Powell, H. Jefferson

English

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297IFrom e BagWilliam Wirt  the Invention of the Public LawyerH. JeÖerson Powelln a habeas corpus case he decided in1919, the distinguished federal judgeJoseph C. Hutcheson, Jr., quoted atlength from a century-old memorandum writ-ten by Attorney General William Wirt.Hutcheson used Wirt’s “able and exhaustiveopinion” to establish the proposition that onlyan express statement by Congress justiÕes theconclusion that the legislature has deprivedmembers of the armed services of the right oftrial by jury. In Hutcheson’s view, Wirt’s opin-ion was legally sound and displayed Wirt’slegal erudition in a manner “characteristic ofthat great and able lawyer.”1A well-known jurist who served on thebench for half a century,2 Hutcheson is nowremembered for a single piece of writing, anessay he published in 1929 entitled “The Judg-ment Intuitive: The Function of the ‘Hunch’in Judicial Decision.” In that essay Hutchesongave an arresting, and controversial, descrip-tion of how he decided cases that are “diÓcultor involved [or that] turn upon a hairsbreadthof law or of fact”:I, after canvassing all the available material atmy command, and duly cogitating upon it, givemy imagination play, and brooding over thecause, wait for the feeling, the hunch – thatintuitive Ôash of understanding which makesthe jump-spark connection between question1 Ex parte Jochen, 257 F. 200, 203 (S.D. Tex. 1919), quoting Cadets at West Point, 1 Op. Att’y Gen. 276(1819).JeÖ Powell is a Professor of Law at Duke University School of Law.2 Hutcheson was United States District Judge for the Southern District of Texas (1918-1930), and amember of the Fifth Circuit (1930-1968; Chief Judge 1948-1959). Among his extrajudicial writingswere the William H. White Lectures he gave in 1936 at the University of Virginia, published as Lawas Liberator (1937), and a set of occasional pieces that he collected under the title Judgment Intuitive(1938). See also the recent study of Hutcheson by Professor Charles L. Zeldon, “The JudgeIntuitive: The Life and Judicial Philosophy of Joseph C. Hutcheson, Jr.,” 39 S. Tex. L. Rev. 905(1998).v4n3.book  Page 297  Tuesday, March 27, 2001  10:17 PMH. JeÖerson Powell298 4 G r e e n  B a g  2 d  2 9 7and decision, and at the point where the pathis darkest for the judicial feet, sheds its lightalong the way.3The doctrinal and logical arguments laid outin the opinion announcing his decision were,Hutcheson explained, an after the fact expla-nation. “And more,” Hutcheson continued,“‘lest I be stoned in the street’ for this admis-sion, let me hasten to say to my brothers of theBench and of the Bar, ‘my practice is thereinthe same with that of your other worships.’”4Intuition and imagination are “essential,”according to Hutcheson, “to great advocacyand great judging.”5To Hutcheson himself, emphasizing theintuitive element in legal thought entailed nodenial of the value of legal reasoning; his aiminstead was to identify the proper relationshipbetween technical reasoning and the pursuit ofsubstantive justice that Hutcheson believed tobe the ultimate goal of law.6 Hutcheson’s admi-ration for Wirt’s extensive knowledge of lawthus involved no paradox or self-contradiction:for Hutcheson, Wirt’s erudition and his deeplyimaginative and emotional nature were bothcrucial elements of what made Wirt a “greatand able lawyer.”For Wirt himself, in contrast, it was muchless obvious that the head and the heart can bepartners in creating greatness in the law, andthe resulting tension is one of the manyaspects of Wirt’s life that are captured in min-iature in Henry Dowling’s 1898 sketch of Wirt.Thanks to the Green Bag, Dowling’s revealingessay is now readily available to a new genera-tion of lawyers who, like Wirt, confront thequestion of how to relate reason and imagina-tion, thought and emotion, in the practice oflaw.7As Dowling at various points intimates,Wirt stood at the intersection of a number ofcross-cutting forces in the development ofAmerican law and American society moregenerally. In a recent and important study ofWirt’s personal life, Professor Anya Jabourhas situated his marriage to ElizabethGamble in the context of a complex and self-contradictory image of marriage widely heldin the early nineteenth century.8 Like many oftheir contemporaries, Elizabeth and WilliamWirt strove to combine an ideal of marriageas a relationship between aÖectionate andessentially equal companions with an increas-ingly rigid deÕnition of the roles of men andwomen in society. Wirt’s professional andpublic life was similarly conÔicted. He was aleading member of the Õrst generation ofAmerican lawyers whose experience of theprofession was entirely shaped by the cultureand politics of the post-RevolutionaryRepublic. As a consequence, Wirt came toexperience the law as primarily a means ofmaking a living, often a demanding andtedious one, that was usually divorced fromthe great moral and political issues which hesaw as the focus of his professional predeces-sors. Politics, on the other hand, recurrentlytempted Wirt throughout his adult life as anavenue to the greatness that he saw andadmired in Õgures such as JeÖerson, Madisonand Monroe; but just as recurrently, involve-ment in public aÖairs (other than litigation)provoked in Wirt a swift recoil from what hesaw as the tawdriness and bitter partisanship3 14 Cornell L.Q. 274, 278 (1929). 