Public76

The Many-Sided Attorney General
Joseph C. Robert

Copyright 1975, Supreme Court Historical Society
from the Yearbook 1976 Supreme Court Historical Society

After suffering from erysipelas and from well-meaning doctors who plied him with leeches, hot bricks, and exhausting medicines, William Wirt died on February 18, 1834, in the City of Washington, where he and his family had been temporarily residing while he was attending to Supreme Court business. Later that same day, John Quincy Adams, making his way to the Capitol, passed the house where Wirt had lodged, and observed the crepe tied to the door knocker. Adams, not ordinarily given to excessive praise, on this occasion told himself that "the glories of this world" were passing away, that Wirt had not left behind him "a wiser or better" man, and that in the campaign of 1832, so recently ended, "a very little difference in the state of the public mind at that time would have affected his election" as President of the United States.

Who was William Wirt? Here is his biography in capsule form: Wirt was born in Bladensburg, Maryland, November 8, 1772. His father, a tavern-keeper identified as "German protestant" in his naturalization record, died when Wirt was two years of age, his mother when he was eight. The orphan--"poor orphan" in reminiscent mood he called himself--had an unsettled childhood and a moody adolescence, scarred by certain tyrannical experiences. As a young man he tutored, studied law a few months under private instruction, moved to Virginia, was admitted to the bar, and before long became a popular and effervescent member of the Albemarle County group which had as its most illustrious patron Thomas Jefferson. Wirt's first wife was the daughter of Jefferson's physician and friend, Dr. George Gilmer. After her death, Wirt settled in Richmond, on Jefferson's commendation became Clerk of the House of Delegates, subsequently took residency in Williamsburg, where for a season he headed the Chancery Court, married into the prosperous Gamble family of Richmond, and then went to Norfolk. Next he returned to Richmond, where he resided until 1817 when his friend James Monroe appointed him Attorney General of the United States. Wirt resigned this office in 1829 with the exodus of John Quincy Adams from the presidency, and moved to Baltimore, his legal residence at the time of his death in 1834. So much for his wanderings, but this outline fails to register his quality and his achievements.

Wirt was a man of several talents. As the Washington City Gazette recited at the time of his appointment as Attorney General, he was a "sound lawyer, an eloquent orator, a fine writer, and an accomplished gentleman." While not a universal scholar in the sense of a Franklin or a Jefferson, Wirt was broadly informed and achieved contemporary distinction in a variety of fields. One begins to measure Wirt's actual stature only when judgments by individual critics, each looking at a single aspect of the man, are totalled.

Legal historians have identified Wirt as the "first great Attorney General," and as the first to make the Attorney General a real cabinet officer. It is undeniable that Wirt was the first to keep records of official opinions, and that he was Attorney General longer than any other man, over eleven years.

He appeared in virtually all of the landmark cases of the first third of the nineteenth century. Even a simple listing of citations says something about the man: the Callender sedition case, the Burr treason trial, both of the foregoing in Circuit Courts; then before the Supreme Court Dartmouth College v. Woodward, McCulloch v. Maryland, Cohens v. Virginia, Gibbons v. Ogden, Brown v. Maryland, Ogden v. Saunders, Worcester v. Georgia, Cherokee Nation v. Georgia, Charles River Bridge v. Warren Bridge, and others. On various occasions, beginning in the 1790s, Jefferson designated Wirt as his personal attorney. Wirt influenced a number of young lawyers who studied in his office. Several became prominent, among them Salmon P. Chase, later Chief Justice of the United States. Chase, even in the heat of the sectional controversy, never forgot his debt to this benign slave-holder. "One of the purest and noblest of men" is the affectionate phrase used by Chase during the otherwise high-tempered Kansas-Nebraska debate. As a practicing lawyer Wirt has been denominated "the most beloved of American advocates."

Wirt was given an opportunity to become an educator in the institutional sense, for the Board of Visitors of the University of Virginia actually elected him law professor and first president, offices which for financial reasons he refused. As already noted, another sort of presidency might possibly have come his way. In the unnatural role of politician, he was the first nominee of a national political convention in American history, becoming associated with the Anti-Masonic party.

