CLAY WOULD CODIFY his program of a national bank, internal improvements and a protective tariff as the “American system.” The intended implication was that those who opposed it opposed American interests. This claim elicited reactions that ranged from assent to ridicule to threats of violence. The program enjoyed early support from John Calhoun, but within a decade Calhoun would become its mortal enemy. Daniel Webster, who had been the foe of Clay and Calhoun on the war, would become Clay’s ally against Calhoun. Clay’s program would split the Republican party, creating a new party and giving the old party a new name.
Daniel Webster sided with Clay for philosophical reasons, but also because Webster needed a new political home. As great a political boon as the victory at New Orleans had been for Clay, it had been a disaster for Webster. His criticism of the war had seemed prescient while the war went badly, and his denunciation of Madison and the war hawks had been within the bounds of acceptable politics. But the war’s glorious end cast a retrospective shadow over Webster’s opposition, implicating his judgment, certainly, and perhaps his patriotism.
Making matters worse—much worse—was the seditious air that hung over the Hartford convention. When the participants finally went public, they proposed nothing more provocative than some amendments to the Constitution, which, given the constitutional requirement of approval by three-quarters of the states, stood no chance of adoption. But the reports of secessionist mutterings among the more extreme Federalists persisted and, amid the celebrations following the victory at New Orleans, sounded treasonous. The Federalists had been on hard times since John Adams’s loss to Thomas Jefferson in 1800; the jarring juxtaposition of Hartford defeatism and the New Orleans triumph guaranteed their oblivion.
Webster had to find a new party, perhaps a new career. He resumed his law practice, but in a different locale. “I have settled my purpose to remove from New Hampshire in the course of the summer,” he wrote to his brother in the spring of 1816. “I have thought of Boston, New York and Albany. On the whole I shall probably go to Boston, although I am not without some inducements to go into the state of New York. Our New England prosperity and importance are passing away. This is fact. The events of the times, the policy of England, the consequences of our war, and the Ghent Treaty have bereft us of our commerce, the great source of our wealth.” He did go to Boston, which, if it wasn’t the hub it had been, remained the capital of New England. Boston would forgive his Federalism and his flirtation with disunion, even if the rest of the country might not.
NOR DID IT hurt Webster’s law prospects that the last of the great Federalists presided over the highest law court in the land. John Marshall’s Federalism gave Alexander Hamilton an afterlife, and it did so in ways that vexed and infuriated Hamilton’s great rival Jefferson, and Jefferson’s followers. In the process it strengthened the nation—as distinct from the separate states—in ways neither Hamilton nor Jefferson could have envisioned.
Marshall landed his first blow against Jefferson in 1803, in the case of Marbury v. Madison. William Marbury had been appointed a justice of the peace for the District of Columbia in the waning days of the Adams administration, but he hadn’t received his commission by the time Jefferson took office. Jefferson saw no reason to deliver the commission, and consequently withheld it. Marbury sued James Madison, the secretary of state and thereby the official responsible for delivering commissions, and the case reached the Supreme Court. Marshall and the court ruled against Marbury, pleasing Jefferson, but they did so on ground that outraged the president and most Republicans. Marshall held that the statute under which Marbury had been appointed was unconstitutional and thus void. The Supreme Court had never declared a federal statute unconstitutional; the very idea flabbergasted lawyers, elected officials and the public alike. Interested parties scoured the Constitution to find the basis of Marshall’s reasoning and came up short. Precedent from the prehistory of the Constitution—the British common law—pointed in just the opposite direction.
Marshall’s genius in the case lay not in the reasoning, dubious as it was, but in the execution. He asserted an abstract principle while forestalling those in power from doing any more than objecting abstractly. If he had ordered Madison to deliver Marbury’s commission, Madison, with Jefferson’s support, would simply have refused. Marshall and the court would have been weakened, Jefferson and the executive branch strengthened. Instead Marshall gave Jefferson the immediate victory while claiming authority that would be exercised over the long term. In fact, the Supreme Court never again during Marshall’s lifetime negated a federal law. Not until the 1850s would Marshall’s precedent be reprised. But by then it would have acquired the legitimacy that comes from half a century’s standing.
Another case vexed Jefferson more personally. Following the president’s conversion to the belief that Aaron Burr was a scoundrel and a traitor, Burr was arrested and brought to trial for treason. The judge in the trial was none other than John Marshall, in his capacity as a circuit judge. In those days the Supreme Court didn’t attract enough business to employ the justices full time; when the high court was idle, they heard cases in various circuit courts. Burr’s alleged crime took place in the jurisdiction of the Richmond court of Marshall. Jefferson made the Burr case a test of executive authority; he threw the whole weight of his administration against Burr. Burr defended himself with an artfulness that turned Jefferson blue in the face, but he might still have been convicted had Marshall not put his thumb on the scale of justice. Burr didn’t bother trying to prove his innocence; instead he argued that the prosecution had failed to meet the constitutional standard for a treason conviction: namely the testimony of two eyewitnesses to the same treasonous act, defined as levying war on the United States or giving aid and comfort to America’s enemies during time of war, or a confession. Burr certainly didn’t confess, and the prosecution couldn’t supply the required witnesses. Marshall might have let the case go to the jury, but instead he directed an acquittal, on account of the lack of the constitutionally required evidence. Burr got off, to Jefferson’s chagrin, and prosecutions for treason became all but unheard of in American law.
