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Daniel Webster and the
Oratory of Civil Religion

®
To view the complete page image, please refer to the printed version of this work.
Daniel Webster and the
Oratory of Civil Religion

CRAIG R. SMITH

University of Missouri Press Columbia and London

Copyright © 2005 by
The Curators of the University of Missouri
University of Missouri Press, Columbia, Missouri 65201
Printed and bound in the United States of America
All rights reserved
5 4 3 2 1 09 08 07 06 05

Library of Congress Cataloging-in-Publication Data

Smith, Craig R.
Daniel Webster and the oratory of civil religion /
Craig R. Smith.
p. cm.
Includes bibliographical references and index.
ISBN 0-8262-1542-4 (alk. paper)
1. Webster, Daniel, 1782–1852—Political and social
views. 2. Webster, Daniel, 1782–1852—Oratory.
3. Civil religion—United States—History—19th century.
4. Nationalism—United States—History—19th century.
5. Political oratory—United States—History—19th century.
6. Rhetoric—Political aspects—United States—Case studies.
7. Speeches, addresses, etc., American—History and
criticism. 8. United States—Politics and government—
1783–1865. 9. Legislators—United States—Biography.
10. United States. Congress. Senate—Biography.
I. Title.
E340.W4S597 2005
973.5'092—dc22

2004020732

This paper meets the requirements of the

American National Standard for Permanence of Paper
for Printed Library Materials, Z39.48, 1984.

DESIGNER: KRISTIE LEE

TYPESETTER: CRANE COMPOSITION, INC.
PRINTER AND BINDER: THE MAPLE-VAIL BOOK MANUFACTURING GROUP
TYPEFACES: GOUDY OLD STYLE

FRONTISPIECE:Southworth and Hawes, Daniel Webster,

c. 1851. Daguerreotype, 8-16—3 x 6 18— in. Museum of Fine
Arts, Boston. Gift of Edward Southworth Hawes in
memory of his father, Josiah Johnson Hawes, 43.1402.
Photograph © 2004 Museum of Fine Arts, Boston.
 ®
This book is dedicated to all those professors who encouraged
me to outgrow them
This page intentionally left blank
Contents

Introduction 1

Chapter 1 The Foundation of Webster’s Civil Religion 7

Chapter 2 A Boston Lawyer 39

Chapter 3 The Lion Returns 64

Chapter 4 Civic Duty in the Romantic Age 84

Chapter 5 Liberty and Union 100

Chapter 6 Legal and Partisan Wrangling 120

Chapter 7 Abolition Confounds the Two-Party System 155

Chapter 8 Secretary Webster 175

Chapter 9 War with Mexico 191

Chapter 10 National Crisis, Capitol Gridlock 214

Chapter 11 Consummating Compromise 238

Chapter 12 Twilight Time 252

Chronology of Major Speeches 271

Bibliographic Essay 273

Bibliography 285

Index 293
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Daniel Webster and the
Oratory of Civil Religion

®
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Introduction

D aniel Webster was the consummate American orator. His career was
punctuated with magnificent and effective speeches before the United
States Supreme Court, the United States Congress, particularly the Senate,
and assembled crowds celebrating national holidays. As a rhetorical theorist
who studies public address and as a former presidential speechwriter, I have at-
tempted to write an “oratorical biography” of Webster that not only places
these rhetorical transactions in context, but also explains how they functioned
to achieve persuasion. Webster’s oeuvre is so large and so prominent that only
a book-length study, which builds on the work of historians and public-address
critics, can do it justice.
The method of this study is eclectic. Because the diversity of Webster’s tal-
ent demands an inductive approach, I rely on the arsenal of rhetorical criti-
cism to explain his effectiveness and literary merit. A contextual analysis of
each speech places Webster’s rhetoric in his times, thereby revealing the situa-
tional constraints he faced. The context of his speeches also reveals why some
aspects of his rhetoric were controversial in his time and still are in our own.
For example, Webster’s success as a negotiator while serving as secretary of
state in two different administrations gave him confidence that war could al-
most always be avoided. His role in crafting the Compromise of 1850 commit-
ted him to seeing that it was properly implemented; that meant enforcing the
Fugitive Slave Law, which was unpopular in the North.
Of course, almost any study of public address begins with an analysis of the
lines of argument used by the speaker. This study is no different in that regard.
What is different is that Webster was an innovator when it came to argumen-
tation. He understood that a single speech on a single issue is unlikely to
achieve reform. Thus, on many topics, particularly his opposition to the war