4 Id. The quotations are from Rabelais’s Gargantua and Pantagruel, Book III, c. 39.5 14 Cornell L.Q. at 288.6 See, e.g., his address to the 1932 annual meeting of the American Law Institute, “Lawyer’s Law, andthe Little, Small Dice,” 7 Tulane L. Rev. 1 (1932).7 See Henry M. Dowling, “William Wirt,” 10 Green Bag 453 (1898), reprinted below at pages 303-10.8 See Anya Jabour, Marriage in the Early Republic: Elizabeth and William Wirt and the Companionate Ideal(1998).v4n3.book  Page 298  Tuesday, March 27, 2001  10:17 PMWilliam Wirt  the Invention of the Public LawyerG r e e n B a g • Spring 2001 299of early nineteenth-century politics.For Wirt, President James Monroe’s oÖerof the oÓce of Attorney General of the UnitedStates presented an opportunity to reconcilehis clashing interests. The position would lifthim at once to the forefront of the national barwhile providing his family withÕnancial security. (In the earlyRepublic, the position was viewedas part-time, and Attorneys Gen-eral were expected to maintain aprivate practice: “I have no doubtof bettering the situation of ourdear children by the move,” hewrote his wife.9) Furthermore,unlike electoral politics, service asAttorney General would notembroil Wirt in the brutal parti-san battles that he found so per-sonally repugnant. ( Janet Renoand John Ashcroft might wellenvy Wirt in that regard.) It waswith high hopes, therefore, thatWirt took on the position, inwhich he served longer than anyother incumbent before or since,from 1817 until 1829.Wirt’s aspirations were fulÕlledonly in part. The position ofAttorney General, he quickly dis-covered, was no sinecure, at leastif it was to be carried out as hethought it should. And therein layhis greatest burden, for his predecessors evi-dently had not viewed the oÓce in the samelight as Wirt. “[W]hen I had the honor ofreceiving the appointment,” he wrote thechairman of the House Judiciary Committeea few months later, “I asked for the docu-ments belonging to the oÓce … but myinquiries resulted in the discovery that therewas not to be found … any trace of a pen indi-cating, in the slightest manner, any one act ofadvice or opinion which had been given byany one of my predecessors, from the Õrstfoundation of the federal government to themoment of my inquiry.”10 Wirt found himselfessentially creating from whole cloth the oÓceof Attorney General as an ongoing branch ofthe government. Between establishing a sys-tem of records, regularizing the relationshipof the Attorney General to other oÓcials andto the public at large, representing the UnitedStates in the Supreme Court (which was oneof his two statutory duties, the other being to9 William Wirt to Elizabeth Wirt (Nov. 13, 1817), in 2 John P. Kennedy, Memoirs of the Life of WilliamWirt, Attorney General of the United States (1849) 32.10 William Wirt to Hugh Nelson (Mar. 27, 1818), in 2 Kennedy, at 61.William WirtFrontispiece, 1 John P. Kennedy, Memoirs of the Life of William Wirt, Attorney General of the United States (1849).v4n3.book  Page 299  Tuesday, March 27, 2001  10:17 PMH. JeÖerson Powell300 4 G r e e n  B a g  2 d  2 9 7render opinions to executive oÓcers) and inthe lower federal courts (which was not partof his oÓcial job, and for which he was rec-ompensed specially) as well as representingother clients, and rendering a body of opin-ions that today occupy roughly seven hundredpages in the oÓcial Opinions of the AttorneysGeneral, Wirt was very busy indeed. The consequences for Wirt’s personal lifewere severe: adopting a phrase that in variousforms Elizabeth Wirt used several times incorrespondence, Professor Jabour refers to theWirts’ relationship in this period as one of “analmost complete divorce.” Jabour’s researchmakes it plain that Wirt’s preoccupation withhis career subjected his marriage and his familyto extraordinary stress: the Õve years he livedafter leaving oÓce were largely devoted to whatwas in eÖect a reconciliation with Elizabeth.Furthermore, as Dowling correctly indicates,the fame for which Wirt sacriÕced so muchtime and energy proved ephemeral: despite hishistorical signiÕcance, Wirt has no place intwenty-Õrst-century Americans’ general pic-ture of our past, and scarcely any greater prom-inence among contemporary lawyers. That is amatter for regret, and not merely because weknow that it would disappoint Wirt: both inhis life and through his legal views Wirt helpedto create the legal universe in which we stilllive. By considering Wirt’s problems, successesand