Part One: the Twilight of Federalism

Chapter I • The Passing of the Tie-Wig School

I • Old Boston

The year 1815, that brought to a close the unfortunate American venture into the maelstrom of the Napoleonic wars, may be conveniently taken to mark for New England the transition to the nineteenth century. With the rise of Unitarianism and the development of the new industrialism, a ruder and more vigorous age entered Boston. It met with a somewhat chilly reception. The patriarchal eighteenth century still clung to its warm chimney corner, not liking to be dispossessed by heirs of whom it testily disapproved. The old order stood on its dignity, tenacious of its habitual authority. It lived quietly in an aristocratic past, unregardful of the vigorous commonwealths rising beyond the Appalachian mountains, and contemptuous of the new political philosophy that preached the rights of man. A persistent continuity of temper marked the ruling class, a continuity little disturbed by the tumultuous revolutions of the past two generations. Although nearly half the voters of Massachusetts, in the year 1800, were Jeffersonian republicans, the knowledge of that fact only stiffened the backbones of the regnant caste. It colored their minds with a virtuous pessimism, but it edged their temper with the zeal of righteousness. The Boston mobsters, it would appear, were republican, and when the present custodians of the ark of decency were gathered to their fathers, very likely evil days would come upon the land; but while the righteous lived they would be faithful to their stewardship. Their own households, at least, they would keep clean of all democratic pollution; and so Boston and New Haven and Hartford—the capitals of New England culture—drew about them the garments of Federalist righteousness. Since the Revolution of ’76 a new authority had risen on the ruins of the old Tory authority, but in spite of the change of personnel and outward political forms, the spirit of respectable New England remained pretty much what it had always been. John Quincy Adams and Fisher Ames and Josiah Quincy were little different in character and aims from Thomas Hutchinson and Joseph Sewall and Daniel Leonard—they were common chips from the tough old New England oak. High-minded yet narrow; devout yet not emotionally religious; thrifty yet generous in approved causes; engaged in overseas commerce yet oddly parochial—they were men fashioned by a rugged environment into vigorous stock, that would hold tenaciously to what they had got and would tolerate no insubordination on the part of their social inferiors.

With its twenty-five thousand inhabitants Boston ranked fourth in size among American cities. Philadelphia, the social capital of America, was nearly three times as large; New York nearly two and a half times; and even Baltimore had lately come to exceed her in population. The economic forces that make for liberalism had become largely impotent. Free land had long since been exhausted in Massachusetts and social lines were fixed. The northern frontier of Maine and New Hampshire was rugged and uninviting, and York State lay to the West. Except in the Connecticut valley the soil was thin and farming unproductive, and in consequence the more ambitious turned to commerce and manufacture which the physical conditions of the country invited. The dominant interest of Boston was commercial, and the ruling coterie of merchants and lawyers was narrowly Whiggish. They had modified their pre-Revolutionary political philosophy no further than to substitute the word republican for monarchical. The aristocratic temper dominated the town meetings, and the principle of property rule was commonly accepted as the essence of political wisdom. In substituting Federalism for Toryism there was no easing of the restrictions on rebellious plebeians. Quite repudiated were the rude leveling ways of the great Revolutionary adventure. Boston gentlemen had come to understand too well the danger of encouraging the mob, for as Fisher Ames pointed out in 1787, “The people have turned against their teachers the doctrines, which were inculcated to effect the late revolution” (Works, p. 11). Boston had had enough of revolutions since Daniel Shays had got up one of his own aimed at the Boston purse, and French Jacobins had let loose their devastating ideas upon a gullible world. Revolutions that were not made in Boston, by Boston gentlemen, were quite certain to be wicked and seditious; and Boston had definitely gone out of the revolution business. It wanted above all things to undo the mischief that had already been done, and take back into safe hands the political power which in the days of revolutionary enthusiasm had been seized by the agrarian democracy.

In the last decade of the eighteenth century the intellectual isolation of New England was sharply accentuated and the consequent intellectual stagnation became more disastrous. In other portions of America French revolutionary theories of man and society were spreading widely and shouldering aside the outworn past. A romantic equalitarianism, based on the doctrine of human perfectibility, was displacing the traditional economic realism, established on the dogma of total depravity. The leveling movement, in consequence, was provided with a persuasive idealism that awakened troublesome aspirations in the disfranchised majority and gave a strong impetus to the democratic movement. But New England leaders stood resolutely apart, accounting all equalitarianism sheer romantic folly. The old stubborn realism held its ground, interpreting political principles in terms of economics, and dogmatically maintaining the sacred rights of property. Boston Federalism refused to have anything to do with “atheistic France,” the fruitful mother of Jacobin follies. Pollution, it was convinced, must result from any commerce with infidel and innovating ideas. Gunpowder that was played with might explode, and New England wanted no blowing up of her excellent society. Virginia had lent credulous ears to the voice of France, and the result was the atheist Jefferson and the rabble of his licentious followers. Massachusetts was not gullible and it would tolerate no Jeffersonian atheisms. And so instead of adapting French romantic philosophy to new world needs, seizing upon its social idealism to leaven the crude American lump—as Jefferson and Colonel Mason and John Taylor and many another Virginia gentleman had done—Boston Federalism rejected French ideas in the mass, dubbed French idealism Jacobinism, and turned back upon a stubborn reaction.

The disastrous consequences of that rejection upon the mind of New England cannot easily be measured. It is clear enough, nevertheless, that the renaissance was delayed a full generation, and when it came it assumed certain provincialisms that greatly lessened its permanent influence upon the rest of America. The impress of its contribution upon our national thought has been far less permanent than that of Virginia, that came a generation earlier and was primarily economic and political. It is a suggestive fact that in the work of adapting the new Federal Constitution to democratic ends, New England contributed no creative leader, none in any way comparable to Jefferson; but on the contrary her most representative leaders—and in particular Webster—followed the eighteenth-century tradition in combating the equalitarian advance in the interest of economic groups. Some explanation of this fact may be found, perhaps, in the selfish isolation of New England Federalism, that closed the door on the liberal thought of France.

In consequence of such isolation Boston became the recognized home of the philosophy of a stake-in-society. If it clung tenaciously to an old-fashioned Federalism after it had been abandoned elsewhere, it was because Boston was more middle-class than Charleston, and had not learned from experience with Jacksonianism how easily the majority will may be shaped and controlled to particular ends. It inherited the old Tory contempt for democracy and relied on the old stock arguments to combat it. Its habitual tone was one of virtuous arrogance. The one great and ever-present fear that haunted the pillows of worthy Boston merchants and turned their dreams to nightmares, was fear of the mob getting out of hand; and democracy, for them, was only a euphemism for the mob—the ever-present menace to sober and decent government. In the judgment of Theodore Dwight, brother of Timothy, “there could be nothing more dreadful this side of hell.” Nowhere else in America did the reaction against the democratic ideal carry so far as in Boston. The church and the merchant associations joined with polite society to cry it down, and upon the head of the democrat fell the most extravagant vituperation. For a generation few respectable New Englanders raised their voices in defense of democracy, but gentlemen of principle and property followed the lead of the little clique that was driving straight towards the Hartford Convention—blind sailors navigating the Dead Sea of Federalist pessimism.

All this was before the reputed time of plain living and high thinking. Intellectual Boston was as parochial as political Boston. The lights whom Bostonians regarded as the torch-bearers of New England culture have long since been extinguished and their names forgotten even in Beacon Street. Amongst the literati of the little Boston of 1800 the historian need concern himself with no more than two or three: Fisher Ames (1758–1808), the Federalist lawyer-wit, and Robert Treat Paine (1773–1811), esteemed the ninth wonder of the Boston world. Other figures there were, of course, in addition to the literati: Harrison Gray Otis, the eloquent voice of Faneuil Hall, and Josiah Quincy, whom Lowell likened to an old Roman of the elder virtuous days, and who during a long life of ninety-two years was an example of stalwart and antiquated Federalism. Old Boston bred dignified figures in plenty, men admirably equipped to be college presidents, ambassadors, orators on formal occasions, purveyors of cultivated inutilities and polished commonplace—men like Edward Everett, whom all Boston praised while they lived and forgot when they were dead; but it bred no thinkers or men of letters who count in the larger history of America. Boston was still parochial, content with little things.

II • Fisher Ames • The Oracle of the Tie-Wig School

Of this testy little world that clung to its smallclothes and tie-wig, refusing to adopt the Jacobin innovation in dress and manners and politics, declining to temper its prejudices to the gusty whims of a leveling age, Fisher Ames was the universal counselor and oracle. A vivacious little gentleman to whom politics was the breath of life, he achieved so tremendous a reputation in his short lifetime that all New England looked to him for leadership and Harvard College wanted to make him its president. He came of vigorous stock, prone to consult its own will and speak its opinions with no squeamish concern for a neighbor’s views. His brother, Dr. Nathaniel Ames, was as violent a Republican as Fisher was a Federalist, a hater of all lawyers whom he accounted the “pettifogging interest”; and when the two members of the family came together at dinner the talk must have been worth hearing. Diverse worlds and hostile philosophies faced each other over the roast, and the sauce no doubt was well spiced. Dr. Nathaniel had a pretty gift himself in the way of pungent speech, and Fisher’s wit was the admiration of all New England. When Gouverneur Morris—reputed the greatest wit in America—visited Massachusetts, Fisher Ames was pitted against him, and Boston believed that the honor of the Bay State was worthily upheld. His pet hobby was the inherent tyranny of all democracies, and when he once got astride his wooden horse and dug in the spurs, the onset was tremendous. The letters that have come down to us are a gold mine of picturesque vituperation, from which one may dig a wallet of choice nuggets. The vivacity of his anathemas is delightful, and one would give much to have heard Dr. Nathaniel’s retort militant.