If Wirt was not the very best orator of his time, he was by common consent among the first half-dozen in competition for that distinction. His most famous single piece, one which was learned by a whole generation of little boys in knee breeches to recite at Friday afternoon school exercises, is undoubtedly his description of Blennerhasset, given in the course of the Burr trial. Wirt's oratory was of the occasional, as well as the forensic, variety, and he was a natural choice to deliver the congressional eulogy after the strangely coincidental deaths of John Adams and Thomas Jefferson on July 4, 1826. Wirt was a student of the theory of eloquence as well as an able practitioner of the art, producing notable essays on the subject.

Some specialists, moving from the spoken to the written word, classify Wirt as the leading Southern literary figure of his time. Apparently he was the most widely read essayist of his region and of his era, The Letters of a British Spy being his initial venture into the world of letters. His Sketches of the Life and Character of Patrick Henry was the first full-length treatment of that Revolutionary hero. When a relatively young man Wirt headed what one historian describes as "the first literary group of any importance in the South," his associates being the Virginians who joined him to produce the Rainbow and the Old Bachelor essays.

As a gentleman, Wirt was considered in some quarters as an authority on the un written Southern code of honor, even the beau ideal of his time, and his life inspired two or three sentimental novels, notably one by the tear-inducing Mrs. E. D. E. N. South worth. As John Handy Hall observes, "It is doubtful if any man at his death was more generally regarded and loved."

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The foregoing calendar of primacies and reputed achievements might lead the reader to wonder whether the writer of the present essay is attempting to picture Wirt as a one-hundred-percent hero, a man who went through life with little or no censure, and posthumously escaped criticism. Not so. Emphatically not so. With little trouble any historian may collect a mass of unfavorable judgments and a bundle of assertions that such primacies as Wirt achieved were of small or no importance, that he appealed to transient rather than to permanent values. Let us administer a hurried antidote to the above syrup of praise, injecting a few censorious comments.

Wirt was accused of loving money too well. During his first days as Attorney General he talked too much about his small salary and of "bread and meat for his children." Dividing his time between his official duties and his private practice, Wirt left himself open not only to charges of inconsistency in interpreting the law, but to accusations of many conflicts of interest. His concern for his private clients, his narrow interpretation of his official duties, and the superficiality of his office reforms simply add up to failure as Attorney General, so thinks a modern scholar.

Henry Wheaton, famous lawyer and court reporter, judged that early in life Wirt's oratory suffered from "a redundancy of florid rhetorical ornament," and Wheaton damned, with a cleverness that bordered on malice, Wirt's literary achievements as "the best of a bad school." Dozens of critics, then and now, have classified Wirt's book on Patrick Henry as more eulogy than fair-minded summary. According to Daniel Webster, Jefferson thought it "a poor book written in bad taste." In academe today Wirt is offered the supreme insult by instructors who warn overly enthusiastic students to "de-Wirt" their reports!

As a young man Wirt probably gambled too much, and certainly he drank too much, especially with the comradely and bibulous legislators when he was Clerk of the House of Delegates. Wirt himself confessed to past misbehavior when he wrote from Williamsburg to Colonel Gamble in an effort to win the hand of Betsy. But, he assured the Colonel, this was not a habit, no "settled propensity to vice of any kind, but merely the occasional overflowing of a social heart ."

When a widower, Wirt played the fool by writing what one can only conclude were overly-warm letters to a Richmond matron regarding her comely daughter. She got her letters back from Wirt, but refused to surrender his, and they must have been magnificent items of their kind because even after Wirt's death Mrs. Wirt was still trying to recover them.

Wirt sometimes let his temper get away from him. And once he broke his hand on the skull of a disobedient domestic, an accident which probably amused the servant tremendously. Although he professed to abhor the practice of duelling--and helped to prevent several encounters--Wirt himself while Attorney General of the United States challenged a former Attorney General, William Pinkney.

Wirt was a slaveholder, buying and selling household servants. The last major financial venture in his life was to purchase the whole lot and parcel of Prince Murat's slaveholdings in Jefferson County, Florida, with which to stock his own plantation there.

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In all decency one should call a halt here and ask if there is any rejoinder to the foregoing calendar of weaknesses and reputed faults. An apologist might argue that many of the so-called black-marks charged to Wirt might be explained and perhaps even excused by the age in which he lived.

