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Chapter 15: publicists and orators, 1800-1850

In America, political theory and political philosophy have always been closely associated with practical politics and with the problems of very immediate interest. The cogent and effective theory of the American Revolution was distinctly part of a determined effort to reach results in civil organization. And so too in the first half of the nineteenth century, a period by no means without its contribution to the philosophy of the state, most of the political theory appeared in speeches and pamphlets directed to the accomplishment of a present and very concrete purpose. The Americans have been charged with incapacity for sustained theorizing, or for prolonged logical discussion; and yet one may safely say that no other people of modern times have so widely used political theory or so generally discussed practical affairs on a theoretical basis. The whole nature of our institutions has prompted men to indulge in argument which was legalistic and was often tinctured with philosophy. Even the unlearned could not speak and think of democracy and its hopes without indulging in visions; they could not discuss the presence of slavery without touching the border of the deepest problems of social order; they could not speak of union or states' rights without entering at least the outer portal of philosophic argument. But we need not look for detached theoretical treatises; the statesman, the politician, and the jurist were busily using such learning as they had and such aptitude for theory as they possessed in the concrete and difficult problems which were begotten by democracy in a country which, to use Calhoun's words, was ‘rapidly—I was about to say fearfully —growing.’ Calhoun himself, a philosopher of real distinction, probably never claimed a higher role than that of statesman; [71] and though he published two treatises which belong in the field of political theory, they were produced because of an immediate tangible condition and they were partly vitiated for permanent service because of their defence of a decaying institution which dimmed his own outlook on the world.

The first few decades of the century, if they produced no notable pieces of abstract political theory, gave alluring opportunity for oratory and offered also an unusual field for the jurist. The orator had big themes—democracy, slavery, free labour, expansion, states' rights, nationalism, as well as the well-worn subjects of banks and tariffs and lands and commerce. The jurist was called to the novel task of construing constitutions, of passing on the fundamental law of a federal republic, and more—the task of developing and adjusting a system of private law suited to the needs of a new people and a new country. In both of these fields of action and of thought the Americans did much; in oratory appeared Webster, Clay, Calhoun, Randolph, Choate, Benton, and John Quincy Adams, and others only less worthy of note; in jurisprudence, Marshall and Kent and Story and Wheaton, by judicial opinion or by written text, laid the foundations of American public and private law and ably performed a creative task such as rarely, if ever, before fell to the lot of the jurist.

Much of the oratory of the time was of a kind which appeals but little to the reader of the present day. The speeches that have come down to us are often diffuse and occasionally florid. Nothing else could be expected from the leaders of a nation which was full of eager life and was assured of its own high destiny, a nation in which a man to be a popular leader must have power in appealing to the multitude, uncritical in its attitude toward literary form, provided the speaker himself have vitality, assurance, and a plentiful store of winged words. This, it is true, is not altogether just, for Webster's diction was on the whole restrained and strong; Calhoun rarely declaimed; Clay and Benton and Adams were always earnest and did not merely toy with words; Everett's orations, polished and academic, never descended into the lower realms of commonplace word-juggling for applause. And yet it is probably right to say that most of the speaking of the time was affected by the fact that orators were appealing to a wide [72] constituency, to a people engaged in very practical tasks, but self-confident, buoyant, and withal emotional or at least idealistic.

The jurists of the time may here be considered first, although, as already said, it is not possible to disassociate the greatest among them from the problems which enlisted the enthusiasm and interest of the orator and political leader. If one turns, for example, to the decisions which John Marshall (1755-1835) gave as chief justice, one at once thinks of the work of Calhoun and other great particularists, who in the field of active politics put forth theories totally at variance with those coming from the Court. It is, therefore, quite impossible to detach Marshall from the most important movements of his time; for his words lose significance unless we see that they marked out lines of social and political progress and profoundly affected the character and career of the nation. And thus too, if the establishment of a widely accepted system of jurisprudence is necessary for the building up of a common industrial and social life for the nation at large, the work of Joseph Story, James Kent, and others, cannot be assigned to any narrow field of technical jurisprudence of interest to the professional lawyer alone.

