Congregational strongholds.

After several years of fruitless and bitter conflict, the Wheelock party, in 1815, brought their grievances before the public in an elaborate pamphlet. This led to a rejoinder and a war of pamphlets ensued, which was soon transferred to the newspapers, and created a great sensation and a profound interest. Wheelock now contemplated legal proceedings. Mr. Plumer was in ill health, Judge Smith and Mr. Mason were allied with the trustees, and the president therefore went to Mr. Webster, consulted him professionally, paid him, and obtained a promise of his future services. About the time of this consultation, Wheelock sent a memorial to the Legislature, charging the trustees with misapplication of the funds, and various breaches of trust, religious intolerance, and a violation of the charter in their attacks upon the presidential office, and prayed for a committee of investigation. The trustees met him boldly and offered a sturdy resistance, denying all the charges, especially that of religious intolerance; but the committee was voted by a large majority. On August 5th, Wheelock, as soon as he learned that the committee was to have a hearing, wrote to Mr. Webster, reminding him of their consultation, inclosing a fee of twenty dollars, and asking him to appear before the committee. Mr. Webster did not come, and Wheelock had to go on as best he could without him. One of Wheelock's friends, Mr. Dunham, wrote a very indignant letter to Mr. Webster on his failure to appear; to which Mr. Webster replied that he had seen Wheelock and they had contemplated a suit in court, but that at the time of the hearing he was otherwise engaged, and moreover that he did not regard a summons to appear before a legislative committee as a professional call, adding that he was by no means sure that the president was wholly in the right. The truth was, that many of Mr. Webster's strongest personal and political friends, and most of the leaders with whom he was associated in the control of the Federalist party, were either trustees themselves or closely allied with the trustees. In the interval between the consultation with Wheelock and the committee hearing, these friends and leaders saw Mr. Webster, and pointed out to him that he must not desert them, and that this college controversy was fast developing into a party question. Mr. Webster was convinced, and abandoned Wheelock, making, as has been seen, a very unsatisfactory explanation of his conduct. In this way he finally parted company with Wheelock, and was thereafter irrevocably engaged on the side of the trustees.

Events now moved rapidly. The trustees, without heeding the advice of Mr. Mason to delay, removed Wheelock from the presidency, and appointed in his place the Rev. Francis Brown. This fanned the flame of popular excitement, and such a defiance of the legislative committee threw the whole question into politics. As Mr. Mason had foreseen when he warned the trustees against hasty action, all the Democrats, all members of sects other than the Congregational, and all freethinkers generally, were united against the trustees, and consequently against the Federalists. The election came on. Wheelock, who was a Federalist, went over to the enemy, carrying his friends with him, and Mr. Plumer, the Democratic candidate, was elected Governor, together with a Democratic Legislature. Mr. Webster perceived at once that the trustees were in a bad position. He advised that every effort should be made to soothe the Democrats, and that the purpose of founding a new college should be noised abroad, in order to create alarm. Strategy, however, was vain. Governor Plumer declared against the trustees in his message, and the Legislature in June, 1816, despite every sort of protest and remonstrance, passed an act to reorganize the college, and virtually to place it within the control of the State. The Governor and council at once proceeded to choose trustees and overseers under the new law, and among those thus selected was Joseph Story of Massachusetts.

Both boards of trustees assembled. The old board turned out Judge Woodward, their secretary, who was a friend to Wheelock and secretary also of the new board, and, receiving a thousand dollars from a friend of one of the professors, resolved to fight. President Brown refused to obey the summons of the new trustees, who expelled the old board by resolution. Thereupon the old board brought suit against Woodward for the college seal and other property, and the case came on for trial in May, 1817. Mr. Mason and Judge Smith appeared for the college, George Sullivan and Ichabod Bartlett for Woodward and the state board. The case was argued and then went over to the September term of the same year, at Exeter, when Mason and Smith were joined by Mr. Webster.

The cause was then argued again on both sides and with signal ability. In point of talent the counsel for the college were vastly superior to their opponents, but Sullivan and Bartlett were nevertheless strong men and thoroughly prepared. Sullivan was a good lawyer and a fluent and ready speaker, with great power of illustration. Bartlett was a shrewd, hard-headed man, very keen and incisive, and one whom it was impossible to outwit or deceive. He indulged, in his argument, in some severe reflections upon Mr. Webster's conduct toward Wheelock, which so much incensed Mr. Webster that he referred to Mr. Bartlett's argument in a most contemptuous way, and strenuously opposed the publication of the remarks "personal or injurious to counsel."

The weight of the argument for the college fell upon Mason and Smith, who spoke for two and four hours respectively. Sullivan and Bartlett occupied three hours, and the next day Mr. Webster closed for the plaintiffs in a speech of two hours. Mr. Webster spoke with great force, going evidently beyond the limits of legal argument, and winding up with a splendid sentimental appeal which drew tears from the crowd in the Exeter court-room, and which he afterwards used in an elaborated form and with similar effect before the Supreme Court at Washington.

It now becomes necessary to state briefly the points at issue in this case, which were all fully argued by the counsel on both sides. Mr. Mason's brief, which really covered the whole case, was that the acts of the Legislature were not obligatory, 1, because they were not within the general scope of legislative power; 2, because they violated certain provisions of the Constitution of New Hampshire restraining legislative power; 3, because they violated the Constitution of the United States. In Farrar's report of Mason's speech, twenty-three pages are devoted to the first point, eight to the second, and six to the third. In other words, the third point, involving the great constitutional doctrine on which the case was finally decided at Washington, the doctrine that the Legislature, by its acts, had impaired the obligation of a contract, was passed over lightly. In so doing Mr. Mason was not alone. Neither he nor Judge Smith nor Mr. Webster nor the court nor the counsel on the other side, attached much importance to this point. Curiously enough, the theory had been originated many years before, by Wheelock himself, at a time when he expected that the minority of the trustees would invoke the aid of the Legislature against him, and his idea had been remembered. It was revived at the time of the newspaper controversy, and was pressed upon the attention of the trustees and upon that of their counsel. But the lawyers attached little weight to the suggestion, although they introduced it and argued it briefly. Mason, Smith, and Webster all relied for success on the ground covered by the first point in Mason's brief. This is called by Mr. Shirley the "Parsons view," from the fact that it was largely drawn from an argument made by Chief Justice Parsons in regard to visitatorial powers at Harvard College. Briefly stated, the argument was that the college was an institution founded by private persons for particular uses; that the charter was given to perpetuate such uses; that misconduct of the trustees was a question for the courts, and that the Legislature, by its interference, transcended its powers. To these general principles, strengthened by particular clauses in the Constitution of New Hampshire, the counsel for the college trusted for victory. The theory of impairing the obligation of contracts they introduced, but they did not insist on it, or hope for much from it. On this point, however, and, of course, on this alone, the case went up to the Supreme Court. In December, 1817, Mr. Webster wrote to Mr. Mason, regretting that the case went up on "one point only." He occupied himself at this time in devising cases which should raise what he considered the really vital points, and which, coming within the jurisdiction of the United States, could be taken to the Circuit Court, and thence to the Supreme Court at Washington. These cases, in accordance with his suggestion, were begun, but before they came on in the Circuit Court, Mr. Webster made his great effort in Washington. Three quarters of his legal argument were there devoted to the points in the Circuit Court cases, which were not in any way before the Supreme Court in the College vs. Woodward. So little, indeed, did Mr. Webster think of the great constitutional question which has made the case famous, that he forced the other points in where he admitted that they had no proper standing, and argued them at length. They were touched upon by Marshall, who, however, decided wholly upon the constitutional question, and they were all thrown aside by Judge Washington, who declared them irrelevant, and rested his decision solely and properly on the constitutional point. Two months after his Washington argument, Mr. Webster, still urging forward the Circuit Court cases, wrote to Mr. Mason that all the questions must be brought properly before the Supreme Court, and that, on the "general principle" that the State Legislature could not divest vested rights, strengthened by the constitutional provisions of New Hampshire, he was sure they could defeat their adversaries. Thus this doctrine of "impairing the obligation of contracts," which produced a decision in its effects more far-reaching and of more general interest than perhaps any other ever made in this country, was imported into the case at the suggestion of laymen, was little esteemed by counsel, and was comparatively neglected in every argument.