First taking up Wirt's last-named fault, slaveholding, one might remember that Wirt, like others touched with the Revolutionary philosophy, at least conceded that the institution was an evil. As a young lawyer in Albemarle County, he called slavery "the guilt of the nation." It was "that foul disgrace to men who affect to glory in the hallowed name of liberty." When Attorney General he issued an official opinion declaring unconstitutional the South Carolina statutes providing for the confinement of black sailors when their ships were in the port of Charleston and elsewhere in the Palmetto State, an opinion treasured and circulated in Great Britain, though ignored by the South Carolinians. In the case of The Antelope, which involved the smuggling of slaves into this country, Wirt's fervor in claiming this to be a "case . . . of human liberty" and in describing slavery as a "calamity" upset the pro-slavery people, especially those in Georgia. Georgia had another count against Wirt when he became attorney for the Indians in the Georgia-Cherokee controversy (Jackson thought Wirt "wicked" to support the Indians ) And neither Georgia nor South Carolina ever forgot or forgave.

It is inevitable that Wirt's acceptance of the Anti-Masonic nomination in September 1831 is cited as prime evidence of bigotry in addition to political ineptitude. Wirt's uncharacteristic movement into the political arena was prompted by fear for the country with Jackson in the White House. He hoped that a coalition between the "Antis," as they were called, and the burgeoning National Republican group could be effected. In a sense Wirt was now captive of his famous Rutgers College address of 1830, widely distributed, in which he underscored the old virtues, moaned about current events, and advocated self-sacrifice for the public good.

Strange as it may seem to the twentieth century, Wirt's contemporaries looked on Anti-Masonry with considerable respect. Or at least some of them did. John Marshall himself sat with Wirt on the platform at an early session of the Anti-Masonic Convention. Wirt, who as a young man had joined the order, avoided a general condemnation of Masonry in his acceptance speech to the delegates who had chosen him as their presidential nominee. The coalition for which he had hoped failed to materialize, and Wirt most reluctantly kept his name on the ticket. But before the calendar year 1831 had ended he ceased going through the motions of being a candidate and concentrated on his legal work. This ill-fated venture into the political arena which he so heartily disliked is usually the one fact mentioned when Wirt is noticed at all in the textbooks of today.

As an author, Wirt himself was aware of grave weaknesses in his book on Henry, and his prefatory words constitute an apologia beyond the conventional. He emphasized his reliance on reminiscences, some contradictory, and repeatedly reminded his readers that these were only sketches, "crude sketches," the materials on which they were based being "scanty and meager." Thus the authorized title was Sketches of the Life and Character of Patrick Henry. Wirt had set out to be impartial, but as the work progressed he discovered to his mortification that he could not keep his promise to be both inspiring and objective. Critics often forget that Wirt did expose a series of weaknesses in the character of his hero. What of the charge, more current in the twentieth than the nineteenth century, that Wirt simply fabricated the speeches credited to Henry in the book? Concentrating on the major subject of controversy the "Give-me-liberty-or-give-me-death" speech in Richmond in 1775, one may safely conclude that the key phrases are authentic and that, building on the recollections of Tyler, Randolph and especially Tucker, Wirt simply acted out the play as he thought it might have been. Perhaps it should be said that the speech is a "Williamsburg restoration," authentic foundations and a superstructure built in the spirit of the times.

Once the hue and cry have subsided one may find certain virtues in Wirt's biographical effort. Much of the book would qualify for a respectable place on the shelves of what busy researchers with tape recorders today call "oral history," for with the aid of friends Wirt collected reminiscences of old men and saved them for posterity. And Jefferson's very full letters to Wirt on the project constitute a sort of belated appendix to Jefferson's Notes on Virginia. Old John Adams, upset by primacies claimed by Wirt for Virginia, was goaded into writing famous comments by way of rebuttal. The present writer ventures to suggest that if Wirt's Henry did no more than excite recollections by Jefferson and Adams it was perhaps worthwhile.

