Daniel Webster and The Supreme Court (review)

book reviews273 lems he has chosen to deal with in this volume, he has described alternative answers with a cleverness, and has presented his own solutions with a conviction, that give it high distinction. James Rabun Emory University Daniel Webster and The Supreme Court. By Maurice C. Baxter. (Boston : University of Massachusetts Press, 1966. Pp. xii, 265. $6.75.) This book is a useful and intelligent treatment of Daniel Webster's arguments before the Supreme Court of the United States between 1814 and 1852, and indeed of the principal work of the Court itself during these years. It was an era of vast importance in the development of American constitutional law, while the Court itself was under the domination of a series of judicial giants, Marshall, Story, Taney, and Johnson among them. Further, counsel who appeared in the small and gloomy courtroom beneath the Senate Chamber included a whole battery of men of legal and forensic talents of an order which has scarcely since been equalled in American history. Among them were the foppish but brilliant and magnificent Wüliam Pinkney of Maryland, the modest but aristocratic and immensely capable William Wirt of Virginia, the intransigent old High Federalist Robert Goodloe Harper, Court Reporter Henry Wheaton, Irish exüe Thomas Emmet of the New York bar, the tall olive-hued Rufus Choate, and the "God-lüce Daniel" himself . What emerges from the author's analysis is the extraordinary extent to which Webster, along with a few of his compeers, influenced and molded the fundamentals of the constitutional law of the United States in this most formative of eras in American constitutional history. A few examples among the dozen of cases Webster argued must suffice here. In the Dartmouth College Case, (1819), it was his argument more than any other that carried home to the Court the proposition, presently embodied in Marshall's decision, that "the charter of a private corporation is a contract, unalterable by grantor unless grantees consent." Again, in Swift v. Tyson (1842), it was Webster's insistence that Section Thirty-Four of the Judiciary Act of 1789 be interpreted to permit the federal courts to develop a commercial "common law", which was apparently decisive in Story's opinion to that end, an opinion which Charles Warren later found to be based on historical error and which the Supreme Court finally was to overrule in Erie Railroad v. Tompkins (1938). Equally impressive was Webster's extraordinary success in McCulfoch v. MaryL·^ (1819), where he became virtually the transmitting agent to the Court for the Hamiltonian argument of 1791 on the power of Congress to establish a national bank. It was here, also , that the famous aphorism from Webster's brief—"The power to tax 274CIVIL WAR HISTORY is the power to destroy"—passed over directly into Marshall's opinion, along with Webster's more complex argument against state power to tax federal agencies. Finally, there was Webster's spectacular and nearperfect success in Gibbons v. Ogden (1824), where he advanced a near-exclusionary view of the federal commerce power while reconciling this at the same time with the local police powers of the states, a position almost, but not quite identical with that adopted by Marshall in his opinion. Three or four things, the author makes clear in one place or another , accounted for Webster's extraordinary influence in the formulation of constitutional doctrine. First, he was a confirmed Lockean liberal with a profound respect for the sanctity of private property and contract rights, a position which Marshall and Story echoed almost exactly in their opinions. Second, again luce his great judicial counterparts , he saw in the doctrines of national supremacy and broad construction instruments both for translating the burgeoning American sense of nationhood into reality and for advancing the interests of property and business as well. Third, Webster more than any other great lawyer of the day was also a powerful national political figure—congressman , senator, and Secretary of State—so that he came before the Court with a kind of double prestige that few of his contemporaries could hope to equal. Finally, there was Webster's brilliant mind, his extraordinary capacity for legal analysis, and...