Abstract
Daniel Webster’s famous prosecution speech in the Salem Murder Trial (1830) has been both praised and condemned. Celebrated as a masterpiece of forensic eloquence it is also criticized as contributing to a miscarriage of justice. This essay examines that address to the Salem jury in the context of Webster’s own classical training in rhetoric. Specifically, the paper discusses the elements and details of Webster’s persuasive strategy as they are drawn from his Ciceronian rhetorical sensibility. Ethical condemnations of Webster’s address cannot be sustained when that trial speech is reviewed from the vantage of classical forensic rhetoric. In fact, Webster’s performance may be one of the last great expressions of the classical forensic paradigm in American courtroom oratory.
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Notes
For an account of the case, see E. J. Wagner, ‘The Tell-Tale Murder’, Smithsonian Magazine, 41, Nov. 2010, pp. 60–68. For a longer treatment of the importance of the case in the social and economic history of the town of Salem, see R. Booth, Death of an Empire: The Rise and Murderous Fall of Salem, America’s Richest City, New York, 2011.
B. Merrill, ‘Introductory Note’, in Daniel Webster, The Works, ed. E. Everett, 6 vols, Boston, 1851, VI, p. 42. This contemporaneous narrative of Benjamin Merrill reappears in whole or in part in several early biographies of Webster; see S. M. Smucker, The Life, Speeches, and Memorials of Daniel Webster, Chicago and New York, 1859, pp. 90–94; B. F. Tefft, Webster and His Masterpieces, I, Auburn and Buffalo, 1854, pp. 200–202; J. Banvard, The American Statesman: Or Illustrations of the Life and Character of Daniel Webster Designed for American Youth, Boston, 1856, pp. 134–51.
See Eastern Argus, 4 June 1830.
‘Preface to Volume Seven’, in American State Trials: A Collection of the Important and Interesting Criminal Trials Which have Taken Place in the United States, from the Beginning of Our Government to the Present Day, VII, ed. J. D. Lawson, St Louis, 1917, pp. x–xi. R. W. Hale, in a review of Daniel Webster by C. M. Fuess, Harvard Law Review, 44, 1931, p. 665, summarized the legal quandary this way: ‘The state court judges in the murder case had their choice between bad law and letting the scoundrels escape the gallows which they certainly deserved.’
See, e.g., S. Gustafson, Imagining Deliberative Democracy in the Early American Republic, Chicago, 2011, pp. 71–96.
D. W. Howe, ‘Classical Education in America’, The Wilson Quarterly, 35, 2011, pp. 31–6 (34); See also J. M. Farrell, ‘“Above All Greek, Above All Roman Fame”: Classical Rhetoric in America During the Colonial and Early National Periods’, International Journal of the Classical Tradition, 18, 2011, pp. 415–36; S. M. Halloran, ‘Rhetoric in the American College Curriculum: The Decline of Public Discourse’, PreText, 3, 1982, pp. 245–69; and O. Thomas, ‘The Teaching of Rhetoric in the United States During the Classical Period of Education’, in A History and Criticism of American Public Address, I, ed. W. N. Brigance, New York, 1943, pp. 193–210.
G. Kennedy, ‘Classical Influences on the Federalist’, in Classical Traditions in Early America, ed. J. W. Eadie, Ann Arbor, 1976, pp. 119–38 (119).
M. Reinhold, ‘Survey of the Scholarship on Classical Traditions in Early America,’ in Classical Traditions in Early America, ed. J. W. Eadie, Ann Arbor, 1976, pp. 1–48 (46).
C. Winterer, The Culture of Classicism: Ancient Greece and Rome in American Intellectual Life, 1780–1910, Baltimore, 2002, p. 70.
H. C. Lodge, Daniel Webster, Boston, 1888, p. 198.
American State Trials (n. 4 above), p. x.
C. F. Richardson, ‘Webster the American Orator’, in Daniel Webster for Young Americans: Comprising the Greatest Speeches of ‘the Defender of the Constitution’, Selected and Arranged for the Youth of the United States, Boston, 1903, p. xxx.
