The Elite Federal Bar in Baltimore, 1818 to 1834

by Steven M. Klepper (Twitter: @MDAppeal)

[On the anniversary (plus one day) of William Wirt’s argument before the Supreme Court in McCulloch v. Maryland, I am reprinting below an article that has previously appeared in The Federal Lawyer and Maryland Litigator. I would like to dedicate this re-print to my late cousin, Kevin Rooney, who passed away last June. When this article appeared in The Federal Lawyer in 2011, Kevin—who attended seminary in Baltimore before deciding to become a lawyer—emailed me regarding our Wirt connection. When Kevin served as Assistant Attorney General for Administration, he chose Wirt’s portrait to hang in his office at the U.S. Department of Justice. Kevin, however, found the happy balance between career and family that eluded Wirt.]

[The article is Copyrighted 2011,  Steven M. Klepper.]

As the federal bar took shape in the early decades of the nineteenth century, Baltimore, Maryland, was home to a disproportionate share of that bar’s elite members. G. Edward White, in his volume of the Oliver Wendell Holmes Devise History of the Supreme Court, observed that the “period from 1815 to 1835 was one of the highwater marks in the history of the Supreme Court bar.”[1] Of the six pre-eminent attorneys whom Professor White profiled, three—Luther Martin, William Pinkney, and William Wirt—centered their trial practices in Baltimore. After the deaths of Martin and Pinkney in the early 1820s, future Chief Justice Roger Taney, himself an accomplished advocate before the Marshall Court, moved his practice to Baltimore. In a time when United States Attorney General was a part-time job, Pinkney, Wirt, and Taney all served in that role while maintaining private practices in Baltimore.

Wirt was a prolific letter writer. Beginning in 1818, his personal papers provide a detailed record of the Baltimore trial practices of these leading Supreme Court advocates. Spectators packed courtrooms to witness the attorneys’ rivalries and oratory. The attorneys worked hard, at great cost to their health and personal lives. In return, they earned fame in their time, but not necessarily great fortune.

The Baltimore Federal Courts

In the early nineteenth century, the Supreme Court’s annual session began on the first Monday of February.[2] At the close of the session, the Justices and the Supreme Court bar would scatter across the country to ride circuit.

Two federal trial courts sat in Baltimore. The first was the United States District Court for the District of Maryland, which had jurisdiction over admiralty and maritime cases, certain cases involving aliens, and federal misdemeanors. It held four annual Baltimore sessions, commencing on the first Tuesday of March, June, September, and December.[3] A succession of three District Judges occupied the District Court’s one seat during this time period: James Houston, who served from 1806 to 1819; Theodorick Bland, who served from 1819 to 1824; and Elias Glenn, who served from 1824 to 1836.

The second court was the United States Circuit Court for the District of Maryland, which had original jurisdiction over diversity cases and federal question cases, and appellate jurisdiction over the District Court’s judgments. The Circuit Court was comprised of the District Judge and the Supreme Court Justice assigned to the Fourth Circuit. The Circuit Court sat in Baltimore twice each year, with sessions commencing on May 1 and November 7.[4]

From 1811 to 1835, the Circuit Justice for Maryland was Gabriel Duvall. In contrast with the pre-eminent lawyers practicing before him, Justice Duvall was one of the Supreme Court’s all-time least distinguished members. He authored a total of 15 opinions during his 23 years of service.[5] Neither does it appear that Justice Duvall published any opinions for the Circuit Court. His judicial silence is particularly notable because the Fourth Circuit, which then consisted only of Maryland and Delaware, was by far the easiest assignment in the era of circuit riding. Taney, Duvall’s successor on the Fourth Circuit, would later estimate annual circuit riding travel of only 438 miles.[6]

Duvall’s passivity likely was not too noticeable during the trials before him. An early nineteenth century attorney was, above all else, an orator. Even before the Supreme Court, “there were no time limits on arguments,” and “Justices put relatively few questions to counsel …. Written briefs were rare and … not required.”[7]