The appointment of Marshall to the chief justiceship (January, 1801) was of great significance, for in the course of a few years he showed the importance of the Federal judiciary and the great authority of his office. For thirty-four years he presided over the Court and gave out a series of decisions which fixed permanently the principles of constitutional construction. His task was in some respects more that of the statesman than the lawyer; he was called upon to consider public questions of far-reaching importance and to lay down principles which he must gather from the nature of the United States, which was itself, in its composite organization, an experiment, a new form of political order. He was the first judge in history on whom fell the duty of interpreting and expounding the fundamental basis of the state; for, though the Supreme Court had been in existence twelve years before Marshall took his seat on the bench, not much had been done to prepare the way or to throw light on the solution of perplexing [73] problems which Marshall had to solve. Ordinary legal learning and, above all, learning in the domain of ordinary private law could not avail him much; indeed one may question whether, had his mind been stored with vast legal lore, he could have entered on his work without falling into traps of pedantry or finding himself clogged by precedent and technicality. He brought to his great undertaking considerable experience in public affairs, an interest and a viewpoint arising from practical participation in government, and no small amount of learning in international and municipal law and in what we should now call political science.

The layman reading Marshall's decisions will be struck by the fact that he did not balance an opinion on a long line of precedents or seek refuge behind the thoughts and words of others. Few references to authority are to be found, and in some of his greatest cases there is not a single citation of precedent. He begins with simple statements, founded, one is led to think, in common sense, and then, with a careful but not overwrought analysis, he leads one forward to his conclusions, always with a directness and a simplicity which are characteristic of strong mental grasp but conceal the cleverness with which the road has been chosen or the arguments exposed. By his very statement of the issues involved in a case he could quietly disclose to the litigants against whom he was ruling the far-reaching and perhaps destructive consequences of their own contentions. And, as we have said, he did this, as he must needs do it in constitutional decisions, not by an elaborate dissecting of precedent and legal authority, but by a calm outlook upon the field and a searching analysis of the elements involved in the discussion. In his most important cases he appears to rise far above the details of the immediate controversy, one might almost say above the merits of the particular case, and to have his eye on the big principles affecting the future growth of the nation. And thus he created American constitutional law; at least, not to exaggerate, he marked out the broad lines of constitutional construction and fashioned the fundamental principles on which union and government might rest.

To select his opinions for separate comment, or to choose those most noteworthy, is not an easy task. Probably Marbury [74] vs. Madison is the most famous, because in that decision the Supreme Court exercised, for the first time, the power to declare an act of Congress unconstitutional. The principle on which Marshall gave the decision had been stated several times before, for the state courts had announced it when declaring statutes void and, among others, Hamilton had clearly set forth the doctrine in The Federalist. Moreover, modem scholars are not altogether content with the method of approach which Marshall followed in reaching his conclusion that a court had the right to declare a law void. Withal, however, the case is of signal importance and there would be considerable difficulty in presenting the power of the court with more simplicity and cogency.

In the decade after the War of 1812, Marshall rendered a series of opinions of the first importance. Thoroughly permeated with the conviction that the states of the Union must be kept within their proper bounds, he gave to the task of interpreting the Constitution and maintaining the authority of the national government his greatest power. Possibly his ablest decision, certainly the one most elaborately wrought out, is Cohens vs. Virginia, in which the question arose as to the right of the Supreme Court to exercise its appellate jurisdiction over the judgment of a state court involving the validity of state legislation. The contention of the counsel for the state struck at the very root of the judicial system of the Union, with its authority to review state decisions which involved the binding effect of the Federal Constitution and laws: and so to the discussion of this fundamental question Marshall brought his heaviest artillery. In a series of powerful paragraphs he proclaimed the principle of nationalism and the existence of a real union resting on the will and determination of the people:

‘That the United States,’ he said, ‘form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and in that character they have no other. America [75] has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent.’

These words give us some idea of the simplicity of the style, the evidence of power and confidence, the eloquence which can raise a judicial opinion into the realm of literature. This decision, emphatically maintaining the appellate authority of the Court and the supremacy of the national law when the law is consonant with the Constitution, left no further ground for legal discussion, though the men of Virginia, fretting under the authority of the Court, poured out their wrath in many words.1

In other decisions of vast influence on developing America, Marshall announced his doctrine of nationalism and marked out the limits of state competence. One of these, the case of McCulloch vs. Maryland, gave with renewed elaboration the doctrine of implied powers in the hands of the national government and laid down principles limiting the rights of the states. Here too Marshall examined the character of the Union and the scope of governmental authority under the Constitution, and did so with remarkable clearness. In the well-known case of Dartmouth College vs. Woodward, Marshall declared that a charter of a private corporation was a contract, inviolable by state authority. This decision is probably more sharply criticized by the modern lawyer than any other, and yet it is still standing and has stood for a century, the bulwark of the corporations, saving them at least from unreasonable and purely gratuitous attacks upon their privileges and property. A third case, Gibbons vs. Ogden, proclaiming in broad terms the extent of Federal power over interstate commerce, served as the foundation on which later decisions rested and at least suggested the legal foundation for the great development of nation-wide commerce. Thus, it will be seen, his work was of significance not alone because it furnished theories and principles of national organization and helped in determining the character of the Union, but also because, in passing on questions of state competence, his vision was sufficiently wide and [76] far-reaching to comprehend the need for secure industrial growth.

