This Day in New York History (Seward Senate Speech Marks Him as Prime Anti-Slavery Foe)

March 11, 1850—In his maiden speech as U.S. Senator, the New York Whig William H. Seward denounced the Compromise of 1850, an omnibus legislative package that eased secessionist sentiment in the decade before the Civil War. 

The phrase he coined—“a higher law than the Constitution”—thrust him to the forefront of opposition to slavery, proved a stumbling block to his Presidential ambitions, and posed an enduring question about the relevance of faith- and morality-driven action in American politics.

I doubt if one out of a thousand people who pass the statue accompanying this entry have stopped for more than a couple of seconds to think about its subject. Now in the midst of Doris Kearns Goodwin’s collective biography of Abraham Lincoln’s wartime cabinet, Team of Rivals, I’ve come to appreciate, maybe for the first time, the opponent-turned-friend of the President, and how much he contributed to the politics of his time, and even of what he means to ours.

As governor of New York in the early 1840s, Seward promoted economic and educational policies meant to open greater opportunities to African-, German- and Irish-Americans who were already forming part of the Democratic coalition. Like John McCain today, he excited a horde of noisome nativists to insane frenzies—in Seward’s case, through a proposal to divert a part of public school funds to parochial schools where Catholic immigrants would not have to worry about Protestant proselytizing. 

(Take note, today’s Republicans: the path to success lies away from fear-mongering about immigrants and the dispossessed. Take note, today’s Democrats: at least some of your “wall of separation” rhetoric about church and state derives from very poisonous roots.)

After a brief hiatus out of office, Seward came back to win a Senate seat, just in time to face the most divisive question of his time: the suddenly real possibility that divisions over slavery could spell the end of the Union.

The Compromise of 1850 was meant to forestall these questions by not giving either North or South entirely what each wanted. The North would get admission of California, almost certain to be a free state, and an end to the slave trade within Washington, D.C. Two other provisions favored the South: the creation of two territories in the Southwest, New Mexico and Utah, with no restrictions on slavery; and strengthening of the Fugitive Slave Law of 1793.

The squall over the Compromise of 1850 is usually remembered as the last hurrah of the Senate’s “Great Triumvirate” of Henry Clay, John C. Calhoun, and Daniel Webster, all of whom would be out of the chamber they dominated, even dead, within three years. Webster’s three-hour March 7 oration in support of the package—an action that revolted his anti-slavery base and doomed his flickering Presidential chances but which also turned the tide toward enactment—was celebrated in John F. Kennedy’s Profiles in Courage, and was long memorized by generations of American schoolchildren.

However, the extensive legislative debate, I would argue, also brought to the fore a new generation of political leaders who dominated the antebellum and Civil War eras. Jefferson Davis assumed the role of Calhoun (so ill that he could not read aloud his fiery speech opposing the bills) as spokesman for the South. Stephen A. Douglas, the “Little Giant” best remembered now for his debates later in the decade with Abraham Lincoln, acted, like Clay, as legislative magician by crafting the legislation and rounding up enough votes to ensure passage.

And Seward took on the part that Webster, in his zeal to preserve the Union, had relinquished: champion of “Liberty and Union, now and forever, one and inseparable.” Beginning in a low voice decidedly removed from the great tolling bell that was Webster’s, he soon transfixed the Massachusetts Senator and his colleagues.

He could not support the proposals, he said. Strengthening the Fugitive Slave Law was unworthy of “true Christians or real freemen”; not just the slave trade, but slavery itself should not be permitted in the District of Columbia; and he could not abide the introduction of slavery anywhere in the new territories.

Not only the spirit of the Constitution was incompatible with slavery, Seward claimed, but “there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same purposes. The territory is a part…of the common heritage of mankind, bestowed upon them by the Creator of the universe.”

Even though he lost this legislative battle, Seward became the foremost spokesman for free-soil forces in the Senate. But he had provoked so much fierce opposition in the South that his enemies began to approach his friends in number and vehemence.

Political mentor Thurlow Weed’s confession that Seward’s speech “sent me to bed with a heavy heart” proved all too prescient in 1860. With the Whig Party dead by then, Seward sought the Republican Party nomination for President. But his long public anti-slavery record left such a long public trail that it opened the door to a relative dark-horse candidate: Abraham Lincoln.

Seward’s loyal and able service as Lincoln’s Secretary of State is how posterity fundamentally recalls him, and it’s certainly not a bad claim on our attention. But the “higher law” that this usually affable, conciliatory statesman invoked has, in one fashion or another, convulsed American politics throughout the republic.

In one sense, Seward’s appeal derives from the concept of natural law that has found advocates from Thomas Aquinas to Thomas Jefferson. It also meshes with the theory of civil disobedience formulated by Henry David Thoreau only a year before the Seward speech and perfected as a political tool by Mahatma Gandhi and Martin Luther King Jr. in the 20th century.