As for his personal habits, at no time after his appointment as Chancellor did he backslide into early addiction to the bottle, though certainly he was no teetotaler. Late in life he enjoyed the luxury of washing his head in whiskey, a practice which must have given him a sensational aroma when he appeared before the courts! Wirt put women on a pedestal, and wrote and published such strong essays asking for improvement in their status that he should be listed as an early and notable advocate of women's rights. There was considerable provocation for the challenge to Pinkney, who could be insufferable with his sneers as opposing attorneys. Contemporary opinion was strongly on Wirt's side, and Wirt protested that his professional career would be ruined if he had not responded to Pinkney's insult. In Wirt's final humble explanation to his wife--"Do not reproach me when I come home for this is, now, my only terror"-- he vowed that no other course was open to

Wirt did indeed desire money and security. All through his life he was tormented by the thought that he might die destitute and leave his family dependent on "the insulting pity" of a heartless world. This diligent search for security is the clue to Wirt's major professional decisions. As for the position of Attorney General offered by his friend Monroe, Wirt wrote: "My 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." Incidentally, Monroe himself was often without money. This fact and the sarcasm of Robert Gamble the younger, Wirt's brother-in-law, accounts for a note which Gamble wrote to Wirt soon after Wirt's move to Washington. Monroe owned a debt long due "(and which I presume he considered paid by your appointment) shall I dun him or well [sic] you pay it? which:--"

Monroe may have been slow about paying his debts at the time of his invitation to Wirt, but he was prompt in his assurances to Wirt (1) that Wirt need not relinquish his part-ownership of Bellona Foundry, the cannon factory near Richmond which did business with the federal government, and (2) that he could continue the private practice of law. The office of Attorney General was and had been since the founding of the federal government a part-time job with fractional salary, making the officer "a sort of mongrel," said Edmund Randolph, the first to occupy the post. Here was an open invitation to trouble! This hybrid character of his work was the root of Wirt's major embarrassments as Attorney General.

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Wirt found that he had inherited a job without office space, desk, clerk, or record of the opinions of his predecessors. Soon he created a physical establishment with orderly procedures; there were permanent record books. Once upon a time he suggested that if his opinions were ever put into print they would do him more honor than anything else he ever wrote. It is an interesting fact, however, that his one opinion receiving most attention in the last two or three years was considered so insignificant in the nineteenth century that the editors of the printed editions of the Official Opinions of the Attorneys General did not think it worthy of publication! Still in manuscript form at the beginning of the litigation to determine whether Richard Nixon must obey a subpoena was Wirt's opinion that James Monroe, President of the United States, ought to accept as valid the writ issued by a naval court martial in Philadelphia. Under date of January 13, 1818, Wirt wrote, "A subpoena ad testificandum may I think, be properly awarded to the President of the US." Though he adopted an uneasy and uncertain tone as he developed the subject, Wirt was quite sure that the President should give respectful answer to the Judge Advocate. But Monroe could plead a conflict of governmental duties and thus avoid actually going to Philadelphia to appear at the trial of Dr. Barton. Several times during the Watergate investigations Wirt's opinion was noted, most significantly by the U. S. Court of Appeals for the District of Columbia.

Giving a strict interpretation of the statute under which his office was established, the Judiciary Act of 1789, Wirt insisted and with some success that his official opinions should be rendered only on request by the President and the heads of departments, and then solely on questions of law. Of course he gave less formal advice directly to the President and to his fellow cabinet members.

Often merely echoing the views of his chief and frequently out of town on his private business, Wirt was seldom a decisive influence in cabinet meetings. Of course there were occasions when he was a positive force; for example, he placed a restraining hand on Monroe and on Adams when the Monroe Doctrine was being formulated, persuading them to eliminate from preliminary materials belligerent wording described as a hornet. If a surviving letter to Monroe concerning a Supreme Court vacancy is a fair sample of verbiage given in face-to-face encounters, Wirt could assume a position of statesman-like majesty. Wirt's message to Monroe in 1823 recommending the appointment of Chancellor Kent, strong-minded old Federalist, is one of the great letters of the nineteenth century. In the words of Charles Warren, "The lofty status of the Court, and the philosophy by which appointments upon it should be guided, have never been more adequately set forth."

