American Legal History

Daniel Webster Project:

Question: How did Daniel Webster, a figure generally or abstractly viewed as a New England icon in his day, come to be “adopted” as it were by Wall Street, New York, and other disparate groups outside of New Hampshire, Massachusetts, and New England?

The Starting Points:

On a personal level, this project began at Dartmouth College where I was an undergraduate. As a student there, one is rather constantly bombarded with imagery and reminders of the school’s favorite son, and even the continuing use of the “college” moniker for a school that is clearly, by definition, a university dates back to Webster’s famous peroration in Dartmouth College v. Woodward which according to college legend brought tears to the eyes of Chief Justice John Marshall. However, the real starting point for this specific project was Webster's statue in Central Park. The statue sits right near 72nd street on the Westside of the park (one drives right past it if one takes the road through the park down to midtown) and on its base is inscribed “Liberty and Union, now and forever, one and inseperable.” This is the closing line of Webster’s famous Second Reply to Hayne which he delivered in the Senate in 1830 during a course of debates over the nature of the Constitution with Senator Robert Hayne of South Carolina.

The Defender of the Constitution:

This speech and this statue then are the jumping off points for this project and its examination of Wall Street’s Daniel Webster. When Webster’s statue was unveiled in 1876, Robert C. Winthrop delivered one of the speeches. Winthrop had trained in Webster’s law office and knew him quite well. Though his speech at the unveiling was short it provides a fascinating first level of understanding of how such a giant of New England earned the honor of a statue in Central Park so soon after his own death.

Winthrop focused on the image of Webster as the great protector of the US Constitution: “No Roman schoolboy ever committed to memory the laws of the Twelve Tablets more diligently and thoroughly than did he the Constitution of his country. He had it by heart in more senses of the word than one, and every part and particle of it seemed only less precious and sacred to him than his Bible.” This is the enduring idea and memory—or perhaps general outline—of Webster that is passed down to the present through history. He was a member of the great Senatorial Triumvirate and the greatest defender of the Constitution of his day. The mental images we have of him all seem to stem from either his imposing solo portraits or Joseph Gales enormous painting of his Second Reply. Therefore, on one hand, it seems easy to accept the idea that it is only natural that relatively soon after a bloody and fractious Civil War (which Webster tried valiantly to prevent and certainly helped delay by three to four decades) New York City as one of, if not, the most important city in the industrial North should erect a statue of this Patron Saint of the Republic and Constitution in a place of honor. Yet this explanation falls short.

The Lesser Known Webster:

Winthrop also spoke about the great esteem in which Webster held New York City: “he would have appreciated such a tribute as this, I think, above all other posthumous honors…in your noble City, as he said, he recognized ‘the commercial capital, not only of the United States, but of the whole continent from the pole to the South Sea.’ ‘The growth of this City,’ said he, ‘and the Constitution of the United States are coevals and contemporaries.’ ‘New York herself,’ he exclaimed, ‘is the noblest eulogy on the Union of the States.’” In hindsight, and most likely even when these words were first spoken in 1876, this too falls short as too facile an explanation. It is well and good that Webster should have praised New York City, but a few lines randomly culled from a life making speeches, arguments, and pronouncements is not reason enough for a statue in Central Park. Instead, one is drawn back to Webster’s Second Reply to Hayne and the remarkable ease with which it and so many of his other speeches are found in print and online these days.

Webster lived and practiced in an era of orators where speeches were widely anticipated events. Yet, in this age of orators Webster reigned supreme. His speeches were routinely copied down and disseminated to the public (this in itself was not an extraordinary event but the broad circulation of his speeches was exceptional) and in researching Webster they became the primary ever-present theme that one is unable to escape from. Beyond the simple volume of Webster’s speeches that we have records of today what catches one’s attention is their diversity. While many of his famous speeches like his Second Reply and his March 7, 1850 oration were strong defenses of the Republic and the Constitution (and the various measures taken in Congress to prevent secession) he was by no means restricted to those topics. Indeed, a great many examples that we have of his speeches are not from his public career as a politician but from his private career as a lawyer. Only a few months after his debate with Hayne on the Senate floor Webster was called north participated in the Salem Murder trial that would become one of his most famous cases. The complete text of his closing argument in this and many other cases are still available and easily accessible today. It is not unreasonable to think that a large part of understanding Webster’s appeal to Wall Street and New York is aided by understanding the world he lived in.

