The Elite Federal Bar in Baltimore, 1818–1834

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The Elite Federal Bar in Baltimore, 1818–1834 The Elite Federal Bar in Baltimore, 1818–1834 by Steven M. Klepper s the federal bar was taking shape in the early the close of the session, the justices and the Supreme Court decades of the 19th century, Baltimore, Md., was bar would scatter across the country to ride the circuit. Ahome to a disproportionate share of that bar’s elite Baltimore was the site of two federal trial courts. One members. G. Edward White, in his volume of The Oliver was the U.S. District Court for the District of Maryland, Wendell Holmes Devise History of the Supreme Court, which had jurisdiction over admiralty and maritime cases, observed that the “period from 1815 to 1835 was one of certain cases involving aliens, and federal misdemeanors. the highwater marks in the history of the Supreme Court The district court held four sessions in Baltimore each bar.1 Of the six pre-eminent attorneys whom Professor year, commencing on the first Tuesday of March, June, White profiled in the book, the law practices of three September, and December.3 A succession of three district of them—Luther Martin, William Pinkney, and William judges occupied one seat on the district court during this Wirt—were centered in Baltimore. After the deaths of time period: James Houston, who served from 1806 to Martin and Pinkney in the early 1820s, future Chief Justice 1819; Theodorick Bland, who served from 1819 to 1824; Roger Taney, himself an accomplished advocate before and Elias Glenn, who served from 1824 to 1836. the Marshall Court, moved his practice to Baltimore. At a The second federal court in Baltimore was the U.S. time when the U.S. attorney general was a part-time posi- Circuit Court for the District of Maryland, which had tion, Pinkney, Wirt, and Taney all served in that role while original jurisdiction over diversity cases and federal ques- maintaining private practices in Baltimore. tion cases as well as appellate jurisdiction over the rul- William Wirt was a prolific letter writer. His personal ings handed down by the district court. The circuit court, papers provide a detailed record of the Baltimore trial made up of the district judge and the Supreme Court practices of these leading Supreme Court advocates start- justice assigned to the Fourth Circuit, sat in Baltimore ing in 1818. Wirt’s writings portray courtrooms packed with twice each year, with sessions commencing on May 1 spectators who were there to witness the attorneys’ rival- and November 7.4 ries and oratory. The attorneys worked hard, at great cost From 1811 to 1835, Gabriel Duvall was the Supreme to their health and personal lives. In return, they earned Court justice assigned to Maryland. In contrast with the fame in their time, but not necessarily great fortune. pre-eminent lawyers practicing before him, Justice Duvall was one of the Supreme Court’s all-time least distinguished The Baltimore Federal Courts members. He authored a total of 15 opinions during his 23 In the early 19th century, the annual session of the years of service.5 In addition, it appears that Justice Duvall Supreme Court began on the first Monday of February.2 At did not publish any opinions handed down by the circuit July 2011 | The Federal Lawyer | 31 court. His judicial silence is particularly notable because the that practiced before the Marshall Court in its early years Fourth Circuit, which then consisted of only Maryland and came from those two cities.”14 In January 1818, Wirt listed five Delaware, was by far the easiest assignment in the era of reasons why a young protégé, Francis Walker Gilmer, should circuit riding. Roger Taney, Duvall’s successor on the Fourth set up a practice in Baltimore, rather than in Richmond: Circuit, would later estimate his own annual circuit riding consisted of only 438 miles.6 1. It is a larger theatre and the business, I understand, much Justice Duvall’s passivity was probably not too noticeable greater. during the trials over which he presided. After all, early 19th- 2. The bar is not so strong, nor so firmly fixed in the saddle century attorneys were, above all else, orators. Even before the as in Richmond. This is an important consideration while Supreme Court, according to White, “there were no time limits you are yet in your apprenticeship. on arguments,” and “Justices put relatively few questions to 3. The profitable business in Baltimore depends on the mari- counsel. ... Written briefs were rare and ... not required.”7 time law, which is of such easy acquisition that you may commence practice with it, at once, and master it wholly Attorneys General in Private Practice in six months. Before the establishment of the Department of Justice in 4. You are entirely new at Baltimore and may take any 1870, the U.S. attorney general was a cabinet officer without ground of elevation you choose to start from. a department. The attorney general’s statutory duties con- 5. There are frequent appeals from