Wirt represented the government before the Supreme Court when such action was required by the nature of the cases, but in virtually all of the landmark cases he appeared as attorney for private parties. Even in McCulloch v. Maryland, in which he was arguing to sustain the power of the federal government, he received a substantial fee from the Bank of the United States, which he was to serve not only as periodic counsel but as director. As already suggested, the part-private, part-official nature of his duties invited inconsistency if not outright scandal. Perhaps the best examples of inconsistency in interpreting the law are offered by the Prize Cases, where his arguments changed with the needs of his clients. In the case of The Amiable Isabella the opposing side accused Wirt of using his power as Attorney General to obtain a reargument after he discovered privately that the Supreme Court had agreed on a decision against him and his client. The Judiciary Committee of the House cleared Wirt of charges of improper conduct, though modern scholars are still wagging their heads over the event.

Through unbelievably long hours of study Wirt usually came to court well armed with pertinent facts, literary allusions, and judicial precedents, but not always. On at least two occasions he appeared before the nation's highest tribunal deficient in preparation, according to his own standards. One of these events was, of all things, his initial venture before the Supreme Court, March 1816, while he was still a private lawyer in Richmond. In Jones v. Shore's Executor, though he won the case, he cut a "mean and sneaking figure," to use his own words. He had lost his notes used when arguing the case in a lower court, and the planned study period had been claimed by old friends who simply would not leave him alone. The other case, argued two years later, March 1818, was the famous Dartmouth College v. Woodward, which he probably should never have entered; only recently had he moved his family to Washington, and he was absorbed in a multitude of new official duties. Though the contemporary audience was beguiled by his style of oratory, he was far from his legal best in the Dartmouth case.

It might be added here that the special report of the Dartmouth College v. Woodward case did not salvage all that could have been salvaged from Wirt's argument, maybe because of Wirt's own failure to cooperate with the reporter. He also suffered from inadequate reporting in Ogden v. Saunders, and in other cases. One suspects that the reporting which made him most unhappy was that for Gibbons v. Ogden. Wirt's vanity was wounded when his sensational peroration, a rebuttal of Thomas Addis Emmet's Latin quotation, lost all its point by virtue of the reporter's permitting Emmet to revise his own statement.

In Wirt's typical appearance there was not only color to his phrasing but substance to his argument. He acknowledged a too florid style in his early years, and substantially remedied this weakness, but his youthful reputation as "a whip syllabub genius" haunted him. Though the judgment may seem harsh it is probably right to say that Wirt's official opinions and his arguments before the courts made no major impression on American constitutional law. Wirt was a practical, case-by-case lawyer, interested in furthering the cause of the client whom he represented that day. He eagerly sought for precedents, and rarely created them.

Lest the foregoing statements be misread as a diagnosis of legal myopia, two discriminating authorities should be permitted to speak pieces which give some evidence in another direction. Joseph C. Burke, one of the few modern scholars giving careful attention to Wirt as Attorney General and constitutional lawyer, suggests a prophetic character to at least one phase of Wirt's pleading. "His pleas for judicial tolerance of state legislation and construction of state grants in favor of the public have a modern ring." And Leonard D. White, authority on administrative history, says that Wirt "laid the foundation on which, much later, the Department of Justice was to rest."

Although in the "contract" cases which Wirt argued before the Supreme Court-- Dartmouth College v. Woodward, Ogden v. Saunders, and others--he was contending for the validity of the state laws immediately under examination, it is clear that as the years went by Wirt shifted from a strong states' rights position to a medium-ground sort of nationalism. In a sense Wirt was merely catching up with his own arguments he advanced before the Virginia Court of Appeals in 1814 in Hunter v. Martin, Devisee of Fairfax. Although restrained in his constitutional definitions, he expounded the doctrine of national supremacy and the vitality of the "necessary and proper" clause, all in a manner prophetic of the court's dictum in McCulloch v. Maryland. It was this case before the Virginia Court of Appeals which eventually developed into Story's great pronouncement in Martin, v. Hunter's Lessee.

Wirt's movement toward a broader outlook may be credited to several factors, among them being his residence in the somewhat cosmopolitan atmosphere of Washington. The major influence, however, on Wirt's gradual shift of emphasis came from one man, John Marshall.