Politics at this point in American history was not yet an entirely professional career. Many of the politicians of the day were, like Webster, practicing lawyers on the side, and I think this dual nature of Webster’s professional personality is part of what made him so readily adoptable by Wall Street. One of the best examples of this dual nature of the profession of politics at this era comes from the Frenchman Alexis de Tocqueville and his classic study Democracy in America In that book he talks about his visits to the two houses of Congress. Of the House of Representatives he said, “One is struck by the vulgar demeanor of that great assembly. Often there is not a distinguished man in the whole number.” On the other hand, "At a few yards' distance is the door of the Senate, which contains within a small space a large proportion of the celebrated men of America. Scarcely an individual is to be seen in it who has not had an active and illustrious career: The Senate is composed of eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose arguments would do honor to the most remarkable parliamentary debates of Europe." This was Webster’s milieu. He was not a professional politician but was rather a member this august body of great men who happened to, in addition to their flourishing private careers and achievements, also serve their country as a Senator out of a sense of responsibility and respect (or perhaps simply because they were asked to and could not refuse out of a sense of honor).

Indeed, for all his fire and passion for religion, Union, and the Constitution Webster had some serious faults. He loved money but was absolutely terrible with it (he was constantly in debt to all and sundry including, for example, the great ornithologist painter John James Audubon who Webster owed money to for his original double elephant folio edition of Birds of America) and took many cases, such as the Salem trial because he was handsomely paid to not out of any fiery personal belief in the validity of the case or cause. In the final count he was, in many ways, just a man of action and commerce who also happened to be a politician.

His image today is one of an unbendable idealist but during his lifetime he switched his position on many issues including tree trade and protective tariffs based on the whims of his constituents and his own personal interest. I am not trying to imply that Wall Street saw a kindred spirit in Webster because of his love of money and the way it moved him to certain actions. However, there was a duality to his character, a devotion to the country tinged and heavily colored by his own career and money, that made him an accessible and understandable character to the financiers of New York.


A fitting finale to any examination of the character and career of Daniel Webster is Stephen Vincent Benet’s 1938 short story “The Devil and Daniel Webster.” Though the main theme of this story is patriotism, it is interesting that Benet gives his reader a portrayal of Webster as a lawyer, and not a politician, railing against the Devil. This literary portrait is emblematic of the fact that our country and culture seems to have chosen to remember Webster maybe more for his legal career and eloquence in that field than his political career. Not many people can tell you today who the members of the Senatorial Great Triumvirate were, but everyone knows of the great lawyer Daniel Webster (especially anyone educated on the Hanover plain at Dartmouth College). The ideas and conclusions of this study are not meant as a definitive study or answer to the question that this project sought to explore. It is an initial foray and explanation of the research undertaken in this specific case. However, I do believe that this is an interesting light in which to examine this great figure.

What follows is a list of sources that I have found and thought worthwhile. They are generally divided into two categories: Introductory and Background Reading and Online Sources. After the Online Sources section there is a typed out version of the Table of Contents from the Collected Legal Papers of Daniel Webster. This table of contents is meant as a potential avenue for further research, and is placed here in the hope that someone may use it to help further digitalize the works and papers of Daniel Webster. There are also a few other questions that I believe might be interesting potential future projects for other students.

Future Project Questions:

-Webster, according to legend, was supposed to have responded to the offer of the vice presidency by saying that he “has no intention of being buried until I am dead.” He did however serve as Secretary of State and ran for President. He is most well known, politically, as a Senator though. I think it would be interesting to dive into Webster’s views on the American political system and its various offices. Of his two other Triumvirs Calhoun became Vice President and Clay in many ways molded the position of Speaker of the House. Both men appeared to crave political power perhaps more than Webster. Is this the truth? Or is it merely another facet of the image of Daniel Webster that has passed down to us through history.