failures, we can gain perspective ontwenty-Õrst-century American law both as asystem of thought and as a mode of humanendeavor. Consider the relationship between reason-ing and intuition with which I began. UnlikeJudge Hutcheson, Wirt saw a sharp distinctionbetween these two modes of thought and deci-sion and (unhappily) believed that the lawrequired the exaltation of reason and researchat the expense of imagination and emotion.The realization, as Wirt saw it, that his chosenprofession demanded the suppression pro tantoof his literary and imaginative impulses cameearly: in a letter written in 1806 he described aconversation in which he had criticized himselffor “laxity of intellect,” by which he meant histendency to follow many diÖerent ideas ratherthan stick to a precise line of argument. Theperson to whom he was speakingdoubted whether [this tendency] ought to belamented as a defect, suggesting that the manin whose imagination these meteors werealways shooting, bid much fairer both for fameand fortune than the dry and rigid logician,however close and cogent.Not for a lawyer, Wirt replied, for there themodel is John Marshall, whose mind seems to belittle else than a mountain of barren andstupendous rocks, an inexhaustible quarryfrom which he draws his materials and buildshis fabrics, rude and Gothic … a fellow whowould not turn oÖ a single step from the rightline of his argument though a Paradise shouldrise to tempt him … yet who, all dry and rigidas he is, has acquired all the wealth, fame andhonor that a man need to desire. There is notheorizing against facts: Marshall’s certainly isthe true road to solid and lasting reputation incourts of law.11Years later, at the height of his professionalcareer, Wirt held to this view and to the self-castigation and contradiction it stirred in hishighly intuitive and emotional character. Forinstance, in an 1824 letter Wirt recounted a11 William Wirt to Benjamin Edwards (May 6, 1806), in 1 Kennedy, at 145-46. Dowling quotes thisletter in part without (I think) fully perceiving how ambivalent Wirt was about the character he was“eulogiz[ing].” For Wirt, Marshall’s dry logic was indeed “the only true method” for success inappellate-court practice, but that did not endear it to his heart: “If I had my choice,” he admitted, “Iwould much rather have my son a Mirabeau [a French statesman famous for his passionateeloquence] than a Marshall.” Id. I leave to one side for present purposes the question of whetherWirt was altogether fair to Marshall in this character sketch.v4n3.book  Page 300  Tuesday, March 27, 2001  10:17 PMWilliam Wirt  the Invention of the Public LawyerG r e e n B a g • Spring 2001 301conversation with John C. Calhoun (thenSecretary of War) in which Calhoun urgedhim “to study less and trust more to genius.”While Wirt conceded the advice “may do verywell in politics,” he thought it inapposite tothe law, where “the labor of the profession” liesin activities that Wirt himself often foundtedious drudgery.12Contemporary American law, I suggest, is atleast as reÔective of the split between head andheart that Wirt experienced as it is ofHutcheson’s proposed reconciliation of thetwo. The current high reputation of the secondJustice Harlan is a good example. A great manyacademic lawyers and judges purport to admirehim greatly despite or rather because of hisperceived willingness to cast his votes in accordwith the dictates of precise, even technical legalreasoning even in diÓcult constitutional cases.At the same time a great many academiclawyers (expressly) and judges (implicitly)reject as self-defeating and even naive such anapproach to judging. Unlike Wirt, we tend tobe unsure about how to evaluate the relativecontributions of head and heart (Holmes’sfamous logic and experience) to law; like him,we suÖer from their separation.Wirt’s personal life also seems eerily similarto that of many contemporary lawyers. Formost of his professional career, Wirt workedlong and hard hours that took a toll on hishealth and his relationships. Financial worries,the need to take just one more case to bolsterhis income, loomed large for him. His corre-spondence is full of laments over the combina-tion of drudgery and anxiety that law oftenposed for him, but at the same time it is clearthat he took great pleasure in his professionalaccomplishments. The law, and his success asa lawyer, were central to Wirt’s self-image andself-esteem even as he told himself that hevalued other matters (family, marital love,religious faith) far more. The practicing bar ofthe early twenty-Õrst century is notoriouslyriddled with dissatisÕed, unhappy men andwomen: in William Wirt we see the origins ofsome of that unhappiness.As Dowling amply shows, however, Wirt’snatural disposition was aÓrmative and play-ful. He was an aÖectionate, empathetic andsociable person who prized the creation andmaintenance of warm human relationships.Wirt’s inability to undertake sustained