There are the solidest grounds for regarding Fisher Ames as the representative citizen of Boston in the year 1800. He was the cleverest and most intelligent spokesman of a social and political circle quite untouched by the new French liberalisms, content with the habitual and familiar, and mightily concerned that the future should be as like the past as one generation of oysters is like another. A lawyer who shared the strong property consciousness of the Boston merchant, and a churchman who accepted the moral leadership of the Calvinist clergy, he offered stout and uncompromising resistance to innovation. “A change, though for the better, is always to be deplored by the generation in which it is effected,” he said. “Much is lost and more is hazarded” (Works, p. 15, edition of 1809). The new gospel of progress that came in with French romanticisms, he would have none of. In the face of a noisy Jacobinism that threatened to carry all before it, he fought a spirited fight, turning pamphleteer when his broken health removed him from Congress, counseling and scolding his fellow Federalists with his last breath. Others might truckle and compromise, but not Fisher Ames. His faith was founded on the solid granite of Yankee prejudice.

The very solidity of that prejudice made him the trenchant spokesman of the older Boston conservatisms—that and the vivacity of his prose style which is approved Augustan, uncorrupted by what he dubbed “pompous Johnsonian affectation.” His contemporary reputation was enormous. Accounted a great orator, he was accounted an even greater political philosopher, and his pamphlets were appraised by President Kirkland of Harvard as “the light of genius and wisdom darted athwart the gloom of our political chaos.” “In the character of Mr. Ames,” said the Harvard president, “the circle of the virtues seemed to be complete, and each virtue in its proper place” (Works, Introduction, p. xxviii). Yet in spite of so authoritative a pronouncement, Fisher Ames does not seem today so great a man as he seemed to his own generation. From the data collected in a stout volume published soon after his death as “a voice of instruction and warning to his country,” and from the letters published by his son in 1854, it is plain enough that this “powerful and original genius” was a retailer of somewhat shopworn goods, a complete Federalist Tory after the current Boston fashion. To Fisher Ames Federalism, as understood in New England, was a religion. He defended it with the ardor of the moralist, convinced that it included all the political virtues, and that whoever rejected it was a child of the devil. Whenever he considered the unpromising state of the country—which luxury he often indulged—whether in the midst of Shays’s Rebellion or of the Jeffersonian revolution, he fell into black pessimism. He grew hot from fires of his own kindling, and the gloomier he became the more vigorously he blew the bellows.

To the sinful publican self-conscious virtue is peculiarly irritating, and since Fisher Ames accounted most of his generation political publicans, he was at odds with all but a scant remnant of Federalist saints. From this isolation, from the defeat that overwhelmed his party in the great election of 1800, and from aggravating ill health, which beginning when he was thirty-seven incapacitated him three years later for public life, he fell into a state of chronic political despondency that extracted a grim pleasure from the contemplation of democratic follies and the anarchy towards which the country was hastening. During his last years his wit became acid; his letters are filled with caustic comment to sharpen the temper of those on the fighting line. Of these racy comments, so characteristic of Federalist spleen, a few examples must serve to convey the spirit: “Our country is too big for union, too sordid for patriotism, too democratic for liberty.” “We are in the hands of the philosophers of Lilliput.” “I have as loyal and respectful an opinion as possible of the sincerity in folly of our rulers.” “As to liberty, we are to have none—democracy will kindle its own hell, and consume in it.” “Democracy is a troubled spirit, fated never to rest, and whose dreams, if it sleeps, present only visions of hell.” In his last years Fisher Ames had become a shrill Jeremiah crying in the gates of an Israel that mocked the old prophets.

His political philosophy was simple, yet so native to Calvinist-Yankee New England, and historically so characteristic, that it provides a useful candle to throw light into the old New England garrets. In certain aspects it is close kin to the Whiggery of Locke and Pitt, particularly in its concern for the sacred right of property rule—a principle that he casually recognizes in his frequent assertion that “the mass of the federalists are the owners of the commercial and monied wealth of the nation” (Works, p. 426). But in post-Revolutionary Boston, suffering from the acute fright inflicted by Daniel Shays, this English Whiggery had come to assume a particular native form that differentiated it from its original. In the primitive Calvinist-Yankee world political theory had been shaped by the theocratic conception of stewardship, by which was meant an authoritative leadership reposing in the best and wisest, yet subject to the will of God as revealed in the Bible. Minister and magistrate, therefore, professed to justify their acts, not by expediency or interest, but by absolute ethical standards. From this early practice developed the pronounced ethical temper of New England political thought that set it apart from the Virginia school, a temper that persisted after the transfer of authority from Puritan minister and magistrate to Tory merchant and lawyer. With the growth of the aristocratic spirit in the middle eighteenth century, the squirearchy assumed unchallenged political leadership, and it was from the remnant of the old gentry remaining after the expulsion of the Loyalists, strengthened by a new generation of merchants and lawyers, that Boston Federalism drew its personnel. It professed republicanism, but it was instinctively aristocratic. It was true to its Puritan origins in expounding its political philosophy in terms of an absolute morality, and true to its aristocratic origins in assuming to be the special custodians of law and order. It no more questioned its special right to rulership in the state than it questioned its social position; and in both politics and society it professed the ancient doctrine of stewardship.

The kinship between the political philosophy of Fisher Ames and John Adams is quite evident. They are cut out of the same Puritan-Yankee cloth, but the former is a more careless tailor. Founded on less adequate analysis and lacking the wide historical appeal of Adams, assuming rather than proving the fact of a universal property aristocracy, and the economic origins of political power, the philosophy of Ames postulates the same ideal of justice as the end of government, discovers in faction the dragon to be slain, and concludes that only a static division of powers can insure political stability. Nevertheless the difference between the two men is enormous. John Adams was a philosopher, and Fisher Ames was only a lawyer-politician. The ideal of justice which the former postulated was fundamentally noble, whereas the ideal of justice which the latter assumed was narrowly legal. Both accepted the Puritan doctrine of human wickedness—a doctrine derived from medieval Toryism—and from it deduced the necessity of a coercive sovereignty; but Fisher Ames went further and assumed that the Puritan doctrine of the elect and the Yankee doctrine of the successful were one and the same, and that God’s remnant in Israel was no other than the prosperous merchants and lawyers of Boston. All the great multitude of the unprosperous, by the same doctrine, were the mass of the unregenerate, condemned for the good of society to be ruled by a rod of iron.

The noble doctrine of justice, therefore, became for Fisher Ames little more than the divine right of the minority to coerce the majority, in the name and through the agency of laws and statutes. In his view justice was little more than a drab realist in a lawyer’s wig, adjudicating title deeds, and delivering its findings out of law books. Its one concern was to safeguard what had been got, rather than to secure just and equal rights. It dreaded all rude and tumultuary innovation, and would tolerate no change that was not implicit in legal principles. Its golden rule was due process of law. Love of one’s neighbors was, no doubt, an excellent private virtue, but it was impractical, if not immoral, in the state. Concern for the improvident sinners must not influence government to impair the rights of the thrifty saints; for government was instituted and exists to safeguard established things. “The chief duty and care of all governments,” he argued, “is to protect the rights of property and the tranquillity of society” (Works, p. 125). Hence to Fisher Ames government was the common policeman and judge, whose function was to arrest the turbulent and bring them to the bar of the Common Law. Its beginning and end was the Tory principle of coercion. Its sovereignty was arrogant and domineering, taking no account of the democratic principle of good will. “The motives to refuse obedience to government are many and strong,” he explained; “impunity will multiply and enforce them. Many men would rebel, rather than be ruined; but they would rather not rebel, than be hanged” (Works, “Lucius Junius Brutus”). With government thus conceived of, naturally he desired that it should be strong; that it should impose its will ruthlessly upon the rebellious. Naturally also he regarded every idealist, the Rousseaus and Paines and Jeffersons—all the mischievous hosts of “democratick babblers”—as a dangerous enemy of law and order, desperately bent on overturning the rights of vested interests and the tranquillity of society. This is sufficient to explain the vindictiveness of his assault upon Shays and his followers, as “bankrupts and sots, who have gambled or slept away their estates”—while in the Revolutionary army—and were now engaged in the business of treason against the commonwealth, and the characteristic conclusion that he draws—“the certainty of punishment is the truest security against crimes” (Works, “Lucius Junius Brutus,” p. 3). To Fisher Ames and Daniel Shays, justice seems to have had very different aspects.

To the uncritical there is a certain persuasive dignity in the philosophy of Boston Federalism. Gentlemen like Fisher Ames were careful to appear well in public; they liked to be regarded as faithful stewards of the common weal. Concern for the res publica they professed so heartily that it seems ungracious to question their motives. How excellently they could make out a case for themselves will appear from the following exposition of Fisher Ames’ philosophy, as it was understood by a Harvard president:

Mr. Ames was emphatically a republican. He saw that many persons confounded a republick with a democracy. He considered them as essentially distinct and really opposite. According to his creed, a republick is that structure of an elective government, in which the administration necessarily prescribe to themselves the general good as the object of all their measures; a democracy is that, in which the present popular passions, independent of the publick good, become a guide to the rulers. In the first, the reason and interests of the society govern; in the second, their prejudices and passions. The frame of the American constitution supposes the dangers of democracy.... [The constitutional checks] are contrivances and devices voluntarily adopted by the people to restrain themselves from obstructing, by their own mistakes or perversity, the attainment of the publick welfare. They are professed means of insuring to the nation rulers, who will prefer the durable good of the whole to the transient advantage of the whole or a part. When these provisions become ineffectual, and the legislator, the executive magistrate, and the judge become the instruments of the passions of a people, or of the governing majority, the government, whatever may be its form, is a democracy, and the public liberty is no longer safe. True republican rulers are bound to act, not simply as those who appoint them would, but, as they ought; democratick leaders will act in subordination to those very passions which it is the object of government to control.... Then it is, that men, not laws, govern. (Works, Introduction, pp. xxiv–xxv.)