Because of politics there was originally a coolness between the two men. Wirt studied Marshall carefully when they were both residents of Richmond, and pictured him with amazing frankness in The Letters of the British Spy, noting his indolent habits, his careless appearance, but crediting him with a mind simply overwhelming in its forceful logic. In the judgment of Edward S. Corwin this is the best of all descriptions of the Chief Justice. Though there was some conflict between judge and lawyer during the Burr trial, Wirt soon returned to his role of admirer from afar, and uniformly encouraged his students and young friends to speak like Henry, to write like Jefferson, and to reason like Marshall. While never as close to Marshall as was Story or even Webster, Wirt was on good, friendly terms with the Chief Justice during the Washington years. Wirt grieved when he heard of Marshall's illnesses, and helped the old chief with sundry small items such as the delivery of a whale oil lamp. From time to time in the business of the Supreme Court Wirt had a discernible effect on Marshall--notably in the Cherokee Nation controversy--but characteristically it was the other way around.

In this conversion of a rampant Jeffersonian to at least a mild variety of Marshall-like federalism, reinforcement came from Wirt's wife Betsy Gamble and her family, devoted friends of John Marshall. Betsy as a child had stood at Marshall's elbow when he played cards with her father. One of her brothers in the role of secretary had accompanied Marshall to France on the XYZ mission, the lad's expenses being paid by Colonel Gamble himself. The marriage of Betsy Gamble and William Wirt was one long love affair. Wirt went to Betsy for advice in all major decisions. Betsy had a bright mind, an animated personality, a manner considered a bit lofty by some, and a streak of authoritarianism in her management of domestic affairs. In a limited way she was an author in her own right, publishing the popular Flora's Dictionary, a guide to the language of flowers. In identifying the pressures moving Wirt towards a nationalism akin to that of John Marshall one must not neglect the "hidden persuaders," the wife and in-laws.

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All of this brings us to a hard question, the nemesis of many a biographer: What were the mainsprings of the subject's behavior? Here personal prejudices crowd impartial judgment. Wirt proves to be a most charming person, and thus even the modern investigator must be on guard! To quote one hostess, "Mr. Wirt was more than fascinating; he sang, he talked, he laughed, & told stories, & was all that anybody could be that was delightful." All contemporary descriptions agree that he made an imposing figure, with generous dimensions all over, large handsome head, curly hair. In his last years he became confessedly too heavy, and as his hair thinned he developed a conspicuous mannerism of patting his scalp to keep the thin locks over the bald spot.

Admitting the device of enumeration to be artificial, the present writer chooses to think that Wirt was what he was because of four determining influences. There is considerable overlapping in this arbitrary schedule. ( 1 ) The circumstances of Wirt's childhood had much to do with forming the adult. He came out of poverty and insecurity and he was determined not to return to these conditions. (2) Wirt may be understood only within the context of family and friends. When he came to Virginia he found himself accepted, and he resolved to conform to the standards of that society. As he privately admitted, he always found it important to receive a pat on the back every now and then, and thus to be reassured that his friends were still there and still approving. Wirt assumes his most winsome role as father, husband and friend. His tender personal letters can be read as models of their kind. His family messages are teasing, didactic, and affectionate. He was not above making kiss-marks on his letters for all his children

(3) Wirt had an evolutionary spiritual experience which left him with a profound desire to do right. He tried to move his religion from the closet to the market place. It was Benjamin Edwards, in whose home he tutored as a young man, who gave him creative counsel, developed his self-respect and encouraged a conscience, "a court of oyer and terminer in my own breast," to quote the appreciative Wirt. (4) Finally, Wirt had a love for his country that was genuine and sacrificial. At times he was flamboyant in his Fourth-of-July oratory, but his patriotism was deeper than that. He loved his country in sections and then as a whole. His familiar essays are best approached as pieces of social criticism, a plea to return to the better times of the fathers. His Patrick Henry was a book designed to instill patriotism, and this may have been its weakness, but his motives were noble. He clamored for an American scholar long before Emerson gave the magic pronouncement.

Imperfect as he was, Wirt has something to say to America today. Any sensitive citizen can learn from a man who daily subjected himself to his private court of oyer and terminer, his conscience. Wirt's enduring love was a love of country, a passionate conviction that America is great in direct proportion to its adherence to the finest ideals of the men of 1776. Maybe America could profit from this sort of patriotism in the year 1976.

Joseph C. Robert is professor emeritus of history at the University of Richmond. He has spent a number of years gathering data on the life and career of William Wirt.

Yearbook 1976 Supreme Court Historical Society