Attorneys General in Private Practice

Before the establishment of the Department of Justice in 1870, the United States Attorney General was a cabinet officer without a department.  His statutory duties consisted only of arguing cases for the United States before the Supreme Court and of rendering legal advice to the executive branch.[8] Just as his duties were much narrower than his fellow cabinet officials, the Attorney General received lower pay. Congress expected that the Attorney General would supplement his income by maintaining a private law practice.[9]

Pinkney, who served as James Madison’s Attorney General from December 1811 to February 1814, “resided altogether in Baltimore during the short period of his incumbency, and maintained his post almost without interruption to his private engagements at the bar.”^[10] Congress responded by passing an act requiring the Attorney General to reside in Washington, and Pinkney resigned shortly thereafter.^[11]

This residency requirement presented a problem for Pinkney’s successors. The young city of Washington had yet to develop into a center of litigation. Thus, unless the Attorney General was independently wealthy, his low government pay required him leave the city for his private legal practice.

Wirt served as Attorney General from November 13, 1817, and he held the position for over 11 years. The residency requirement led to an unhappy physical separation between Wirt and his family. Elizabeth Wirt maintained the family home in Washington with their ten children and integrated herself into Washington society, while her husband traveled much of the year.^[12]

The Wirts’ personal loss was history’s gain. During the 1810s and 1820s, the mail operated seven days per week, with mail stages running between Baltimore and Washington several times each day. The Wirts’ constant correspondence offers a detailed view of the trial practices of the Supreme Court bar.

Wirt’s Arrival in Baltimore

Wirt admitted that his “single motive for accepting the office was the calculation of being able to pursue my profession on a more advantageous ground—i.e. more money for less work.”[13] Baltimore presented a natural choice for Wirt to build a lucrative trial practice. “Because Washington was relatively inaccessible to any major city save Philadelphia and Baltimore, the majority of lawyers that practiced before the Marshall Court in its early years came from those two cities.”[14] In January 1818, Wirt listed five reasons why a young protégé, Francis Walker Gilmer, should set up a practice in Baltimore, rather than Richmond:

1.   It is a larger theatre and the business, I understand, much greater.

2.   The bar is not so strong, nor so firmly fixed in the saddle as in Richmond. This is an important consideration while you are yet in your apprenticeship.

3.   The profitable business in Baltimore depends on the maritime law, which is of such easy acquisition that you may commence practice with it, at once, and master it wholly in six months.

4.   You are entirely new at Baltimore and may take any ground of elevation you choose to start from.

5.   There are frequent appeals from Baltimore to the Supreme Court here, which will soon give you an opportunity of presenting yourself in the great focus of national observation.[15]

Shortly after dispensing the foregoing advice, Wirt had his first case in Baltimore in May of 1818. President James Monroe requested that Wirt aid in a high profile prosecution for mail robbery.[16] When Wirt observed that such an assignment was outside the scope of his statutory duties, the government separately retained Wirt at a cost of $1,500.00.[17] The stage coaches to Baltimore were “badly managed,” but, to the relief of Wirt’s fellow travelers, his stage made it to Baltimore in record time because the Attorney General was aboard.[18] Wirt’s “first question upon leaving the stage was whether the mail robbers were under trial—the answer was that the court had risen for the day Judge Duvall being in his room above stairs.”[19] After Wirt went to his room at the inn where court was being held, Justice Duvall “came into my room … while I was shaving a few minutes afterwards and informed me that the trial would not take place ’till Saturday.”[20] After one week of trial, the jury delivered a guilty verdict and a sentence of death.[21]

Wirt quickly saw the city as a potential focus for his own legal practice: “I have it in contemplation to try the effect of an admission to the State bar of Baltimore before I leave this place—my friends here think it will be worth 4 or 5000 $ a year to me—which will be a decent addition to my practice in Washington.”^[22] The Baltimore bar granted Wirt, as the Attorney General, immediate admission. But Wirt’s protégé, Gilmer, chose Richmond after learning of a Baltimore bar rule requiring three years’ residence in Maryland before admission.^[23] Wirt urged Gilmer to seek an exception to the rule, so that they could start a practice together, but Gilmer declined.^[24]