1
2 Daniel Webster and the Oratory of Civil Religion

with Mexico and his support for the Compromise of 1850, Webster engaged
in a campaign of persuasion, using many arguments in many speeches to
achieve his goal. He often braided various genres as a way to develop a more
fruitful arsenal of arguments and to achieve a sublime style. He initiated lines
of argument early, and returned to them again and again to extend them.
Aristotle taught us that ethos is the most potent form of persuasion. Ken-
neth Burke expanded Aristotle’s theory to include psychological identification
between the speaker and the audience. These and other theories of credibility-
building explain how Webster became so prominent in his age and how he
used his reputation not only to advance the cause of Union, but also to em-
body it. His knowledge of history and literature enhanced his credibility.
Reading Thucydides in college opened him to the great speakers and the great
debates of ancient Athens, just as reading Gibbon opened him to the power of
historical narrative. Webster shared his credibility with the Whig Party, play-
ing a significant role in advancing its agenda and values.
Webster lived in a romantic era that was much more open to displays of
emotion than our own. The Second Great Awakening occurred during his
most influential period. Thus, his development of a civil religion resonated
with the evangelism of the times. Pathos was a prominent feature in Webster’s
speeches, particularly his ceremonial addresses. He often sealed his persuasive
message with an emotional peroration, bringing his audience to tears. My past
work on Webster and the studies I have completed with Michael Hyde on a
hermeneutics of pathos have proved helpful in completing this analysis.
Having studied Cicero, Webster was familiar with the Roman concepts of
decorum and ornatus. The former was used to meet or create expectations in an
audience; the latter provided the tropes and figures essential to fashioning the
speech for the occasion. Webster’s imagery often reinforces a powerful narrative
that proves unusually persuasive. His effective use of these concepts helps to ex-
plain why he was considered one of the most literate men of his time. In the age
of Wordsworth and Longfellow, Webster could hold his own arguing that
Alexander Pope was the greatest poet of all time. Robert A. Ferguson claims that
“[t]he writers of the American Renaissance cut their teeth on Daniel Webster.”
Ralph Waldo Emerson compared Webster to Shakespeare, another writer who
understood the importance of Roman stylistic theory. In his study of Webster’s
style, Paul D. Erickson concludes that “Webster was beyond doubt an artist.”1

1. Robert A. Ferguson, Law and Letters in American Culture, 238; Paul D. Erickson, The Poetry
of Events: Daniel Webster’s Rhetoric of the Constitution and Union, xii–xiii.
 Introduction 3

This study also examines Webster’s speeches from the perspective of organi-
zation and delivery. His admiration for Cicero, for example, led him to imitate
the great Roman senator in many ways. His sophisticated understanding of
genre allowed him to combine Aristotle’s three forms of public address—the
deliberative (legislative), the forensic (legal), and the epideictic (ceremonial)—
into braided masterpieces unsurpassed in American oratory. His skill at de-
bate, so evident in his feisty replies to Robert Hayne, was supported by a
fugal-like development of argument that was a throwback to the great speeches
of Charles James Fox of the British Parliament, whose life overlapped Web-
ster’s. This rhetorical strategy gave his speeches a flow and unity that supported
his campaigns of persuasion.
Webster believed that rhetoric worked; he believed a good orator could
change minds and thereby change the course of events. It galled him when those
untrained in oratory advanced to the presidency. It annoyed him when men rose
in the Senate and embarrassed themselves with their weak arguments, ignorance
of history and literature, feckless style, and lack of organization.
This study’s rhetorical analysis supports several historical themes developed
previously by myself and others while also providing new insights into Web-
ster’s successes and failures. Along with Henry Clay, Webster developed a co-
herent set of principles to guide the Whig Party. The Whigs endorsed a
national bank, a tariff to fund national improvements, a diverse currency, pub-
lic education, and limiting slavery to where it already existed, and they often
opposed expansion and war.2 But, like his friend and compatriot John C. Cal-
houn, Webster eventually became a victim of regionalism despite his adamant
defense of the Constitution and Union. His loyalty to financial interests in
New England influenced his tariff policy, alienating him from important vot-
ing blocs, particularly in the South. His presidential ambition was undercut by
those who characterized him as a senator in the pocket of Nicholas Biddle and
the National Bank. His opposition to the expansion of slavery reenforced
Southern suspicions. When Webster tried to parlay his slaying of nullification
(1830–1832) into a presidential nomination, he found that slayers make ene-
mies. His opposition to the war with Mexico in 1846 and his dedication to
George Washington’s warning about foreign entanglements put him at odds
with those preaching “manifest destiny.” His arguments before the Supreme
Court in favor of the individual, the propertied, and the federal government
undermined his support among those who advocated states’ rights. For these

2. See Daniel Walker, The Political Culture of the American Whigs.

4 Daniel Webster and the Oratory of Civil Religion

reasons, Webster was unable to secure the nomination of his beloved Whig
Party despite the fact that he was one of its chief architects and eventually its
most qualified member.
Webster lived when the country was expanding rapidly, perhaps too rapidly
for its own good. The expansion created centrifugal forces that would tear the
country apart only eight years after Webster’s death. His genius, in fact, was to
help hold the country together during this difficult period. He accomplished
that herculean task with a rhetoric that advanced an American agenda in the
Whig platform that led to major improvements, particularly in transportation
and commerce. He provided a lexicon of values that not only made Union a
transcendent term but also reinforced the lessons of the founders, particularly
Washington and Madison. Lincoln used Webster’s call for the preservation of
the Union as his touchstone. In fact, the end of the Gettysburg Address
echoes a line in Webster’s Second Reply to Hayne.
Early in Webster’s life, especially during the War of 1812 and the battle over
nullification, the survival of the Union was not a given. However, Webster’s
memorialization of the Union, often found in commemorative speeches on
the occasion of beginning a monument, moved the Union into the public con-
sciousness and concretized it. I will attempt to show that Webster transformed
the civic republicanism of Washington, Adams, Jefferson, Hamilton, and Madi-
son into a civil religion that transcended the political agenda of the times. A
decade after Webster’s death, soldiers gave their lives for his precious Union
with his words in their hearts and on their lips. That kind of faith is rare in the
civic arena. It can only be generated by a civil religion. In this case, it was the
result of rhetorical acumen.
While for some there was a tension between liberty and Union—individual
liberty versus taxation, states’ rights versus national priorities—for Webster it
was the Union that provided a guarantee of the pragmatic and metaphysical
liberties the country embraced. From 1806 forward, Webster identified the
Constitution with the Union; the former was the pragmatic architectural plan,
the latter was the transcendent telos of nationhood. After his replies to Hayne
in 1830, Webster was the high priest of American civil religion. However, he
was to learn that compromise and religion do not mix. His failure to achieve
the presidential nomination may have been a result of his compromising some
of the principles of the civil religion he created.
In my attempt to explain Webster’s effectiveness, I do not neglect his foren-
sic triumphs. His speeches before the Supreme Court were so powerful that
John Marshall borrowed from them when writing his opinions establishing
 Introduction 5