MARSHALL OUTLASTED JEFFERSON’S presidency. He was still directing the court when Daniel Webster argued a case before it in 1818. The case involved Dartmouth College, which had received its charter from King George III before American independence and had operated for decades as a private institution. After a dispute arose among the administrators of the college, the New Hampshire legislature stepped in and asserted authority to amend the charter. The college sued, and the plaintiffs enlisted Webster, an alumnus as well as a lawyer with a rising reputation. Eventually the case reached the Supreme Court.
Chauncey Goodrich was a professor at Yale College and a skeptic on Webster. “I was told that in arguing the case at Exeter, New Hampshire, he had left the whole court-room in tears at the conclusion of his speech,” Goodrich recalled. “This, I confess, struck me unpleasantly—any attempt at pathos on a purely legal question like this seemed hardly in good taste.” Nor would it have any effect on the final outcome. “Whatever may have seemed appropriate in defending the college at home, and on her own ground,” Goodrich told himself, “there will be no appeal to the feelings of Judge Marshall and his associates at Washington.”
Goodrich traveled to Washington to see Webster foiled. “The Supreme Court of the United States held its session, that winter, in a mean apartment of moderate size—the capitol not having been rebuilt after its destruction in 1814,” he recounted. “The audience, when the case came on, was, therefore, small, consisting chiefly of legal men, the elite of the profession throughout the country.”
Webster commenced his argument. Goodrich was surprised that he spoke calmly and evenly, scarcely raising his voice. He spoke, as well, without effort, rarely glancing at notes. And he spoke at length, for four hours.
He had the entire attention of his audience, including the justices of the court. “I observed that Judge Story, at the opening of the case, had prepared himself, pen in hand, as if to take copious minutes,” Goodrich recalled. “Hour after hour I saw him fixed in the same attitude, but, so far as I could perceive, with not a note on his paper. The argument closed, and I could not discover that he had taken a single note. Others around me remarked the same thing, and it was among the on dits of Washington that a friend spoke to him of the fact with surprise, when the judge remarked, ‘Every thing was so clear, and so easy to remember, that not a note seemed necessary.’ ”
Webster concluded, apparently, and stood silent. The courtroom was silent too, for a long moment.
Then Webster turned to face John Marshall squarely. “This, sir, is my case. It is the case not merely of that humble institution; it is the case of every college in our land. It is more. It is the case of every eleemosynary institution throughout our country—of all those great charities founded by the piety of our ancestors to alleviate human misery and scatter blessings along the pathway of life. It is more! It is, in some sense, the case of every man among us who has property of which he may be stripped, for the question is simply this: Shall our state legislatures be allowed to take that which is not their own, to turn it from its original use and apply it to such ends or purposes as they in their discretion shall see fit?”
He paused again. “Sir, you may destroy this little institution. It is weak. It is in your hands. I know it is one of the lesser lights in the literary horizon of our country. You may put it out. But if you do so, you must carry through your work! You must extinguish, one after another, all those greater lights of science which, for more than a century, have thrown their radiance over our land!”
He paused a last time. “It is, sir, as I have said, a small college. And yet there are those who love it.”
Finally Webster’s feelings came to the surface. “His lips quivered,” Chauncey Goodrich observed. “His firm cheeks trembled with emotion; his eyes were filled with tears; his voice choked, and he seemed struggling to the utmost simply to gain that mastery over himself which might save him from an unmanly burst of feeling.”
The court was swept away. Goodrich recorded the tableau: “Chief Justice Marshall, with his tall and gaunt figure bent over, as if to catch the slightest whisper, the deep furrows of his cheek expanded with emotion, and his eyes suffused with tears; Mr. Justice Washington at his side, with his small and emaciated frame and countenance more like marble than I ever saw on any other human being, leaning forward with an eager, troubled look; and the remainder of the court, at the two extremities, pressing, as it were, toward a single point, while the audience below were wrapping themselves round in closer folds beneath the bench, to catch each look and every movement of the speaker’s face.”
Gradually Webster recovered himself. He had a few final words for the chief justice. “Sir, I know not how others may feel”—here he glanced at the opposition—“but for myself, when I see my alma mater surrounded, like Caesar in the senate house, by those who are reiterating stab after stab, I would not, for this right hand, have her turn to me and say, Et tu quoque mi fili! And thou too, my son!”