During his time as Attorney General, Wirt spent approximately six months each year in Baltimore. He also built a state appellate practice before the Court of Appeals of Maryland. Wirt spent only about three months of the year, from January to March, at his Washington home. Those three months were Wirt’s most grueling stretch of the year, as he wrote Attorney General opinions and prepared for and argued Supreme Court cases.[25]

Wirt versus Martin and Pinkney

When Wirt established his private practice in Baltimore in 1818, he was familiar with his two chief rivals, Luther Martin and William Pinkney. Martin, a signer of the Declaration of Independence, was at the tail end of a long, distinguished, and inebriated career. Martin was renowned for delivering great speeches while visibly drunk.[26] Wirt had first risen to national prominence opposite Martin in the 1807 treason prosecution of Aaron Burr before Chief Justice Marshall in Richmond. Wirt’s speech, with its refrain of “Who is Blennerhassett”—a reference to Burr’s alleged co-conspirator—was a staple of oratory instruction for decades thereafter.[27] But the defense attorneys, led by Martin, persuaded Marshall to dismiss the charges. Martin’s defense of Burr harmed his career back in Baltimore, where a mob, dubbing Martin “Lawyer Brandy Bottle,” hanged him in effigy along with Marshall, Burr, and Blennerhassett.[28]

Wirt harbored a deep dislike for Pinkney, dating back to an 1811 trial. Wirt recalled in 1816: “I was near that man for five or six weeks, watched him narrowly and saw not one [trait] of intellect, on a grand scale. His first views of subjects, stated for the first time, are never deep and rarely correct.”[29] Wirt found Pinkney’s manners “very coarse—he has nothing of the care, the softness, the delicacy, the refinement or the nature of the genuine gentleman—on the contrary he is stiff, harsh, assuming, repulsive, and, in a short time, disgusting.”[30] Wirt admitted that “Pinkney was very polite to me,” but Wirt expressed that “I cannot love the man—for he has no heart but for himself.”[31]

Wirt opposed both Pinkney and Martin during an August 1818 trial. Matched against two of the greatest attorneys of the day, Wirt could focus only on the “hot, desolate and barren” conditions. “Pinkney commenced his speech today and spoke throughout it—he goes on again tomorrow. Then Luther Martin and then me. I have no hope of speaking tomorrow. I am wretched here …. [T]he court house is badly attended. Every one has grown weary of this subject.”[32] Pinkney’s performance in the Baltimore heat did earn some respect from Wirt, who wrote that Pinkney was “really a fine creature in his profession: has a fertile and noble mind.”[33] In October 1818, as Wirt planned for a major trial against Pinkney the next month in Baltimore, Wirt admitted finding “much pleasure in meeting” Pinkney:

His reputation is so high that there is no disparagement in being foiled by him, and great glory in even dividing the plain. To foil him in fair fight, and in the face of the United States—on his own theatre, too—would be crown so imperishable, that I feel a kind of youthful pleasure in preparing for the combat.[34]

That “youthful pleasure” did not last. The trial in question involved the prosecution of Commodore Thomas Taylor on five counts of piracy. Wirt and Maryland’s United States Attorney (and future District Judge), Elias Glenn, sought to introduce evidence regarding “several vessels not named in the indictment, to evince [Thomas’] piratical intention.”[35] Pinkney, who represented Taylor, “exhibited his vast powers in their fullest effect,” leading Justice Duvall and District Judge Houston to determine that “the crimes charged in the indictment were the only ones to be considered in the case.”[36] Pinkney then successfully argued to the Circuit Court that Taylor’s acts were within the scope of a commission from the united provinces of Rio del Plata, leading the jury to acquit Taylor “on every count of the indictment without leaving the box.”[37] After the Circuit Court acquitted a Baltimore merchant allegedly abetting Taylor, Glenn ordered entry of a noli prosequi as to the rest of the alleged abettors. A contemporary newspaper account anticipated that written opinions in this important case would be forthcoming,[38] but Justice Duvall, true to form, published nothing.

