New York State had given Fulton and Livingston for a term exclusive steam navigation of all its waters, and Webster was to maintain that the grant impugned the federal constitution and was therefore invalid. The question was res integra, without analogies which often help us forlorn advocates who cannot find a precedent and are utterly without any literature suggesting the ratio decidendi. I know I cannot explain to a layman how such cases as these bewilder and paralyze the typical Anglo-American judge, who has walked all his life by precedent and not by sight. Further, Webster’s side antagonized prevailing sentiment and, it would be hardly too much to say, the public conscience; either one of which generally sways courts more powerfully than the law-brief, argument, and appeal of complete advocates. The only thing which Webster could oppose to these formidable odds was just a clause of a sentence of the constitution, this clause being only of twelve words when even the belonging context is read into it,[77] and appearing to be, we cannot say surplusage, but neither well-considered nor of any particular force. Out of this he constructed such a perfect and wise doctrine of the immunity of our interstate commerce from local attack and restraint that every succeeding generation has admired its wisdom more, and subsequent additions and extensions of importance are all manifest conclusions from the promises which he made good.
Reading and reflecting for writing my “American Law Studies” familiarized me with a few instances in which a man has left a lasting impress upon the development of the law (some of which instances will be mentioned in a moment). Thus I was led to meditate Webster’s work in this case; and it becomes an increasing wonder to me. Read what his biographer tells of the unfavorable circumstances of the preparation for the argument and how he overcame them by superhuman effort. Read also his own account as given by Harvey, how Wirt, his associate, older and of much more experience in that court, disparaged the ground upon which he said he should stand, and proposed another; and how Marshall drank in every word of Webster’s argument, and afterwards virtually reproduced it in the opinion.
But the great thing is what he did for the law. The current distribution of the common law under its larger heads was made by Hale and Blackstone after that of the contemporary civilians, which is founded upon that of the Institutes of Justinian. This book is but a reproduction of that of Gaius. So we may assert of this last mentioned author that it is his systematization which still obtains both in the English and Roman law, that is to say, the entire law of the enlightened world.[78] A few English chancellors perceptibly moulded equity; Mansfield almost created English commercial law; in our country, Hamilton, in one argument overturned the doctrine of tacking securities, and in another remade the essentials of libel; our great text-author Bishop, with his treatise often worked over in new editions, is really the enacter of the American law of divorce; and Marshall’s additions to our federal law will never be forgotten. By what he did in Gibbons v. Ogden, Webster has won a proud place in the small company of great law-givers.
And he is entitled to a liberal share of the glory which the Dartmouth college decision has won, for without him Marshall would have had no opportunity.
To estimate the prodigious effect of the rulings in these two cases, try to realize to yourself what would be the consequences to American trade and commerce if the States were not effectually kept from infringing contracts or granting monopolies of transportation. Try to realize the loss, the inconvenience, the trouble, the vexation, all the evil that would have unavoidably befallen us if these two companion decisions and the subsequent ones following them as precedents or extending them as analogies, had not made practically the whole of American inland business a unit—to use Webster’s word—under the protection everywhere of the same impartial law. The longer you think it over the more confirmed will be your opinion that from no other cause has the evolution away from the old independence of States towards a permanent union and a single organism of perpetually federated communities been more furthered. The unification of production and distribution thus given resistless impulse has almost of itself alone worked the unification of all our States. So looking back from the standpoint of to-day we may be sure that the powers had Webster by his accomplishment in the cases now in mind, to build for perpetual union far better than he knew.
It needs not to dwell upon the Bunker Hill oration, made June 17, 1825. It is, as I believe, the most familiar as a whole of all speeches to Americans. It did not stop with adding greatly to the influence he had won over New England by the Plymouth oration; it revealed him to the whole country as its supreme orator. Bear in mind its theme, remembering how large a part the battle of Bunker Hill was in founding our union.
The plainest manifestation that providence ever made of its favoritism to Webster was its having Adams and Jefferson both to die on the same day of all the year the most commemorative of each. By the eulogy of the two patriots which Webster made the next month he attained the height of his popular celebrity. His subject was no longer one that principally concerned New England and the north, but it was the co-operation of both sections in making the United States. Slowly, but surely, he has climbed to the top of authority, whence he ever draws audience and attention from north and south, both in the present and for ages after the brothers’ war.
These three popular speeches just noticed are unique in oratory, not in their general character, but in the nobility of the subjects, the ripeness of the occasion, the profound wisdom of treatment, and the extraordinary elevation and perfection of style.
Another stage begins in 1830 with the reply to Hayne. What Webster says therein, recommending brotherly love between the sections, and commending the union, he reproduced with grateful variation in many memorable passages of later speeches. The original and reproductions are the most precious gems of our literature, ranking in excellence even above Poe’s poetry, America’s best.
The speech of 1833 against Calhoun’s nullification resolutions, that which won for Webster the cognomen, The Expounder of the Constitution, belongs to the next succeeding stage, wherein he rose from supreme panegyric to invincible defence of the union. As we have already given in a former chapter this performance its due praise, we need not say more of it.