the Court’s review power and Federalist dogma. Like no other person in
American history, Webster dominated the courts, the legislature, and the
public-speaking circuit. Webster claimed that the law was his guardian angel.
For him, laws constructed by humans transcended every form of human en-
deavor in terms of public policy and served only one master, natural law. By
the end of his life, however, Webster believed that the Union created by the
Constitution was the most transcendent law of all. He made it part of
America’s civil religion, and it has held that status ever since.3 This offended
those like Theodore Parker and Ralph Waldo Emerson, who believed that nat-
ural law was superior to the Constitution, or at least to the Fugitive Slave Law.
Webster’s comfort with the law came from its fixed and settled nature, and he
attempted to pass this comfort on to the nation. In fact, he believed that elec-
tion results were roughly akin to a jury verdict.4
His biography is the story of important speeches woven into a life of service
to his country. He came to national prominence in 1812 and remained in the
public consciousness well after his death in 1852. His success is a given; by ac-
counting for that success, we can refine the theory by which we build speeches
today, particularly speeches in those arenas where Webster did battle. Thus,
this study is not only about the themes Webster developed and extended dur-
ing his political career, but also about the rhetorical strategies he employed
with such effect. In other words, this study looks at history through the lens of
public address rather than the other way around.
Because Webster was so attuned to his audiences, it is possible that by ex-
amining the evidence, arguments, strategies, delivery, and style he used, we
can obtain a clearer picture of American consciousness in the first half of the
nineteenth century. The values expressed in his speeches were the same values
held in the public consciousness. Webster, however, did more than adapt to
the popular public mind; he changed it by reordering the priority of those val-
ues. By surveying his most effective addresses and analyzing the audiences to
which they were delivered, we can reconstruct the public consciousness of the
time. Such a reconstruction can be achieved only by the careful examination
of speeches that are attuned to public attitudes. In short, rhetorical analysis
refines our understanding of American society and thereby serves as an essen-
tial adjunct to any historical study of the time.
Ultimately, Webster’s story is fascinating because it is about a man who was

3. See Sanford Levinson, “‘The Constitution’ in American Civil Religion.”

4. Ferguson, Law and Letters, 208, 211.
6 Daniel Webster and the Oratory of Civil Religion

self-made and who understood how important public speaking was to the
process of self-creation. At almost every important juncture of his life, Webster
delivered a speech that enhanced his reputation, saved the Republic, or changed
the course of American constitutional law. He was addicted to language be-
cause he knew language shaped perception. It could bring reality into focus
and it could convert division and disagreement into compromise. When con-
fusion reigned and the truth was impossible to obtain, rhetoric could create
what Protagoras called the better illusion. And what language could do for po-
litical issues, it could do for personal success. Webster was no romantic war
hero; in fact, he believed soldiers were of little use in the political realm, where
intelligent men understood the power of language and could wield it on the
legislative and forensic battlefield. Webster polished and refined his talent for
words; he sought to make his mark in a world where words were more impor-
tant than swords and bullets. Luckily, he was raised in a country that believed
in freedom of expression and where citizens had created a republican democ-
racy in which deliberation and public speaking were highly valued. Webster’s
enormous success in that society should inspire those who seek a country com-
mitted to reasoned decision-making and who believe that an understanding of
the state and the nature of public issues is important to the proper function-
ing of a republic.
Chapter 1
The Foundation of Webster’s Civil Religion

T he parallels between Webster’s father and his father figure, George

Washington, inspired some of his best ceremonial speeches. Like Wash-
ington, Ebenezer Webster fought in the French and Indian War. By age twenty-
four he had led troops into Canada and risen to the rank of captain. For this
accomplishment he was given land in New Hampshire which eventually be-
came Salisbury, a cold and inhospitable town subject to invasions by bears,
wolves, and Native Americans. It was there that his son Daniel would be born
in 1782.
When the Revolution came, Ebenezer Webster was ready. He resumed his
role as captain and assembled a group of some two hundred men who battled
the British at Bennington, White Plains, and West Point at the time of Bene-
dict Arnold’s betrayal. In fact, Webster guarded Washington’s tent on the night
of the treason.1 In 1788, he served as a representative to the New Hampshire
constitutional ratifying convention. He was proud of the fact that New Hamp-
shire put the Constitution over the top by becoming the ninth state to ratify
the document. He also served as a judge for the Court of Common Pleas. The
identification between Ebenezer Webster and George Washington was com-
plete in young Daniel’s mind at the time of Washington’s death in 1799, even
though the former president ended his life as a slaveholder. Daniel excused
Washington’s blind spot with several rationalizations: Washington was a hero
of the Revolution; he did not purchase his slaves but married a woman who al-
ready owned them; and he freed them in his last will.2

1. Robert V. Remini, Daniel Webster: The Man and His Time, 32.
2. As we shall see, Thomas Jefferson lived well into Webster’s adult life and the two met at
one juncture, but Webster never condemned Jefferson’s slaveholding, nor the fact that he would