Though Marshall's best-known decisions were in the field of constitutional law, where he was easily master, his work was by no means confined to that subject, for many problems besides those involving constitutional construction came before the court. During his term as chief justice he rendered over five hundred opinions, dealing with almost every one of the main divisions of modern jurisprudence. But he did even more; he placed the Court itself in a position of authority and influence, dignified and made potent the whole Federal judicial system, and thus helped to build up that respect for the Federal courts which has been of such tremendous importance in the development of American life. This in fact was no easy task; the Supreme Court itself was often fiercely attacked; it often went counter to the intense prejudice of parties, states, and sections. But by virtue of his own integrity and inherent power he compelled respect and overcame prejudice.

In the general field of constitutional law, Joseph Story (1779– 1845) must be placed next to Marshall, though he did much less than the great chief justice of a purely constructive or creative character. His work as associate justice on the Supreme Bench was important, but his most substantial contribution was his Commentaries on the Constitution, which appeared in 1833 and long remained the only extensive and authoritative treatise on the subject. It passed through various editions, the best known, the fourth, containing copious annotations by Thomas M. Cooley, a distinguished publicist of a later generation. Thus for fifty years after its first appearance it furnished students of the law with the principles which Marshall and Story himself had done so much to establish by their decisions, and it doubtless had great influence on the thinking of bench and bar for two generations at least. It would be difficult to overestimate the importance of such volumes in the days when the critical case system was not used by beginners, when texts were comparatively few, and when practising attorneys and judges were not provided with long series of reports, in days also when the layman was interested in problems concerning the nature of the Union and the powers of government.

If Story's name is associated in our minds with that of [77] Marshall, because Story's Commentaries carried forward the Marshall tradition, we may also justly associate him with James Kent (1763-1847). Both were judges, both also teachers and writers, and by their published works on various fields of American law they gave it coherence, stability, and strength. Though Marshall has undimmed honour as the founder of constitutional law, we look to these two men as the chief influences in building up other branches of American jurisprudence.

They began their work when there was practically nothing written on American law, and when there was a feeling of opposition to the English common law, even as it was presented in Coke and Blackstone. The times were critical, and the work of these two men in laying the foundations of American law, in seizing upon the principles of the common law and adapting them to American conditions, and in building up, in general, a coherent and usable system was of great importance. A competent author, attributing much to the influence of these men, asserts that the achievements of the seventy-five years before the Civil War compare favourably with those of any period of growth and adjustment in legal history, and declares that the ‘closest analogy, both in the time taken and the amount and character of the work accomplished, is the classical period in England—the age of Coke.’2 Kent's Commentaries on American law (1826-1830) was of very great effect; it was long read by students of the law and occupied a place of distinction by the side of Blackstone's famous work. Story, in addition to his work as a teacher of law in Harvard and to his duties on the bench of the Federal Supreme Court, wrote a number of volumes which did perhaps even more than those of Kent to standardize and shape the law. His Conflict of laws and Equity jurisprudence were of transcendent value, restating and formulating in convenient form the judge-made law of the past and making it adaptable to American conditions. Of the former treatise it has even been said that ‘It forthwith systematized, one might almost say, created, a whole branch of the law of England.’ Kent's decisions, when he was chancellor of New York, fashioned and made applicable in America the principles of equity, and [78] Story's treatise on the same subject had as much or even greater influence in establishing and maintaining the system of equity jurisprudence.

What two men could do in expounding the law, making it intelligible and effective, and showing the strength and reasonableness of fundamental principles, in short, what could be done in fashioning the main lines of a growing jurisprudence for a rapidly growing country, these two men accomplished. The layman commonly thinks of the law as fixed, or as developing only by the addition of statutes passed by some legislative body, but the truth is that law grows, and the common law above all, as questions and problems arise; judges on the bench and writers of text-books who do more than merely chronicle decisions, have great opportunity to direct the law into new channels and to determine the course of its development. Such power and influence naturally belonged in unusual measure to Kent and Story, because of their learning, because they taught and wrote as well as gave opinions from the bench, and above all because the period in which they worked was a formative period in the early life of a nation, during which law, like everything else, had to find expression and formulation.