“The durable good of the whole” is an excellent phrase; but when the skeptical critic asks for more exact plans and specifications, the only answer is a request for a vote of confidence. The representative is presumed to be wiser and more patriotic than his constituents—quite above passion or interest—and may safely be intrusted with “the publick good.” “The love of country,” Fisher Ames was fond of insisting, “is the morality of politics,” and the Federal Constitution he believed to be so happily balanced that partisan selfishness must transmute itself into patriotism. But when we dismiss these amiable generalities—which reveal to what straits gentlemen were reduced in their contest with democracy—and examine the political principles that lie behind them, they do not appear so amiable. They imply as necessary corollaries a continuous aggrandizement of the political state, the principle of coercion, and the psychology of fear. It is no other than the old Tory arrogance, new-modeled to suit republican taste. Fisher Ames seems to have had no faith in the principle of good will or the expediency of compromise; his contempt for the opposition was as frank as Hamilton’s.

Government does not subsist by making proselytes to sound reasons or by compromise and arbitration with its members; but by the power of the community compelling the obedience of individuals. If that is not done, who will seek its protection, or fear its vengeance. (“Lucius Junius Brutus,” Works, p. 5.)

For let it be remarked, that a feeble government produces more factions than an oppressive one; the want of power first makes individuals legislators, and then rebels. Where parents want authority, children are wanting in duty. It is not possible to advance further in the same path; the one will conduct us first to anarchy, and next to foreign or domestick tyranny; the other, by the wise and vigorous exertion of lawful authority, will lead to permanent power, and general prosperity. I am no advocate for despotism; but I believe the probability to be much less of its being introduced by the corruption of our rulers, than by the delusion of the people. (“Camillus,” Works, p. 17.)

A weak, government, Ames argues insistently, is no other than a hotbed of faction, and faction is the fruitful mother of democratic anarchy. Again and again he returns to an exposition of the familiar eighteenth-century dogma that found its classic exposition in the tenth number of The Federalist; and his argument takes on darker colors from the Calvinist background of his mind. To those who have been reared on the sour doctrines of reprobation and election, the children of Adam become a major political concern. If God has cast off and denied the mass of the unregenerate, how shall the political philosopher hope to redeem them? If divine wisdom has granted them no part in the congregation of the righteous, what rights have they in the republic of the patriotic? To Fisher Ames town and village and farm showed plentiful examples of those whom the devil had marked for his own, and if they were gathered into a numerical democracy with the saints, how should the minority of the latter safeguard the Ark of the Sanctuary? How should the durable good of the whole be provided for? Thrift and godliness were not exactly synonymous terms to the Calvinist-Yankee, but it was clear that the godly will practice thrift, and those who have thriven, have ipso facto made out a case for their godliness. In this uncertain world two things seemed reasonably clear: that the poor are in a more doubtful state than the rich; and that in a moral world only the elect may be expected to serve the cause of morality. The wicked incline to democratic faction, but the prosperous serve the durable good of the whole.

To one cradled in such prejudices, the current phrase, “gentlemen of principle and property”—a phrase that provides the chorus to his thought—lacked the savor of cynicism that it suggests to modern ears. It was compounded of the ideals of Puritan and Yankee, and Fisher Ames seems never to have questioned its adequacy, or doubted its finality. To gentlemen of principle and property he looked to provide a bulwark against the immoral multitude; they were the stewards of society, on whom devolved the duty of protecting the whole from democratic faction. They had erected the Federal Constitution, which Jacobins were seeking to destroy; and in defense of that Constitution he brought forth his heaviest artillery. He contributed nothing new to the discussion; but he repeated the familiar arguments with the gusto of a dogmatist. “Simple governments,” he asserted, “are despotisms; and of all despotisms, a democracy, though the least durable, is the most violent” (Works, “American Liberty,” p. 382). The mortal weakness of all democracies he discovered in their immorality. A democracy will make every people “thoroughly licentious and corrupt.” “The known propensity of a democracy is to licentiousness, which the ambitious call, and the ignorant believe to be liberty.”

The great object, then, of political wisdom in framing our constitution, was to guard against licentiousness, that inbred malady of democracies, that deforms their infancy with grey hairs and decrepitude. (Ibid., p. 384.)

There is universally a presumption in democracy that promises everything; and at the same time an imbecility that can accomplish nothing, not even preserve itself. (Works, “Falkland,” p. 151.)

“Politics should have no passions,” this caustic old Federalist professed to believe, yet his bitterness against the Jeffersonians who threatened to overturn the funding law, the national bank, the midnight judicial appointments, and other measures of the best Federalist minds, was almost unseemly. It would appear that “the durable good of the whole” flew out at the window, when danger to commercial interests came in at the door. To erect a strong government and then lose control of it was a disaster indeed. With the political state in the hands of atheistic democrats, Fisher Ames was prepared to welcome the coming of anarchy, and his pessimism throve on the prospect. But that no warning might be lacking he laid down the whole theory of government in plain terms, that even Jefferson might understand:

But the essence, and almost the quintessence, of good government is, to protect property and its rights. When these are protected, there is scarcely any booty left for oppression to seize; the objects and the motives to usurpation and tyranny are removed. By securing property, life and liberty can scarcely fail of being secured: where property is safe by rules and principles, there is liberty. (Works, “Phocion,” p. 181.)

This is pure Federalism, stripped of all cant, speaking out frankly. It is the philosophy of John Locke brought in to serve the rising capitalism of New England, threatened by a Physiocratic agrarianism. The dogma of political morality has yielded to economic realism. The stake-in-society principle is the reply of the Puritan-Yankee to the democratic romanticism of Jefferson and Madison—a principle which, fortunately, “these apostles from the race-ground and the cock-pit” paid little heed to.

To a sophisticated generation, long familiar with the political ways of gentlemen of principle and property, Fisher Ames appears as a caustic little gentleman, vivacious and intolerant, who nodded his tie-wig dogmatically, and spoke his opinions oracularly. He quite evidently relished his ample store of old-fashioned prejudices, cherished them carefully, and prided himself on the wit with which he set them forth. If he was not the repository of all political wisdom that he believed himself to be, he was at least no demagogue, and in honoring him the Boston of the year 1800 was but painting its own portrait. It would be ungracious, perhaps, to add that Fisher Ames and Boston Federalism, defeated in their cherished projects, were both suffering from an extraordinarily aggravated case of the political spleen.

III • Robert Treat Paine, Jr. • Wit

Young Tom Paine, who took his brother’s and his father’s name—partly because a certain other Tom Paine had achieved a fame that Boston did not regard as enviable—shared with Fisher Ames the literary renown of the New England capital, a renown so great that Boston paid him quite astonishing sums for such couplets as his indolence suffered him to turn off. The popularity of his wares was a notable instance of the working of the law of supply and demand. The patriotism of Boston preferred domestic to imported goods, and he offered his verses to a public not very critical of quality. Boston had never had a poet of her own, while Connecticut with her Hartford Wits was the envy of all New England. Certain poetesses to be sure, had tried with “hallowed hands” to “attune Columbia’s lyre”—to quote Paine’s eulogy of Mrs. Sarah Wentworth Morton, “blest Philenia, noblest of the choir” (Works, “Menander to Philenia,” p. 129)—but their sentimentality was a bit cloying, and when genius appeared in the person of a Harvard graduate, graced with wit and adorned with all the learning of the schools, Boston was quick to acclaim him as her own.

The young man thus seized upon, and as it were raped by fame, was the last of the eighteenth-century wits, the most dashing product of a generation that patched its verse with tags of the classics and called it lisping in numbers. In temper and manners he belonged wholly to the tie-wig school that swaggered till the War of 1812 and then became obsolete overnight. As a young man about town he displayed the latest London clothes and set himself up as the very glass of fashion. Although he wore his own hair, he clung to smallclothes and like an honest Federalist refused to adopt Jacobin trousers. He was indisputably clever and he cultivated a pretty wit as assiduously as any Augustan. He talked in epigrams, and a convivial evening—of which he was quite too fond for his own good—was a failure that did not produce a bon mot to run through the town. His biographer has preserved a number of such for the amusement of posterity, and one at least deserves to be remembered by our younger critics. When the prohibition against the theater was repealed in 1793, he remarked, “The Vandal spirit of puritanism is prostrate in New-England.” In cleaving to wit and abandoning Puritanism, Paine broke with sober Boston convention, and soon all respectable folk began to shake their heads. A thriftless fellow, he played with the devil openly in the eyes of all Boston. He drank too much, he gambled, he haunted the theater and was a favorite of the greenroom, he became the first dramatic critic born and bred in New England, and when he married the daughter of an English actor, his father disowned him. Quite naturally he came to poverty, dissipated his strength, suffered many a humiliation, and died at the age of thirty-seven, leaving his widow and young children to be provided for by a public benefit at his beloved Federal Street theater.

Little of his wit, unfortunately, found its way into his verse, which, modeled ostensibly on Dryden and Pope, lacks their vigorous common sense, and laboring to be sublime succeeds in being heavy. His couplets swell sonorously, but his thought does not keep pace with his rhetoric. He follows his recipe carefully; adjectives duly support the nouns; the caesuras are justly spaced and the balance of the parts is as nice as if weighed in an apothecary’s scales. He seasons the whole with the staples of personification and poetic diction; everything has been provided for, and yet the cake is fallen that he takes from the oven. Something is lacking to lighten the sodden mass. A contemporary critic, viewing the finished product, expressed his judgment thus:

Of Mr. Paine, as an author, we cannot speak in terms of unmingled praise. His verse, indeed, seldom loiters into prose; but it must be confessed, that his prose is here and there “tricked and frounced, till it outmantles all the pride of verse.” His numbers are, perhaps, never feeble or faultering, but a wild and frolic imagination, occasionally, wantons through his periods, and sometimes displays itself in contemning the chaster elegancies, and sometimes in neglecting the severer decencies of thought and diction. (Works, Introduction, p. lxxviii.)