It is necessary to go back now, for a moment, in the history of the case. The New Hampshire court decided against the plaintiffs on every point, and gave a very strong and elaborate judgment, which Mr. Webster acknowledged was "able, plausible, and ingenious." After much wrangling, the counsel agreed on a special verdict, and took the case up on a writ of error to the Supreme Court. Mason and Smith were unable or unwilling to go to Washington, and the case was intrusted to Mr. Webster, who secured the assistance of Mr. Joseph Hopkinson of Philadelphia. The case for the State, hitherto ably managed, was now confided to Mr. John Holmes of Maine, and Mr. Wirt, the Attorney-General, who handled it very badly. Holmes, an active, fluent Democratic politician, made a noisy, rhetorical, political speech, which pleased his opponents and disgusted his clients and their friends. Mr. Wirt, loaded with business cares of every sort, came into court quite unprepared, and endeavored to make up for his deficiencies by declamation. On the other side the case was managed with consummate skill. Hopkinson was a sound lawyer, and, being thoroughly prepared, made a good legal argument. The burden of the conflict was, however, borne by Mr. Webster, who was more interested personally than professionally, and who, having raised money in Boston to defray the expenses of the suit, came into the arena at Washington armed to the teeth, and in the full lustre of his great powers.

The case was heard on March 10, 1818, and was opened by Mr. Webster. He had studied the arguments of his adversaries below, and the vigorous hostile opinion of the New Hampshire judges. He was in possession of the thorough argument emanating from the penetrating mind of Mr. Mason and fortified and extended by the ample learning and judicial wisdom of Judge Smith. To the work of his eminent associates he could add nothing more than one not very important point, and a few cases which his far-ranging and retentive memory supplied. All the notes, minutes, and arguments of Smith and Mason were in his hands. It is only just to say that Mr. Webster tells all this himself, and that he gives all credit to his colleagues, whose arguments he says "he clumsily put together," and of which he adds that he could only be the reciter. The faculty of obtaining and using the valuable work of other men, one of the characteristic qualities of a high and commanding order of mind, was even then strong in Mr. Webster. But in that bright period of early manhood it was accompanied by a frank and generous acknowledgment of all and more than all the intellectual aid he received from others. He truly and properly awarded to Mason and Smith all the credit for the law and for the legal points and theories set forth on their side, and modestly says that he was merely the arranger and reciter of other men's thoughts. But how much that arrangement and recitation meant! There were, perhaps, no lawyers better fitted than Mason and Smith to examine a case and prepare an argument enriched with everything that learning and sagacity could suggest. But when Mr. Webster burst upon the court and the nation with this great appeal, it was certain that there was no man in the land who could so arrange arguments and facts, who could state them so powerfully and with such a grand and fitting eloquence.

The legal part of the argument was printed in Farrar's report and also in Wheaton's, after it had been carefully revised by Mr. Webster with the arguments of his colleagues before him. This legal and constitutional discussion shows plainly enough Mr. Webster's easy and firm grasp of facts and principles, and his power of strong, effective, and lucid statement; but it is in its very nature dry, cold, and lawyer-like. It gives no conception of the glowing vehemence of the delivery, or of those omitted portions of the speech which dealt with matters outside the domain of law, and which were introduced by Mr. Webster with such telling and important results. He spoke for five hours, but in the printed report his speech occupies only three pages more than that of Mr. Mason in the court below. Both were slow speakers, and thus there is a great difference in time to be accounted for, even after making every allowance for the peroration which we have from another source, and for the wealth of legal and historical illustration with which Mr. Webster amplified his presentation of the question. "Something was left out," Mr. Webster says, and that something which must have occupied in its delivery nearly an hour was the most conspicuous example of the generalship by which Mr. Webster achieved victory, and which was wholly apart from his law. This art of management had already been displayed in the treatment of the cases made up for the Circuit Courts, and in the elaborate and irrelevant legal discussion which Mr. Webster introduced before the Supreme Court. But this management now entered on a much higher stage, where it was destined to win victory, and exhibited in a high degree tact and knowledge of men. Mr. Webster was fully aware that he could rely, in any aspect of the case, upon the sympathy of Marshall and Washington. He was equally certain of the unyielding opposition of Duvall and Todd; the other three judges, Johnson, Livingston, and Story, were known to be adverse to the college, but were possible converts. The first point was to increase the sympathy of the Chief Justice to an eager and even passionate support. Mr. Webster knew the chord to strike, and he touched it with a master hand. This was the "something left out," of which we know the general drift, and we can easily imagine the effect. In the midst of all the legal and constitutional arguments, relevant and irrelevant, even in the pathetic appeal which he used so well in behalf of his Alma Mater, Mr. Webster boldly and yet skilfully introduced the political view of the case. So delicately did he do it that an attentive listener did not realize that he was straying from the field of "mere reason" into that of political passion. Here no man could equal him or help him, for here his eloquence had full scope, and on this he relied to arouse Marshall, whom he thoroughly understood. In occasional sentences he pictured his beloved college under the wise rule of Federalists and of the Church. He depicted the party assault that was made upon her. He showed the citadel of learning threatened with unholy invasion and falling helplessly into the hands of Jacobins and freethinkers. As the tide of his resistless and solemn eloquence, mingled with his masterly argument, flowed on, we can imagine how the great Chief Justice roused like an old war-horse at the sound of the trumpet. The words of the speaker carried him back to the early years of the century, when, in the full flush of manhood, at the head of his court, the last stronghold of Federalism, the last bulwark of sound government, he had faced the power of the triumphant Democrats. Once more it was Marshall against Jefferson,—the judge against the President. Then he had preserved the ark of the Constitution. Then he had seen the angry waves of popular feeling breaking vainly at his feet. Now, in his old age, the conflict was revived. Jacobinism was raising its sacrilegious hand against the temples of learning, against the friends of order and good government. The joy of battle must have glowed once more in the old man's breast as he grasped anew his weapons and prepared with all the force of his indomitable will to raise yet another constitutional barrier across the path of his ancient enemies.

We cannot but feel that Mr. Webster's lost passages, embodying this political appeal, did the work, and that the result was settled when the political passions of the Chief Justice were fairly aroused. Marshall would probably have brought about the decision by the sole force of his imperious will. But Mr. Webster did a good deal of effective work after the arguments were all finished, and no account of the case would be complete without a glance at the famous peroration with which he concluded his speech and in which he boldly flung aside all vestige of legal reasoning, and spoke directly to the passions and emotions of his hearers.

When he had finished his argument he stood silent for some moments, until every eye was fixed upon him, then, addressing the Chief Justice, he said:—

This, sir, is my case. It is the case not merely of that humble institution, it is the case of every college in our land....