But a “higher law” also has the potential of angering people who might not share one’s religious faith or even notions of morality. Applied to certain issues—Prohibition, abortion—it has polarized the American electorate for decades.

And yet, it would be a mistake to call, as some have done in this election year, for the marginalizing of moral calls to action in the political arena. Refusal to appeal to morality produces consequences in the populace that necessarily reflect the Darwinian atmosphere of politics. Does anyone think that the United States would have been a better nation without the backing that the civil rights movement received from African-American ministers or that the unionists gained from the Roman Catholic Church?

Photo of the Day: Daniel Webster Statue, Washington DC

When I visited Washington in November 2013, I didn’t have to look at the base of this standing bronze statue at Bataan Street NW that I photographed to know that it depicted the great American orator and Union advocate Daniel Webster.

It wasn’t only in the great sweep of the folds of his clothing captured by sculptor Gaetano Trentanove, but the details of the craggy face that I’ve focused on in this closeup: the penetrating eyes and fierce demeanor that froze listeners in their place even before he uttered a single word.

One of the bronze relief panels on the granite pedestal shows the audience in the speech for which he is best known, the 1830 “Reply to Hayne” that included these words once memorized by countless American schoolchildren: “Liberty and Union, now and forever, one and inseparable!”

Despite his faults (a fondness for liquor, a too-close financial attachment to the Second Bank of the United States), Webster was a more towering figure in the life of the nation than even many Presidents. In a way, I wish some author would write an extended essay/short biography titled, Why Webster Still Matters.

If pressed, I would start by saying his career offers an example to Americans of our time of how what Senators say and do can make a difference in the life of the nation—if only Senator do not engage in gridlock and senseless posturing.

But equally important, I would point to his remarkable recognition in a June 1, 1837 address in Madison, Ind., of where damage to our country might come from:

“I apprehend no danger to our country from a foreign foe…. Our destruction, should it come at all, will be from another quarter. From the inattention of the people to the concerns of their government, from their carelessness and negligence, I must confess that I do apprehend some danger. I fear that they may place too implicit a confidence in their public servants, and fail properly to scrutinize their conduct; that in this way they may be made the dupes of designing men, and become the instruments of their own undoing.”

This Day in Supreme Court History (Webster, Marshall Save ‘A Small College’—and the Private Realm in America)

Feb. 2, 1819—In one of the central cases advancing John Marshall’s concept of a republic in which contracts would create a diverse economy that would bind the nation together, the Supreme Court ruled 5-1 in favor of the trustees of a then-small New England college and the eloquent alumnus arguing its case, Daniel Webster.

At first glance, the case, Trustees of Dartmouth College v. Woodward, might seem highly technical: whether the legislature of New Hampshire, in seeking to convert Dartmouth College from a privately funded institution to a public university, had violated the Constitution’s Contract Clause (Article 1, Section 10, Clause 1), which prohibits states from violating contracts with private or public corporations.

But Marshall (pictured here) saw matters more broadly. If the state could abrogate the terms of a private contract—even a charter such as Dartmouth’s granted in 1769, when New Hampshire was still a colony under British rule—then it could interfere in the operations of charities and, by extension, Americans’ private lives.

“The Dartmouth College case established an important safeguard for charitable institutions in the United States,” writes Justin Zaremby in the February 2019 issue of The New Criterion:

“The Court held that while privately run institutions may engage in activities that are within the purview of government, government could not by right assume control. It affirmed the role of charities (and their donors) in shaping America’s educational, literary, and cultural life, and over time the number and impact of such organizations grew.”

Only two decades later, Alexis de Tocqueville, in his classic political study Democracy in America, marveled at the strength and variety of these private activities in the U.S.:

"Nothing, in my opinion, is more deserving of our attention than the intellectual and moral associations of America. The political and industrial associations of that country strike us forcibly; but the others elude our observation, or if we discover them, we understand them imperfectly because we have hardly ever seen anything of the kind.”

But in another sense, Marshall opened the door to a constitutional interpretation that others would push far more aggressively. In holding for the trustees of Dartmouth College, he stated that a corporation was "an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence." 

In the 1880s, former Senator Roscoe Conkling of New York took this a step further in arguing before the Supreme Court: a corporation was not just "an artificial being" but a person, thus entitled to protection under the post-Civil War 14th Amendment. The high court adopted that proposition, producing a situation far from "originalist" (to use Antonin Scalia's term) in its basis: a constitutional  amendment adopted was a dead letter for the group it was intended to protect--African-Americans--but a boon for one not contemplated: robber barons.

(Indeed, the "Two Centuries of Corporate Personhood" that ensued from the decision was hailed in an op-ed piece in this Friday's Wall Street Journal by Carson Holloway, a visiting scholar at the conservative Heritage Foundation and a professor of political science science at the University of Nebraska Omaha.)