E. Pearson, Murder at Smutty Nose and other Murders, Garden City, 1926, p. 175.
Smucker, Life, Speeches, and Memorials (n. 2 above), p. 88.
E. G. Parker, The Golden Age of American Oratory, Boston, 1857, p. 71; Lodge, Daniel Webster (n. 10 above), p. 198.
R. S. G. Stubbs, ‘Daniel Webster: The Olympian’, American Bar Association Journal, 23, 1937, p. 755.
J. Banvard, The American Statesman: Or Illustrations of the Life and Character of Daniel Webster Designed for American Youth, Boston, 1856, pp. 151, 165.
J. Cooper, Eulogy on the Life and Character of the Late Daniel Webster: Pronounced at the Request of the Pottsville Literary Society, April 27, 1853, Pottsville, 1853, p. 18; Lodge, Daniel Webster (n. 10 above), p. 199. A. E. Pillsbury agreed that ‘the dramatic power with which he reproduces the very spectacle of the murder is unsurpassed in forensic oratory’, in Daniel Webster, The Orator: An Address Delivered before the Brooklyn Institute of Arts and Sciences and the New England Society of Brooklyn, 1903, p. 14.
See A. Rogers, ‘“Under Sentence of Death”: The Movement to Abolish Capital Punishment in Massachusetts, 1835–1849’, New England Quarterly, 66, 1993, pp. 27–46 (28).
H. A. Bradley and J. A. Winans, Daniel Webster and the Salem Murder, Columbia, 1956, p. 10.
H. M. Jones, O Strange New World, American Culture: The Formative Years, New York, 1963, p. 265.
R. K. Newmyer, ‘Daniel Webster as Tocqueville’s Lawyer: The Dartmouth College Case Again’, The American Journal of Legal History, 11, 1967, pp. 127–47 (145).
R. Ferguson, Law and Letters in American Culture, Cambridge, 1984, p. 230.
A. L. Benson, Daniel Webster, New York, 1929, p. 200.
S. W. Howe, ‘Untangling Competing Conceptions of “Evidence”’, Loyola of Los Angeles Law Review, 30, 1997, pp. 1199–247, esp. n. 17. See also J. H. Langbein, ‘Historical Foundations of the Law of Evidence: A View from the Ryder Sources’, Columbia Law Review, 96, 1996, pp. 1168–1202. Langbein focuses primarily on developments in English law that influenced ‘the modern Anglo-American law of evidence’ and emphasizes the rapid change in judicial procedure that occurred after 1790. ‘The modern law of evidence, centred on the oral testimony of witnesses at trial, supplanted the older law at the end of the 18th century and across the 19th-century.’ It was not until ‘the mid-19th century when the modern law of evidence was unmistakably in place’, pp. 1194–6. See also K. Halttunen, Murder Most Foul: The Killer and the American Gothic Imagination, Cambridge, 1998, pp. 93–107. Halttunen demonstrates that the nature of the circumstantial evidence introduced, and the manner of argument employed in Knapp’s trial was not remarkably different in kind than that which appeared in many other 19th-century murder trials. ‘Rarely were murderers convicted on the basis of eyewitness testimony… It was thus necessary for prosecutors to turn to circumstantial evidence to build their cases against defendants. And circumstantial evidence, as prosecuting attorneys well knew, left troubling gaps in the story of a murder’, p. 99.
Ferguson, Law and Letters (n. 23 above), p. 71.
It was Rufus Choate who recalled the speech in the Knapp trial as ‘a more difficult and higher effort of mind than that more famous “Oration for the Crown”.’ See R. Choate, ‘Eulogy on Webster, Dartmouth College, July 27, 1853’, in American Patriotism: Speeches, Letters, and Other Papers Which Illustrate the Foundation, the Development, the Preservation of the United States of America, ed. S. H. Peabody, New York, 1880, pp. 408–9. Franklin Dexter’s defence speech also bears clear marks of his classical rhetorical training at Harvard under Joseph McKean, the second Boylston Professor of Rhetoric and Oratory. On McKean’s classical instruction, see R. F. Reid, ‘John Ward’s Influence in America: Joseph McKean and the Boylston Lectures on Rhetoric and Oratory’, Speech Monographs, 27, 1960, pp. 340–44.