"Sir, you may destroy this little institution; it is weak; it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out. But if you do so you must carry through your work! You must extinguish, one after another, all those greater lights of science which for more than a century have thrown their radiance over our land. It is, sir, as I have said, a small college. And yet there are those who love it."

Here his feelings mastered him; his eyes filled with tears, his lips quivered, his voice was choked. In broken words of tenderness he spoke of his attachment to the college, and his tones seemed filled with the memories of home and boyhood; of early affections and youthful privations and struggles.

"The court room," says Mr. Goodrich, to whom we owe this description, "during these two or three minutes presented an extraordinary spectacle. Chief Justice Marshall, with his tall and gaunt figure bent over as if to catch the slightest whisper, the deep furrows of his cheek expanded with emotion and his eyes suffused with tears; Mr. Justice Washington, at his side, with his small and emaciated frame, and countenance more like marble than I ever saw on any other human being,—leaning forward with an eager, troubled look; and the remainder of the court at the two extremities, pressing, as it were, to a single point, while the audience below were wrapping themselves round in closer folds beneath the bench, to catch each look and every movement of the speaker's face....

"Mr. Webster had now recovered his composure, and, fixing his keen eye on the Chief Justice, said in that deep tone with which he sometimes thrilled the heart of an audience:—

"'Sir, I know not how others may feel' (glancing at the opponents of the college before him), 'but for myself, when I see my Alma Mater surrounded, like Caesar in the senate-house, by those who are reiterating stab after stab, I would not, for this right hand, have her turn to me, and say, Et tu quoque, mi fili! And thou too, my son!'"

This outbreak of feeling was perfectly genuine. Apart from his personal relations to the college, he had the true oratorical temperament, and no man can be an orator in the highest sense unless he feels intensely, for the moment at least, the truth and force of every word he utters. To move others deeply he must be deeply moved himself. Yet at the same time Mr. Webster's peroration, and, indeed, his whole speech, was a model of consummate art. Great lawyer as he undoubtedly was, he felt on this occasion that he could not rely on legal argument and pure reason alone. Without appearing to go beyond the line of propriety, without indulging in a declamation unsuited to the place, he had to step outside of legal points and in a freer air, where he could use his keenest and strongest weapons, appeal to the court not as lawyers but as men subject to passion, emotion, and prejudice. This he did boldly, delicately, successfully, and thus he won his case.

The replies of the opposing counsel were poor enough after such a speech. Holmes's declamation sounded rather cheap, and Mr. Wirt, thrown off his balance by Mr. Webster's exposure of his ignorance, did but slight justice to himself or his cause. March 12th the arguments were closed, and the next day, after a conference, the Chief Justice announced that the court could agree on nothing and that the cause must be continued for a year, until the next term. The fact probably was that Marshall found the judges five to two against the college, and that the task of bringing them into line was not a light one.

In this undertaking, however, he was powerfully aided by the counsel and all the friends of the college. The old board of trustees had already paid much attention to public opinion. The press was largely Federalist, and, under the pressure of what was made a party question, they had espoused warmly the cause of the college. Letters and essays had appeared, and pamphlets had been circulated, together with the arguments of the counsel at Exeter. This work was pushed with increased eagerness after the argument at Washington, and the object now was to create about the three doubtful judges an atmosphere of public opinion which should imperceptibly bring them over to the college. Johnson, Livingston, and Story were all men who would have started at the barest suspicion of outside influence even in the most legitimate form of argument, which was all that was ever thought of or attempted. This made the task of the trustees very delicate and difficult in developing a public sentiment which should sway the judges without their being aware of it. The printed arguments of Mason, Smith, and Webster were carefully sent to certain of the judges, but not to all. All documents of a similar character found their way to the same quarters. The leading Federalists were aroused everywhere, so that the judges might be made to feel their opinion. With Story, as a New England man, a Democrat by circumstances, a Federalist by nature, there was but little difficulty. A thorough review of the case, joined with Mr. Webster's argument, caused him soon to change his first impression. To reach Livingston and Johnson was not so easy, for they were out of New England, and it was necessary to go a long way round to get at them. The great legal upholder of Federalism in New York was Chancellor Kent. His first impression, like that of Story, was decidedly against the college, but after much effort on the part of the trustees and their able allies, Kent was converted, partly through his reason, partly through his Federalism, and then his powers of persuasion and his great influence on opinion came to bear very directly on Livingston, more remotely on Johnson. The whole business was managed like a quiet, decorous political campaign. The press and the party were everywhere actively interested. At first, and in the early summer of 1818, before Kent was converted, matters looked badly for the trustees. Mr. Webster knew the complexion of the court, and hoped little from the point raised in Trustees vs. Woodward. Still, no one despaired, and the work was kept up until, in September, President Brown wrote to Mr. Webster in reference to the argument:—

"It has already been, or shortly will be, read by all the commanding men of New England and New York; and so far as it has gone it has united them all, without a single exception within my knowledge, in one broad and impenetrable phalanx for our defence and support. New England and New York are gained. Will not this be sufficient for our present purposes? If not, I should recommend reprinting. And on this point you are the best judge. I prevailingly think, however, that the current of opinion from this part of the country is setting so strongly towards the South that we may safely trust to its force alone to accomplish whatever is necessary."

The worthy clergyman writes of public opinion as if the object was to elect a President. All this effort, however, was well applied, as was found when the court came together at the next term. In the interval the State had become sensible of the defects of their counsel, and had retained Mr. Pinkney, who stood at that time at the head of the bar of the United States. He had all the qualifications of a great lawyer, except perhaps that of robustness. He was keen, strong, and learned; diligent in preparation, he was ready and fluent in action, a good debater, and master of a high order of eloquence. He was a most formidable adversary, and one whom Mr. Webster, then just at the outset of his career, had probably no desire to meet in such a doubtful case as this.[1] Even here, however, misfortune seemed to pursue the State, for Mr. Pinkney was on bad terms with Mr. Wirt, and acted alone. He did all that was possible; prepared himself elaborately in the law and history of the case, and then went into court ready to make the wisest possible move by asking for a re-argument. Marshall, however, was also quite prepared. Turning his "blind ear," as some one said, to Pinkney, he announced, as soon as he took his seat, that the judges had come to a conclusion during the vacation. He then read one of his great opinions, in which he held that the college charter was a contract within the meaning of the Constitution, and that the acts of the New Hampshire Legislature impaired this contract, and were therefore void. To this decision four judges assented in silence, although Story and Washington subsequently wrote out opinions. Judge Todd was absent, through illness, and Judge Duvall dissented. The immediate effect of the decision was to leave the college in the hands of the victorious Federalists. In the precedent which it established, however, it had much deeper and more far-reaching results. It brought within the scope of the Constitution of the United States every charter granted by a State, limited the action of the States in a most important attribute of sovereignty, and extended the jurisdiction of the highest federal court more than any other judgment ever rendered by them. From the day when it was announced to the present time, the doctrine of Marshall in the Dartmouth College case has continued to exert an enormous influence, and has been constantly sustained and attacked in litigation of the greatest importance.

[Footnote 1: Mr. Peter Harvey, in his Reminiscences (p. 122), has an anecdote in regard to Webster and Pinkney, which places the former in the light of a common and odious bully, an attitude as alien to Mr. Webster's character as can well be conceived. The story is undoubtedly either wholly fictitious or so grossly exaggerated as to be practically false. On the page preceding the account of this incident, Mr. Harvey makes Webster say that he never received a challenge from Randolph, whereas in Webster's own letter, published by Mr. Curtis, there is express reference to a note of challenge received from Randolph. This is a fair example of these Reminiscences. A more untrustworthy book it would be impossible to imagine. There is not a statement in it which can be safely accepted, unless supported by other evidence. It puts its subject throughout in the most unpleasant light, and nothing has ever been written about Webster so well calculated to injure and belittle him as these feeble and distorted recollections of his loving and devoted Boswell. It is the reflection of a great man upon the mirror of a very small mind and weak memory.]