To the list of jurists deserving special mention must be added Henry Wheaton (1785-1848). His early important work was that of reporter of the Supreme Court; but in 1827 he was appointed charge d'affaires to Denmark, and a few years later minister to the court of Prussia. His diplomatic experience was doubtless of much service to him in his career as a publicist. In 1836 appeared the work by which he is chiefly known, the Elements of international law. It passed through various editions, was translated into foreign languages, and is justly considered one of the most valuable contributions to the science of international law made during the nineteenth century.

With the possible exception of Marshall and Webster,3 John C. Calhoun (1782-1850) was the most important statesman and writer on public affairs in the forty years preceding 1850. A South Carolinian, he belonged by birth, not to the lowland planter class, but to the men of the up-country. At an early day his father purchased a slave, not a usual possession for an up-country man, and when John Calhoun grew to manhood [79] he married a distant cousin of social standing and with some means, and thus the young man was connected with the social aristocracy and the slave-owning interests of the state. These simple facts stand out prominently in any effort to understand him in his development, because he became the learned and devoted advocate of the slave interests and defended, with his logic and his power in debate, the economical and social regime of the South. In 1811 he entered Congress, and was at once one of the leaders among the new young men, who were out of patience with the dallying methods of the older Jeffersonian politicians. For some years he was an ardent nationalist; possibly it is too much to say that he committed himself by votes or speeches to an interpretation of the Constitution radically opposed to state sovereignty; but in these earlier days we find in his spirit no traces of sectionalism or of any narrow particularism. In the latter part of the decade between 1820 and 1830, overcome by the unrest in his state and moved, it would seem, by its economic difficulties, he succumbed to the pressure of his surroundings and became the leader in formulating doctrines which South Carolina put forth to the world to defend itself against the tariff—shrewdly reasoned and highly elaborated doctrines of state sovereignty, the basis of nullification and secession.

Though other Southern states were at first by no means in agreement with South Carolina, when she presented to the world the theories which Calhoun so neatly phrased and so ably defended, he came to be, as the days went by, the leader of his section as well as the idol of his state. Sometimes he was a leader so far in advance that Southern people scarcely knew that they were slowly following his footsteps. More and more the South was identified with slavery; and more and more the people took their cue from Calhoun. He did not pose as a friend of disruption, and probably was a sincere friend of the Union; but the Union, he insisted with increasing fervour, must be a Union respecting the rights of the states, a Union which would hold together only if its government respected the varying conditions and the different interests of states and, indeed, of sections. He thus became the chief defender of two things or two ideas, slavery and particularism, to which the developing character of the nineteenth [80] century was utterly opposed; slavery here and everywhere was doomed to be beaten down by the tide of humanitarianism, while localism, and sectionalism, and all other tendencies to exclusiveness and segregation, were at variance with those great forces of aggregation and of nation-building which were manifest in the whole civilized world. Calhoun's great talents were actually devoted to elaboration and vehement promulgation of theories to the effect that the American Union was a clever political system devised for the express purpose of protecting peculiar local interests against external attack; and the chief local interest was the ‘peculiar institution’ of the South!

Calhoun's important contributions to the theory of American government began in 1828 in connection with the agitation in South Carolina about the tariff question. From that time on, his attention was largely devoted to inculcating the doctrine that the state had the right under the Constitution to protect its local interest against national aggression. His task was, and needed to be, in the presence of the growing power of the North, to develop principles for the protection of the minority, and in his quest for these doctrines he worked out a notable series of constitutional principles and philosophical theories.

Between 1828 and 1833 he developed his theories in defence of nullification by a single state. The basis of the right is of course the sovereignty of the state, and Calhoun insisted on indivisibility of sovereignty. ‘I maintain,’ he said, ‘that sovereignty is in its nature indivisible. It is the supreme power in a state, and we might just as well speak of half a square, or half of a triangle, as half a sovereignty.’ Probably it is not quite evident that one cannot justly speak of half a square; but without cavilling at his illustration we may see that in these words he swept aside statements which had been common before this time, to the effect that states, coming into the Union, surrendered a portion of their sovereignty and retained the remainder. Beneath his whole reasoning, therefore, lay the principles of what we may call organic philosophy, the recognition of the vital character of the body politic, though, of course, in this case, the body politic was the commonwealth, not the nation. He also believed that mere agreement could not establish law or political unity. This notion, at variance [81] with the older one that men by consent could form themselves, artificially as it were, into a new entity, was beginning to take its hold on the philosophic world, and it was Calhoun's appreciation of this notion and his use of it in concrete political controversy which constitutes one of his signal contributions to the history of political theory.