THE COURT RULED in Webster’s favor, accepting his argument that a contract was inviolate under the Constitution. It ruled in his favor in other cases he argued as well. McCulloch v. Maryland involved the constitutionality of the 1816 charter of the new Bank of the United States, and of the right of states to tax or otherwise regulate the bank. Webster was enlisted by the bank to defend the charter and refute a claim by Maryland of authority to tax the bank. He essayed the former by construing broadly the meaning and purpose of the Constitution. That document granted Congress certain powers explicitly, but others implicitly. “The grant of powers itself necessarily implies the grant of all usual and suitable means for the execution of the powers granted,” Webster told the court. “Congress may declare war; it may consequently carry on war, by armies and navies and other suitable means and methods of warfare.” The counsel for Maryland had noted that nowhere did the Constitution mention a bank. Nor was there evidence that the framers even thought of a bank. Webster conceded the point, but drew an opposite conclusion. “It is not enough to say that it does not appear that a bank was in the contemplation of the framers of the constitution. It was not their intention, in these cases, to enumerate particulars.” The Constitution was a sketch, an outline, not a detailed rendering. “The true view of the subject is that if it be a fit instrument to an authorized purpose, it may be used, not being specially prohibited.”
This was a broad, bold claim, directly affronting the understanding of many of those who voted to ratify the Constitution only after being assured that its power was limited to what was written in the text. Webster went further in creatively construing some of what was written in the text. Interpretations of the Constitution often hung on how the phrase “necessary and proper” was parsed in the clause granting Congress the authority to “make all laws which shall be necessary and proper” for executing the enumerated powers. Strict constructionists emphasized “necessary,” while broad constructionists stressed “proper.” Webster sided with the latter by waving away the former. “These words, ‘necessary and proper,’ in such an instrument, are probably to be considered synonymous,” he said. “Necessary powers must here intend such powers as are suitable and fitted to the subject; such as are best and most useful in relation to the end proposed. If this not be so, and if Congress could use no means but such as were absolutely indispensable to the existence of a granted power, the government would hardly exist; at least, it would be wholly inadequate to the purposes of its formation.” He applied his logic to the bank in question. “A bank is a proper and suitable instrument to assist in the operations of the government, in the collection and disbursement of the revenue, in the occasional anticipations of taxes and imposts, and in the regulation of the actual currency, as being part of the trade and exchange between the states.”
He proceeded to the question of whether a state could tax the bank. By no means, he declared. “If the states may tax the bank, to what extent shall they tax it, and where shall they stop? An unlimited power to tax involves, necessarily, a power to destroy, because there is a limit beyond which no institution and no property can bear taxation. A question of constitutional power can hardly be made to depend on a question of more or less. If the states may tax, they have no limit but their discretion; and the bank, therefore, must depend on the discretion of the state governments for its existence. This consequence is inevitable.”
The crux of the issue was the matter of sovereignty. “The bank cannot exist, nor can any bank established by Congress exist, if this right to tax it exists in the state governments. One or the other must be surrendered; and a surrender on the part of the government of the United States would be a giving up of those fundamental and essential powers without which the government cannot be maintained.” The whole purpose of the Constitution was to create a government above and beyond the state governments. The current case gave the court an opportunity to affirm what the framers intended. “Nothing can be plainer than that, if the law of Congress establishing the bank be a constitutional act, it must have its full and complete effects. Its operation cannot be either defeated or impeded by acts of state legislation. To hold otherwise would be to declare that Congress can only exercise its constitutional powers subject to the controlling discretion, and under the sufferance, of the state governments.” This was patently not the intention of the founders. Maryland must give way.
THE COURT ACCEPTED Webster’s argument. It upheld the federal law chartering the bank and effectively adopted Webster’s synonymizing of “necessary” and “proper.” And it struck down the Maryland law taxing the bank. On this point John Marshall paid Webster the high compliment of stealing his language. “The power to tax involves the power to destroy,” Marshall wrote for the court.
Webster and Marshall collaborated on other expansions of federal authority, most notably in the case of Gibbons v. Ogden. Webster defended steamboat operator Thomas Gibbons against a New York law inhibiting his operations. Webster argued that the clause of the Constitution granting Congress the authority to regulate commerce among the states was exclusive, precluding state regulations. Marshall agreed, and another precedent for the growth of federal power was established.
Alexander Hamilton, the founder of the Federalist party, was long dead, and the party itself had disbanded, but the nation-building spirit of Federalism lived in the work of Webster and Marshall. The arrangement suited Marshall, who held his federal judgeship for life, but it left Webster, who hankered to return to political office, at loose ends. The dying gasp of the Federalists had come in the election of 1816, in which James Monroe defeated Rufus King of New York by the electoral margin of 183 to 34. King’s drubbing demoralized the remnants of his party; never again would the Federalists mount a national campaign.
Monroe proposed a victory tour of the country. Webster suggested including New England on the itinerary. Virginia Republicans had rarely been seen in New England, and Webster thought a presidential visit would reassure a region recently alienated from the rest of the country. It would also help rehabilitate Webster, an architect of that alienation. The tour was a triumph. A Boston paper christened the dawning age the “era of good feelings” for its presumptive lack of party strife.