Preliminary Readings:

-A Collection of Daniel Webster's Speeches

-Dartmouth Library Collection of "Webster's Great Speeches"

-The Devil and Daniel Webster

Online Sources (Other than those embedded in the above text):

-Henry Cabot Lodge, Daniel Webster, Houghtin, Mifflin & Co. (Boston, 1883)

-New York Times article about Webster’s funeral, November 1, 1852

-Sydney George Fisher, The True Daniel Webster, J. B. Lippincott & Co. (Philadelphia, 1911)

-The Daniel Webster Estate & Heritage Center. The Resources section is quite good.

-Irving H. Bartlett, Daniel Webster, W. W. Norton & Co. Inc. (New York, 1978)

-Frank Bergen, Webster’s Work for the Union, Yale University Press (New Haven, 1918)

-Everett Pepperrell Wheeler, Daniel Webster: Expounder of the Constitution, G.P. Putnam Son’s, (New York, 1905)

- Daniel Webster, The Writings and Speeches of Daniel Webster vols. 1-18, Little, Brown, (Boston 1903)

-Will C. Wood, Webster on Protection, The Home Market Club, (Boston, 1894)

-The Webster Centennial: Proceedings of the Webster Historical Society at Marshfield Mass., October 12, 1882, ed. Thomas Harrison Cummings, Webster Historical Society (Boston, 1883)

-Thomas F. Bayard, Oration Pronounced on Webster Commemoration Day, June 28, 1882, At Dartmouth College, The Republican Press Association, (Concord, 1882)

-Stephen M. Allen, Address at the Tomb of Daniel Webster, Webster Historical Society (Boston, 1882)

-George Ticknor Curtis, The Last Years of Daniel Webster: a Monograph, D. Appleton & Co. (New York, 1878)

-Peter Harvey, Reminiscences and Anecdotes of Daniel Webster, Little, Brown, and Company (Boston 1877)

-Catalogue of the Private Library of the Late Daniel Webster to be Sold at Auction

-Daniel Webster, The Constitution not a compact between sovereign states : a speech, Woodfall and Kinder (London 1862)

-Daniel Webster, Daniel Webster on Slavery : extracts from some of the speeches of Mr. Webster on the subject of slaver, William Carter and Brother, (Boston 1861)

- Daniel Webster, The Private Correspondence of Daniel Webster Vols. 1 & 2, ed. Fletcher Webster, Little Brown (Boston 1857)

-Prairie Bird, Poem, and other Thoughts : suggested upon the death of Hon. Daniel Webster (Boston 1854)

-Webster, Daniel. This is the Diamond Law Library's listings for Daniel Webster.

Online Table of Contents for the Collected Legal Papers of Daniel Webster

The Papers of Daniel Webster: Legal Papers, Volume 1, The New Hampshire Practice

Ed. Alfred Konefsky and Andrew J. King. University Press of New England, Hanover, NH, 1982.

Table of Contents:

