Forgotten Americans: William Wirt

 

 

The Constitution established the structure of the federal government, but the implementation and development was a different matter.  The Office of Attorney General was created by Congress on September 24, 1789 in the Judiciary Act (the Department of Justice was not established until 1870). The AG's role was to advise the President and represent the United States in cases at the Supreme Court.  Wirt would transform the Office of Attorney General.

William, born in 1772, was the youngest son of Swiss and German immigrants who ran a tavern in Maryland.  In a pattern common in those times, by the time the young boy was eight he was an orphan and he got some schooling by assistance from an uncle and family friend.  He took up the study of law as a teenager, moving to Virginia where he was admitted to the bar, shortly thereafter marrying the daughter of Thomas Jefferson's physician and moving to the Charlottesville area where he also became acquainted with James Monroe.

After his wife's death in 1799, William moved to Richmond, first coming to prominence in 1800 by defending the notorious James Callendar, a Jefferson supporter (and later critic) against prosecution under the Alien and Sedition Act.  Marrying for a second time in 1802, five years later President Jefferson asked Wirt to serve a prosecutor in former Vice-President Aaron Burr's trial for treason.

In 1817, Wirt was nominated by President Monroe as Attorney General and he was confirmed by the Senate.  The Office he inherited was nothing like it is today.  In a Spring 2001 article from Duke Law School, H Jefferson Powell noted in "William Wirt & the Invention of the Public Lawyer":

Wirt stood at the intersection of a number of cross-cutting forces in the development of American law and American society more generally.

“[W]hen I had the honor of receiving the appointment,” he wrote the chairman of the House Judiciary Committee a few months later, “I asked for the documents belonging to the Office … but my inquiries resulted in the discovery that there  was not to be found … any trace of a pen indicating, in the slightest manner, any one act of advice or opinion which had been given by any one of my predecessors, from the first foundation of the federal government to the moment of my inquiry.”

It was under Wirt that the Office of the AG began to systematically organize opinions and briefs for future reference and he regularized the representation provided by the office.  The prestige of the AG rose in concordance with these improvements.

Powell also notes "Wirt's mature view of the role of law in American society" as;

. . . encapsulated in a letter he wrote to President Monroe in 1823, urging that the Republican Monroe consider appointing the distinguished New York judge – and well-known Federalist – James Kent to the United States Supreme Court. Wirt conceded that Kent’s appointment “would, at first, produce considerable excitement” (by which he plainly meant protest by Republicans offended at the choice of a Federalist) but argued that the short-term cost was far outweighed by the long-term advantage to the nation of appointing a judge of Kent’s stature and character to the high Court. “The Constitution is the public property of the United States,” Wirt reminded Monroe, not the instrument of a political faction, and in addressing issues of constitutional moment “a President of the United States should look to the good of the whole country, to their great and permanent interests.” This concern for the law as a means
of expressing and safeguarding political community pervades Wirt’s legal opinions as Attorney General as well and distinguishes his understanding of public law from the more adversarial views that seem predominant today. 

Along with his reforms of the AG's Office, Wirt participated in most of the major Supreme Court cases of his era including McCulloch v Maryland, Dartmouth College v Woodward, and Gibbons v Ogden.  In 1824, Wirt issued an opinion holding the South Carolina Negro Seaman Act of 1822 to be unconstitutional as an infringement on the federal government's exclusive power to regulate interstate and foreign commerce.  The South Carolina statute had been enacted in the wake of Denmark Vesey's plan to initiate a slave uprising (there is some debate as to what extent this plan actually existed).  It required that any free black seaman on a ship coming into a South Carolina port was to be imprisoned until such time as the ship left port.  Despite Wirt's opinion and federal court rulings against the act, South Carolina continued to enforce it until the Civil War.

Wirt is recorded as owning several slaves at various points in his life.  There is an intriguing passage in John P Kennedy's 1850 book, Memoirs of the Life of William Wirt, Attorney General of the United States: 

"To test the theory that there was no natural inferiority of intellect in the negro, compared with the white man, he had one of his own servant boys and one of his nephews both educated exactly alike. I believe, however, that neither of them did much credit to their teacher." 

The Attorney General's reputation as an orator, in an age when that skill was much prized, was such that the House of Representatives selected him to give the principal address at a service in memory of John Adams and Thomas Jefferson shortly after they both passed on July 4, 1826. 

After leaving office, Wirt's last great legal battle was representing Cherokee Nation against federal and state attempts to remove them from lands granted to the tribe by treaty with arguments in state and federal courts, including the Supreme Court.  From the Wikipedia summary: 

. . . before the US Supreme Court Wirt argued, in Cherokee Nation v Georgia, that the Cherokee Nation was "a foreign nation in the sense of our constitution and law" and was therefore not subject to Georgia's jurisdiction. Wirt asked the Supreme Court to void all Georgia laws extended over Cherokee territory on the grounds that they violated the US Constitution, United States–Cherokee treaties, and United States intercourse laws. Although the Court determined that it did not have original jurisdiction in this case, the Court held open the possibility that it yet might rule in favor of the Cherokee. Wirt therefore waited for a test case to again resolve the constitutionality of the laws of Georgia. On March 1, 1831, Georgia passed a law aimed at evicting missionaries, who were perceived as encouraging the Cherokee resistance to removal from Cherokee lands. TheAmerican Board of Commissioners for Foreign Missions, an interdenominational missionary organization, hired Wirt to challenge the new law. On March 3, 1832, the decision in Worcester v Georgia authored by Chief Justice Marshall, held that the Cherokee Nation was "a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress".  

Despite the legal victories, the Jackson Administration and State of Georgia prevailed as a practical matter. 

Powell's article reflects on the toll Wirt's years as AG took on him as well as the fact that today, unlike the 19th century, he remains little remembered despite his contributions to the young Republic:

Wirt’s preoccupation with his career subjected his marriage and his family to extraordinary stress: the Five years he lived after leaving Office were largely devoted to what was in effect a reconciliation with Elizabeth. Furthermore . . .  the fame for which Wirt sacrificed so much time and energy proved ephemeral: despite his historical significance, Wirt has no place in twenty-first-century Americans’ general picture of our past, and scarcely any greater prominence among contemporary lawyers. That is a matter for regret, and not merely because we know that it would disappoint Wirt: both in his life and through his legal views Wirt helped to create the legal universe in which we still live.

He was an affectionate, empathetic and sociable person who prized the creation and maintenance of warm human relationships. Wirt’s inability to undertake sustained political activity was in large measure due to his deep dislike of personal conflict and animosity. At the bar, in contrast, Wirt usually found it possible to remain on friendly terms even with lawyers against whom he litigated.

One of the things Wirt left behind when he took on the AG role was a thriving literary career.  Where in legal matters, Wirt prized dispassionate objectively, he was considered a passionate and engaging writer.  His works include Letters of the British Spy (1803), The Old Bachelor (1812), and Sketches of the Life and Character of Patrick Henry (1817).  This last volume constitutes much of what we know about the text of Henry's speeches, no record of which was kept during his lifetime.  Wirt interviewed those still alive who knew Henry and witnessed his speeches, through which Wirt attempted to reconstruct the text.  His efforts remain controversial among historians.