It is certainly a partial eye that discovers a wild and frolic imagination in these lumbering imitations of Pope, or in the occasional excursions into the languorous fields of Della Cruscan sentiment. When Paine ceases to be a wit he becomes an offense. To his admiring contemporaries his poetry seemed to be pure metal, but to later generations it is only plate, with the brass showing through the worn spots. The Ruling Passion, delivered before the Phi Beta Kappa Society in 1797, is perhaps the first poem of Paine’s that is much more than vacuous and turgid rhetoric; and this is redeemed, in spite of liberal helpings from Pope, by a certain vivacity of satire, phrased with Augustan smartness. Such couplets as these still preserve a jaunty literary swagger for later ears; how they tickled the more susceptible ears of our grandfathers must be imagined:

Where you send genius, send a fortune too;
Dunces by instinct thrive, as oysters woo!
For ne’er were veins of ore by chymist found,
Except, like Hebrew roots, in barren ground!

Paine early grew old, and before he had reached his thirties his mind had taken a rigid conservative bent. His affections were fixed upon a past that was visibly falling into decay, and its ways were endeared to him in the measure that they decayed. It was a matter of personal pride with him to embody in his own manners the aristocratic bearing of pre-Revolutionary times.

Mr. Paine [says his biographer] attached great consequence to manners.... He was modelled upon the old school. Without being familiar, he was easy among friends, and courtly to strangers. In colloquial discussions, he rigidly adhered to the law of politeness; and in mixed society, he neither courted the high, nor avoided the low.... He frequently deplored a supposed decay of manners. With concern, he used to inquire “In manners, where is the successor of Gen. Knox to be found?” It was with him a constant topick of complaint, that “The old, genteel, town families, had been elbowed out of house and home, by newcomers;” that “instead of the polished manners of a city, we should soon exhibit that growth of gentility, which is produced by ingrafting dollars upon village habits and low employments.” (Works, Introduction, p. lxix.)

Affecting an aristocratic bearing, Paine was as complete a Tory as the republican environment permitted. If he despised the new, pushing middle class that had risen since the Revolution, he held in contempt the numerous company of those he dubbed the yokel, the peasant, the hind, or the plow-tail. Under the circumstances the best that he could do politically was to turn Federalist, and he embraced the principles of Fisher Ames with genteel conviction. “In politics,” says his biographer, “Mr. Paine was a disciple of the old federal school. He understood the constitution, as Washington administered, and as Hamilton had expounded it” (ibid., p. lxxvii). During his undergraduate days he had dabbled in French revolutionary philosophy, and “the fanatic Atheism of France, decorated in all the meretricious charms of eloquence and philosophy, took a transient possession of his mind” (ibid., p. lxxviii). At graduation in 1792, he read a poem entitled The Nature and Progress of Liberty, in which he eulogized “liberal thought,” proposed to follow “Reason,” declared that “the rights of man” are a gift from heaven, proffered the hand of fellowship to France—

May struggling France her ancient freedom gain,
May Europe’s sword oppose her rights in vain—

and launched a devastating couplet at the great English opponent of the Revolution—

The fame of Burke, in dark oblivion rust,
His pen a meteor—and his page the dust.

Three years later, on proceeding Master of Arts, he presented a poem in very different vein. Three years were a generation in those stirring times, and by 1795 the penetrating vision of this genius of twenty-two had discovered the atheist poison in the cup of French democracy. The Invention of Letters rises to a climax in a satirical elaboration of a line from the poem of 1792—“Licentious morals breed disease of state.” Having learned his lesson from Fisher Ames, the sapient young Federalist announces that democracy is the mother of faction, and faction leads on to anarchy. In this poem for the first time Paine’s wit runs freely, and certain lines are as jaunty as he ever penned.

For place or power, while demagogues contend,
Whirled in their vortex, sinks each humbler friend.
See Crispin quit his stall, in Faction’s cause,
To cobble government, and soal the laws!
See Frisseur scent his dust, his razor set,
To shave the treaty, or to puff Genet!
In doubtful mood, see Mulciber debate,
To mend a horse-shoe, or to weld the state!
The whip’s bold knight, in barn, his truck is laid,
To spout in favour of the carrying trade!
While Staytape runs, from hissing goose, too hot,
To measure Congress for another coat;
And still, by rule of shop, intent on pelf,
Eyes the spare cloth, to cabbage for himself!

Envy, that fiend, who haunts the great and good,
Not Cato shunned, nor Hercules subdued.
On Fame’s wide field, where’er a covert lies,
The rustling serpent to the thicket flies;
The foe of Glory, Merit is her prey;
The dunce she leaves, to plod his drowsy way.
Of birth amphibious, and of Protean skill,
This green-eyed monster changes shape at will;
Like snakes of smaller breed, she sheds her skin;
Strips off the serpent, and turns—Jacobin.

In view of the fact that Governor Samuel Adams, chief of the New England Jacobins, was to occupy the stage, President Willard had diplomatically struck from the manuscript the ten lines last quoted; but Paine had the audacity to re-insert them in speaking, and the tumultuous applause was sufficient proof that it was not from a Harvard audience that Sam Adams got the votes that annually returned him governor.

Verse imposed some slight restraint on Paine’s rhetoric, but in prose when he was in full career—as in the grotesque eulogy of Washington which stirred the patriotism of Boston Federalists—the reins are on the neck of his eloquence, and he takes all barriers with fiery abandon. Fact troubles his wild and frolic imagination not at all, but like any plebeian demagogue—whose factional appeals he so furiously condemned—he blew the bellows of Federalist partisanship with extraordinary vigor, stoking his fire with rumor and misrepresentation and party spleen. No slander was too gross, no lie too palpable to serve his end. He baited the democrats quite shamelessly, and aroused the mob of Boston gentlemen like a true Tory. One of his political orations has been preserved by his editor in the collected edition of his works, for the enlightenment of posterity—an oration delivered in 1799, “at the request of the young men of Boston,” on the theme of France and democracy. In this extraordinary composition Paine seems to have been quite ravished by his own rhetoric, that flashes in many a feint and parry before it impales its victim. It is a Federalist philippic, designed to destroy the good name of all who have quitted the sacred Federalist tribe. Words could hardly go further; disregard for truth could scarcely be more brazen. Paine’s delight in clever antitheses overweighs any scruples in regard to just statement. “The French Republick,” he asserted, “has exhibited all the vices of civilization, without one of the virtues of barbarism.” One or two bits from this tremendous oration, that in “the glow of feeling, the swell of language, and the brilliancy of sentiments” has “very seldom been surpassed,” and that was “received with rapturous and enthusiastic applause,” must suffice to illustrate the justice of the Federalist claim to the custodianship of political good manners. “Politics should have no passions,” Fisher Ames asserted—which excellent principle young Robert Treat Paine exemplified thus:

Political Empiricism has never attained, in any age or nation, so universal an ascendency, as at the present day in the “Illuminated Republick.” Unfettered by the fear of innovation, and unshackled by the prejudice of ages, the modern Frenchman is educated in a system of moral and religious chimeras, which dazzle by their novelty those volatile intellects, which prescriptive wisdom could never impress with veneration. Every Frenchman, who has read a little is a pedant; and the whole race of these horn-book Philosophers is content with the atheism of Mirabeau ... the absurd philanthropy of Condorcet, and the visionary politics of Rousseau. These are the boundaries of their literary ambition, of their political science. Hence it is, that they pretend to be too enlightened for belief, too virtuous for government.

The feculence of party is not yet drained of its rankest sediment. The worshippers of democracy, though their altars are thrown down, are not yet converted from their devotions. The frozen snake has still some sparks of animation; and, if placed by compassion near your hospitable fires, he will revive with exasperated venom, and sting the hardy fool that fostered him. Deal therefore with these ferocious demoralizers, as our crafty mariners trade with the savages of the Indian ocean—with your men at their posts, your guns loaded, and your slow matches burning. (Works, p. 319.)

For all democrats Paine had the hearty contempt of an honest man for a rogue, but for the intellectuals who expounded the new romantic philosophy his indignation was measureless. “The legitimate plebeian democrat,” he asserted, is “an enemy to all government, under which he holds no office”; but fling him a bone from the public table and “he becomes the very scavenger of administration.” The “Illuminated Jacobin,” on the other hand, “never changes his principles.”

His whole science is directed to unhinge society, his whole ambition to plunder it. He is too ravenous to be content with a system of order himself; and too selfish to permit its enjoyment by others. Like a hog in a flower-garden, he sets no value on the variegated foliage he destroys, and seems only desirous to root out every twig of vegetation, that can satiate his voracity. (Ibid., p. 321.)

To such fustian was he reduced when his wit left him. That a gentleman could talk like that, and other gentlemen applaud, is a sad commentary on the intellectual honesty of partisanship, even amongst decent Federalists. Fustian was the order of the day, and Paine was merely baying with his pack. If only he had not professed such virtues his extravagance might be forgiven; but extravagance ill becomes a distinguished repository of political wisdom. Once, indeed, his vivacity got him into a nasty mess. While editor of The Federal Orrery, he accepted in 1795 a political poem entitled The Jacobiniad, the satire of which Paine “new-pointed and new-edged” before printing. The democrats, at whom it was directed, were vastly incensed, and a mob gathered before his lodging but was dispersed. Later the son of one of the victims challenged him to a duel. Paine declined but armed himself with an unloaded pistol. Accidentally meeting his challenger in the street, he drew his weapon, but the young fellow, standing in no awe of a favorite of the muses, struck the pistol down and proceeded to give Paine a sound drubbing. To such base treatment may genius come, when wit forgets that a sally of the tongue may invite a counter sally of the fists. And so we leave him in the dust of the street, ignobly laid low by the strength of that vulgar democracy which was to bring down so many things held dear by Boston Tories. His was, very largely, a wasted life—wasted by sheer indolence and feeble will. He was a fellow of some parts, and a sentence from one of his dramatic criticisms may not inaptly apply to him: “The character is not a sot, but his humor has a mellower tilth for having been husbanded and manured by ‘the excellent endeavor of drinking.’”