The defendant Woodward having died, Mr. Webster moved that the judgment be entered nunc pro tunc. Pinkney and Wirt objected on the ground that the other causes on the docket contained additional facts, and that no final judgment should be entered until these causes had been heard. The court, however, granted Mr. Webster's motion. Mr. Pinkney then tried to avail himself of the stipulation in regard to the special verdict, that any new and material facts might be added or any facts expunged. Mr. Webster peremptorily declined to permit any change, obtained judgment against Woodward, and obliged Mr. Pinkney to consent that the other causes should be remanded, without instructions, to the Circuit Court, where they were heard by Judge Story, who rendered a decree nisi for the college. This closed the case, and such were the last displays of Mr. Webster's dexterous and vigorous management of the famous "college causes."

The popular opinion of this case seems to be that Mr. Webster, with the aid of Mr. Mason and Judge Smith, developed a great constitutional argument, which he forced upon the acceptance of the court by the power of his close and logical reasoning, and thus established an interpretation of the Constitution of vast moment. The truth is, that the suggestion of the constitutional point, not a very remarkable idea in itself, originated, as has been said, with a layman, was regarded by Mr. Webster as a forlorn hope, and was very briefly discussed by him before the Supreme Court. He knew, of course, that if the case were to be decided against Woodward, it could only be on the constitutional point, but he evidently thought that the court would not take the view of it which was favorable to the college. The Dartmouth College case was unquestionably one of Mr. Webster's great achievements at the bar, but it has been rightly praised on mistaken grounds. Mr. Webster made a very fine presentation of the arguments mainly prepared by Mason and Smith. He transcended the usual legal limits with a burst of eloquent appeal which stands high among the famous passages of his oratory. In what may be called the strategy of the case he showed the best generalship and the most skilful management. He also proved himself to be possessed of great tact and to be versed in the knowledge of men, qualities not usually attributed to him because their exercise involved an amount of care and painstaking foreign to his indolent and royal temperament, which almost always relied on weight and force for victory.

Mr. Webster no doubt improved in details, and made better arguments at the bar than he did upon this occasion, but the Dartmouth College case, on the whole, shows his legal talents so nearly at their best, and in such unusual variety, that it is a fit point at which to pause in order to consider some of his other great legal arguments and his position and abilities as a lawyer. For this purpose it is quite sufficient to confine ourselves to the cases mentioned by Mr. Curtis, and to the legal arguments preserved in the collection of Mr. Webster's speeches.

Five years after the Dartmouth College decision, Mr. Webster made his famous argument in the case of Gibbons vs. Ogden. The case was called suddenly, and Mr. Webster prepared his argument in a single night of intense labor. The facts were all before him, but he showed a readiness in arrangement only equalled by its force. The question was whether the State of New York had a right under the Constitution to grant a monopoly of steam navigation in its waters to Fulton and Livingston. Mr. Webster contended that the acts making such a grant were unconstitutional, because the power of Congress to regulate commerce was, within certain limitations, exclusive. He won his cause, and the decision, from its importance, probably enhanced the contemporary estimate of his effort. The argument was badly reported, but it shows all its author's strongest qualities of close reasoning and effective statement. The point in issue was neither difficult nor obscure, and afforded no opportunity for a display of learning. It was purely a matter of constitutional interpretation, and could be discussed chiefly in a historical manner and from the standpoint of public interests. This was particularly fitted to Mr. Webster's cast of mind, and he did his subject full justice. It was pure argument on general principles. Mr. Webster does not reach that point of intense clearness and condensation which characterized Marshall and Hamilton, in whose writings we are fascinated by the beauty of the intellectual display, and are held fast by each succeeding line, which always comes charged with fresh meaning. Nevertheless, Mr. Webster touches a very high point in this most difficult form of argument, and the impressiveness of his manner and voice carried all that he said to its mark with a direct force in which he stood unrivalled.

In Ogden v. Saunders, heard in 1827, Mr. Webster argued that the clause prohibiting state laws impairing the obligation of contracts covered future as well as past contracts. He defended his position with astonishing ability, but the court very correctly decided against him. The same qualities which appear in these cases are shown in the others of a like nature, which were conspicuous among the multitude with which he was intrusted. We find them also in cases involving purely legal questions, such as the Bank of the United States v. Primrose, and The Providence Railroad Co. v. The City of Boston, accompanied always with that ready command of learning which an extraordinary memory made easy. There seemed to be no diminution of Mr. Webster's great powers in this field as he advanced in years. In the Rhode Island case and in the Passenger Tax cases, argued when he was sixty-six years old, he rose to the same high plane of clear, impressive, effective reasoning as when he defended his Alma Mater.

Two causes, however, demand more than a passing mention,—the Girard will case and the Rhode Island case. The former involved no constitutional points. The suit was brought to break the will of Stephen Girard, and the question was whether the bequest to found a college could be construed to be a charitable devise. On this question Mr. Webster had a weak case in point of law, but he readily detected a method by which he could go boldly outside the law, as he had done to a certain degree in the Dartmouth College case, and substitute for argument an eloquent and impassioned appeal to emotion and prejudice. Girard was a free-thinker, and he provided in his will that no priest or minister of any denomination should be admitted to his college. Assuming that this excluded all religious teaching, Mr. Webster then laid down the proposition that no bequest or gift could be charitable which excluded Christian teaching. In other words, he contended that there was no charity except Christian charity, which, the poet assures us, is so rare. At this day such a theory would hardly be gravely propounded by any one. But Mr. Webster, on the ground that Girard's bequest was derogatory to Christianity, pronounced a very fine discourse defending and eulogizing, with much eloquence, the Christian religion. The speech produced a great effect. One is inclined to think that it was the cause of the court's evading the question raised by Mr. Webster, and sustaining the will, a result they were bound to reach in any event, on other grounds. The speech certainly produced a great sensation, and was much admired, especially by the clergy, who caused it to be printed and widely distributed. It did not impress lawyers quite so favorably, and we find Judge Story writing to Chancellor Kent that "Webster did his best for the other side, but it seems to me altogether an address to the prejudices of the clergy." The subject, in certain ways, had a deep attraction for Mr. Webster. His imagination was excited by the splendid history of the Church, and his conservatism was deeply stirred by a system which, whether in the guise of the Romish hierarchy, as the Church of England, or in the form of powerful dissenting sects, was, as a whole, imposing by its age, its influence, and its moral grandeur. Moreover, it was one of the great established bulwarks of well-ordered and civilized society. All this appealed strongly to Mr. Webster, and he made the most of his opportunity and of his shrewdly-chosen ground. Yet the speech on the Girard will is not one of his best efforts. It has not the subdued but intense fire which glowed so splendidly in his great speeches in the Senate. It lacked the stately pathos which came always when Mr. Webster was deeply moved. It was delivered in 1844, and was slightly tinged with the pompousness which manifested itself in his late years, and especially on religious topics. No man has a right to question the religious sincerity of another, unless upon evidence so full and clear that, in such cases, it is rarely to be found. There is certainly no cause for doubt in Mr. Webster's case. He was both sincere and honest in religion, and had a real and submissive faith. But he accepted his religion as one of the great facts and proprieties of life. He did not reach his religious convictions after much burning questioning and many bitter experiences. In this he did not differ from most men of this age, and it only amounts to saying that Mr. Webster did not have a deeply religious temperament. He did not have the ardent proselyting spirit which is the surest indication of a profoundly religious nature; the spirit of the Saracen Emir crying, "Forward! Paradise is under the shadow of our swords." When, therefore, he turned his noble powers to a defence of religion, he did not speak with that impassioned fervor which, coming from the depths of a man's heart, savors of inspiration and seems essential to the highest religious eloquence. He believed thoroughly every word he uttered, but he did not feel it, and in things spiritual the heart must be enlisted as well as the head. It was wittily said of a well-known anti-slavery leader, that had he lived in the Middle Ages he would have gone to the stake for a principle, under a misapprehension as to the facts. Mr. Webster not only could never have misapprehended facts, but, if he had flourished in the Middle Ages he would have been a stanch and honest supporter of the strongest government and of the dominant church. Perhaps this defines his religious character as well as anything, and explains why the argument in the Girard will case, fine as it was, did not reach the elevation and force which he so often displayed on other themes.