politi-cal activity was in large measure due to hisdeep dislike of personal conÔict and animosity.At the bar, in contrast, Wirt usually found itpossible to remain on friendly terms even withlawyers against whom he litigated; his unusu-ally prickly relationship with the distinguishedlawyer and former Attorney General WilliamPinkney, which at one point almost led to aduel, probably stemmed from Wirt’s sensethat Pinkney allowed professional controversyto spill over into personal intercourse.Wirt’s amiable personality inÔuenced hisunderstanding of the substance of law in waysthat he himself, with his Õrm distinctionbetween reason and imagination, probablydid not recognize. Wirt began his publiccareer during the administration of JohnAdams, a period racked with disagreementbetween Federalists and Republicans, inwhich the law, and especially the fundamen-tal law of the Constitution, functioned moreto divide than to unite. Wirt’s Õrst importantappearance on a public stage was as one of theRepublican defense counsel in United States v.Callender, a prosecution under the notoriousSedition Act of 1798.13 After repeatedly wran-gling with Justice Samuel Chase over thepower of the jury to consider the question ofthe Sedition Act’s constitutionality, Wirt andthe two other defense attorneys dramaticallypicked up their papers and walked out of12 See, e.g., William Wirt to Dabney Carr (Feb. 1, 1824), in 2 Kennedy, at 164.13 25 F. Cas. 239 (C.C.D. Va. 1800).v4n3.book  Page 301  Tuesday, March 27, 2001  10:17 PMH. JeÖerson Powell302 4 G r e e n  B a g  2 d  2 9 7court, incidentally leaving the defendant tothe mercy of Chase and the jury, whichpromptly convicted him. Wirt’s nineteenth-century biographer interpreted his behaviorin Callender as a deliberate attempt to incitethe jury against Federalist Justice Chase andso obtain the defendant’s acquittal by a“theatrical incident”: at that time Wirt, likemany others on both sides of the partisandivide, saw the law as a weapon to be usedwithout excessive nicety or concern for theconsequences of doing so.14 As time went on,however, Wirt found this instrumentalunderstanding of law, and especially of theConstitution, increasingly unattractive. Wirt’s mature view of the role of law inAmerican society is encapsulated in a letter hewrote to President Monroe in 1823, urging thatthe Republican Monroe consider appointingthe distinguished New York judge – and well-known Federalist – James Kent to the UnitedStates Supreme Court. Wirt conceded thatKent’s appointment “would, at Õrst, produceconsiderable excitement” (by which he plainlymeant protest by Republicans oÖended at thechoice of a Federalist) but argued that theshort-term cost was far outweighed by thelong-term advantage to the nation of appoint-ing a judge of Kent’s stature and character tothe high Court. “The Constitution is the pub-lic property of the United States,” Wirtreminded Monroe, not the instrument of apolitical faction, and in addressing issues ofconstitutional moment “a President of theUnited States should look to the good of thewhole country, to their great and permanentinterests.”15 This concern for the law as a meansof expressing and safeguarding political com-munity pervades Wirt’s legal opinions asAttorney General as well and distinguishes hisunderstanding of public law from the moreadversarial views that seem predominant today.William Wirt’s bid for lasting fame failed,at least in the most obvious sense. For thereasons I have suggested, I think there aregood reasons to revisit Wirt’s life and career,not necessarily to marvel at him (althoughmy own sense is that he was, as Dowlingsays, a lovable if also Ôawed human being)but to learn from him and his experience.There is little currently in print that makesthat possible,16 and for that reason I wel-come the Green Bag’s republication of HenryDowling’s proÕle of Wirt.14 1 Kennedy, at 80. 15 William Wirt to James Monroe (May 5, 1823), in 2 Kennedy, at 153, 154. Monroe ultimatelyappointed his Secretary of the Navy, Smith Thompson, a prominent New York Republican (andformer student of Kent) who Wirt agreed would be the least controversial choice.16 Kennedy’s 1849 Life is, within the limits of the nineteenth-century life and letters genre, an excellent(if opinionated) book, but it is long out of print. Gregory K. Glassner has recently published a briefpopular biography of Wirt, see Glassner, Adopted Son: The Life, Wit & Wisdom of William Wirt, 1772-1834 (1997), and I have already mentioned Anya Jabour’s Õne book. Wirt’s own 1803 bestseller, TheLetters of the British Spy, is also available in a photographic facsimile of a later edition. I am currentlyengaged in preparing a biography of Wirt.v4n3.book  Page 302  Tuesday, March 27, 2001  10:17 PM

William Wirt & the Invention of the Public Lawyer

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William Wirt & the Invention of the Public Lawyer

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