Chapter II • Winds of Political Doctrine

I

Into the complacent little Boston of Fisher Ames and Robert Treat Paine came the Embargo, the War of 1812, and the industrial revolution to upset its static order and destroy its snug provincialism. The old Federalism with its Hartford Convention and plans for New England secession went the way of mortality, carrying with it to the grave the old pessimism and the old spleen. The jealous isolationist policy was quietly forgotten in Boston; the gospel of secession was preached no more; George Cabot and Timothy Pickering gave way to other leaders; and provincial Boston joined with Kentucky and Tennessee in extolling a romantic nationalism. It sent to Washington a new spokesman, who joined with Henry Clay in a paternalistic program of national expansion, and took command of the forces combating the rising separatism of the South Carolina school. By the year 1830 Boston had traveled far from the times of the Hartford Convention.

The sufficient explanation of so striking a change is to be found, of course, in the changing economics of Massachusetts. The Embargo had proved a major disaster to New England shipping; and the Boston merchants, counting their losses from idle and dismasted ships, water-logging at the wharves, found just cause for hating the policy of the administration. But if the shipping business was brought face to face with tragedy, the manufacturing interests stumbled upon unexpected prosperity. With British imports cut off, the home market offered a tempting opportunity to Yankee enterprise. The familiar story of the swift rise of New England industrialism need not be recounted here. It is enough to remark that with the growth of domestic manufactures a new group of economic leaders appeared, and the policy of New England shifted from pro-mercantilism to pro-industrialism. It was a difficult choice at first between the antagonistic claims of the Boston merchant and the Lowell manufacturer; between the carriers of foreign goods who demanded free trade, and the makers of domestic goods who demanded a protective tariff. The traditional view of New England was strongly for free trade. In 1807 a Federalist lawyer asserted it to be “an unalienable right,” and in 1820 Judge Story asked, “Why should the laboring classes be taxed for the necessaries of life?”⁠ The tariff bill of 1824 got only one vote from Massachusetts; but in the four years between the passage of that act and the “Tariff of Abominations” of 1828, Massachusetts went over definitely to industrialism. Thenceforth she was to be the leader in the movement looking to governmental paternalism, substituting the expansive Federalism of Hamilton for the restrictive Federalism of Fisher Ames, and becoming in consequence whole-heartedly nationalistic.

Equally significant, though less observed, was the changed attitude of Massachusetts towards the great republican experiment. Gone was the older generation, with its face turned to the past and its heart bound up with the patriarchal ideals of a decadent squirearchy. Gone also were the disturbant fears of democracy. The menace of Daniel Shays, that had put the old Federalists in a rage at democracy, was long since forgotten; and the nervous panic over French Jacobinism, that had upset New England for a decade, had subsided. In the light of longer experience with its ways democracy was seen to be far from terrifying. The hobgoblin of faction that had benightmared the dreams of Fisher Ames was discovered to be only a bogey to frighten naughty boys. Massachusetts had kept off the agrarian reef, despite war and economic unrest, and with her new constitution of 1820 property interests were as secure as any old Federalist could have wished. Gentlemen of principle and property were still in control of the state; and if less emphasis was laid on principle and more on property—if less regard seemed to be paid to gentlemen of breeding and manners, and more to assertive self-seeking—business was no less secure than in the good old days, and its profits were greater. And so, master of its looms and a growing home market, New England industrialism regarded genially the great western movement, fostered by a benevolent paternalism, confident of extending its markets with every mile of westward expansion. To encourage the development of the West and South by a Federal policy of internal improvement became, therefore, common business foresight, provided of course that the Constitution should follow population and safeguard business interests against local agrarianism and the menace of particularism.

By the year 1830 both dangers lay black against the political horizon. The triumph of Jackson had enthroned the agrarian menace at Washington and produced such a scrambling of frightened interests—such a rattling among the old bones of Federalism and scurrying among the young limbs of industrialism—as the country had not seen for many a year. Henry Clay appealed to his followers in the West, and Webster marshaled his adherents of the East, and from the coalescing of these incongruous elements emerged the Whig party to do battle with Old Hickory. It was a patchwork army at best. In the hour of peril, principles go by the board. The Whig party was lineal heir of the old Federalism, but it denied its philosophical patrimony. It substituted expediency for the old economic realism, and began and ended intellectually bankrupt. Its bitter and unseemly squabbles over the Bank and tariff, its platitudes of patriotism and its pose of disinterestedness, the venom of its personal attack upon Jackson, were the earmarks of a policy of shallow opportunism that failed to make use of such victories as fell to its lot, for the simple reason that it could never agree on what to do. Such cohesive power as held it together—aside from petty antagonism to Jackson—was the vague assumption that the well-being of the American people was dependent on governmental patronage; the belief that each economic group and section must receive its special favor, and that through tariffs and bonuses and internal improvements the country as a whole must prosper. Of this principle of special favors—a return to the seventeenth century from which eighteenth-century liberalism was a reaction—the American System of Henry Clay was the chief expression, and it remains the most significant bequest of the Whig party to our political history.

The Whig party was the first attempt of our rising middle class to erect a political platform in accordance with middle-class ideals, and its failure was due to the fact that the time was not ripe for undisputed middle-class control. The merchant aristocracy of the North was overthrown, but the planter aristocracy of the South was still to be reckoned with; and its particularistic ambitions in the end wrecked the Whig coalition of the West and East. By 1820 a revolutionary change had taken place in the political philosophy of the plantation school. From an ardent nationalism Calhoun was leading his followers back to the earlier doctrine of states rights; and New England industrialism found itself confronted with the doctrine which the Hartford junto had played with, but now with far more drive behind it. The slave economy was entertaining imperialistic dreams, and to effect its ends was building up a new constitutional philosophy. Southern writers had long been at work, and the weight of their authority was behind the new particularism. Rawle on the Constitution, a states-rights exposition, was the official textbook on civics at the United States Military Academy, and from it, while a student at West Point, Jefferson Davis declared that he first imbibed states-rights principles. Other authoritative southern works that were widely read were John Taylor’s two studies: Construction Construed and Constitutions Vindicated (1820), and New Views of the Constitution of the United States (1823); some years later came Henry St. George Tucker’s Lectures on Constitutional Law (1843); and these were only preliminary to Calhoun’s searching exposition in his Disquisition on Government and An Inquiry into the Nature of the Constitution of the United States.

To meet this theory of particularism there was need of a resurgent Federalism, with a new nationalistic interpretation of the Constitution. The compact theory of the Federal state must be refuted by the organic theory; the conception of federated commonwealths must yield to the conception of a coalescing sovereignty. The old battle must be fought over again with fresh arguments. The sanctity of the Constitution must be asserted, but that sanctity must be thrown over a nationalistic rather than a particularistic interpretation. It must be shown that despite the vehement protestations of southern loyalty, a particularistic Constitution was a denial of loyalty and must end in the destruction of the national union. For this difficult business New England was as yet unprepared. The old Federalist arguments were obsolete, and many of those Federalists had been deep in the Hartford Convention. The new industrialism must provide its own theory, and it was fortunate in discovering two men whose combined learning and eloquence proved equal to the task.

II

The name of Webster has been so closely associated with the movement of constitutional nationalism as to overshadow the just fame of one who has many claims to be regarded as the intellectual leader of the school. Joseph Story was a Salem lawyer whose reputation, considerable as it is, is scarcely commensurate with his influence on our later constitutional development. Of the same Harvard class with William Ellery Channing, he dabbled in polite letters as a young man, but went into the law, entered politics, became Associate Justice of the Supreme Court, and for a time was Dane professor of law at Harvard. He came of radical stock. His father, a physician at Boston till he removed to Marblehead, was a militant Revolutionary Whig, one of the score or so of Indians who made up the Boston Tea Party, and a leader amongst the group of Sons of Liberty who seized and gagged the sentinels and carried off two brass fieldpieces from the Common where the British commander had posted them to overawe the town. The son grew up an ardent republican. As a very young man he became an outstanding leader of the unfashionable party, then in the minority, and suffered certain humiliations on account of his political opinions; on one occasion, according to Theodore Parker, being “knocked down in the street, beaten, and forced to take shelter in the house of a friend, whither he fled, bleeding, and covered with the mud of the street” (Additional Speeches, Vol. I, p. 178). Of these youthful heresies few indications appeared in his later life. Republican though he might be, he was utterly devoid of any radical tendencies, and when he took his seat on the Supreme Court bench he was speedily drawn into the powerful orbit of John Marshall, shared the latter’s views on all major constitutional questions, and turned Whig. He became a close friend of Webster and from 1816 to 1842 he was his chief adviser on knotty legal, constitutional, and international questions. “From that deep and copious well of legal knowledge,” Parker asserts, Webster drew freely “whenever his own bucket was dry” (ibid., p. 170).

This shift from Republican to Whig came about quite naturally. New England liberalism, it must be remembered, produced no intellectual leaders till late, and no clear-cut political philosophy. Though it nominally accepted the leadership of Jefferson it never was won over to the Physiocratic economics or states-rights principles of the Virginia school. Story was at no time a Jeffersonian, but rather an eager and avowed disciple of Washington, “little infected with Virginia notions, as to men or measures.” In his Autobiography he wrote:

The republican party then and at all other times embraced men of very different views on many subjects. Nay, a Virginia republican of that day, was very different from a Massachusetts republican, and the anti-federal doctrines of the former state then had and still have very little support or influence in the latter state, notwithstanding a concurrence in political action upon general subjects. I was at all times a firm believer in the doctrines of General Washington, and an admirer of his conduct, measures and principles.... I read and examined his principles, and have made them in a great measure the rule and guide of my life. I was and always have been a lover, devoted lover, of the constitution of the United States, and a friend to the union of the states. I never wished to bring the government to a mere confederacy of states; but to preserve the power of the general government given by all the states, in full exercise and sovereignty for the protection and preservation of all the states. (Story, Life and Letters of Joseph Story, Vol. I, p. 128.)