-Foreword: vii

-Acknowledgments: xiii

-Preface: xvii

-Plan of Work: xxi

-Editorial Method: xxiii

-Abbreviations and Symbols: xxv

-Descriptive Symbols: xxv

-Location Symbols: xxv

-Court Abbreviations: xxvi

-Short Titles: xxviii

-Introduction: xxxi

PART ONE: Legal Education in Early Nineteenth-Century New Engalnd

CHAPTER 1: American Legal Education from the Revolution to the Civil War: 3

CHAPTER 2: The Legal Education of Daniel Webster: 9

1. Salisbury, New Hampshire: 9

2. Fryeburg, Maine: 16

3. Return to Salisbury: 19

4. Boston: 32

a. Webster’s Law Diary: 32

b. Correspondence: 45

PART TWO: Legal Practice in Early Nineteenth-Century Rural New Engalnd

CHAPTER 3: Legal Practice in Rural New England: 61

1. Scope of a Rural Practice: 61

2. The New Hampshire Court System: Structure and Procedure: 63

CHAPTER 4: Practical Problems of the Rural Bar: 66

1. Webster’s Entry into Rural Practice: 66

2. Statistical Summary of Webster’ Boscawen Practice: 72

3. The Lawyer’s Network: 75

CHAPTER 5: The Law of Creditor Rights in Postrevolutionary New Hampshire: 82

CHAPTER 6: The Practice of Debt Collection: 89

1. The Web of Credit: 89

a. A Note on Legal Ethics in the Debt Collection Process: 101

2. Negotiating a Settlement: 104

3. The Fragile World of the Rural Entrepreneur: 111

4. Mastering the Legal Machinery: 121

5. Suretyship, Sherriffs, and Statutes of Limitation: 128

6. The Debtor’s Plight: 133

CHAPTER 7: The Practice of Law Broadens: 138

1. Contract Litigation: 138

a. The Lumbering Business: 138

b. Storekeeprs: 153

2. Property Litigation: 157

3. Petitioning the Legislature: 163

CHAPTER 8: Thinking and Writing About Law: The Early Endeavors: 165

CHAPTER 9: From Boscawen to Portsmouth: 179

PART THREE: The Portsmouth Practice

CHAPTER 10: The Scope of the Practice: 185

1. Beginning the Portsmouth Practice: 185

2. Statistical Summary of Webster’s Portsmouth Practice: 194

3. Collecting a Personal Debt: 197

4. The Sheriff in the Debt Collection Process: 201

5. A Member of the Bar: 230

6. Organizing a Partnership: 243

7. Attorney Fees: 246

CHAPTER 11: Procedure and Trial Practice: 260

1. An Outline of Procedural Steps: 260

2. Special Pleading: 264

a. Pleas in Bar: Common Law Defenses: 264

b. Pleas in Bar: Statutory Defenses: 268

c. Pleas in Abatement: 270

3. Litigation: 272

a. Informality and Delay: 272

b. Settlements: 274

c. Depositions: 278

d. Bills of Exception: 285

4. The Posttrial Phase: 286

a. The Problem of Jury Control: 286

b. Writ of Review and Motion to Set Aside a Verdict: 288

c. Petition for New Trial: 289

d. Final Details: 293

CHAPTER 12: Substantive Aspects of Practice: 296

1. Contracts and Commercial Law: 296

a. Introduction: 296

b. Contracts: 298

i. Innkeepers’ Services: 299

ii. Sale of Land: 300

iii. Sale of Goods: 307

c. Bonds: 310

d. Arbitration: 322

i. Pretrial Reference by Oral Agreement: 323

ii. Pretrial Reference by Statute: 324

iii. Trial Reference: 327

e. Partnership and Commerce: 332

2. The Law of Property: 356

a. Introduction: 356

b. Land for Security and Production: 358

i. Mortgage: 358

ii. Improvements and the Action of Trespass for Mesne Profits: 380

iii. Land Titles and Local Taxes: 384

c. Law of Inheritance: 400

i. Probate: 400

ii. Future Interests: 407

3. The Law of Torts: 421

a. Personal Injury: 423

i. Control of Quasi-Public Conduct: 423

ii. Control of Private Conduct: 428

b. Injury to Reputation: 432

4. The Law of the Family: 438

a. Introduction: 438

b. Married Women’s Rights: 439

i. Property: 440

ii. Contract: 450

c. Divorce: 455

d. Dower: 461

e. Children: 468

i. Guardianship: 469

ii. Apprenticeship: 470

5. Masters and Mariners: Maritime Affairs in the Common Law Courts: 472

a. The Master: 473

b. Mariners: 481

i. Wages: 481

ii. Maritime Torts: 482

6. Practice in the Lower Federal Courts: 487

a. Diversity of Citizenship: 488

b. Admiralty Jurisdiction: 494

i. Bottomry Bonds: 494

ii. Customs Regulations: 517

CHAPTER 13: Law and Politics: The Pickering Libel Suit: 530

Index: 543

The Papers of Daniel Webster: Legal Papers, Volume 2: The Boston Practice

Ed. Alfred Konefsky and Andrew J. King. University Press of New England, Hanover, NH, 1983.