Tempers between Wirt and Pinkney flared during the piracy trial. When newspaper accounts suggested that Wirt challenged Pinkney to a duel, Wirt pre-emptively provided his own account to his wife:

I write tonight to take off any alarm from a paragraph which may be copied from the Baltimore papers into the Intelligencer, relating to a collision between Mr. Pinkney and myself, in court, here. He insulted me by a rude remark which was generally believed here to have been premeditated . . . . [I gave] him a day after the thing occurred to see if he would not of himself, offer a voluntary apology on the scene where the insult was given. He failed to do so and I was driven to the unchristian necessity of exacting from him the explanation due to my honor. It is not necessary to detail the circumstances. He has made the necessary explanation—and we meet tomorrow at breakfast.[39]

Elizabeth Wirt responded to her husband’s defense of his honor with cutting sarcasm:

Oh my Husband, my Husband, what shall I say or do. I am disposed to jump into the stage and be whisked off to Baltimore directly, to hold your dear head to my bosom if indeed you live. Oh thought of honor and frenzy! Have I been so near to being desolate—and my dear little ones fatherless. Can it be that you the father of ten children would have forsaken them, and rushed unbidden before your creator—and this for a rash word spoken by reptile man. Wretched misguided mortals![40]

Wirt did not appreciate his wife’s unsympathetic response: “Your letter received today disappoints me a little—How would you have received an insulted and disgraced husband? But enough—it is over—my honor and my life both are safe.”[41]

In February 1819, Wirt, Pinkney, and Martin returned to Washington and argued the great case of McCulloch v. Maryland, 17 U.S. 316 (1819). Martin, as the Maryland Attorney General, led the attack on the constitutionality of the Bank of the United States. Wirt and Pinkney joined Daniel Webster in the defense of the Bank. Martin’s speech in defeat was among his most famous and among his last. He suffered a debilitating stroke in August 1819. Thereafter, Martin would “wander aimlessly into courtrooms, staring vacantly and munching gingerbread.”[42]

Over the next three years, Pinkney and Wirt maintained a prickly relationship at the top of the Baltimore bar. In 1820, Wirt noted that Pinkney spoke “with more than his usual courtesy—to me he was perfectly courteous though he gave my colleague … some dry cuts.”[43] The long-winded Wirt was quick to criticize the same trait in Pinkney, noting when his rival “promised to speak only two hours and a half—he has spoken two days—and is, at this moment, at it again, for the third day.”[44]

An overworked Pinkney died of a sudden illness during the Supreme Court’s February 1822 term. Wirt’s private tribute to Pinkney, in a letter to Gilmer, was conciliatory: “He was a great man. On a set occasion, the greatest, I think, at our bar. … He . . . had very great force of mind, great compass, nice discrimination, strong and accurate judgment: and, for copiousness and beauty of diction, was unrivalled.”[45] Even then, Wirt could not resist a backhanded compliment: “In my last two struggles with him I was perfectly satisfied[,] … for to draw his supremacy into question, on his own dung-hill, was honor enough for ambition as moderate as mine.”[46]

At the time of Pinkney’s death, Wirt remained unsure of the value of continuing his own practice in Baltimore. “One gentleman assured me … that [Pinkney’s] last year’s practice was worth only $8000—and another says that [Pinkney] himself represented it is worth $23,000.” Wirt predicted that “[s]omebody will go to Baltimore in Pinkney’s place.”[47]

Wirt versus Taney

Wirt’s prediction proved correct. In 1823, Roger Taney, a successful 46-year-old attorney, moved his family and his law practice from western Maryland to Baltimore.[48]

