Main currents in American thought An interpretation of American literature from the beginnings to 1920
sense, and that thus interpreted, the Constitution is seen to derive
immediately from the individual citizens acting in their sovereign
capacity without the intermediation of the state governments. The
dispute long waged furiously about this point and Story’s analysis
touches only the fringe of the argument.
Very likely it is presumptuous for one who is not a lawyer to express
an opinion, yet these celebrated _Commentaries_ seem today very little
more than a new-modeled Federalism, adapted to changing conditions.
Underneath the somewhat crabbed and narrow legalism is a common-sense
realistic political philosophy, an embodiment of English constitutional
tradition as it grew up under a Tory régime, that reveals scant
sympathy with French romantic theories. The work is an unconscious
testimony to the tenacious hold of the English Common Law on the legal
mind of America, as well as to the rising spirit of nationalism. It
did much to strengthen both. It was a triumph of the lawyer over the
historian and political philosopher, and it marks the beginning of the
lawyer’s custodianship of the fundamental law. In spite of its somewhat
petty legalism and prosaic common sense, a note of veneration for the
great document runs through the tedious pages, constituting the work at
once both a commentary and a eulogy.
III • Daniel Webster • Realist and Constitutionalist
A far solider mind, strongly realistic and broadly philosophical, acute
in analysis and with great powers of imagination, was the mind of the
distinguished leader of the New England Whigs. Not the equal of Story
as a lawyer, he was far superior as a political thinker. No man more
richly endowed in mind and person has played a part on the stage of
our public life, and in spite of gross shortcomings in character and
the betrayal of his own promise, Webster retains an aura of the heroic
about him. He was a great man, built on a great pattern, who never
quite achieved a great life.
In Emerson and Webster were completely embodied the diverse New
England tendencies that derived from the Puritan and the Yankee: the
idealistic and the practical; the ethical and the rationalistic; the
intellectual revolutionary, ready to turn the world upside down in
theory, planting at the base of the established order the dynamite of
ideas, and the soberly conservative, understanding the economic springs
of political action, inclined to pessimism, neither wishing for Utopian
change nor expecting it. The physical contrast was as striking as the
mental. The child of the Puritan was slender, nervous, with a lambent
energy that played freely in a rarefied atmosphere; the child of the
Yankee was massive, solid, somnolently heavy till an idea awakened his
faculties, a lover of the fleshpots, careless of conventional morals,
rankly physical, and yet with an assured stateliness of manner, a slow
imagination that expanded majestically and a rich eloquence that moved
forward by regular stages to a great objective. Emerson was the child
of a long line of ministers, and ministerial in his unworldliness;
Webster was a Yankee squire, the descendant of some fox-hunting master
of broad English acres, who by a freak of fortune had got born into the
family of a New Hampshire yeoman. No Englishman was ever more English
than he. He loved the substantial things of life: his Marshfield farm;
his cattle and horses and crops; his rides afield and the return to
good dinners and rich wines. Nothing is more characteristic or more
likable--more redolent of the natural Webster--than his concern for
agricultural improvements. His homely talk on _The Agriculture of
England_, filled with facts that had come under his observant eye,
reveals a side that is too little known. It is an English country
squire talking to his neighbors about the homely things they all care
for; and when after long years and disappointed ambition and utter
weariness, he returned to his Marshfield farm to die, it was his cattle
and his fields that offered a last solace to the broken man.
Webster’s intellectual development falls into distinct and rather
sharply defined periods. Before 1825 his mental processes were still
under the dominion of the solid, rationalist eighteenth century, with
its realistic politics and its _laissez faire_ economics. With the
emergence of the constitutional disputes at the end of the twenties,
when the lawyers and historians were busy at their commentaries, he
came increasingly to take a legalistic view of government. During the
acrimonious forties, with slavery dividing the country into hostile
camps, he was bitten deeply by presidential ambitions, and thenceforth
to the end of his life he was little more than a politician--a rôle for
which he was singularly ill-fitted, and which brought bitterness and
disillusion to his last days. Since his death both earlier and later
phases of his career have fallen into the background, and the middle
period of constitutional interpretation has stamped itself indelibly
upon his fame. Yet in many respects the solid reasoning of the
political philosopher is more valuable than the stately but somewhat
ill-grounded declamation of the defender of the Constitution; and his
just fame is increased rather than lessened by recalling his earlier
contribution to our institutional development.