He did not, in these early days, dwell on the right of secession. In fact he did not wish, especially then, to emphasize that right; he relied, rather, on the right of nullification, that is, on the power of any state to declare, not through its legislature but through a convention representing the sovereignty of the state, that a federal law is void and must not be enforced within the state. Nullification, in fact, was put forth as a device whereby the state might be preserved, with its authority untouched, without having to resort to secession from the Union. It was, therefore, as he conceived it, conservative in a twofold sense: it conserved the right of the individual state, and it saved the Union; for, without nullification, secession was the only remedy for wrong. To preserve the appearance of constitutional method, he insisted that when a law was nullified the judgment of all the states should be sought, and they, by a three-fourths vote, might declare that the disputed power belonged to the national government. It is quite unnecessary to assert that Calhoun was insincere in announcing this method of passing on controverted points; the protection of the minority and the real desirability of maintaining the Union were cogent in his mind; the Union was too much of a reality for him to think easily of its being altogether at the beck and nod of a single state. It is plain, however, that one more than one-fourth of the states could, by his plan, pronounce a measure void; and, moreover, if three-fourths declared it constitutional, such declaration could not deter a state, all-powerful in its sovereignty, from seceding. A resort to nullification was, in Calhoun's mind, a means of determining whether the states supported the government, which was only their agent, and, if they did support it, then and only then might secession be resorted to. Secession, in other words, though theoretically within the competence of any state, would not as a rule be justified simply because of the action of the central government, for the government was the agent [82] of the states; until the principals acted, the individual state should content itself with nullification.

At the very outset, as we have seen, Calhoun announced principles calculated to defend the minority. His later and more elaborate treatises, notably his Disquisition on government and his Discourse on the Constitution and government of the United States, pushed to the end his theories as to the constitutional guarantees of minority. Here we find a very able discussion of constitutional principles so cogently expressed that they challenge one's admiration if they do not carry conviction. Intent upon disproving the notion that a mere majority of individuals, mere numbers, can decide upon rights or impose decisions on others, he insists that each interest or portion of the community must have a negative, and thus only when there is concurrence of the elements can there be the right to exercise power; where this principle of negation and concurrence does not exist, government rests on force; where they do exist, there is constitutionalism; a majority may be tyrannical, and therefore an unrestrained majority is inconsistent with constitutional liberty. It would be hard to deny that our constitutional system rests in part on the belief that majorities have not all power over the individual; but Calhoun's theory was different from this: interests, individual communities, must have, through the negative, the power of self-defence—and this meant, in reality, the South as a section and slavery as an interest. Through his whole career from 1828 till his death in 1850 there appears consistently this right of a minority to protect itself.

One other word must be said of Calhoun's work; for he did much more than outline the principles of state sovereignty. In the thirties, when the South began to defend slavery as never before, Calhoun stepped forward as a leader; and henceforward he was prepared to defend slavery as an institution and to use his theories concerning the Union to safeguard the institution at every turn. Here was the unnatural union: constitutional theory skilfully adapted to warding off intrusion was wedded to an economic, social, and moral condition of society. This union was all the more significant because slavery, though defended by theories of localism, was in need of recognition and of protection by national law; it needed in [83] fact to expand, if it were to hold its own; and thus Calhoun's doctrine of the individual rights of the individual states must so be turned, by infinitely cautious curves of logic, as to justify the protection of slaves on the high seas, the existence of slavery in the District of Columbia, national guardianship of slavery in the national domain, the denunciation of free speech on the subject at the North. No one save a giant among clever logicians and a devotee among enthusiasts could have played the role with success. His arguments and assertions are cogent and philosophical, keen, yet exhibiting a certain breadth and firmness of grasp. He early recognized the danger of a moral agitation against slavery; he did not say that the Union could not exist half slave and half free; but he did announce (1837) that ‘Abolition and the Union cannot co-exist’; the fell spirit of abolitionism, based as it was, or pretended to be, on moral grounds, was irreconcilable with the safety of slaves. To meet the attack of moral crusaders, he laid down the philosophy of slaveholding and above all its value in America:

I hold that in the present state of civilization, where two races of different origin, and distinguished by colour, and other physical differences, as well as intellectual, are brought together, the relation now existing in the slaveholding states between the two, is, instead of an evil, a good—a positive good.

He also declared—what may perhaps appear today to be a gruesome fact, or at least something near the fact—that, as social and political equality between the races was impossible, ‘to change the present condition of the African race . . . would be but to change the form of slavery.’ If the black race must exist among us deprived of social equality, political rights, and, largely, of industrial opportunity, have the former slaves become freemen or have they passed into a new form of servitude?