7
8 Daniel Webster and the Oratory of Civil Religion

Civil Religion
Daniel Webster was of the second generation of American leaders who
came into prominence around the War of 1812 with Britain. These orator-
leaders had a deep belief in the heroic nature of the birth of the United States,
and they were not reluctant to valorize that past in their rhetoric. If not for the
likes of Webster, John C. Calhoun, John Quincy Adams, Andrew Jackson,
Henry Clay, and others of this second generation, America might not have de-
veloped its civil religion and civil war might have come earlier, while the South
was strong enough to sustain itself against a Union that had a weak self-
conception. Of these leaders, none was more important than Webster when it
came to establishing a priority of values for developing nationhood. His talent
was to use the founders, particularly Washington, to advance the Federalist
agenda, often in the guise of making a ceremonial speech. Because of him, the
Union became the God-term that Lincoln would use to justify the North’s pros-
ecution of the Civil War. The Union was Webster’s heaven on earth; the
Constitution was his Ten Commandments.
By civil religion I mean the mythos and rhetoric of nation-building that con-
stitute a schema of values which in turn guides decision making. Whether one
examines the nation-building techniques of the Egyptians, the Greeks, or the
Romans, one finds the use of mythology to rationalize a vision of civic virtue
and expansion. In each case there is a retrieval of the origins of nationhood or
a tale of the rebirth of a nation. Hesiod and Homer provided the heroes, hero-
ines, and gods that inspired Greek character and justified conquest. Speaking
for democratic Athens, Pericles rationalized war against the Spartans; his
rhetoric refined the Athenian sense of civic virtue. Virgil revised the story of
Rome’s founding to include Aeneas, a hero of Troy. The best of these values
were merged into a call for civic republicanism based on the Roman republic
as idealized in the speeches and writings of Cicero. Cicero’s consistent defense
of the Roman senate against the threats of Catiline and Marc Antony inspired
not only Webster, but also the founders, particularly John Adams.3

not have won the electoral vote in 1800 if the three-fifths rule regarding slaves had not been in
place.
3. The notion of civic republicanism and its role in scholarship is discussed in Daniel T.
Rodgers, “Republicanism: The Career of a Concept.” For its influence on John Adams, see
Bernard Bailyn, The Ideological Origins of the American Revolution; J. G. A. Pocock, The Machia-
vellian Moment: Florentine Political Thought and the Atlantic Republican Tradition; Michael J. Sandel,
Democracy’s Discontent: America in Search of a Public Philosophy.
 The Foundation of Webster’s Civil Religion 9

The United States was also a child of the Enlightenment. Thomas Jefferson
had studied the French agitators and philosophers and the Scottish En-
lightenment thinkers. However, most of the founders were more familiar with
Locke’s treatises on civil government. Locke’s role as author of the British Bill
of Rights after the Glorious Revolution of 1688 made him a natural source for
civic republicanism.4 The tension in civic republicanism is between the state’s
role as a dispenser of public goods, such as rights and national security, and
the people’s temptation to act in self-serving ways. Jefferson emphasized the
benefits of a democratic republic while James Madison tended to focus on the
need for checks and balances, and ultimately became the prime mover behind
a bill of rights that protected minorities and curbed the voracious impulses of
the majority.
Civic republicanism evolved into civil religion when the mythos of the
founders was created from the lives of real people who delivered passionate
speeches against the Stamp Act, wrote thoughtful treatises on independence,
and led the new nation through a revolution. While myths emerged, they were
much closer to actual events than were the narratives of the ancients. George
Washington did not throw a silver dollar across the Potomac, but he did throw
one across the Rappahannock. Paul Revere did ride through the countryside
warning people that the British were coming. Betsy Ross constructed an
American flag for one of the signers of the Declaration of Independence, and
Nathan Hale died for it. American troops did spend a winter at Valley Forge
with their feet bound in rags.
Which stories form a nation’s civil religion is often determined by the ora-
tors who recall those stories for their audiences.5 Few were better at glorifying
America’s immediate past than Daniel Webster. He clearly understood that
the American revolution led to the rebirth of a nation first founded as diverse
colonies in the wilderness. For Webster the Declaration of Independence
served as the baptism of the new nation; the Constitution was its confirma-
tion. These were sacramental moments in America’s civil religion that could

4. See Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought
since the Revolution, and Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of
the American Founders and the Philosophy of Locke. I do not mean to minimize the influence of the
Scottish Enlightenment, particularly on Jefferson; see Joyce Appleby, Capitalism and a New Social
Order: The Republican Vision of the 1790s, and Paul A. Rahe, Inventions of Prudence: Constituting the
American Regime. Lance Banning, however, attributes most of the Jeffersonian philosophy to
English opposition leaders; see The Jeffersonian Persuasion: Evolution of a Party Ideology.
5. See James Arnt Aune, “Public Address and Rhetorical Theory.”
10 Daniel Webster and the Oratory of Civil Religion