That he had as little sympathy with the Physiocratic economics of Jefferson is apparent from his early activities in furthering the new paper system. While a member of the Massachusetts legislature, as a young man, he was active in pressing for bank franchises, and upon the establishment of the Merchants’ Bank of Salem he became its president. Like Washington and Marshall he espoused the new gospel of capitalism, with none of the agrarian prejudices of the landed gentry to hold him back. He was the political twin of the great Chief Justice, and a Whig in spirit long before Webster. “I seem to myself,” he remarked late in life, “simply to have stood still in my political belief, while parties revolved about me; so that, although of the same opinions now as ever, I find my name changed from Democrat to Whig, but I know not how or why” (ibid., Vol. I, p. 546). Though somewhat naïve the comment is just. Anti-federalism in Massachusetts would seem to have been largely a capitalistic protest against the narrow tie-wig Federalism; and while Joseph Story sat upon the Supreme Court bench, adapting legal principles to the new needs of business, the country was moving forward to the middle-class philosophy that he had early come to hold.

In the year 1833 he published his Commentaries on the Constitution, the fruit of long labors, which was at once accepted throughout the North as a classical authority, and which has held its ground pretty well since. In method and temper, as well as objective, the exposition of Story stands in sharp contrast to that of the southern school. In its particularism the latter appealed to the history of the Constitution in the making, and to French romantic philosophy; whereas the former followed English constitutional theories to nationalistic ends. Story was steeped in the Common Law and his thinking reveals the strong influence of Blackstone. In passing through the mind of the great Tory commentator, English constitutional theory had received a pronounced Tory bias, and something of this remains after filtering through the mind of Story. The ideal of a strong and efficient political state, with its corollaries of a coercive sovereignty, of the duties of a subject rather than the rights of a citizen, of loyalty to government rather than concern for political justice, derives immediately from English theory and practice. Much likewise he took from the older Federalists: their fear of an encroaching legislative power; their concern at faction; their faith in checks and balances to restrain the majority will. But his chief inspiration came from the spirit of the Common Law—that subtle influence that Jefferson so greatly feared. His legalism was inveterate; the final, authoritative answer to all questions he discovered in the decision of the courts. Against such a mind, deeply read in the law and with scanty knowledge of economics and political theory, the waves of liberal and romantic thought broke impotently. His reasoning may be convincing to a lawyer, but to the historian his exposition is often weak, his data inadequate, and his conclusions not infrequently contrary to fact.

In building his argument Story drew his materials freely from The Federalist, from the writings and decisions of Marshall, and from Blackstone. The backbone of the work is Hamilton and Marshall, from whom he quotes constantly, supplemented by a host of decisions by Federalist judges. With its pronounced bias The Commentaries must be regarded as a partisan document, which like The Federalist has grown in authoritativeness with the triumph of its party principles. Its surprising weakness on the historical side has come to be overlooked since the downfall of southern particularism, but during the debates that preceded the Civil War the work was sharply handled by southern historians, and in his Constitutional View of the War between the States Stephens quite demolished Story’s feeble attempt at an historical justification of the anti-compact theory. The weight of historical evidence, to present-day students, would seem to be on the side of the states-rights argument, although in certain aspects both sides were innovators: Story in overleaping the period of French ascendency when the Constitution took shape, and going back to the older English tradition; and the compact school in reasserting the compact theory at a time when the spirit of nationalism was undermining it. Story seems to have been conscious of his weakness, for he expressly repudiates the method of interpreting the work in the light of contemporary testimony at the time of its formulation. In so doing he not only violates the principle that a document is to be construed in the light of the common understanding when it was drawn; but with naïve inconsistency, he constantly appeals to The Federalist, pretty much ignoring the opposition pamphlets, and interprets the Constitution in accord with its commentary. But for the most part he clings to the strict letter of the document. He lightly brushes aside the whole compact argument by asserting dogmatically that the phrase, “We the people of the United States,” must be understood in its simple literal sense, and that thus interpreted, the Constitution is seen to derive immediately from the individual citizens acting in their sovereign capacity without the intermediation of the state governments. The dispute long waged furiously about this point and Story’s analysis touches only the fringe of the argument.

Very likely it is presumptuous for one who is not a lawyer to express an opinion, yet these celebrated Commentaries seem today very little more than a new-modeled Federalism, adapted to changing conditions. Underneath the somewhat crabbed and narrow legalism is a common-sense realistic political philosophy, an embodiment of English constitutional tradition as it grew up under a Tory régime, that reveals scant sympathy with French romantic theories. The work is an unconscious testimony to the tenacious hold of the English Common Law on the legal mind of America, as well as to the rising spirit of nationalism. It did much to strengthen both. It was a triumph of the lawyer over the historian and political philosopher, and it marks the beginning of the lawyer’s custodianship of the fundamental law. In spite of its somewhat petty legalism and prosaic common sense, a note of veneration for the great document runs through the tedious pages, constituting the work at once both a commentary and a eulogy.

III • Daniel Webster • Realist and Constitutionalist

A far solider mind, strongly realistic and broadly philosophical, acute in analysis and with great powers of imagination, was the mind of the distinguished leader of the New England Whigs. Not the equal of Story as a lawyer, he was far superior as a political thinker. No man more richly endowed in mind and person has played a part on the stage of our public life, and in spite of gross shortcomings in character and the betrayal of his own promise, Webster retains an aura of the heroic about him. He was a great man, built on a great pattern, who never quite achieved a great life.

In Emerson and Webster were completely embodied the diverse New England tendencies that derived from the Puritan and the Yankee: the idealistic and the practical; the ethical and the rationalistic; the intellectual revolutionary, ready to turn the world upside down in theory, planting at the base of the established order the dynamite of ideas, and the soberly conservative, understanding the economic springs of political action, inclined to pessimism, neither wishing for Utopian change nor expecting it. The physical contrast was as striking as the mental. The child of the Puritan was slender, nervous, with a lambent energy that played freely in a rarefied atmosphere; the child of the Yankee was massive, solid, somnolently heavy till an idea awakened his faculties, a lover of the fleshpots, careless of conventional morals, rankly physical, and yet with an assured stateliness of manner, a slow imagination that expanded majestically and a rich eloquence that moved forward by regular stages to a great objective. Emerson was the child of a long line of ministers, and ministerial in his unworldliness; Webster was a Yankee squire, the descendant of some fox-hunting master of broad English acres, who by a freak of fortune had got born into the family of a New Hampshire yeoman. No Englishman was ever more English than he. He loved the substantial things of life: his Marshfield farm; his cattle and horses and crops; his rides afield and the return to good dinners and rich wines. Nothing is more characteristic or more likable—more redolent of the natural Webster—than his concern for agricultural improvements. His homely talk on The Agriculture of England, filled with facts that had come under his observant eye, reveals a side that is too little known. It is an English country squire talking to his neighbors about the homely things they all care for; and when after long years and disappointed ambition and utter weariness, he returned to his Marshfield farm to die, it was his cattle and his fields that offered a last solace to the broken man.

Webster’s intellectual development falls into distinct and rather sharply defined periods. Before 1825 his mental processes were still under the dominion of the solid, rationalist eighteenth century, with its realistic politics and its laissez faire economics. With the emergence of the constitutional disputes at the end of the twenties, when the lawyers and historians were busy at their commentaries, he came increasingly to take a legalistic view of government. During the acrimonious forties, with slavery dividing the country into hostile camps, he was bitten deeply by presidential ambitions, and thenceforth to the end of his life he was little more than a politician—a rôle for which he was singularly ill-fitted, and which brought bitterness and disillusion to his last days. Since his death both earlier and later phases of his career have fallen into the background, and the middle period of constitutional interpretation has stamped itself indelibly upon his fame. Yet in many respects the solid reasoning of the political philosopher is more valuable than the stately but somewhat ill-grounded declamation of the defender of the Constitution; and his just fame is increased rather than lessened by recalling his earlier contribution to our institutional development.

Webster was a sound political scholar, if not an outstanding creative thinker. He was of the distinguished line of political realists, from Harrington through Locke and Burke, to Hamilton, Madison and John Adams. He derived equally from seventeenth-century liberalism and eighteenth-century Federalism. He was widely read in the political classics, and his vigorous mind laid hold upon major principles and examined them closely. His intellectual master was the acute thinker of the English Commonwealth period, James Harrington, whom he pronounces “one of the most ingenious of political writers,” and to whose suggestive doctrine of economic determinism he returns persistently. That Harrington was not the originator of the doctrine he was well enough read to have discovered; but he pays him high tribute as the thinker who gave the doctrine form and currency. It is the substantial realism of the Oceana that appealed to a mind thoroughly indoctrinated with political realism, before the rise of manhood suffrage and the spread of equalitarianism had brought a change in American political theory. Both his major premises and his mode of reasoning bear the impress of the classic English school. In the year 1820, within a single week, he made two speeches, which as expositions of his political philosophy are the most illuminating he ever uttered, and which should stand side by side: the Basis of the Senate, delivered before the Massachusetts Constitutional Convention, and the Plymouth speech on The First Settlement of New England. They supplement each other and together give an admirable elucidation of the stake-in-society principle that embodied a conviction he never abandoned. They are compact of Harrington, Montesquieu and John Adams—the last authentic expression of the old Federalism, before the democratic storms had driven it into new roadsteads and whipped its flag from the halyards where it had long waved.

In his admirable argument Webster accepts as axiomatic the theory of division of powers, with the attendant machinery of checks and balances. He accepts equally the familiar view of eighteenth-century liberalism, that the legislature as the self-conscious custodian of the popular will is certain to prove the engrossing member of government whose ambition is most to be feared. To expect a stable balance between Senate and House when their characters are undifferentiated by diverse modes of selection—a result that must follow from choosing both on the numerical majority principle—seems to him the judgment of political inexperience. The wiser method, he believed, was to seek counsel of the philosophers and the clear teachings of history. The first, Webster insisted, have rightly laid down the principle of a stake-in-society as the true measure of political justice:

I take the principle to be well established, by writers of the greatest authority. In the first place, those who have treated of natural law have maintained, as a principle of law, that, as far as the object of society is the protection of something in which the members possess unequal shares, it is just that the weight of each person in the common councils should bear a relation and proportion to his interest. Such is the sentiment of Grotius, and he refers, in support of it, to several institutions among the lesser states. (“The Basis of the Senate,” in Works, Vol. III, pp. 13–14.)