Wirt’s rivalry with Taney was much friendlier than with Pinkney. Although Wirt occasionally represented the same side as Pinkney, Wirt and Taney were much more likely to join forces.^[49] At first, Wirt did not find Taney to be as imposing an opponent as Pinkney. In an 1825 letter, Wirt told his wife that “Taney has made what they call here a great speech—what I call a very good one—and I must endeavor not to fall short—though I have a pretty tough cause of it to handle.”[50] Taney, for his part, was prone to flatter Wirt, who happily accepted the compliments but appeared to miss the rivalry with Pinkney. The day after Taney’s “very good” but not “great” speech, Wirt reported to Elizabeth:

I have spoken three hours today. They call it as usual a great speech. Taney told me I had made a most beautiful speech and he had heard me with unqualified pleasure from beginnings to end—that it was passionate, awash and graced with all the embellishments which I know so well how to lay on. Those are about his words. Others are loud in praise of it. But for my own part I think it was only so so. But if it passes with the best judges here for the best speech that was made, far be it from me to deny it.[51]

A few months later, in the heat of summer before the Maryland Court of Appeals, Wirt recounted a similar story: “I have been in … to day what Taney calls ‘a noble argument’ and everybody else ‘great‘ etc. etc. It was a good argument … but I was speaking near four hours through the heat of the day and I am half dead with fatigue.”[52] The flattery continued upon their return to Baltimore, where Taney conveyed hyperbolic praise to Wirt’s close friend, Jonathan Meredith:

Taney went to Meredith with his hands up, in his satisfied way, to say “Well I have heard Mr. Wirt with great admiration, before—but this is the most beautiful, the most powerful, and the very closest argument that I ever heard even him deliver—I watched him closely and he never once let go a point that he propounded ’till he had made it perfectly clear.”

He came to me to day—”I am frightened to death. I told everybody yesterday that I was sure of my cause and I verily believe you will take it from me.”[53]

The flattery may have been justified, as Wirt gleefully reported that, amidst applause in the courtroom, “I gained my cause, to the extreme mortification of Taney . . . and the victory is attributed wholly to my speech. It is no disadvantage to me to have it cracked up over the heads of everybody else.”[54] By the close of 1825, Wirt spoke of his contests with Taney in the same competitive tone with which he had described his contests with Pinkney. When Taney arrived in Annapolis for an argument before the Maryland Court of Appeals, Wirt wrote: “Taney has arrived—and we commence our war, i.e. our argument tomorrow.”[55]

Notwithstanding the prestige of Wirt’s growing state appellate practice in Annapolis, he preferred Baltimore. The mails between Washington and Annapolis took days rather than hours, leading Wirt to write to Elizabeth in December 1825 that “I should be very glad to get to Baltimore where I can hear from you a little more regularly.”[56] But the grind of trial practice in Baltimore placed its own strains on their relationship, as Wirt reported on December 19 that the “Judges this day announced that they would not adjourn for Xmass.”[57] Elizabeth responded: “It is a hard fate indeed. And yet our expenses have been so great that we cannot choose between labour and rest—but must drudge on whether we wish or no.”[58] As a small consolation, the mails ran on Christmas day, permitting Wirt to send a letter to state “Merry xmass to you dearest love and to all our children.”[59] The nonstop litigation did not benefit the court either, as Justice Duvall called a premature end to the January 1826 term when he “declared himself too unwell to hear another argument this term.”[60]

Taney and Wirt’s rivalry in the Baltimore trial courts reached its pinnacle with the “Church Mandamus” case in state court in May 1827. After a schism in a city Presbyterian congregation, a dispute arose as to ownership of the church’s property. Wirt represented the majority and the pastor, while Taney represented the dissenting minority in their application for mandamus to transfer possession of the church property. Trial took place before “an eager and excited crowd,” including “ladies of the highest fashion and consideration in the city, attracted thither by the general interest of the cause and by the fame of the counsel.”[61] Wirt’s winning speech, delivered before an ever-growing crowd in oppressive heat, drew roaring applause and was published in newspapers and pamphlets.[62]