be shared again and again through the agency of Webster’s oratory. His rhetor-
ical ability allowed him to lead the public in mass celebrations that consecrated
America’s most sacred values. He became one of the high priests of American
civil religion from at least 1820 to his death in 1852.
Civil religion not only recalls the past, it instructs on how to act in the pres-
ent. As in Cicero’s day, the speakers of Webster’s day used celebratory rhetoric
to shape current values. These values became guides to decision-making for
the nation’s leaders. The complication with such rhetoric is that audiences
hold not only themselves but their speakers to the standards that are articu-
lated. Thus, Webster took an enormous risk when he entered into compro-
mise negotiations; they could undermine the more platonic themes of his civil
religion. In fact, he was roundly condemned in New England because the
1850 Compromise included the Fugitive Slave Law, which was offensive to
idealists who had supported Webster earlier.
The tension between civil religion and political compromise is a theme I
shall pursue in this study. Its contemporary application should be obvious in
an era marked by Manichaean presidential rhetoric that attacks “evil empires”
and an “axis of evil.” While good-and-evil dualities often prove attractive to the
public, they can haunt those who rely on such tactics. Once politics is elevated
to the level of religion, it tends to become uncompromising. That is a problem
for those who believe, as did Webster, that politics is the art of compromising.
Finally, civil religion guides the nation toward a telos, an ultimate freedom,
and, in so doing, takes on an ever stronger religious cast. Jonathan Winthrop’s
reference to a shining city upon a hill in 1630 not only recalled the prophet
Micah and the Book of Revelation, it also provided a goal toward which the
Massachusetts colony could strive. Centuries later when Ronald Reagan re-
vived Winthrop’s metaphor for political purposes, he recalled the Puritan
adventure in the wilderness and provided a telos for the future by claiming dra-
matically that the United States was the last best hope of mankind. The con-
version of the wilderness into a “civilized” place was a leitmotif of American
civil religion that culminated in the call for manifest destiny in Webster’s time.
Appeals to hardship, sacrifice, battle, and martyrdom rallied the public to ex-
pansionism before and after the invention of the phrase manifest destiny in
1845. That idea was a natural extension of the belief that Americans were a
chosen people with a mission not only to cultivate the land, but also to bring
the “blessings” of civilization to a new continent.
While Webster recoiled from the dangers of expansion, particularly the un-
just war with Mexico, he embraced the part of the myth that eulogized prop-
 The Foundation of Webster’s Civil Religion 11

erty. Like Jefferson, Webster believed that those who owned a piece of the na-
tion were more likely to protect and defend it. A favorite quotation of land-
holding revolutionaries like Webster, who was a major defender of property
rights before the Supreme Court, was Rousseau’s comment “The first man
who, having fenced in a piece of land, said, ‘This is mine,’ and found people
naive enough to believe him, that man was the true founder of civil society.”6
Webster was also familiar with the Second Treatise on Government, in which
Locke sets out his view on the subject of property:

God, when he gave the World in common to all Mankind, commanded Man
also to labour, and the penury of his Condition required it of him. God and
his Reason commanded him to subdue the Earth, i.e., improve it for the ben-
efit of Life, and therein lay out something upon it that was his own, his
labour. He that in Obedience to this Command of God, subdued, tilled, and
sowed any part of it, thereby annexed to it something that was his Property,
which another had no Title to, nor could without injury take from him.7

Webster incorporated Locke’s thesis into American civil religion.

When fully formed, Webster’s patriotism called on the public to live up to
the goals of the nation’s founders and to venerate the sacrifices they made in
bringing the nation to its ultimate fulfillment. Webster may never have been
more effective in this regard than in his address celebrating the start of con-
struction of the Bunker Hill Monument. Sitting near him were the survivors
of that early revolutionary battle. He referenced them and those who died in
the battle, coaxing his audience to lead better lives and achieve the dream for
which those soldiers fought. Webster understood that civic cleansing, like reli-
gious cleansing, can be achieved by rebirth through rhetorical identification.
Thus, he created a channel through which the audience became one with the
soldiers who sat on the stage and with those who had given their lives. As au-
dience members relived the sacrifice of the soldiers, they were purged, unified,
and transformed into more perfect citizens.
Webster could achieve this transcendence because he was well educated in
America’s past. That past provided a foundation for his civil religion. Thus, to
contextualize his oratory, we need to review the formation of the tenets of his
philosophy—that is, his version of civic republicanism.

6. Jean-Jacques Rousseau, Discourse on the Origin and Foundation of the Inequality between Men,
192.
7. John Locke, Two Treatises on Civil Government, 309.
12 Daniel Webster and the Oratory of Civil Religion

Webster’s Evolving Federalism

Not surprisingly, the political philosophy of Webster and his contempo-
raries can be traced to past generations. For example, before the Revolution
orators stirred the country from the pulpit and political stump with a mix of
revivalist zeal and Enlightenment reason. This synthesis occurred most no-
tably in the rhetoric of Rev. Jonathan Mayhew of Boston. His most famous ser-
mon, “A Discourse concerning Unlimited Submission and Non-Resistance to
the Higher Powers,” was delivered in 1750. An examination of the sermon re-
veals why some have called it “the morning gun of the revolution.” Its avowal
of independence, natural rights, and individualism reflects Enlightenment
thinking and is, in turn, reflected in the writings of Thomas Jefferson and
George Mason twenty-six years later. This passage about the duties of the ruler
and the ruled inspired Jefferson as he wrote the Declaration: “[I]t follows, by a
parity of reason, that when [our ruler] turns tyrant, and makes his subjects his
prey to devour and to destroy, . . . we are bound to throw off our allegiance to
him, and to resist. . . . [T]o resist [our] prince, even to the dethroning [of] him,
is not criminal; but a reasonable way of indicating [our] liberties and just rights.”
In 1763, Mayhew, ever the gadfly, authored the pamphlet Observations on the
Charter and Conduct of the Society for the Propagation of the Gospel in Foreign Parts,
which asked: “[I]s it not enough that they persecuted us out of the old world?
Will they pursue us into the new to convert us here?”8
During the Revolution and in the debates over the ratification of the
Constitution and the Bill of Rights, it was common for ministers to take polit-
ical positions. They were particularly concerned about freedom of religion in
the new nation.9 This habit, which can be traced back to Jonathan Winthrop
and forward to Jerry Falwell and Pat Robertson, also contributes to ways in
which American political ideology merges with religious zeal.
No doubt Webster was also influenced by the oratory of Patrick Henry,
which was spread through the colonies by underground presses. In Massa-
chusetts Henry’s published speeches led to the formation of the Sons of
Liberty. Samuel Adams became the leading propagandist for a war of inde-
pendence, particularly when a squad of British troops fired into a threaten-
ing crowd in Boston in 1770. Adams rhetorically recreated the “massacre” in