The Rhode Island case grew out of the troubles known at that period as Dorr's rebellion. It involved a discussion not only of the constitutional provisions for suppressing insurrections and securing to every State a republican form of government, but also of the general history and theory of the American governments, both state and national. There was thus offered to Mr. Webster that full scope and large field in which he delighted, and which were always peculiarly favorable to his talents. His argument was purely constitutional, and although not so closely reasoned, perhaps, as some of his earlier efforts, is, on the whole, as fine a specimen as we have of his intellectual power as a constitutional lawyer at the bar of the highest national tribunal. Mr. Webster did not often transcend the proper limits of purely legal discussion in the courts, and yet even when the question was wholly legal, the court-room would be crowded by ladies as well as gentlemen, to hear him speak. It was so at the hearing of the Girard suit; and during the strictly legal arguments in the Charles River Bridge case, the court-room, Judge Story says, was filled with a brilliant audience, including many ladies, and he adds that "Webster's closing reply was in his best manner, but with a little too much fierte here and there." The ability to attract such audiences gives an idea of the impressiveness of his manner and of the beauty of his voice and delivery better than anything else, for these qualities alone could have drawn the general public and held their attention to the cold and dry discussion of laws and constitutions.

There is a little anecdote told by Mr. Curtis in connection with this Rhode Island case, which illustrates very well two striking qualities in Mr. Webster as a lawyer. The counsel in the court below had been assisted by a clever young lawyer named Bosworth, who had elaborated a point which he thought very important, but which his seniors rejected. Mr. Bosworth was sent to Washington to instruct Mr. Webster as to the cause, and, after he had gone through the case, Mr. Webster asked if that was all. Mr. Bosworth modestly replied that there was another view of his own which his seniors had rejected, and then stated it briefly. When he concluded, Mr. Webster started up and exclaimed, "Mr. Bosworth, by the blood of all the Bosworths who fell on Bosworth field, that is the point of the case. Let it be included in the brief by all means." This is highly characteristic of one of Mr. Webster's strongest attributes. He always saw with an unerring glance "the point" of a case or a debate. A great surgeon will detect the precise spot where the knife should enter when disease hides it from other eyes, and often with apparent carelessness will make the necessary incision at the exact place when a deflection of a hair's breadth or a tremor of the hand would bring death to the patient. Mr. Webster had the same intellectual dexterity, the mingled result of nature and art. As the tiger is said to have a sure instinct for the throat of his victim, so Mr. Webster always seized on the vital point of a question. Other men would debate and argue for days, perhaps, and then Mr. Webster would take up the matter, and grasp at once the central and essential element which had been there all along, pushed hither and thither, but which had escaped all eyes but his own. He had preeminently

"The calm eye that seeks 'Midst all the huddling silver little worth The one thin piece that comes, pure gold."

The anecdote further illustrates the use which Mr. Webster made of the ideas of other people. He did not say to Mr. Bosworth, here is the true point of the case, but he saw that something was wanting, and asked the young lawyer what it was. The moment the proposition was stated he recognized its value and importance at a glance. He might and probably would have discovered it for himself, but his instinct was to get it from some one else.

It is one of the familiar attributes of great intellectual power to be able to select subordinates wisely; to use other people and other people's labor and thought to the best advantage, and to have as much as possible done for one by others. This power of assimilation Mr. Webster had to a marked degree. There is no depreciation in saying that he took much from others, for it is a capacity characteristic of the strongest minds, and so long as the debt is acknowledged, such a faculty is a subject for praise, not criticism. But when the recipient becomes unwilling to admit the obligation which is no detraction to himself, and without which the giver is poor indeed, the case is altered. In his earliest days Mr. Webster used to draw on one Parker Noyes, a mousing, learned New Hampshire lawyer, and freely acknowledged the debt. In the Dartmouth College case, as has been seen, he over and over again gave simply and generously all the credit for the learning and the points of the brief to Mason and Smith, and yet the glory of the case has rested with Mr. Webster and always will. He gained by his frank honesty and did not lose a whit. But in his latter days, when his sense of justice had grown somewhat blunted and his nature was perverted by the unmeasured adulation of the little immediate circle which then hung about him, he ceased to admit his obligations as in his earlier and better years. From no one did Mr. Webster receive so much hearty and generous advice and assistance as from Judge Story, whose calm judgment and wealth of learning were always at his disposal. They were given not only in questions of law, but in regard to the Crimes Act, the Judiciary Act, and the Ashburton treaty. After Judge Story's death, Mr. Webster not only declined to allow the publication by the judge's son and biographer of Story's letters to himself, but he refused to permit even the publication of extracts from his own letters, intended merely to show the nature of the services rendered to him by Story. A cordial assent would have enhanced the reputation of both. The refusal is a blot on the intellectual greatness of the one and a source of bitterness to the descendants and admirers of the other. It is to be regretted that the extraordinary ability which Mr. Webster always showed in grasping and assimilating masses of theories and facts, and in drawing from them what was best, should ever have been sullied by a want of gratitude which, properly and freely rendered, would have made the lustre of his own fame shine still more brightly.

A close study of Mr. Webster's legal career, in the light of contemporary reputation and of the best examples of his work, leads to certain quite obvious conclusions. He had not a strongly original or creative legal mind. This was chiefly due to nature, but in some measure to a dislike to the slow processes of investigation and inquiry which were always distasteful to him, although he was entirely capable of intense and protracted exertion. He cannot, therefore, be ranked with the illustrious few, among whom we count Mansfield and Marshall as the most brilliant examples, who not only declared what the law was, but who made it. Mr. Webster's powers were not of this class, but, except in these highest and rarest qualities, he stands in the front rank of the lawyers of his country and his age. Without extraordinary profundity of thought or depth of learning, he had a wide, sure, and ready knowledge both of principles and cases. Add to this quick apprehension, unerring sagacity for vital and essential points, a perfect sense of proportion, an almost unequalled power of statement, backed by reasoning at once close and lucid, and we may fairly say that Mr. Webster, who possessed all these qualities, need fear comparison with but very few among the great lawyers of that period either at home or abroad.



CHAPTER IV.

THE MASSACHUSETTS CONVENTION AND THE PLYMOUTH ORATION.