The Jacksonian Era

Although personally friendly, Wirt and Taney could not have been further apart in politics. Wirt witnessed Andrew Jackson’s political rise with great apprehension. Taney, by contrast, was the Jackson Administration’s leading legal mind, serving as Attorney General and as Secretary of the Treasury.[63]

Upon Jackson’s election in 1828, Wirt briefly considered moving to New York but, at Elizabeth Wirt’s urging, the Wirts moved their family residence to Baltimore.[64] Another Wirt protégé, future Supreme Court Chief Justice Salmon Chase, who read law under Wirt in Washington in the late 1820s, chose Cincinnati over Baltimore.[65]

As both an attorney and reluctant politician, Wirt was a leading opponent of the Jackson Administration. The Cherokee Nation hired Wirt to represent it in its disputes with the Jackson Administration and the State of Georgia. Wirt viewed this representation as both as a moral issue and as an opportunity to discredit Jackson.[66] In Worcester v. Georgia, Wirt achieved a great paper victory for the rule of law in 1832, though the decision could not protect the Cherokee from the Trail of Tears.

The Anti-Masonic Party—one of the numerous opposition parties that arose before anti-Jackson factions coalesced into the Whig Party—held its convention in Baltimore in 1831. To Wirt’s great surprise, the Anti-Masons nominated him for the presidency. Wirt accepted the nomination, but he came to regret the decision when the National Republicans nominated Henry Clay, splitting the anti-Jackson vote. Wirt actually won Vermont, but Maryland voted for Clay as Jackson won a second term.[67]

Wirt, who entered a dark phase when his favorite daughter died soon after moving to Baltimore, began to grow weary of practice in the 1830s. Never realizing the financial independence that he had hoped to achieve in his 12 years as Attorney General, Wirt lamented in 1833 that “business is getting worse and worse.”[68] That May, Wirt repeatedly wrote Attorney General Taney in an attempt to recover a fee from the U.S. Treasury for services rendered “in preparing instructions for documents from Spain” in a Supreme Court case.[69] Practice before the Circuit Court grew frustrating, as Justice Duvall was so deaf as to be unable to hear Wirt’s voice.[70] Given the lack of written briefs during this era, and given Justice Duvall’s aversion to written opinions, District Judge Glenn likely was doing all of the Circuit Court’s work.

In February of 1834, Wirt died in Washington following a brief illness.[71] Chief Justice Marshall adjourned the Supreme Court to form a funeral arrangements committee, and both houses of Congress adjourned for the funeral.[72] Wirt left substantial debts, forcing his family to leave Baltimore to avoid creditors.[73]

Marshall himself died in 1835, and, following a spirited Senate debate, Taney succeeded Marshall. With Taney’s confirmation as Chief Justice in 1836, Baltimore entered an era in which its federal judiciary outshone its bar. Although known for a sickly appearance, Taney, likely aided by his easy circuit assignment, presided over the Supreme Court and the Circuit Court for over 28 years, until his death at age 87. Sitting on the Circuit Court in Baltimore during the Civil War in 1861, Taney authored the habeas corpus decision in Ex Parte Merriman, 17 F. Cas. 144 (C.C.D. Md. 1861), which is among the most significant decisions ever authored by a Supreme Court Justice while sitting as Circuit Justice.

Observations

For the elite members of the Supreme Court bar in the Early Republic, trial practice mirrored Supreme Court practice. These orators delivered grand speeches for days on end, in competition with other attorneys of national reputation. But it was not an easy way to make a living. Lawyers spent up to six days per week in court, including during grueling summer sessions. An elite practice was no guarantee of wealth. Even accounting for the great size of the Wirt household, it remains noteworthy that Wirt barely kept his head above water while maintaining one of the country’s top legal practices. It was not until later in the century that lucrative work for railroads would offer lawyers of Wirt’s calibre a path to personal fortune.

Even the fame proved fleeting. History has all but forgotten Wirt, Pinkney, and Martin. It remembers Taney for his judicial service, not his private practice. Despite the unusual concentration of legal talent in Baltimore, only a Boston-based attorney, Daniel Webster, remains in the public memory for his private law career.