Table of Contents:

Foreword: vii

Plan of Work: xii

Editorial Method: xiv

Abbreviations and Symbols: xvi

Descriptive Symbols: xvi

Location Symbols: xvi

Court Abbreviations: xvii

Short Titles: xix

CHAPTER 1: Relocating the Practice of Law: 3

1. Introduction: From Portsmouth, New Hampshire to Boston: 3

a. A Note on the Massachusetts Judicial System: 5

2. The Scope of the Practice: 6

a. Alexander Bliss: 1816-1827: 6

b. Henry Willis Kinsman: 1827-1837: 24

c. John Plummer Healy: 1838-1852: 44

CHAPTER 2: The Elements of Style of Practice: 55

1. Stages in the Trial Process: Pretrial Preparation to Posttrial Motions: United States v. Henry Hatch: 56

2. Courtroom Strategy and the Examination of a Witness: The Oliver Smith Will Case: 83

3. Jury Argument: The Astor Land Case: 95

4. Appellate Argument: Welsh v. Barrett: 115

CHAPTER 3: Attorney Fees: 119

CHAPTER 4: The Spanish Claims Commission: 175

1. Introduction: 175

a. A Brief History of the Adams-Onis Treaty of 1819: 175

b. A Brief Explanation of the Treaty Provisions Settling the Claims: 176

2. The Commission Under the Treaty: 177

a. Formal Structure and Personnel: 177

b. Workload, Flow of Business, and Procedural Rules: 179

c. Guiding Legal Principles: 182

d. Informal Realities: 183

i. External Communications: 183

ii. Internal Communications: 196

3. Webster and the Commission: 199

a. The Gathering of Clients: 199

b. The Memorial Stage: 204

c. Examination of Proof: 210

d. Strategies: 214

e. Written Arguments: 222

f. Results: 227

g. Rehearings: 242

h. The Appropriation Bill: 251

i. The Power of Attorney Problem: 253

j. Final Payment: 260

k. Fees: 265

CHAPTER 5: A Lawyer in Congress: 276

1. Legislation: Federal Bankruptcy Law: 276

2. Congressional Ethics: 306

a. Webster and the Bank of the United States: 307

i. Creation of the Relationship: 307

ii. “Our little bill”: 316

iii. Toward Disengagement: 319

b. Foreign Claims: 325

CHAPTER 6: Substantive Aspects of Webster’s Boston Practice: 344

1. Commercial Law: 345

a. Laurason v. Nickerson: 345

b. Ward v. Peirce: 356

2. Contract and Arbitration: Tilden v. Thorndike: 378

3. Marine Insurance: 415

a. Introduction: 415

b. Formation of the Insurance Contract and Warranty: 418

i. Haven v. Holland: 418

ii. Corporate Underwriting: Shepard v. Essex Fire and Marine Insurance Company: 438

c. Jurisdiction and Abandonment: Peele v. Merchants’ Insurance Company: 474

d. Allocation of Loss: 489

i. Ruggles v. General Interest Insurance Company: 489

ii. Jordan v. Warren Insurance Company: 519

4. Banking and the Law: 527

a. Introduction: 527

b. Economic Crime: Private and Public Remedies for Embezzlement: 537

i. Bonding: State Bank v. Welles, executor: 537

ii. The Crime of Embezzlement: Commonwealth v. Wyman: 549

5. Property Law: 564

a. Introduction: 565

b. The Power of Eminent Domain: 566

i. Faneuil Hall Market: 566

ii. City Street Construction: 568

c. Adverse Possession: Drake v. Curtis: 570

6. Federal Equity Jurisdiction and Remedies: 581

a. Introduction: 581

b. Probate: Harvey v. Richards: 584

c. Reconveyance: Otis v. Phinney: 629

d. Problems of Equitable Title: McNeil v. Magee: 644


INDEX: 661

The Papers of Daniel Webster: Legal Papers, Volume 3: The Federal Practice

Ed. Andrew J. King. University Press of New England, Hanover, NH, 1989

Table of Contents:


Foreword: vii

Acknowledgments: xiii

Plan of Work: xiv

Editorial Method: xvi

Abbreviations and Symbols: xviii

Introduction: xxi

CHAPTER 1: The Practice of Law at the Supreme Court Bar: 3

1. Introduction: 3

2. Prize Cases: 5

a. The Grotius: 5

b. The St. Lawrence: 12

CHAPTER 2: Constructing National Power: 17

1. The Contract Clause: Dartmouth College v. Woodward: 17

a. The Controversy Begins: 18

b. The State Decision and the Appeal: 80

c. The Supreme Court Argument: 103

d. The Intervening Year: 175

2. The Supreme Court 1819: 223

a. Dartmouth College v. Woodward: 223

b. Federalism: McCulloch v. Maryland: 231

c. The Dartmouth College Litigation Concludes: 236

3. The Commerce Clause: Gibbons v. Ogden: 255

4. Federal Jurisdiction: Osborn v. Bank of the United States: 291

5. State Insolvency Laws: 297

a. Sturges v. Crowinshield: 297

b. Ogden v. Saunders: 308

CHAPTER 3: The Lawyer in Congress: Judicial Reform: 349

CHAPTER 4: Proprietors of Charles River Bridge v. Proprietors of Warren Bridge: 398

1. Background and the Massachusetts Litigation: 399

2. The First Supreme Court Argument—1831: 419

3. The Intervening Years: 495

4. The Supreme Court Argument—1837: 548


CHAPTER 5: Reconstructing National Power: 647

1. Federalism: Bank of the United States v. Primrose (the Alabama Bank Cases): 647

2. The Commerce Clause: 681

a. The License Cases: Thurlow v. Massachusetts

b. The Passenger Cases: Smith v. Turner and Norris v. Boston

3. The Contract Clause and Eminent Domain: 732

a. West River Bridge Company v. Dix: 732

b. Mills v. St. Clair County: 738

4. The American Political Process: Luther v. Borden: 747

5. Steamboats and Admiralty Jurisdiction: 764

a. Steamboat Regulation: 764

b. New Jersey Steam Navigation Company v. Merchants’ Bank of Boston (the Lexington): 772

CHAPTER 6: Law, Technology and Economic Development: 824

1. Patents: 824

a. Litigation in the Lower Federal Courts: Webster and the Boston Manufacturing Company: 825

b. Litigation in the Supreme Court: Grant v. Raymond: 858

c. Litigation under the Statute of 1836: Goodyear v. Day: 873

2. Waterpower: 891

a. Introduction: Tyler v. Wilkinson: 892

b. Mann & Jenkins v. Wilkinson: 893

c. Farnum v. Blackstone Canal Corporation: 918

3. Railroads: 930

CHAPTER 7: Land Title Litigation Before the Supreme Court: 943

1. The Eden Cases

2. Wilkinson v. Leland: 950

3. Land Titles after the Adams-Onis Treaty: 960

a. West Florida: Foster and Elam v. Neilson: 961

b. East Florida: The Forbes and Arredondo Land Grants: 996

4. Land Titles in the West: Wilcox v. Jackson ex dem. McConnel: 1001

5. Van Rensselaer v. Kearney: 1013

6. Gaines v. Relf: 1034

APPENDIX I: Daniel Webster’s Supreme Court Cases: 1045

ADDENDIX II: Daniel Webster’s Reported Lower Federal Court Cases: 1069

INDEX: 1073

-- AlexLawrence - 12 Nov 2009

Alex, this is very good, if a little chatty and personal at this stage. There are two revisions I'd like you to make:

First, as this is a project in legal history, I think it would be relevant to add some material on the legal papers of Daniel Webster, presently available in a dead-tree edition, for which you could provide an online TOC, looking to eventual use by other students in digitizing some or all of the papers for use in other projects.

Second, I think a less personal-to-Alex tone, with shorter more accessible paragraphing and maybe some sectional titles would make the piece more useful as a jumping off point for others. In keeping with a suggestion I'm making to everyone, I would be grateful if you would add a section with "points of attachment," that it, recommendations for other projects that lie alongside or attach to yours, that future students might consider taking up.

-- EbenMoglen - 04 Jan 2010



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