The conduct of the Dartmouth College case, and its result, at once raised Mr. Webster to a position at the bar second only to that held by Mr. Pinkney. He was now constantly occupied by most important and lucrative engagements, but in 1820 he was called upon to take a leading part in a great public work which demanded the exertion of all his talents as statesman, lawyer, and debater. The lapse of time and the setting off of the Maine district as a State had made a convention necessary, in order to revise the Constitution of Massachusetts. This involved the direct resort to the people, the source of all power, which is only required to effect a change in the fundamental law of the State. On these rare occasions it has been the honored custom in Massachusetts to lay aside all the qualifications attaching to ordinary legislatures and to choose the best men, without regard to party, public office, or domicile, for the performance of this important work. No better or abler body could have been assembled for this purpose than that which met in convention at Boston in November, 1820. Among these distinguished men were John Adams, then in his eighty-fifth year, and one of the framers of the original Constitution of 1780, Chief Justice Parker, of the Supreme Bench, the Federal judges, and many of the leaders at the bar and in business. The two most conspicuous men in the convention, however, were Joseph Story and Daniel Webster, who bore the burden in every discussion; and there were three subjects, upon which Mr. Webster spoke at length, that deserve more than a passing allusion.

Questions of party have, as a rule, found but little place in the constitutional assemblies of Massachusetts. This was peculiarly the case in 1820, when the old political divisions were dying out, and new ones had not yet been formed. At the same time widely opposite views found expression in the convention. The movement toward thorough and complete democracy was gathering headway, and directing its force against many of the old colonial traditions and habits of government embodied in the existing Constitution. That portion of the delegates which favored certain radical changes was confronted and stoutly opposed by those who, on the whole, inclined to make as few alterations as possible, and desired to keep things about as they were. Mr. Webster, as was natural, was the leader of the conservative party, and his course in this convention is an excellent illustration of this marked trait in his disposition and character.

One of the important questions concerned the abolition of the profession of Christian faith as a qualification for holding office. On this point the line of argument pursued by Mr. Webster is extremely characteristic. Although an unvarying conservative throughout his life, he was incapable of bigotry, or of narrow and illiberal views. At the same time the process by which he reached his opinion in favor of removing the religious test shows more clearly than even ultra-conservatism could, how free he was from any touch of the reforming or innovating spirit. He did not urge that, on general principles, religious tests were wrong, that they were relics of the past and in hopeless conflict with the fundamental doctrines of American liberty and democracy. On the contrary, he implied that a religious test was far from being of necessity an evil. He laid down the sound doctrine that qualifications for office were purely matters of expediency, and then argued that it was wise to remove the religious test because, while its principle would be practically enforced by a Christian community, it was offensive to some persons to have it engrafted on the Constitution. The speech in which he set forth these views was an able and convincing one, entirely worthy of its author, and the removal of the test was carried by a large majority. It is an interesting example of the combination of steady conservatism and breadth of view which Mr. Webster always displayed. But it also brings into strong relief his aversion to radical general principles as grounds of action, and his inborn hostility to far-reaching change.

His two other important speeches in this convention have been preserved in his works, and are purely and wholly conservative in tone and spirit. The first related to the basis of representation in the Senate, whose members were then apportioned according to the amount of taxable property in the districts. This system, Mr. Webster thought, should be retained, and his speech was a most masterly discussion of the whole system of government by two Houses. He urged the necessity of a basis of representation for the upper House different from that of the lower, in order to make the former fully serve its purpose of a check and balance to the popular branch. This important point he handled in the most skilful manner, and there is no escape from his conclusion that a difference of origin in the two legislative branches of the government is essential to the full and perfect operation of the system. This difference of origin, he argued, could be obtained only by the introduction of property as a factor in the basis of representation. The weight of his speech was directed to defending the principle of a suitable representation of property, which was a subject requiring very adroit treatment. The doctrine is one which probably would not be tolerated now in any part of this country, and even in 1820, in Massachusetts, it was a delicate matter to advocate it, for it was hostile to the general sentiment of the people. Having established his position that it was all important to make the upper branch a strong and effective check, he said that the point in issue was not whether property offered the best method of distinguishing between the two Houses, but whether it was not better than no distinction at all. This being answered affirmatively, the next question to be considered was whether property, not in the sense of personal possessions and personal power, but in a general sense, ought not to have its due influence in matters of government. He maintained the justice of this proposition by showing that our constitutions rest largely on the general equality of property, which, in turn, is due to our laws of distribution. This led him into a discussion of the principles of the distribution of property. He pointed out the dangers arising in England from the growth of a few large estates, while on the other hand he predicted that the rapid and minute subdivision of property in France would change the character of the government, and, far from strengthening the crown, as was then generally prophesied, would have a directly opposite effect, by creating a large and united body of small proprietors, who would sooner or later control the country. He illustrated, in this way, the value and importance of a general equality of property, and of steadiness in legislation affecting it. These were the reasons, he contended, for making property the basis of the check and balance furnished to our system of government by an upper House. Moreover, all property being subject to taxation for the purpose of educating the children of both rich and poor, it deserved some representation for this valuable aid to government. It is impossible, in a few lines,[1] to do justice to Mr. Webster's argument. It exhibited a great deal of tact and ingenuity, especially in the distinction so finely drawn between property as an element of personal power and property in a general sense, and so distributed as to be a bulwark of liberty. The speech is, on this account, an interesting one, for Mr. Webster was rarely ingenious, and hardly ever got over difficulties by fine-spun distinctions. In this instance adroitness was very necessary, and he did not hesitate to employ it. By his skilful treatment, by his illustrations drawn from England and France, which show the accuracy and range of his mental vision in matters of politics and public economy, both at home and abroad, and with the powerful support of Judge Story, Mr. Webster carried his point. The element of property representation in the Senate was retained, but so wholly by the ability of its advocate, that it was not long afterwards removed.

[Footnote 1: My brief statement is merely a further condensation of the excellent abstract of this speech made by Mr Curtis.]

Mr. Webster's other important speech related to the judiciary. The Constitution provided that the judges, who held office during good behavior, should be removable by the Governor on an address from the Legislature. This was considered to meet cases of incompetency or of personal misconduct, which could not be reached by impeachment. Mr. Webster desired to amend the clause so as to require a two thirds vote for the passage of the address, and that reasons should be assigned, and a hearing assured to the judge who was the subject of the proceedings. These changes were all directed to the further protection of the bench, and it was in this connection that Mr. Webster made a most admirable and effective speech on the well-worn but noble theme of judicial independence. He failed to carry conviction, however, and his amendments were all lost. The perils which he anticipated have never arisen, and the good sense of the people of Massachusetts has prevented the slightest abuse of what Mr. Webster rightly esteemed a dangerous power.

Mr. Webster's continual and active exertion throughout the session of this convention brought him great applause and admiration, and showed his powers in a new light. Judge Story, with generous enthusiasm, wrote to Mr. Mason, after the convention adjourned:—

"Our friend Webster has gained a noble reputation. He was before known as a lawyer; but he has now secured the title of an eminent and enlightened statesman. It was a glorious field for him, and he has had an ample harvest. The whole force of his great mind was brought out, and, in several speeches, he commanded universal admiration. He always led the van, and was most skilful and instantaneous in attack and retreat. He fought, as I have told him, in the 'imminent deadly breach;' and all I could do was to skirmish, in aid of him, upon some of the enemy's outposts. On the whole, I never was more proud of any display than his in my life, and I am much deceived if the well-earned popularity, so justly and so boldly acquired by him on this occasion, does not carry him, if he lives, to the presidency."