Calhoun's written treatises on government and the rights of the South do not differ essentially from his spoken words on the same subjects. They are often metaphysical and subtle; but his doctrines rested on certain philosophical conceptions; and in presenting his theories he used language that [84] was calm and clear, as clear at least as the nature of his delicately wrought system might well allow. In his speeches, he rarely, if ever, sought to stir his audience by mere flights of eloquence; he spoke, rather, as a man with his back to the wall, striking hard blows, seeking to defend himself and his section, unconsciously appealing to the emotions, if appealing at all, because his own position was not free from pathos; for here was a great man defending a losing cause and heroically beating back the forces that were hourly gaining in numbers and strength. Even when discussing subjects which now appear of bygone interest, he commonly struck at fundamentals and at principles with such force and precision that many of his words still have vitality; and much that he said will long retain interest for the academic student of politics. With the possible exception of Hamilton there is no other politician in our history whose writings today—decades after the disappearance of the subjects discussed—contain so much deserving attention and challenging respect even from the unbeliever. History offers few examples of such leadership, such success in mapping out for some millions of people a course of conduct and the ideas and beliefs on which conduct rests.

We have spoken of Calhoun as the great Southerner who presented with logical power the doctrines on which the South came to rest its case in defence of slavery. There were, however, others almost as able and gifted who wrote and spoke on similar lines. In the early years of the century, the Southerners were on the whole nationalistic in sentiment; opposition to national authority came from the North-east; but after the War of 1812 the conditions changed; the South, partly doubtless because it felt economic distress, began to complain. The first formidable protest came from Virginia and was directed against the Federal Court and its great chief justice, himself a Virginian, who was declared to be interpreting the Constitution in violation of states' rights and to be intent on building up a consolidated government, or as we should now say a unitary state. Jefferson, thoroughly disliking Marshall and all his works, was in or behind these attacks, but the great protagonists were Judge Spencer Roane (1762-1822) and John Taylor (1750-1824) of Caroline. Roane's argument was chiefly directed against the assumed right of final review of constitutional [85] questions by the Federal Court in cases involving the validity of state legislation. Taylor in a number of very able books and pamphlets discussed the same subject; but he treated also the nature of the Union in a manner so critical and acute that, more nearly than any one else, he foreshadowed Calhoun and suggested the clear undimmed features of state sovereignty. Naturally we cannot omit from this list of Southern advocates Robert Y. Hayne (1791-1839), who was Webster's opponent in the ‘great debate’ of 1830; for he made a deep impression and presented Calhoun's theories with eloquence and vigour.

Among the men of Congress who indulged in far-flung speech and whom we shall have to class as orators, John Randolph (1773-1833) of Roanoke claims our first attention. Totally without the qualities for party leadership, unable to retain the devotion or following of friends, unable to handle a big constitutional question with confident learning and logic, unable to develop theories and to win people by the force of his argument or the steady adherence to a cause and a principle, he nevertheless played a conspicuous role during the first quarter of the nineteenth century, and, if we judge now only by the records of his speeches, he was gifted with a power of expression, a cutting brilliant invective and devilish cleverness in criticism and attack, such as few speakers have ever possessed. He was essentially a busy fault-finder, an active, alert, denunciatory enemy, at his best—or perhaps we should say, his worst—when dealing out taunts and pouring out the vial of his wrath on the less gifted but more wise. It should also be said of him that by his vehement defence of the slavery interest, though he professed opposition to slavery in itself, and by his attack on the growing power of the Federal government, he prepared the way for the later arguments and positions of Calhoun, the real leader of the South. One passage will illustrate almost as well as many the character of his declamation:

‘We are the eel,’ he said of the South, ‘that is being flayed, while the cookmaid pats us on the head and cries, with the clown in King Lear, “Down, wantons, down! . . .” If, under a power to regulate trade, you prevent exportation; if, with the most approved spring lancets, you draw the last drop of blood from our veins; if, secundum artem, you draw the last shilling from our pockets, what [86] are the checks of the Constitution to us? A fig for the Constitution! When the scorpion's sting is probing us to the quick, shall we stop to chop logic? Shall we get some learned and cunning clerk to say whether the power to do this is to be found in the Constitution, and then, if he, from whatever motive, shall maintain the affirmative, shall we, like the animal whose fleece forms so material a portion of this bill [tariff, 1824], quietly lie down and be shorn?’

Randolph's idiosyncrasies have been variously accounted for. He said himself that his unprosperous life was the fruit of an ungovernable temper; but his temper and his violent vagaries were such evidences of a morbid mind that there is temptation simply to consider him mentally unbalanced if not insane. His very maddening skill with words recalls the adage about children and edged tools, for it seems a pity that one so unsedate should have had such weapons of offence in his arsenal.