In more personal terms, Trustees of Dartmouth College v. Woodward enabled the two figures most essential to its outcome—the justice hearing the case and the lawyer who successfully pleaded it—to stake out a continuing important role in the nation’s affairs, even after the Federalist Party to which they had once belonged had self-destructed at the end of the War of 1812 through secessionist mutterings.

Following the collapse of the Federalist Party, Marshall, as Chief Justice of the Supreme Court, was the last party member in any major leadership post in Washington. With the capital not yet rebuilt after the British burning of the city in the war, he and his fellow justices were operating out of what an observer of the Dartmouth case, Chauncey Goodrich of Yale College, called “a mean apartment of moderate size.”

If Thomas Jefferson and his two Democratic-Republican successors, James Madison and James Monroe, had had their way, Marshall would have been lucky to have even that cubbyhole. Armed only with his incisive intellect and an easygoing, egalitarian manner, Marshall had somehow still managed to carry the day with sizable majorities, as he often managed to persuade justices appointed by the other party to join his cause.

Likewise fighting a rear-guard action against the Democratic-Republicans, Webster was also struggling to maintain his viability against his old foes. A couple of years before, he had left the House of Representatives—and the state of New Hampshire—to start a thriving legal practice in Boston, Mass.

From 1814 to 1852, “Black Dan” (a reference to his commanding dark looks) argued 168 cases before the Supreme Court. In the process, argued historian Merrill Peterson in The Great Triumvirate, “Webster turned ordinary law cases into vehicles of statesmanship with profound effects. The unique right of judicial tribunals to decide constitutional questions, enabling the humblest citizen in the humblest case to appeal to the supreme law, widened the scope of American law and invested it with the utmost dignity of state.”

The Dartmouth case, together with another he argued successfully before the court that year, McCulloch v. Maryland, allowed Webster to form a reputation as “defender of the Constitution”—and win election as U.S Senator from his new state. (His formidable reputation as a legal advocate would be memorably evoked a century later in Stephen Vincent Benet's much-anthologized short story "The Devil and Daniel Webster," in which the great man pulls off the neat trick of saving a poor farmer who had sold his soul to Ol' Scratch.

Oddly enough, Webster felt the conclusion to his four-hour argument in the Dartmouth case was so mawkish that he deleted it when he had copies printed. It has only been saved for posterity through Professor Goodrich, who published it after Webster’s death in 1852. These sentences, directed squarely at Marshall, moved the justice to tears and have become famous since then:

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

This Day in Legal History (Marshall Points Commerce-Clause Dagger at States’ Rights)

March 2, 1824—In the last year of what might be termed Jeffersonian Republicanism, John Marshall, Chief Justice of the Supreme Court, continued to strike at the Democratic-Republican Party he had shadow-boxed in more than two decades on the high court.  In Gibbons v. Ogden, he did more than merely decide between two competing steamboat owners, or even establish a precedent that would govern use of the interstate-commerce clause of the Constitution  in everything from the navigation innovations of the 19^th century to the telecommunications revolution of the 21^st.  

No, Marshall—himself a Virginia slaveowner—insisted that, whenever the two conflicted, federal power superseded state power. That nationalist vision repudiated the notions of states’ rights and secession secretly promoted by Thomas Jefferson and James Madison in the Virginia and Kentucky Resolutions of 1798. The enhanced authority this throwback to the now-defunct Federalist Party presented to Congress to pass laws relating to interstate commerce would, in time, become a weapon for abolitionists for the antebellum era, and even for civil-rights activists in the 1950s and 1960s.

A second cousin to Jefferson, Marshall, still vigorous in his late sixties, had outlasted Jefferson, Madison, and now his childhood friend, James Monroe. More infuriating to the Sage of Monticello, Marshall had pulled within his gravitational orbit most of the men that the Democratic-Republican Party had nominated to the high court, in the vain hope of counteracting his influence.

After justices had heard oral arguments, they reviewed the day’s business quickly in their cramped boardinghouse, where the chief’s mastery of men matched any mere President. For a man considered the bulwark of conservatism in the young republic, he put on no airs. (On a visit to the John Marshall House in Richmond some years ago, I was astonished to find that not only did he do his own food shopping in the city streets, but also that he was such a careless dresser that he needed the help of one of his slaves to ensure he looked presentable on special occasions.)

The court’s decision in Gibbons v. Ogden promised to be among them. Daniel Webster, the lead counsel for the case’s appellant, Thomas Gibbons, had drawn a crowd to see if he could deliver another persuasive argument, as he had done in two other landmark Marshall Court decisions (Dartmouth College v. Woodward and McCulloch v. Maryland), and the future Senator from Massachusetts didn’t disappoint. Moreover, commercial interests in New York were keenly watching a young go-getter in the background of the case, Cornelius Vanderbilt, whose tough, even ruthless management of Gibbons' boat had elicited the rancor of the latter's former steamboat partner, Aaron Ogden.  