While this convention, so memorable in the career of Mr. Webster and so filled with the most absorbing labors, was in session, he achieved a still wider renown in a very different field. On the 22d of December, 1820, he delivered at Plymouth the oration which commemorated the two hundredth anniversary of the landing of the Pilgrims. The theme was a splendid one, both in the intrinsic interest of the event itself, in the character of the Pilgrims, in the vast results which had grown from their humble beginnings, and in the principles of free government, which had spread from the cabins of the exiles over the face of a continent, and had become the common heritage of a great people. We are fortunate in having a description of the orator, written at the time by a careful observer and devoted friend, Mr. Ticknor, who says:—

"Friday Evening.—I have run away from a great levee there is down-stairs, thronging in admiration round Mr. Webster, to tell you a little word about his oration. Yet I do not dare to trust myself about it, and I warn you beforehand that I have not the least confidence in my own opinion. His manner carried me away completely; not, I think, that I could have been so carried away if it had been a poor oration, for of that, I apprehend, there can be no fear. It must have been a great, a very great performance, but whether it was so absolutely unrivalled as I imagined when I was under the immediate influence of his presence, of his tones, of his looks, I cannot be sure till I have read it, for it seems to me incredible.

"I was never so excited by public speaking before in my life. Three or four times I thought my temples would burst with the gush of blood; for, after all, you must know that I am aware it is no connected and compacted whole, but a collection of wonderful fragments of burning eloquence, to which his whole manner gave tenfold force. When I came out I was almost afraid to come near to him. It seemed to me as if he was like the mount that might not be touched and that burned with fire. I was beside myself, and am so still."

"Saturday.—Mr. Webster was in admirable spirits. On Thursday evening he was considerably agitated and oppressed, and yesterday morning he had not his natural look at all; but since his entire success he has been as gay and playful as a kitten. The party came in one after another, and the spirits of all were kindled brighter and brighter, and we fairly sat up till after two o'clock. I think, therefore, we may now safely boast the Plymouth expedition has gone off admirably."

Mr. Ticknor was a man of learning and scholarship, just returned from a prolonged sojourn in Europe, where he had met and conversed with all the most distinguished men of the day, both in England and on the Continent. He was not, therefore, disposed by training or recent habits to indulge a facile enthusiasm, and such deep emotion as he experienced must have been due to no ordinary cause. He was, in fact, profoundly moved because he had been listening to one of the great masters of eloquence exhibiting, for the first time, his full powers in a branch of the art much more cultivated in America by distinguished men of all professions than is the custom elsewhere. The Plymouth oration belongs to what, for lack of a better name, we must call occasional oratory. This form of address, taking an anniversary, a great historical event or character, a celebration, or occasion of any sort as a starting point, permits either a close adherence to the original text or the widest latitude of treatment. The field is a broad and inviting one. That it promises an easy success is shown by the innumerable productions of this kind which, for many years, have been showered upon the country. That the promise is fallacious is proved by the very small number among the countless host of such addresses which survive the moment of their utterance. The facility of saying something is counterbalanced by the difficulty of saying anything worth hearing. The temptation to stray and to mistake platitude for originality is almost always fatal.

Mr. Webster was better fitted than any man who has ever lived in this country for the perilous task of occasional oratory. The freedom of movement which renders most speeches of this class diluted and commonplace was exactly what he needed. He required abundant intellectual room for a proper display of his powers, and he had the rare quality of being able to range over vast spaces of time and thought without becoming attenuated in what he said. Soaring easily, with a powerful sweep he returned again to earth without jar or shock. He had dignity and grandeur of thought, expression, and manner, and a great subject never became small by his treatment of it. He had, too, a fine historical imagination, and could breathe life and passion into the dead events of the past.

Mr. Ticknor speaks of the Plymouth oration as impressing him as a series of eloquent fragments. The impression was perfectly correct. Mr. Webster touched on the historical event, on the character of the Pilgrims, on the growth and future of the country, on liberty and constitutional principles, on education, and on human slavery. This was entirely proper to such an address. The difficulty lay in doing it well, and Mr. Webster did it as perfectly as it ever has been done. The thoughts were fine, and were expressed in simple and beautiful words. The delivery was grand and impressive, and the presentation of each successive theme glowed with subdued fire. There was no straining after mere rhetorical effect, but an artistic treatment of a succession of great subjects in a general and yet vivid and picturesque fashion. The emotion produced by the Plymouth oration was akin to that of listening to the strains of music issuing from a full-toned organ. Those who heard it did not seek to gratify their reason or look for conviction to be brought to their understanding. It did not appeal to the logical faculties or to the passions, which are roused by the keen contests of parliamentary debate. It was the divine gift of speech, the greatest instrument given to man, used with surpassing talent, and the joy and pleasure which it brought were those which come from listening to the song of a great singer, or looking upon the picture of a great artist.

The Plymouth oration, which was at once printed and published, was received with a universal burst of applause. It had more literary success than anything which had at that time appeared, except from the pen of Washington Irving. The public, without stopping to analyze their own feelings, or the oration itself, recognized at once that a new genius had come before them, a man endowed with the noble gift of eloquence, and capable by the exercise of his talents of moving and inspiring great masses of his fellow-men. Mr. Webster was then of an age to feel fully the glow of a great success, both at the moment and when the cooler and more critical approbation came. He was fresh and young, a strong man rejoicing to run the race. Mr. Ticknor says, in speaking of the oration:—

"The passage at the end, where, spreading his arms as if to embrace them, he welcomed future generations to the great inheritance which we have enjoyed, was spoken with the most attractive sweetness and that peculiar smile which in him was always so charming. The effect of the whole was very great. As soon as he got home to our lodgings, all the principal people then in Plymouth crowded about him. He was full of animation, and radiant with happiness. But there was something about him very grand and imposing at the same time. I never saw him at any time when he seemed to me to be more conscious of his own powers, or to have a more true and natural enjoyment from their possession."

Amid all the applause and glory, there was one letter of congratulation and acknowledgment which must have given Mr. Webster more pleasure than anything else, It came from John Adams, who never did anything by halves. Whether he praised or condemned, he did it heartily and ardently, and such an oration on New England went straight to the heart of the eager, warm-blooded old patriot. His commendation, too, was worth having, for he spoke as one having authority. John Adams had been one of the eloquent men and the most forcible debater of the first Congress. He had listened to the great orators of other lands. He had heard Pitt and Fox, Burke and Sheridan, and had been present at the trial of Warren Hastings. His unstinted praise meant and still means a great deal, and it concludes with one of the finest and most graceful of compliments. The oration, he says,

"is the effort of a great mind, richly stored with every species of information. If there be an American who can read it without tears, I am not that American. It enters more perfectly into the genuine spirit of New England than any production I ever read. The observations on the Greeks and Romans; on colonization in general; on the West India islands; on the past, present, and future of America, and on the slave-trade, are sagacious, profound, and affecting in a high degree."

"Mr. Burke is no longer entitled to the praise—the most consummate orator of modern times."

"What can I say of what regards myself? To my humble name, Exegisti monumentum aere perennius."

Many persons consider the Plymouth oration to be the finest of all Mr. Webster's efforts in this field. It is certainly one of the very best of his productions, but he showed on the next great occasion a distinct improvement, which he long maintained. Five years after the oration at Plymouth, he delivered the address on the laying of the corner-stone of Bunker Hill monument. The superiority to the first oration was not in essentials, but in details, the fruit of a ripening and expanding mind. At Bunker Hill, as at Plymouth, he displayed the massiveness of thought, the dignity and grandeur of expression, and the range of vision which are all so characteristic of his intellect and which were so much enhanced by his wonderful physical attributes. But in the later oration there is a greater finish and smoothness. We appreciate the fact that the Plymouth oration is a succession of eloquent fragments; the same is true of the Bunker Hill address, but we no longer realize it. The continuity is, in appearance, unbroken, and the whole work is rounded and polished. The style, too, is now perfected. It is at once plain, direct, massive, and vivid. The sentences are generally short and always clear, but never monotonous. The preference for Anglo-Saxon words and the exclusion of Latin derivatives are extremely marked, and we find here in rare perfection that highest attribute of style, the union of simplicity, picturesqueness, and force.