From scarcely any point of view can the orations of Henry Clay (1777-1852) be classed as literature of the same grade and importance as those of Webster and Calhoun. And yet just why one should say this is not quite clear even to oneself. The conclusion, if it be just, rests on the fact that today his speeches seem unprofitable and to be wanting in carrying power and effect. If in order to be classed as literature orations must either be marked by beauty of language and peculiar felicity of word and phrase, or contain, though without distinction of language, a profound and philosophic discussion of matters of lasting human interest, then Clay's speeches can scarcely deserve a high place in literature. But if Clay's words do not now move us deeply, they did move and captivate the men to whom he spoke, and that is the aim of oratory. He was more nearly the great popular orator of his time than was any other; in power over a general audience and in ability to touch the chord of human sympathy, no one was quite his equal, at least in the field of politics. This is much to say of an orator in a generation of free oratory, when men were not hesitant in the use of burning words or hindered by sophisticated self-restraint. No one else had the gracious manner, the voice and the presence, or those nameless qualities of personal charm, which are powerful and dominant in all the relations of life. If he [87] could not win men by his logic or his facts, he could win and hold them simply because of himself. Randolph could arouse the interest of the crowd and amaze his audience by the brilliance of his epigrams; Rufus Choate could pour out strains of sonorous sentences which might for the time dazzle his admirers and confound his adversaries; Everett was able, with admirable grace and with decorous regard for niceties of expression, to utter polished periods which were almost too elegant to be convincing. But Clay conquered because he made friends and held them to himself; he enlisted their sympathies; with gracious persuasiveness he appealed to the hearts and the simple emotions of the crowd before him.

From the time when he became Speaker in 1811 and helped to bring on the war with England, to and through the compromise of 1850, Clay was intimately connected with all the great political movements of his day. The recognition of the South American republics, the tariff, the bank, the public lands, the distribution of the surplus revenue, the slavery question in all its phases, expansion, and the Mexican War can scarce be studied better than in the story of his life. Despite this fact or because of it, despite the fact that his life was in unusual degree the public life of a generation or more, it is perhaps not unjust to think of his speeches as occasional and of his work as that of an opportunist—a fairly consistent opportunist, it must be said, for he did not always trim his sails for popular favour, but represented instinctively and honestly, on the whole, certain human impulses of the people, and above all those elements of nationalism, conservatism, and democracy which were inherent in the strangely mingled Whig party of which he was the founder and guide. Though Jackson was for a time more popular and more successful, and though Webster's eloquence appealed more to the New Englander and to the book-read classes, Clay held for decades the devotion of large portions of the people and peculiarly embodied the sense and sensibility of the nation at large. It is only when one understands the intricacies of political controversy, the sentiments of Jacksonian democracy in the West, all the entanglements of banks, and tariffs, and roads, and slavery, that we can account for Clay's failure to attain the presidency, which he so ardently desired. [88]

The thing which lifts him into a place of undoubted significance in the course of American history is this: he embodied the spirit of developing nationalism and gave it constant expression. As Jackson, though a nationalist, represented the attitude of domineering individualism so characteristic of the untutored frontier, Clay in a wider and a deeper way appealed to the lofty sentiments of the whole people. It is not a question now of broad interpretation of the Constitution, or of any theory of governmental authority, or of any opposition to states' rights, or of anything that was legalistic or even argumentative in character; it is a question of the spirit which made America a nation, the sense of national existence, of power, of bigness, of duty, in a word, of reality. Without this sense, without this feeling in the hearts of Americans, the Union could not have resisted the corroding influence of slavery and could not have made itself, by a mighty effort, the huge, self-conscious, personal being that it is today. Of course, this was the work of others also; it was the natural product of modern life and culture; it rested on the elaborate argumentation of Webster and Marshall; but Clay by the spell of an attractive presence, by personal charm, and by the lure of a fervid eloquence awakened and developed this sentiment and made it irresistibly strong.

Perhaps the student of American literature might justly pass by the work of John Quincy Adams (1767-1848), on the ground that it possesses nothing of real literary merit and deserves no special distinction; he was not a great orator, if one judge by grace of expression and by power of public appeal, and he was not a writer gifted with special originality or charm of style. He was, however, for fifty years and more a prominent figure in public life—foreign minister, senator, secretary of state, president, representative in Congress; he prepared able state papers; for nearly twenty years and at an age when most men enjoy retirement from active service, he played a conspicuous role in Congress, speaking in behalf of free speech and the right of petition and defending the cause of free labour against the demands of slavery; he left for the use of succeeding generations a diary of his life, a source of comfort to the historical investigator and a pleasure to the lay reader of history, a diary astonishingly full and minute, filled with [89] reflections and with stern and caustic comments on men and events. The years after his presidency, when he was a representative in Congress, have given his name a peculiar lustre, for he laboured there boldly and almost alone.