Baltimore to the Supreme sisted only of arguing cases for the United States before the Court here, which will soon give you an opportunity of Supreme Court and of rendering legal advice to the execu- presenting yourself in the great focus of national observa- tive branch.8 Because the duties of the office were much tion.15 narrower than those of other cabinet officials, the attorney general received lower pay. Congress expected attorneys Shortly after dispensing the foregoing advice, Wirt prose- general to supplement their incomes by maintaining private cuted his first case in Baltimore in May 1818. President James law practices.9 Monroe requested that Wirt aid in a high-profile prosecution William Pinkney, who served as James Madison’s attorney for mail robbery.16 When Wirt observed that such an assign- general from December 1811 to February 1814, “resided ment was outside the scope of his statutory duties, the U.S. altogether in Baltimore during the short period of his incum- government separately retained Wirt at a cost of $1,500.17 bency, and maintained his post almost without interruption The stagecoaches to Baltimore were “badly managed,” but, to his private engagements at the bar.”10 Congress responded to the relief of Wirt’s fellow travelers, his stagecoach made it by passing an act requiring the attorney general to reside in to Baltimore in record time because the attorney general was Washington, D.C., and Pinkney resigned shortly thereafter.11 aboard.18 Wirt’s “first question upon leaving the stage was This residency requirement presented a problem for whether the mail robbers were under trial—the answer was Pinkney’s successors. The young city of Washington had that the court had risen for the day[,] Judge Duvall being in yet to develop into a center of litigation. Thus, unless the his room above stairs.”19 After Wirt went to his room at the attorney general was independently wealthy, the low govern- inn where the case was being heard, Justice Duvall “came ment pay required the individual to leave the city in order to into my room … while I was shaving a few minutes after- maintain a private legal practice. wards and informed me that the trial would not take place William Wirt, who was appointed to the post of attorney ‘till Saturday.’”20 After one week of trial, the jury delivered a general on Nov. 13, 1817, held the position for more than 11 guilty verdict and a sentence of death.21 years. The residency requirement led to an unhappy physical Thus, Wirt quickly saw the city as a potential focus for separation between Wirt and his family. Elizabeth Wirt main- his own legal practice: “I have it in contemplation to try the tained the family home in Washington with their 10 children effect of an admission to the State bar of Baltimore before I and integrated herself into Washington society, while her leave this place—my friends here think it will be worth 4 or husband traveled much of the year.12 5000 $ a year to me—which will be a decent addition to my The Wirts’ personal loss was history’s gain, however. practice in Washington.”22 The Baltimore bar granted Wirt, During the 1810s and 1820s, the mail operated seven days as the U.S. attorney general, immediate admission. However, per week, with mail stages running between Baltimore and Wirt’s protégé, Gilmer, chose Richmond for his law practice Washington several times each day. The Wirts’ constant cor- after he learned about the Baltimore bar’s rule requiring three respondence offers a detailed view of the trial practices of years’ residence in Maryland before admission.23 Wirt urged the Supreme Court bar. Gilmer to seek an exception to the rule, so that they could start a practice together, but Gilmer declined.24 Justice Wirt’s Arrival in Baltimore During his tenure as attorney general, Wirt spent approxi- Wirt admitted that his “single motive for accepting the mately six months each year in Baltimore. He also built office was the calculation of being able to pursue my pro- a state appellate practice before the Court of Appeals of fession on a more advantageous ground—i.e. more money Maryland. Wirt spent only about three months of the year— for less work.”13 Baltimore presented a natural choice for a from January to March—at his Washington home. Those location in which Wirt would build a lucrative trial practice. three months were Wirt’s most grueling stretch of the year, “Because Washington was relatively inaccessible to any major as he wrote attorney general opinions and prepared for and city save Philadelphia and Baltimore, the majority of lawyers argued cases before the Supreme Court.25 32 | The Federal Lawyer | July 2011 Wirt versus Martin and Pinkney his vast powers in their fullest effect,” leading Justice When Wirt established his private practice in Baltimore Duvall and District Judge Houston to determine that “the in 1818, he was familiar with his two chief rivals, Luther crimes charged in the indictment were the only ones to be Martin and William Pinkney.
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