Daniel Webster, ‘Autobiography’, in The Private Correspondence of Daniel Webster, ed. F. Webster, Boston, 1857, p. 10.
D. McClure, Memoirs of the Rev. Eleazar Wheelock, D.D., Founder and President of Dartmouth College, Newburyport, 1811, p. 153.
J. Smith, M Tullii Ciceronis Ad Q. Fratrem dialogi tres, De oratore, Walpole, 1804. See also W. G. North, ‘The Political Background of the Dartmouth College Case’, New England Quarterly, 18, 1945, pp. 181–203.
C. J. Richard, The Golden Age of the Classics in America: Greece, Rome, and the Antebellum United States, Cambridge, 2009, p. 18.
J. Q. Adams, Lectures on Rhetoric and Oratory, I, Cambridge, 1810, pp. 132, 137, 138. As both D. W. Howe and C. J. Richard point out, there is something of a paradox in the fact that the rhetorical culture of early America – with its primary manifestations in oral argument in courtrooms and political forums – was largely underwritten by the written culture of ancient Athens and Rome. Students of the 19th century read the rhetorical works and orations of the classical period in order to become better speakers in their own day. But, as Richard, Golden Age (n. 31 above), p. 49, points out, at least as far as the classical orations are concerned, authors like Cicero and Demosthenes intended their published speeches to be read aloud and were concerned primarily with ‘perfecting their aural qualities.’
Ferguson, Law and Letters (n. 23 above), p. 75.
S. Botein, ‘Cicero as Role Model for Early American Lawyers: A Case Study in Classical “Influence” ’, The Classical Journal, 73, 1978, pp. 313–21. Botein also observes that Robert Rantoul (the friend of the Knapp brothers who so lamented their conviction and execution) was one Massachusetts lawyer who disavowed Cicero and his influence on the legal profession. Botein explains this as a consequence of Rantoul’s ‘democratic sympathies’, but we might also wonder whether Webster’s success in the Salem trial had turned Rantoul into an opponent of the Ciceronian model of legal practice. On the general and sustained importance of Cicero during Webster’s formative years, see also M. Rosner, ‘Reflections on Cicero in Nineteenth-Century England and America,’ Rhetorica: A Journal of the History of Rhetoric, 4, 1986, pp. 153–82.
On the ethics of Ciceronian humanism, see P. A. Meador, Jr, ‘Rhetoric and Humanism in Cicero’, Philosophy and Rhetoric, 3, 1970, pp. 1–12. As Meador explains, Cicero believed ‘that the exercise of virtue in society was made possible by eloquence and service in the courts’, p. 6. Moreover, from the perspective of Ciceronian ethics, ‘justice, as active virtue, has its field in human society through oratory’, p. 7, and relies on an ‘expedient morality, which makes the decisions of practical life as virtuous as possible’, p. 11.
Cicero, De oratore, transl. E. W. Sutton and H. Rackham, Cambridge, 1979, I.202, 236.
Ibid., I.34, 202. The importance of the Ciceronian distinction between a lawyer and the orator is emphasized in M. Leff’s analysis of Cicero’s Pro Murena, in ‘Cicero’s Pro Murena and the Strong Case for Rhetoric’, Rhetoric & Public Affairs, 1, 1998, pp. 61–88. As Leff explains, from Cicero’s view: ‘The orator, like the general, has the weight and dignity associated with free action, for oratorical eloquence can sway (permovere) the minds of the senate, the people, and jurors. No such power is found in the hair-splitting science of the law’, pp. 76–7. See also H. L. Levy, ‘Cicero the Lawyer as Seen in His Correspondence’, The Classical World, 52, 1959, pp. 147–54.
Cicero, De oratore, I.142.