He was too intense in his devotion to what he thought right, too unbending, too severe, too outspoken, too blunt perhaps, to be a political leader or a popular idol, but that he had power is plain, for by dint of fearless speech he won the well-earned title of ‘old man eloquent,’—and eloquent he undoubtedly was, when he rose to his height in defence of principles he believed just and sacred. Without descending into vulgar abuse, he could indulge in scathing attack, while his wide learning and experience in public affairs gave him advantage over most of his adversaries.

From even a hurried sketch of this period we cannot omit to mention the names of a few other men who were well known in this time and deserve to be known now. Albert Gallatin (1761-1849), one of the ablest and most learned of American statesmen, served his country in Congress, as foreign minister, and as secretary of the treasury; he was an administrator rather than a publicist or orator, but some of his pamphlets and reports were of marked ability. Roger Brooke Taney (1777-1864), secretary of the treasury under Jackson, and chief justice of the United States from 1836 to 1864, was a learned jurist, whose fame was clouded for the later part of his life by his opinion in the Dred Scott case. Josiah Quincy (1772-1864), an orator of no mean power, represented during the earlier part of his life the narrow New England Federalism which was so bitterly opposed to the politics of Jefferson and Madison. Edward Everett (1794-1865) occupied various public positions—member of Congress, governor of Massachusetts, minister to England, president of Harvard College. Although long active in political affairs he won chief destinction by lectures on literary subjects and by orations of an occasional character. In no other speeches of his generation, probably in no others in our whole history, do we find the same precision and elegance or equal refinement, ease, and grace; in no others are there such marks of real distinction in expression.

More than a word should be given to Thomas H. Benton (1782-1858), if the real importance of his work be given proper [90] recognition; but we must content ourselves with a brief statement. For over thirty years, from the time of the Missouri Compromise until almost the outbreak of the Civil War, he was prominent in public life, an active, untiring representative of the active, untiring West. No man, not even Clay or Jackson or Lincoln, better typified the young, self-confident Western democracy; he represented the West of his day not only in the measures he advocated and the principles he followed, but in his very manner of speech—earnest, assured, buoyant, boastful, idealistic. If one would know America and its differences, how training and environment have affected oratory as well as views of public policy, one could get no better lesson than by comparing the full-blooded oratory of Benton with the acrid speech of Josiah Quincy or the polite eloquence of Everett. After Benton's retirement from Congress, he prepared and published his Thirty years view, a political history of the decades between 1820 and 1850 written from the viewpoint of an actor in the scenes described, with copious extracts from his own speeches and without special care to diminish the importance of his own influence. After this, though he was now past threescore and ten, he prepared his Abridgment of the Debates of Congress from 1787 to 1856, the last sentences of which he is said to have dictated in whispers from his deathbed.

Though only the most noteworthy persons have been spoken of in this chapter, enough has been said to indicate that in the first fifty years of the nineteenth century there was much good oratory and a large amount of able writing on subjects of political interest. As we look back on those decades, the years seem to be hurrying past with great rapidity, changing the primitive United States in the span of a single lifetime from a row of scattered republics scarcely realizing national existence into a great empire stretching across the continent. And in those hurrying years, all sorts of questions arose to be vehemently and earnestly discussed before an increasing number of eager hearers who felt that their destiny was in their own hands. These crowding problems full of intense human meaning; this developing democracy with all its trials, hopes, and determinations; this people, beset with slavery and boasting its freedom, bent upon the big job of taking possession of a continent and [91] turning wilderness into farms and villages—these form the background of the oratory and the public tasks of the day. If no single piece of the very highest value in literature came out of the melee, we cannot wonder. And yet in the restless years there were men to be classed well up among the world's orators—for their themes were inspiring and a multitude was ready to hang upon their words. And in addition to all this product of earnest political strife and fervid declamation, is the fact, surprising, almost disconcerting, that the years produced jurists and publicists of erudition who quietly and methodically, amid all the hurry and change, framed the basic laws for a new nation, or, grasping essentials of older systems, gave them new life and form.

1 See William E. Dodd, Chief justice Marshall and Virginia, in American Historical review, XII (1907), 776-787.

2 Roscoe Pound, The Place of Judge-Story in the Making of American Law. Proceedings of the Cambridge historical Society, vol. VII (1914), p. 39.

3 For whom see Book II, Chap. XVI.

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