At the basis of the stake-in-society principle is the doctrine of economic power as the controlling factor in determining the form and scope of the political state. In support of this doctrine of determinism Webster appeals to Harrington:

It is his leading object, in his Oceana, to prove, that power naturally and necessarily follows property. He maintains that a government founded on property is legitimately founded; and that a government founded on the disregard of property is founded in injustice, and can only be maintained by military force. “If one man,” says he, “be sole landlord, like the Grand Seignior, his empire is absolute. If a few possess the land, this makes the Gothic or feudal constitution. If the whole people be landlords, then it is a commonwealth.” “It is strange,” says an ingenious person in the last century, “that Harrington should be the first man to find out so evident and demonstrable a truth as that property being the true basis and measure of power.” In truth, he was not the first. The idea is as old as political science itself. It may be found in Aristotle, Lord Bacon, Sir Walter Raleigh, and other writers. Harrington seems, however, to be the first writer who has illustrated and expanded the principle, and given to it the effect and prominence which justly belong to it. To this sentiment, Sir, I entirely agree. It seems to me to be plain, that, in the absence of military force, political power naturally and necessarily goes into the hands which hold the property. In my judgment, therefore, a republican form of government rests, not more on political constitutions, than on those laws which regulate the descent and transmission of property....

The English Revolution of 1688 was a revolution in favor of property, as well as of other rights. It was brought about by men of property for their security; and our own immortal Revolution was undertaken, not to shake or plunder property, but to protect it. The acts which the country complained of were such as violated the rights of property. An immense majority of all those who had an interest in the soil were in favor of the Revolution; and they carried it through, looking to its results for the security of their possessions. (“The Basis of the Senate,” in Works, Vol. III, pp. 14–16.)

Harrington’s principle that “if the whole people be landlords, then it is a commonwealth,” Webster justified by appeal to American history. The spontaneous birth of republican institutions out of colonial experience he attributed to the wide diffusion of property. The land tenure of primitive New England was the creative source of her popular government.

Their situation demanded a parcelling out and division of the lands, and it may be fairly said, that this necessary act fixed the future frame and form of their government. The character of their political institutions was determined by the fundamental laws respecting property.... The property was all freehold ... alienation of the land was every way facilitated, even to the subjecting of it to every species of debt. The establishment of public registries, and the simplicity of our forms of conveyance, have greatly facilitated the change of real estate from one proprietor to another. The consequence of all these causes has been, a great subdivision of the soil, and a great equality of condition; the true basis, most certainly, of a popular government. “If the people,” says Harrington, “hold three parts in four of the territory, it is plain there can neither be any single person nor nobility able to dispute the government with them; in this case, therefore, except force be interposed, they govern themselves.” (“The First Settlement of New England,” in Works, Vol. I, pp. 35–36.)

Wholly English then, after the soundest English liberal tradition, was Webster’s political philosophy in the year 1820, compact of sober eighteenth-century realism, quite unaffected by French romantic equalitarianism. The great principle to which he adhered was the principle that government to be stable must be founded in men’s interests; thus founded no cause is given for revolutionary upheavals. “The disastrous revolutions which the world has witnessed, those political thunder-storms and earthquakes which have shaken the pillars of society to their very deepest foundations, have been revolutions against property.” Such were Webster’s convictions on the eve of those two great upheavals, the rise of Jacksonian democracy and the rejuvenation of the slave economy, that unseated the authority of the old school of political realism, and turned him aside from the plain path to lose himself in a tangle of constitutional legalism.

English also was his economic theory, to which, like Franklin before him, he gave close thought. In the year 1820 he was a frank disciple of Adam Smith and the laissez faire school. Mercantilism he derided as exploded;⁠ and Physiocratic agrarianism seemed to him unduly hostile to commerce. He never concerned himself, like Franklin, with humanitarian ends. His sympathies went strongly for free trade, individual initiative, and a competitive order—sympathies which to the end of his life he never wholly outgrew. In those early days the mercantile interests commanded his loyalty far more readily than the manufacturing interests. Next to his Marshfield farm he loved a full-rigged ship, and the thought of Yankee skippers plowing the seven seas in well-freighted bottoms fired his imagination and kindled his patriotism. But if in the background of his thought he remained laissez faire, with the necessary implications of a diminished political state and reliance upon the law of supply and demand above tariffs, bounties, and political regulations, unfortunately in the foreground of expediency were the loud demands of his constituents for protective tariffs, internal improvements, and a policy of governmental paternalism. His economics came into collision with politics, and under the drive of necessity he went reluctantly along the path which Hamilton had marked out a generation before.

The change came between the years 1824 and 1825. In the earlier year he aroused himself to a strong defense of laissez faire economics in opposition to Clay’s clever campaign cry, the American System; in the later year he endeavored half-heartedly to defend New England interests in the game of subsidies. He was honestly ashamed of the whole mess; to Webster any tariff was a “tariff of abominations”; but his mouth was stopped by the clamor of the Lowell textile masters.⁠ But having chosen his side, thereafter he defended his course vigorously, and joined forces with Clay in extolling the principle of protection. The same dubious shift is revealed in his changing attitude towards public finance. In 1815 he was an old-fashioned Federalist in his preference for a metallic currency and his belief that the public credit must rest on the public income; bank paper, stocks, bonds, and other agencies of the new finance he distrusted as likely to encourage speculation.⁠ Twenty years later he was the outstanding champion of the Bank in its mortal quarrel with Jackson. In defending his public career before his constituents in Faneuil Hall in 1842, he said: “The subject of currency has been the study of my life, in preference to all other public topics”; and the result of those studies had made him a confirmed bullionist. Nevertheless when “Old Bullion Benton” proposed to restore a metallic currency, Webster derided the plan on the ground that bank money was necessary; and when the subtreasury system was established he denounced it bitterly.⁠ He was a partisan to the cause of the Bank, and as its attorney he defended its case before the American public, as he defended its cases before the Supreme Court. He was no longer a free man but was deep in the subsidies of financial interests; nevertheless his old realism convinced him—as it had convinced Hamilton—of the necessity of shaping the public policy to the desires of the bankers. He justified it not only on the grounds of economic determinism, but by professing to discover in business the strong friend of national unity. The planters and farmers were local and sectional in outlook, but the “mercantile classes, the great commercial masses of the country, whose affairs connect them strongly with every State in the Union and with all the nations of the earth, whose business and profession give a sort of nationality to their character”—these men, he argued, gave solidity and stability to government—they were the cohesive force that bound the whole together.⁠ In serving such clients he was but serving a greater cause.

After 1824 the earlier Webster with his solid understanding, his frank realism, his honest exposition of fundamental principles, slowly gave way to the lawyer, the politician, the opportunist of the unhappy later years. With the change the last authentic voice of the eighteenth century was silenced; the break with the old English tradition was complete. Immediate, domestic issues muddied his thought, and Webster and America plunged into a bitter partisanship produced by the new alignments of an equalitarian agrarianism, a capitalistic industrialism, and a feudal slavocracy. Federalism was dead and in its stead was the Whig party, patched together of odds and ends, devoid of principles, seeking only expediency; and of this party Webster became an outstanding spokesman. It was an ignoble time, and his great abilities were not substantial enough to save him from the common meanness. Whoever wishes to understand how great was his fall need only compare the speech of 1820 on “The Basis of the Senate” with the “Declaration of Whig Principles and Purposes” of 1840 (Works, Vol. II, p. 41).

To his contemporaries, however, his position was secure. His reputation was extraordinary, and he seemed as fixed and brilliant as the north star. After the reply to Hayne, his fame as the defender of the Constitution was in every mouth. That celebrated speech, perhaps the most celebrated in our congressional history, was delivered on the January 26, 1830, and awakened an amazing response. Men were moved to tears by its eloquence, and its circulation in pamphlet form exceeded that of any other pamphlet since the founding of the government. It is not a great constitutional argument, but it better served the purpose of inspiring in the public a grandiose conception of national unity under the organic law, than any reasoned statement could have done. For political purposes rhetoric was more effective than historical argument, and its sonorous sentences, and in particular the stately conclusion, vastly appealed to the taste of the generation. Three years later Webster applied himself more closely to the subtleties of the question. Calhoun’s masterly argument with its exposition of the theory of concurrent majorities could not be answered by rhetoric, and on February 16, 1833, Webster spoke on “The Constitution not a Compact between Sovereign States” (Works, Vol. III, p. 449). His argument is strictly legal and rests on four theses: that sovereignty inheres in the people; that as individuals acting collectively in their sovereign capacity, they ordained and established the Constitution; that the Constitution thus established is the supreme law of the land, acting immediately upon the individual citizen and recognizing no intermediary sovereign state; and that as an “executed contract” it is irrevocable and final, with the necessary functions to construe its powers and execute its will.

Of these four theses, two may be regarded as Webster’s chief contribution to the great debate: the doctrine of immediacy, and the doctrine of an executed contract. The latter, quite obviously, is no more than Burke’s theory of the British constitution as founded on a compact entered into following the Revolution of 1688, and as such, by analogy from the Common Law, inviolable without the consent of both parties to the instrument. As developed by Burke the theory is somewhat tenuous, but as applied by Webster to the interpretation of a written document it is extraordinarily plausible to the legal mind. The doctrine of immediacy, on the other hand, would seem to have been derived from Judge Story. The argument of Webster in expounding the principle of immediate contact between the individual citizen and the Constitution follows the argument of Story’s Commentaries too closely to escape comment. Theodore Parker explicitly states that Webster got his argument from Story, and circumstances bear out his assertion. The two men had long been close friends. Webster’s speech was delivered a month after the Commentaries was finished. In his earlier speeches such principle found no place, and it is reasonable to suppose that, confronted by the Calhoun resolutions, Webster should have turned to the materials gathered by his learned friend and frequent adviser. Here was his reply ready to hand, a mass of legal fact and constitutional exposition, together with a clear and simple theory. Nearly a month elapsed before Webster rose to speak, and then he threw Story on the Constitution at Calhoun’s theory of compact. Whether such an interpretation is reasonable or not, the speech added greatly to Webster’s reputation as an expounder of the Constitution.