In the first Bunker Hill oration Mr. Webster touched his highest point in the difficult task of commemorative oratory. In that field he not only stands unrivalled, but no one has approached him. The innumerable productions of this class by other men, many of a high degree of excellence, are forgotten, while those of Webster form part of the education of every American school-boy, are widely read, and have entered into the literature and thought of the country. The orations of Plymouth and Bunker Hill are grouped in Webster's works with a number of other speeches professedly of the same kind. But only a very few of these are strictly occasional; the great majority are chiefly, if not wholly, political speeches, containing merely passages here and there in the same vein as his great commemorative addresses. Before finally leaving the subject, however, it will be well to glance for a moment at the few orations which properly belong to the same class as the first two which we have been considering.

The Bunker Hill oration, after the lapse of only a year, was followed by the celebrated eulogy upon Adams and Jefferson. This usually and with justice is ranked in merit with its two immediate predecessors. As a whole it is not, perhaps, quite so much admired, but it contains the famous imaginary speech of John Adams, which is the best known and most hackneyed passage in any of these orations. The opening lines, "Sink or swim, live or die, survive or perish, I give my hand and my heart to this vote," since Mr. Webster first pronounced them in Faneuil Hall, have risen even to the dignity of a familiar quotation. The passage, indeed, is perhaps the best example we have of the power of Mr. Webster's historical imagination. He had some fragmentary sentences, the character of the man, the nature of the debate, and the circumstances of the time to build upon, and from these materials he constructed a speech which was absolutely startling in its lifelike force. The revolutionary Congress, on the verge of the tremendous step which was to separate them from England, rises before us as we read the burning words which the imagination of the speaker put into the mouth of John Adams. They are not only instinct with life, but with the life of impending revolution, and they glow with the warmth and strength of feeling so characteristic of their supposed author. It is well known that the general belief at the time was that the passage was an extract from a speech actually delivered by John Adams. Mr. Webster, as well as Mr. Adams's son and grandson, received numerous letters of inquiry on this point, and it is possible that many people still persist in this belief as to the origin of the passage. Such an effect was not produced by mere clever imitation, for there was nothing to imitate, but by the force of a powerful historic imagination and a strong artistic sense in its management.

In 1828 Mr. Webster delivered an address before the Mechanics' Institute in Boston, on "Science in connection with the Mechanic Arts," a subject which was outside of his usual lines of thought, and offered no especial attractions to him. This oration is graceful and strong, and possesses sufficient and appropriate eloquence. It is chiefly interesting, however, from the reserve and self-control, dictated by a nice sense of fitness, which it exhibited. Omniscience was not Mr. Webster's foible. He never was guilty of Lord Brougham's weakness of seeking to prove himself master of universal knowledge. In delivering an address on science and invention, there was a strong temptation to an orator like Mr. Webster to substitute glittering rhetoric for real knowledge; but the address at the Mechanics' Institute is simply the speech of a very eloquent and a liberally educated man upon a subject with which he had only the most general acquaintance. The other orations of this class were those on "The Character of Washington," the second Bunker Hill address, "The Landing at Plymouth," delivered in New York at the dinner of the Pilgrim Society, the remarks on the death of Judge Story and of Mr. Mason, and finally the speech on laying the corner-stone for the addition to the Capitol, in 1851. These were all comparatively brief speeches, with the exception of that at Bunker Hill, which, although very fine, was perceptibly inferior to his first effort when the corner-stone of the monument was laid. The address on the character of Washington, to an American the most dangerous of great and well-worn topics, is of a high order of eloquence. The theme appealed to Mr. Webster strongly and brought out his best powers, which were peculiarly fitted to do justice to the noble, massive, and dignified character of the subject. The last of these addresses, that on the addition to the Capitol, was in a prophetic vein, and, while it shows but little diminution of strength, has a sadness even in its splendid anticipations of the future, which makes it one of the most impressive of its class. All those which have been mentioned, however, show the hand of the master and are worthy to be preserved in the volumes which contain the noble series that began in the early flush of genius with the brilliant oration in the Plymouth church, and closed with the words uttered at Washington, under the shadow of the Capitol, when the light of life was fading and the end of all things was at hand.



CHAPTER V.

RETURN TO CONGRESS.

The thorough knowledge of the principles of government and legislation, the practical statesmanship, and the capacity for debate shown in the State convention, combined with the splendid oration at Plymouth to make Mr. Webster the most conspicuous man in New England, with the single exception of John Quincy Adams. There was, therefore, a strong and general desire that he should return to public life. He accepted with some reluctance the nomination to Congress from the Boston district in 1822, and in December, 1823, took his seat.

The six years which had elapsed since Mr. Webster left Washington had been a period of political quiet. The old parties had ceased to represent any distinctive principles, and the Federalists scarcely existed as an organization. Mr. Webster, during this interval, had remained almost wholly quiescent in regard to public affairs. He had urged the visit of Mr. Monroe to the North, which had done so much to hasten the inevitable dissolution of parties. He had received Mr. Calhoun when that gentleman visited Boston, and their friendship and apparent intimacy were such that the South Carolinian was thought to be his host's candidate for the presidency. Except for this and the part which he took in the Boston opposition to the Missouri compromise and to the tariff, matters to be noticed in connection with later events, Mr. Webster had held aloof from political conflict.

When he returned to Washington in 1823, the situation was much altered from that which he had left in 1817. In reality there were no parties, or only one; but the all-powerful Republicans who had adopted, under the pressure of foreign war, most of the Federalist principles so obnoxious to Jefferson and his school, were split up into as many factions as there were candidates for the presidency. It was a period of transition in which personal politics had taken the place of those founded on opposing principles, and this "era of good feeling" was marked by the intense bitterness of the conflicts produced by these personal rivalries. In addition to the factions which were battling for the control of the Republican party and for the great prize of the presidency, there was still another faction, composed of the old Federalists, who, although without organization, still held to their name and their prejudices, and clung together more as a matter of habit than with any practical object. Mr. Webster had been one of the Federalist leaders in the old days, and when he returned to public life with all the distinction which he had won in other fields, he was at once recognized as the chief and head of all that now remained of the great party of Washington and Hamilton. No Federalist could hope to be President, and for this very reason Federalist support was eagerly sought by all Republican candidates for the presidency. The favor of Mr. Webster as the head of an independent and necessarily disinterested faction was, of course, strongly desired in many quarters. His political position and his high reputation as a lawyer, orator, and statesman made him, therefore, a character of the first importance in Washington, a fact to which Mr. Clay at once gave public recognition by placing his future rival at the head of the Judiciary Committee of the House.

The six years of congressional life which now ensued were among the most useful if not the most brilliant in Mr. Webster's whole public career. He was free from the annoyance of opposition at home, and was twice returned by a practically unanimous popular vote. He held a commanding and influential and at the same time a thoroughly independent position in Washington, where he was regarded as the first man on the floor of the House in point of ability and reputation. He was not only able to show his great capacity for practical legislation, but he was at liberty to advance his own views on public questions in his own way, unburdened by the outside influences of party and of association which had affected him so much in his previous term of service and were soon to reassert their sway in all his subsequent career.