The case had developed originally because the New York State Assembly had awarded a steamboat monopoly on the Hudson River to politician Robert Livingstone and inventor Robert Fulton. In turn, Livingstone allowed Ogden to navigate the waters between New York and New Jersey with this new mode of transportation. When Ogden fell out with Gibbons, the latter obtained a license to navigate under the federal Coasting Act of 1793. The New York state courts consistently sided with Ogden, until Gibbons played his last trump card and appealed to the Supreme Court.

In siding with Gibbons, Marshall struck down a monopoly that was restraining the growth of a new industry. The decision allowed a host of entrepreneurs who were trying to follow up on Fulton’s steamboat to ply their trade throughout the country. In particular, it “opened the floodgates for the Hudson River,” according to Fulton biographer Kirkpatrick Sale. Together with the Erie Canal (opening a year after the Ogden decision), the steamboat would transform the American interior, uniting East and West through strengthened commercial ties.

But Marshall was engaging in something larger: an adroit, step-by-step process by which he erected a legal foundation for his vision of a mercantile, contract-bound society that would unite all sections of a disparate republic into a true nation. Webster crowed that Marshall imbibed his arguments “as a baby takes in his mother’s milk,” but, in truth, the Chief Justice merely did with the attorney what he had done so successfully with his associate justices: gleefully employed their reasoning as a means of advancing his own constitutional strategy.

Crucially, in interpreting Article 1, Section 8, Clause 3 of the U.S. Constitution—i.e., the power given to Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”—Marshall construed the verbiage broadly to mean not simply the artifacts of commerce, but the whole “intercourse” by which it was conducted. Then, turning to the phrase “among the several states,” he argued for its widest possible application, limited only by the Constitution itself: “Commerce among the states, cannot stop at the external boundary line of each state, but may be introduced into the interior.”

Predictably, Jefferson and his followers did not look benignly on what they saw as yet another incursion by the Chief Justice on states’ rights. But Gibbons v. Ogden proved to be among the Marshall Court’s most popular decisions. Its wide acceptance, in fact, enabled opponents of slavery to wonder if it couldn’t be applied in overthrowing a system they abominated.

The domestic slave trade relied on the “chattel principle,” the notion that slaves were movable property. While most Americans thought that slavery could not be interfered with within individual states, abolitionists saw an increasing point of vulnerability to the peculiar institution in slave trade between states, which would fall under the commerce power.

Abolitionists’ denunciation of the interstate slave traffic, historian David L. Lightner argues in Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War, threatened alike plantation owners in older states (who needed proceeds from sales of surplus slaves to supplement their increasingly narrow profit margins) and those in the Deep South (who needed the labor to farm newly opened territories). Slaveowners’ paranoia about this perceived threat to their livelihood boosted the secessionist movement and hastened the coming of the Civil War.

A century after the Civil War, the administration of Lyndon Johnson crafted the Civil Rights Act of 1964 in such a way that the commerce power could be used to outlaw segregation and prohibit discrimination against African-Americans. It provided the federal government a wedge to charge non-state actors with Equal Protection violations. It also became a tool by which Congress could regulate manufacturing, child labor, workplace safety, farm production, mass media of communication, wages and hours of work, the activities of labor unions, buying and selling at marketplaces, and various other activities.

All of this began with a Chief Justice who served under five Presidents, making what was widely expected to be the weakest branch of the federal government into one with its own unrivaled authority. Marshall did so through a self-confidence that allowed him to range widely over the law while gratefully accepting the expertise of particular justices; the sure-footed instinct to know how far to push a point without incurring the full wrath of Jefferson and his followers (a point I mentioned in a prior post about how he conducted the Aaron Burr treason trial); and a conviviality that furthered the good feelings among the associate justices with liberal amounts of alcohol. 

The justices had a rule about drinking only when it was raining, but, as might be guessed, Marshall used a broad interpretation of their jurisdiction to decide when that applied. He would sometimes ask Associate Justice Joseph Story to “step to the window and see if it does not look like rain.”  If Story said the sun was “shining brightly,” Marshall would often answer, “our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.”  That was the signal for the bottles to open, and in the ensuing time spent together, the Chief undoubtedly sounded extra persuasive...

Quote of the Day (Daniel Webster, on Self-Discipline)

“The greatest of all warriors in the siege of Troy had not the pre-eminence because nature had given strength and he carried the largest bow, but because self-discipline had taught him how to bend it.”—U.S. Senator, statesman and orator Daniel Webster (1782-1852) quoted in The World’s Laconics: or, The Best Thoughts of the Best Authors, edited by Everard Berkeley (1853)