In 1833 he stood at the meridian of his renown; thereafter the westering sun of his fame went slowly down. He had come to evil times when opportunism and compromise—so imperative if the country were to hold together at all—seemed immoral to men who insisted that righteousness be legislated upon America, and weakness to men who demanded their pound of flesh. The black shadow of slavery fell across his path, and despite his wish to avoid all controversy on the subject, he could not evade the issue. It drove him into a corner, and the sword of the Constitution that he sought to defend himself with was turned in the end against him. Webster’s antipathy to slavery was of long standing and he gave frank expression to it in his speeches. The position which he finally came to assume, in face of the growing abolition sentiment in Massachusetts, was taken deliberately and was worthy of a lawyer. He would oppose the extension of slave territory, but he would not interfere with slavery in the old slave states. The Constitution, he argued, recognized slavery as existing in certain commonwealths by virtue of state laws, but those laws did not run beyond the confines of the state. The territories were under Federal law, and no injunction was laid upon Congress to extend the laws or institutions of any state or group of states over the territorial domain. In his speech on “Exclusion of Slavery from the Territories,” on August 12, 1848, he stated his position thus:

It will not be contended that this sort of slavery exists by general law. It exists only by local law. I do not mean to deny the validity of that local law where it is established; but I say it is, after all, local law. It is nothing more. And wherever that local law does not extend, property in persons does not exist. Well, Sir, what is now the demand on the part of our Southern friends? They say, “We will carry our local laws with us wherever we go. We insist that Congress does us injustice unless it establishes in the territory in which we wish to go our own local law.” This demand I for one resist, and shall resist. It goes upon the idea that there is an inequality, unless persons under this local law, and holding property by authority of that law, can go into new territory and there establish that local law, to the exclusion of the general law. (Works, Vol. V, p. 309.)

It was the unfortunate Seventh of March Speech that proved Webster’s undoing—this and the Fugitive Slave Bill in which he was deeply implicated. The situation was desperately critical, Webster was pessimistic, and this was a last gesture of reconciliation with the South. Presidential ambitions and runaway slaves were stewing in a common political pot with Abolition societies and northern mercantile interests. Webster was puzzled, hesitated, emptied another glass of the wine of the Constitution, and went for the Fugitive Slave Bill. It was a tragic political mistake. To be sure a tremendous address was presented to him, signed by the most respectable persons in Boston and Cambridge, but it was an empty honor. Webster’s influence was gone, never to be regained. There is something pathetic in his futile attempt to stifle the New England conscience by ramming the Constitution down its throat:

Sir, the principle of the restitution of runaway slaves is not objectionable, unless the Constitution is objectionable. If the Constitution is right in that respect, the principle is right, and the law providing for carrying it into effect is right. If that be so, and if there is no abuse of the right under any law of Congress, or any other law, then what is there to complain of? (“Speech on the Compromise Measures,” in Works, Vol. V, p. 433.)

And there is something pathetic also in the hurt vanity of the old man that his judgment should be questioned. His self-pride was offended when the Abolitionists rejected his legal dogmatisms, and set up their own dogmatisms. He regarded them as mischief-makers. “I am against agitators, north and south,” he exclaimed petulantly. He recognized no higher law than the Constitution and Blackstone, and he would suffer no popular interference with Congress.

Then, Sir, there are the Abolition societies, of which I am unwilling to speak, but in regard to which I have very clear notions and opinions. I do not think them useful. I think their operations for the last twenty years have produced nothing good or valuable.... They have excited feelings.... I cannot but see what mischiefs their interference with the South has produced ... everything that these agitating people have done has been, not to enlarge, but to restrain, not to set free, but to bind faster, the slave population of the South. (“Seventh of March Speech,” in Works, Vol. V, p. 357.)

I desire to call the attention of all sober-minded men at the North, of all conscientious men, of all men who are not carried away by some fanatical idea or some false impression, to their constitutional obligations. I put it to all the sober and sound minds at the North as a question of morals and a question of conscience. What right have they, in their legislative capacity or any other capacity, to endeavour to get around this Constitution, or to embarrass the free exercise of the rights secured by the Constitution to the persons whose slaves escape from them? None at all; none at all. Neither in the forum of conscience, nor before the face of the Constitution, are they, in my opinion, justified in such attempt. (Ibid., p. 355.)

If the later Webster had no message for the conscience of New England, neither had he any for the intelligence of New England. The realistic Federalism that had listened to him in 1820 was gone, submerged by the flood waters of the renaissance; and the current transcendentalism seemed to him insubstantial and dangerous. The rising liberalism of the forties left him wholly untouched; it could not leaven the heavy materialism of his nature. He was quite unacquainted with the new Massachusetts that was coming to expression; he had lived too long with “the lawyers, the politicians, and rich merchants and manufacturers,” to understand the greater world of Concord. While he had been living on the subsidies of State Street, and contracting his mind to the compass of a banker’s, the intellect of Massachusetts had become liberal. And in becoming liberal it aroused him from indifference to hostility. Writing to a friend in explanation of his refusal to visit Concord in his later years, he said:

Many of those whom I so highly regarded in your beautiful and quiet village have become a good deal estranged, to my great grief, by abolitionism, free-soilism, transcendentalism, and other notions which I cannot but regard as so many vagaries of the imagination. (Quoted in Sanborn, Life of Thoreau.)

But if he was scarcely acquainted with the little group of thinkers and liberals—Emerson, Thoreau, Channing, Parker, Garrison, Phillips, Edmund Quincy, Whittier, Lowell, Higginson, Harriet Beecher Stowe, Margaret Fuller—they were well acquainted with him and took his measure exactly. The intellect of Massachusetts—so long ignored by Webster—had its revenge. Its voice carried farther than his, and it painted his portrait in no flattering strokes. The fierce storm that suddenly beat upon him broke the old man’s spirit. He had fed too long on adulation to endure censure. No doubt that censure was severe, but it was far juster than the earlier adulation had been. Whittier’s Ichabod is familiar to every American schoolboy. Lowell, then in his liberal mood, characterized him as “a statesman who had communicated no impulse to any of the great ideas of the century, as a statesman whose soul had been absorbed in tariff, banks, and the Constitution, instead of devoting himself to the freedom of the future.” Emerson, who had long studied him critically, gave an extraordinarily just analysis of his character:

Mr. Webster is a man who lives by his memory, a man of the past, not a man of faith or of hope. He obeys his powerful animal nature;—and his finely developed understanding only works freely and with all its force, when it stands for animal good; that is, for property. He believes, in so many words, that government exists for the protection of property. He looks to the Union as an estate, a large farm, and is excellent in the completeness of his defence of it so far. He adheres to the letter.... What he finds already written, he will defend. Lucky that so much had got well written when he came. For he has no faith in the power of self-government. Not the smallest municipal provision, if it were new, would receive his sanction. In Massachusetts, in 1776, he would, beyond all question, have been a refugee. He praises Adams and Jefferson, but it is a past Adams and Jefferson, that his mind can entertain. A present Adams and Jefferson he would denounce. So with the eulogies of liberty in his writings,—they are sentimentalism and youthful rhetoric. He can celebrate it, but it means as much from him as from Metternich or Talleyrand. This is all inevitable from his constitution. All the drops of his blood have eyes that look downward. (“The Fugitive Slave Law.”)

To the transcendental mind Webster’s economic realism was peculiarly repugnant, and it was this which inspired Theodore Parker’s critical analysis of Webster’s career—the most scathing and explicit of all contemporary estimates. What Parker discovers most hateful in Webster’s career was his adherence to the principles of Federalism, from the “Basis of the Senate” speech in 1820, to the New York speech on November 18, 1850. The persistence of his economic realism was an affront to the liberals of the humanitarian school that had moved far from the position of Fisher Ames. Webster might do lip service to humanitarian ideals, Parker asserted, but always he came back in the end to his polar conception—“The great object of government is the protection of property at home, and respect and renown abroad” (Works: Additional Speeches, Vol. I, p. 220).

It was this same persistent realism that made Webster so useful to the rising capitalism. His work in the Senate was supplemented by his work in the court room. He was the greatest corporation lawyer of the day, certain to be found defending vested interests, never on the side of the leaner purse. Probably more than any other man except John Marshall, he contributed to the work of bringing the Constitution under the sovereignty of the judiciary. His most significant contribution, certainly, was his argument in the celebrated Dartmouth College case, delivered before the Supreme Court in 1818, which resulted in one of the foundation decisions on which later has been erected the solid structure of our corporation law.⁠ By engrafting upon the Constitution the principle that a contract lies beyond the reach of legislative power to annul, the decision assured greater security for private property than exists under any other judicial system in the world. Alexander Hamilton could not have asked for more.

It was the singular ill fortune of Webster to have been born too late to profit from the old mercantile Federalism to which his affections were always attached, and too early to profit by the industrial Federalism that came to greatness after the Civil War. If fate had been kinder to him, and he had appeared on the political horizon a generation earlier or a generation later, he would have reaped in far greater abundance those high civic honors he so foolishly coveted. The economic groups whom he served would have been in position to reward a servant so conspicuously able and useful. As a contemporary of John Adams he might have become a notable political philosopher—provided always that he had not turned Tory as Emerson suggested. But unhappily for his fame he was launched between tides on a stormy sea and his stately bark foundered in the squall of Abolitionism.