8. Charles W. Akers, Called unto Liberty: A Life of Jonathan Mayhew, 1720–1766, 85, 184.
9. See Craig R. Smith and David M. Hunsaker, “The Religious Clauses of the First Amend-
ment,” chap. 3 of The Four Freedoms of the First Amendment: A Textbook.
 The Foundation of Webster’s Civil Religion 13

the Boston Gazette and used that newspaper’s offices to print many powerful
pamphlets.
American independence was based in part on the precedent of the Magna
Charta of 1215 and the English Bill of Rights of 1689. Thus, when the col-
onies declared independence, most of them also called for a bill of rights.
Pennsylvania in 1776, New York in 1777, South Carolina in 1778, and New
Hampshire in 1783 all endorsed a bill of rights. In 1778 Massachusetts rejected
a new constitution because it did not contain one. This history of the writing
of new charters during the Revolution makes clear why so many colonists de-
manded a bill of rights when a federal constitution was written ten years later.
These legal and political documents would allow Webster to declare that he
understood the intent of the founders and thus could speak for them and act
on their behalf.
These transitions from oratorical wishes to legal documents provided a nur-
turing environment for political parties. An atmosphere for debate had been
established in which it was assumed that certain natural rights were inalien-
able and that reason would rule in the formation of law. In the interim, the
Constitution of the United States was adopted in Philadelphia. The need for a
new constitution to supersede the Articles of Confederation would prove im-
portant to the formation of the Federalist Party and to Webster. The leader-
ship of the Federalist movement was composed of members of the merchant
class, which wanted a strong federal government to protect shipping, to pro-
tect fledgling industries, and to extract taxes and tariffs that would pay for in-
ternal improvements. Webster inherited and defended this tradition for many
reasons: his father was a Federalist; his law clients were mainly Federalists; the
interests of New Hampshire and Massachusetts were mainly Federalist. Most
of all, however, after defending Federalism in the courts and arguing for it in
the House and Senate, Webster believed it was the only way the country could
survive—economically, internationally, and ideologically.
Those opposed to Webster came out of the Anti-Federalist tradition. Re-
flecting their agrarian bias, the Anti-Federalists tried to lower taxes and tariffs,
to protect minority and states’ rights, and to reduce government interference.
Later, embracing the civil religion of John C. Calhoun, some agrarian interests
defended slavery and attempted to nullify tariffs using states’ rights as their
shield. The Federalists attempted to contain slavery and use tariffs to protect
manufacturers, with the Union as their shield. The Federalists’ rationale for a
new constitution served Webster in his calls—in the Congress, before the
14 Daniel Webster and the Oratory of Civil Religion

Supreme Court, and as Secretary of State—for curtailing states’ rights. He be-

lieved that the Articles of Confederation failed because they gave too much
power to the states.
Webster also noted that among the former colonies sectionalism undercut
the Articles of Confederation. Before 1776, the colonies had divided into
three distinct groups, with different social, political, and economic interests.
The original New England states (Massachusetts, New Hampshire, Rhode Is-
land, Connecticut) were called the “Eastern” states, as opposed to the four
“Middle” states of New York, New Jersey, Pennsylvania, and Delaware and the
five “Southern” states. By 1783, the Eastern states were using the threat of
forming a separate confederation to support their demand for a stronger cen-
tral government.10 New England again threatened secession in 1812 over “Mr.
Madison’s war” with England, which the Eastern states did not support.
Webster played an important and controversial role in that debate; the roots
of his position can be traced back to the controversy of 1783.
Other animosities between the North and South were brought to the fore
in the summer of 1786 during debates in Congress over the navigation of the
Mississippi River.11 On August 12, 1786, Virginian James Monroe wrote that a
group of New Englanders and New Yorkers had proposed dividing the confed-
eration at the Hudson River. Noting that two Pennsylvania congressmen fa-
vored the idea, Monroe suggested, “It were as well to use force to prevent it as
to defend ourselves afterwards.”12
When the Whig Party was under siege by Jacksonian populism, Webster re-
lied on such Federalists as Alexander Hamilton to defend republicanism. Ac-
cording to Max Farrand, Hamilton “had no sympathy for the Articles of
Confederation.” During the constitutional convention of 1787, he provided
the delegates with his own plan calling for a strong central government and

10. Nathaniel Gorham of Massachusetts, speaking in Congress, declared that if that body was
not given the ability to meet the demands of public creditors, the Articles of Confederation
would fail and “some of the states might be forming other confederacies adequate to the pur-
poses of their safety.” James Madison, notes on debates, February 21, 1783, in The Papers of James
Madison, 6:273. See also John P. Kaminski and Gaspare J. Saladino, eds., The Documentary
History of the Ratification of the Constitution, 13:55.
11. At one point, Rufus King, Benjamin Lincoln, and Theodore Sedgwick of Massachusetts
proposed a separate New England confederacy. Kaminski and Saladino, Documentary History,
13:55.
12. James Monroe to the governor of Virginia, August 12, 1786, in Edmund C. Burnett, ed.,
Letters of Members of the Continental Congress, 8:424–25.
 The Foundation of Webster’s Civil Religion 15

limited popular participation through elected representatives. He said on June

18 that “the British government was the best in the world. . . . This govern-
ment has for its object public strength and individual security.” He went even
further on June 26:

All communities divide themselves into the few and the many. The first are
the rich and wellborn, the other the mass of the people. . . . The people are
turbulent and changing; they seldom judge or determine right. Give there-
fore to the first class a distinct, permanent share in the government. They
will check the unsteadiness of the second, and as they cannot receive any ad-
vantage by change, they therefore will ever maintain good government.13

In the Federalist Papers, Hamilton, perhaps reflecting the thinking of Thomas

Hobbes, argued that “the passions of men will not conform to the dictates of
reason and justice, without constraint.”14 Like Madison, Webster shared Ham-
ilton’s view of human nature, and he incorporated it into his civil religion.

The Ratification Debates

When the Constitution was submitted to the states, many Americans regis-
tered their dissatisfaction with the omission of a bill of rights. Conventions
had been an innovative idea at the time of the Revolution. However, since
Americans had found them an effective way to draft state constitutions, it fol-
lowed that ratification of the new Constitution should be accomplished by
state conventions, assemblies of the representatives of the people.15 Thus, caul-
drons for political partisanship were forged even as the system rejected direct
democracy.
During the convention Madison was not involved in the brief dialogue con-
cerning the insertion of a bill of rights into the Constitution. His lack of con-
cern grew out of his conception of Federalism. If the Constitution did not
empower the federal government to promote or establish any religion or to re-
strict speech and the press, he believed, then all questions concerning freedom

13. Max Farrand, ed., The Records of the Federal Convention of 1787, 1:291, 288, 434.
14. Alexander Hamilton, Federalist (no. 15), 35.
15. Conventions would again be called in 1820 and 1821 when states sought to revise their
constitutions. In 1831 the first party nominating convention was held, and all major parties
have used them since.
16 Daniel Webster and the Oratory of Civil Religion

of the press, speech, and religion would be left exclusively to the individual
states to decide. If the Constitution contained a provision relating to those
freedoms, reasoned Madison, it might be seen as an invitation to limit indi-
vidual freedoms. Later, he would change his mind. At the time, he returned to
Virginia from Philadelphia and became one of the Constitution’s most ardent
defenders, writing twenty-nine of the eighty-five articles that became The Fed-
eralist Papers. These editorials became the bible of the Federalist Party; each
and every one was closely studied by Webster in his formative years.
Madison was but one participant in the Federalist campaign of persuasion.
Federalists kept up a steady barrage of editorial opinion in the press. They suc-
ceeded in dubbing their opponents “Anti-Federalists,” in place of the preferred
“Federal Republicans.” They out-organized and outflanked the Republicans as
the crucial ratification debates began in state conventions. During those de-
bates, however, the “Anti-Federalists” were able to sustain a call for a bill of
rights, particularly in states that refused to ratify, such as North Carolina and
Rhode Island, and in states that ratified reluctantly or conditionally, such as
Massachusetts, Virginia, and New York.
One of the reasons for the high level of debate was that the founders were
thoroughly familiar with the theoretical writings of Locke, Hobbes, Sir Philip
Sidney, Milton, Montesquieu, Rousseau, Richard Price, and John Cartwright.
Another influential rationalist was Algernon Sidney, whose Discourses on Gov-
ernment of 1698 were standard reading for the founders. James Burgh’s popu-
lar Political Disquisitions (1774–1775), on nonconformist thought and natural
rights, could be found in almost every sizeable town.
What the founders brought to Enlightenment thinking was know-how.
Certainly Henry Clay and Daniel Webster understood that the founders con-
verted the theories of European philosophers into the realities of the Amer-
ican political system. The founders were pragmatists who wanted the government
to help them get things done. Like Aristotle, they sought an expedient system,
not so much an ideal one. Clay’s compromises and Webster’s legal briefs are
classic examples of how the second generation brought practicality to the the-
ories of the first.
The Enlightenment thinkers derived many liberties from earlier documents
that granted new rights to nobles. For example, the Magna Charta included
due process, protection of unjust seizure of property and person, and trial by
jury. The right to petition the government and to bear arms were included in
the English Bill of Rights. It was, in fact, the English Bill of Rights that gave its
 The Foundation of Webster’s Civil Religion 17

name to our own even though many of the rights contained in the English Bill
were first developed in the colonies.
As they evolved and decided to seek independence, the colonies also devel-
oped new rights that were never part of the English system of justice. In fact,
some of the rights developed in the colonies predate Locke and other En-
lightenment thinkers. As Webster often pointed out, Massachusetts’ interest
in a bill of rights can be traced to its early history starting with the Mayflower
Compact of 1620 and the Pilgrim Code of Law of 1636. More important, how-
ever, was the Massachusetts Body of Liberties of 1641, the first civil document
in the colonies to call for a guarantee of free speech, bail before trial, a jury
trial, and the right to counsel. It was the first to protect individuals from dou-
ble jeopardy, to provide for just compensation, and to reserve certain powers
from government control. It was the first document in the history of the world
to forbid unauthorized searches. In short, it contained many of the rights in-
corporated into the first ten amendments to the Constitution. The Body of
Liberties was strengthened by the Laws and Liberties of Massachusetts, drafted
in 1647. This may explain why Massachusetts was so adamant to add a bill of
rights to the Constitution. Even before he became a lawyer in Boston, Webster
was well aware of this tradition.