Ferguson notes that, in general, Webster’s habit was to ‘conform to a plan that Americans in 1830 knew and appreciated.’ Even in his deliberative ‘Second Reply to Hayne’, (given earlier in 1830) Ferguson sees evidence of a ‘formal unity’ of Webster’s effort that comes from ‘the six stages of development set forth in classical oratory.’ This classical forensic disposition ‘was instinctive for a speaker who had memorized long passages of Cicero’s orations’: Ferguson, Law and Letters (n. 23 above), p. 224.
G. E. Mills, ‘Daniel Webster’s Principles of Rhetoric’, Speech Monographs, 9, 1942, pp. 124–40 (124).
Of particular note were J. Ward, A System of Oratory, Delivered in a Course of Lectures Publicly Read at Gresham College, London, 1759, and H. Blair, Lectures on Rhetoric and Belles Lettres, London, 1787. Also important for understanding the influence of classical rhetoric in the early 19th century (although unlikely to have been a direct influence on Webster) was Adams, Lectures on Rhetoric (n. 32 above).
Halttunen, Murder Most Foul (n. 25 above), p. 101.
Cooper, Eulogy (n. 18 above), p. 17.
M. D. Peterson, The Great Triumvirate: Webster, Clay, and Calhoun, New York, 1987, p. 181.
Cicero, De inventione, transl. H. M. Hubbell, Cambridge, 1976, I.10. See also Cicero, De oratore, I.139 and II.105–114.
As Cicero, De inventione, I.11, explains: ‘The controversy about a definition arises when there is agreement as to the fact and the question is by what word that which has been done is to be described.’
Cicero, De inventione, I.19.
Cicero, De oratore, I.143.
Cicero, De inventione, I.20, 22.
Daniel Webster, ‘The Salem Murder Trial, August 1830’, in The Papers of Daniel Webster: Speeches and Formal Writings, I, 1800–1830, ed. C. M. Wiltse, Hanover, 1986, p. 399.
Cicero, De inventione, I.20.
Ibid., I.27–8.
Ibid., I.29. F. Haberman, ‘Logical Proof in Salem’, Quarterly Journal of Speech, 42, 1956, pp. 411–16 (414), observed that, indeed, the Knapp trial speech reveals, among other things, ‘Webster’s resources of amplification, his instinct for narrative, his effortless ease in drawing character, his skill in maximizing and minimizing while yet retaining an air of ordinariness and confident ease.’
Cicero, De inventione, I.102–4.
Webster, ‘Salem Murder Trial’ (n. 50 above), pp. 399–400.
Cicero, De inventione, II.19.
Webster, ‘Salem Murder Trial’ (n. 50 above), p. 400. Of course, Webster is also invoking a theological context for understanding the deed, referencing the betrayal of Jesus by Judas for thirty pieces of silver. In his opening of the case for the Commonwealth, Attorney General Perez Morton, American State Trials (n. 4 above), pp. 419–20, made the comparison explicit: ‘The Counsel for the Government do not confidently expect that the evidence which will be given you, will justify the belief that the prisoner at the bar actually gave the blow on the head, or the stabs in the heart of the deceased, for he, who, it will appear, did the deed, wretched man, like his great prototype, who betrayed the Saviour of the world for thirty pieces of silver, smitten with the stings of conscience, has gone and hanged himself; though less scrupulous than Judas, he has never returned the wages of his iniquity.’
Cicero, De inventione, II.20.
Webster, ‘Salem Murder Trial’ (n. 50 above), p. 400.
Daniel Webster, ‘The Murder of Captain Joseph White’, in Webster, The Works (n. 2 above), VI, pp. 52–3. I have here used the 1851 edition of Webster’s Works as my source since in the more recent Papers of Daniel Webster reprints the version from Webster’s Speeches and Forensic Arguments, ed. C. B. Haddock, Boston, 1830, p. 451, which includes at this section a rather awkward stylistic construction that is probably the result of a typographical error. See Webster, ‘Salem Murder Trial’ (n. 50 above), p. 400, and also Bradley and Winans, Webster and the Salem Murder (n. 20 above), pp. 160–62.