Webster was a sound political scholar, if not an outstanding creative
thinker. He was of the distinguished line of political realists, from
Harrington through Locke and Burke, to Hamilton, Madison and John
Adams. He derived equally from seventeenth-century liberalism and
eighteenth-century Federalism. He was widely read in the political
classics, and his vigorous mind laid hold upon major principles
and examined them closely. His intellectual master was the acute
thinker of the English Commonwealth period, James Harrington, whom
he pronounces “one of the most ingenious of political writers,” and
to whose suggestive doctrine of economic determinism he returns
persistently. That Harrington was not the originator of the doctrine
he was well enough read to have discovered; but he pays him high
tribute as the thinker who gave the doctrine form and currency. It
is the substantial realism of the _Oceana_ that appealed to a mind
thoroughly indoctrinated with political realism, before the rise of
manhood suffrage and the spread of equalitarianism had brought a
change in American political theory. Both his major premises and his
mode of reasoning bear the impress of the classic English school. In
the year 1820, within a single week, he made two speeches, which as
expositions of his political philosophy are the most illuminating he
ever uttered, and which should stand side by side: the _Basis of the
Senate_, delivered before the Massachusetts Constitutional Convention,
and the Plymouth speech on _The First Settlement of New England_. They
supplement each other and together give an admirable elucidation of
the stake-in-society principle that embodied a conviction he never
abandoned. They are compact of Harrington, Montesquieu and John
Adams--the last authentic expression of the old Federalism, before the
democratic storms had driven it into new roadsteads and whipped its
flag from the halyards where it had long waved.
In his admirable argument Webster accepts as axiomatic the theory
of division of powers, with the attendant machinery of checks and
balances. He accepts equally the familiar view of eighteenth-century
liberalism, that the legislature as the self-conscious custodian of the
popular will is certain to prove the engrossing member of government
whose ambition is most to be feared. To expect a stable balance between
Senate and House when their characters are undifferentiated by diverse
modes of selection--a result that must follow from choosing both on the
numerical majority principle--seems to him the judgment of political
inexperience. The wiser method, he believed, was to seek counsel of the
philosophers and the clear teachings of history. The first, Webster
insisted, have rightly laid down the principle of a stake-in-society as
the true measure of political justice:
I take the _principle_ to be well established, by writers of the
greatest authority. In the first place, those who have treated of
natural law have maintained, as a principle of law, that, as far as
the object of society is the protection of something in which the
members possess unequal shares, it is just that the weight of each
person in the common councils should bear a relation and proportion
to his interest. Such is the sentiment of Grotius, and he refers,
in support of it, to several institutions among the lesser states.
(“The Basis of the Senate,” in _Works_, Vol. III, pp. 13-14.)
At the basis of the stake-in-society principle is the doctrine of
economic power as the controlling factor in determining the form
and scope of the political state. In support of this doctrine of
determinism Webster appeals to Harrington:
It is his leading object, in his _Oceana_, to prove, that power
_naturally_ and _necessarily_ follows property. He maintains that
a government founded on property is legitimately founded; and
that a government founded on the disregard of property is founded
in injustice, and can only be maintained by military force. “If
one man,” says he, “be sole landlord, like the Grand Seignior,
his empire is absolute. If a few possess the land, this makes the
Gothic or feudal constitution. If the _whole people_ be landlords,
then it is a commonwealth.” “It is strange,” says an ingenious
person in the last century, “that Harrington should be the first
man to find out so evident and demonstrable a truth as that
property being the true basis and _measure_ of power.” In truth,
he was not the first. The idea is as old as political science
itself. It may be found in Aristotle, Lord Bacon, Sir Walter
Raleigh, and other writers. Harrington seems, however, to be the
first writer who has illustrated and expanded the principle, and
given to it the effect and prominence which justly belong to it. To
this sentiment, Sir, I entirely agree. It seems to me to be plain,
that, in the absence of military force, political power naturally
and necessarily goes into the hands which hold the property. In my
judgment, therefore, a republican form of government rests, not
more on political constitutions, than on those laws which regulate
the descent and transmission of property....
The English Revolution of 1688 was a revolution in favor of
property, as well as of other rights. It was brought about by men
of property for their security; and our own immortal Revolution
was undertaken, not to shake or plunder property, but to protect
it. The acts which the country complained of were such as violated
the rights of property. An immense majority of all those who had
an interest in the soil were in favor of the Revolution; and they
carried it through, looking to its results for the security of
their possessions. (“The Basis of the Senate,” in _Works_, Vol.
III, pp. 14-16.)
Harrington’s principle that “if the _whole people_ be landlords, then
it is a commonwealth,” Webster justified by appeal to American history.
The spontaneous birth of republican institutions out of colonial
experience he attributed to the wide diffusion of property. The land
tenure of primitive New England was the creative source of her popular
government.
Their situation demanded a parcelling out and division of the
lands, and it may be fairly said, that this necessary act _fixed
the future frame and form of their government_. The character of
their political institutions was determined by the fundamental