Partisan Strategies
While the Anti-Federalists numbered among their members some excep-
tional writers who published some important documents under various pseu-
donyms, they did not mount an effort equaling The Federalist Papers. In fact,
the Anti-Federalists were about as diverse a group as one could imagine in the
colonies. This may explain why George Mason was unable to form a commit-
tee of correspondents. Imagine what Mason, Patrick Henry, and Richard Henry
Lee might have written in defense of their position had their effort been coor-
dinated. Instead, Anti-Federalists too often had to fend for themselves, relying
on infrequent letters from their leaders or gleaning what arguments they could
from published rebuttals in the press. Furthermore, there was no consensus
among Anti-Federalists on which form of government would work best.
Elitists such as Luther Martin and Richard Henry Lee believed in a natural
aristocracy that was tempered by democracy. Poorer Anti-Federalists tended to
favor more direct democracy and to resent the elitists. In general, however, all
Anti-Federalists opposed consolidation of the national government and
18 Daniel Webster and the Oratory of Civil Religion

unlimited powers for Congress; they favored states’ rights and a bill of rights,
particularly freedom of the press, speech, and religion.
On February 6, 1788, Massachusetts ratified the Constitution only after ac-
rimonious debate and with the provision that a bill of rights be added. Al-
though Maryland ratified the document on April 26 and South Carolina on
May 23, Patrick Henry succeeded in delaying consideration in Virginia and
Gov. George Clinton simultaneously delayed consideration in New York. If
these two states held out, the Constitution would be mortally wounded, for
they were the most populous and geographically imposing states. In June, New
Hampshire became the ninth state to ratify, with Webster’s father voting in
the affirmative, and the Constitution was finally the law of the land, but Vir-
ginia and New York were needed to prevent the Union from being divided.
Before Virginians got word of the action taken in New Hampshire, however,
Henry was defeated when on June 25, 1788, Virginia ratified the Constitution,
believing it had provided the crucial ninth vote. New York followed suit on
July 26. While some hope remained that the new states could still call for a
new constitutional convention under the provisions of Article V, most leaders
believed that the task of proposing amendments to the states would fall to the
new Congress.
As a result of the state ratifying conventions, the Federalists got their Con-
stitution, but the Anti-Federalists extracted a pledge for a bill of rights. Even
though Madison opted for the legislative mode for drafting and ratifying amend-
ments, his move to address them at all revealed that the clash with Henry
had a significant impact on him.
Much to John Adams’s horror, Jefferson mailed Thomas Paine’s Rights of
Man to influential opinion makers in support of the need for a bill of rights.
Adams wrote to Jefferson claiming he had damaged the ratification process.
This plaintive message contains one of the most interesting sentences in the
history of American letters. Adams directly rejected Jefferson’s olive branch
concerning their “differences of opinion in private conversation.” Wrote Adams,
“You and I have never had a serious conversation together that I can recollect
concerning the nature of government.” This comes as something of a shock to
those who have credited reports that Adams and Jefferson spent time at vari-
ous junctures discussing the nature of government before the Declaration of
Independence was written. When Webster rose to eulogize Adams and Jef-
ferson in 1826, it made his task all the more difficult, as we shall see.
The founders believed that certain rights were inalienable, that they were
 The Foundation of Webster’s Civil Religion 19

natural or God-given, and that they were intended to protect the individual
citizen from the federal government. The founders sought to preserve as much
of states’ rights as they could while building a viable Union. Only those items
enumerated were to be the province of the Congress; it was not to assume any
powers on its own. That predisposition would change with civil war and the
passage of the Fourteenth Amendment, which was eventually used to enforce
the first nine amendments against the states. At the time the Bill of Rights was
being debated, however, Federalists gave Anti-Federalists assurances that the
federal government would not overstep the checks and balances established by
the Constitution. The Ninth and Tenth Amendments sealed that bargain.
Secretary of State Jefferson certified the Bill of Rights on March 1, 1792,
when he announced that three-fourths of the state legislatures had ratified ten
amendments to the Constitution. The road to ratification stretched back to
the Magna Charta and wound through the works of Enlightenment thinkers
into America’s colonial experience, revealing each colony to be a distinct in-
novator of human liberties. The state constitutional ratification conventions
heard cries for a national bill of rights.
The debates over the Bill of Rights had several important implications for
Webster’s interpretation of the Constitution. If one accepts the position of
Madison and Jefferson that the Constitution should be interpreted in terms
of its original intent, strict constructionists have a strong argument that their
interpretation is the closest to what the founders had in mind.16 In the ratifi-
cation debates, the antagonists agreed that the federal government should be
granted no powers that were not clearly enumerated. There was no endorsement
of “implied powers,” “penumbras” of meaning, or a “living constitution.” To
those who advance such notions, the vast majority of founders would probably
have responded: If you don’t like the Constitution the way it is, amend it. In
one of his first speeches on the floor of the House, Webster began, “After the
best reflection which I have been able to bestow on the subject of the bill be-
fore you, I am of the opinion that its principles are not warranted by any
16. Madison wrote that the Constitution must be interpreted according to “its true meaning
as understood by the nation at the time of its ratification.” James Madison to John G. Jackson,
December 27, 1821, in Letters and Other Writings of James Madison, 3:244. Jefferson wrote that law-
makers ought to return “to the time when the constitution was adopted, recollect the spirit
manifest in the debates, and instead of trying what meaning may be squeezed out of the text, or
invented against it, conform to the probable one in which it was passed.” Thomas Jefferson to
William Johnson, June 12, 1823, Library of Congress, http://memory.loc.gov/master/mss/
mtj/mtj1/053/1000/1004.jpg.
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