Consistent with the other images in the paragraph, it would seem that Webster here uses ‘character’ to mean both figuratively the nature or quality of the murderer and also, literally, a ‘distinctive significant mark of any kind; a graphic sign or symbol’ that is ‘engraved, or otherwise formed.’ See OED, online, s.v. ‘character’.
Cicero, De inventione, I.100.
Webster, ‘Salem Murder Trial’ (n. 50 above), p. 400.
Cicero, De inventione, I.107.
Webster, ‘Salem Murder Trial’ (n. 50 above), p. 400.
Ibid., p. 401.
Cicero, De inventione, II.42–3.
Webster, ‘Salem Murder Trial’ (n. 50 above), p. 400.
Ibid., p. 401. Because of passages like this one, Webster’s trial speech has been credited as the inspirational source for some of America’s most noteworthy Gothic literature. It was Nathaniel Hawthorne’s son-in-law who first suggested that Webster’s narrative of the infamous White murder was ‘a likely source for the House of the Seven Gables’, while others have noted the probable influence of Webster’s speech on Hawthorne’s depiction of the guilt-ridden Reverend Dimmesdale in The Scarlet Letter. Literary scholars have also noted the influence on Edgar Allan Poe’s ‘The Tell-Tale Heart.’ See B. Thomas, Cross Examination of Law and Literature: Cooper, Hawthorne, Stowe, and Melville, New York, 1987, pp. 57–70; Richardson, ‘Webster the American Orator’ (n. 12 above), p. xxix; D. S. Reynolds, Beneath the American Renaissance: The Subversive Imagination in the Age of Emerson and Melville, New York, 1988, pp. 251–2; E. B. Hungerford, ‘Hawthorne Gossips About Salem’, New England Quarterly, 6, 1933, 445–69. Hungerford suggests that ‘The grim accounts [of the White murder] in the Salem Gazette may have come from the pen of Hawthorne himself’, p. 461. See also E. A. Poe, ‘Collected Works’, in Tales & Sketches, 1843–1849, III, ed. T. O. Mabbott, Cambridge, 1979, pp. 789–91; R. Kopley, ‘A Tale by Poe’, in Edgar Allan Poe’s ‘The Tell-Tale Heart’ and Other Stories, ed. H. Bloom, New York, 2009, pp. 173–90. For the general connections between murder trial accounts and Gothic literature in the 19th century, see Halttunen, Murder Most Foul (n. 25 above), pp. 1–6, 60–90, 168–71.
This would appear to be the source of concern for those who have maintained that Webster was ‘extending to accomplices the crimes that belonged to perpetrators.’ See Peterson, The Great Triumvirate (n. 44 above), p. 181.
American State Trials (n. 4 above), p. 421.
Ibid., p. 426.
Salem Gazette, 1 June 1830.
Cicero, De inventione, I.31.
Webster, ‘Salem Murder Trial’ (n. 50 above), p. 401.
Ibid., pp. 401–2.
Ibid., p. 406.
Ibid., p. 407.
Ibid.
Cicero, De inventione, I.34.
Cicero, De oratore, II.130.
Cicero, De inventione, I.38–9.
Webster, ‘Salem Murder Trial’ (n. 50 above), p. 430.
Ibid., pp. 435–6.
Ibid., p. 411.
Ibid., p. 416.
Ibid., p. 418.
Ibid., p. 422.
In connection with the peroration, Cicero, De inventione I.98, recommends a ‘summing-up’ or ‘a passage in which matters that have been discussed in different places here and there throughout the speech are brought together in one place and arranged so as to be seen at a glance in order to refresh the memory of the audience.’
Webster, ‘Salem Murder Trial’ (n. 50 above), p. 444.
Ibid., p. 444. See also Psalm 139.
See Richard, The Golden Age (n. 31 above), p. 42.
Daniel Webster, ‘Adams and Jefferson’, in Webster, The Works (n. 2 above), I, p. 131.
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Farrell, J.M. Classical Rhetoric at Salem: Daniel Webster and the Murder of Captain White. Int class trad 25, 36–56 (2018). https://doi.org/10.1007/s12138-016-0414-6
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DOI: https://doi.org/10.1007/s12138-016-0414-6