History of the American BAR

Chapter XV

The Federal Bar and Law, 1815-1830

The years from 1815 to 1830 were an era of great cases and great lawyers.

At the beginning of this period it is to be noted that the Federal Bar was still almost entirely Eastern in its composition (1)__ a fact well illustrated by an entry by John Quincy Adams in his Diary, October 30, 1817:

“The President said . . . he had written this morning Mr. Wirt of Richmond, Virginia, offering him the office

(1) Ten new States had been admitted into the Union prior to 1830.
 Kentucky was admitted in 1792. Its first law reports were Hughes' Reports in 1803, the next, Hardin's in 1810.
 Tennessee was admitted in 1796. Its first law reports were Overton's in 1813.
 Ohio was admitted in 1802. Its first law reports were Hammond's in 1824.
Louisiana was admitted in 1812. Its first law reports were Martin's, published in 1811 for the Territorial  decisions.
 Indiana was admitted in 1816. Its first law reports were Isaac Blackford's in 1830.
 Mississippi was admitted in 1817. Its first law reports were Robert J. Walker's in 1834.
 Illinois was admitted in 1818. Its first law reports were Sidney Breese's in 1831.
 Alabama was admitted in 1819. Its first law reports were Henry Minor's in 1829.
 Maine was admitted in 1820. Its first law reports were Simon Greenleafs in 1822.
 Missouri was admitted in 1821. Its first law reports were Priestly H. McBride's in 1809.
Georgia's first law reports were Thomas U. P. Charlton's in 1824.

of Attorney-General; but it was very doubtful whether he would accept it. The President said that he should have been very desirous of having a western gentleman in the cabinet but he could not see his way clear. He had taken great pains to inform himself but he could not learn that there was any one lawyer in the western country suitably qualified for the office. He had particularly inquired of Judge Todd who had assured him there was no such suitably qualified person. Graham said that he had inquired this morning of Mr. Clay who told him also confidentially the same thing- that there was no lawyer ix/ that country fit for the office of Attorney-General.”

William Wirt succeeded Richard Rush as Attorney General in 1817, accepting the position because it facilitated his private practise in the Supreme Court; and held the office until 1829.

During this period, the Bar of the United States Supreme Court showed a marked change in composition; the lawyers of Pennsylvania and Maryland no longer held undivided sway; and the Bars of the other States contributed many eminent counsel, especially after 1825, when the city of Washington became easier of access, through the advent of steamboats in the West and East.

[THE meaning of the word BAR is simply LAWYERS]

Within a few days after the decision of Sturgis v. Crowninshield the great case of McCulloch v. Maryland, involving the right of the State to tax the new Bank of the United States, was argued by William Pinkney, William Wirt and Daniel Webster for the Bank, and Luther Martin, Joseph Hoplkinson and Walter Jones for the State of Maryland. The arguments began February 22, 1819, and lasted nine days. No such constellation of lawyers had ever appeared before the Court in a single case.

On February 25, 1819, the National Intelligencer, a newspaper published in Washington, said:

“The argument has involved some of the most important principles of constitutional law which have been discussed with an equal degree of learning and eloquence and have constantly attracted the attention of a numerous and intelligent auditor by whom the final derision of this most important question from the Supreme Tribunal is anxiously expected.”

Of Pinkney’s three days' speech, Judge Story wrote, March 3, 1819:

“Mr. Pinkney rose on Monday to conclude the argument; he spoke all that day and yesterday, and will probably conclude today. I never, in my whole life, heard a greater speech; it was worth a journey from Salem to hear it; his elocution was excessively vehement, but his eloquence was overwhelming. His language, his style, his figures, his arguments, were most brilliant and sparkling. He spoke like a great statesman and patriot, and a sound constitutional lawyer. All the cobwebs of sophistry and metaphysics about State rights and State sovereignty he brushed away' with a mighty besom. We have had a crowded audience of ladies and gentlemen; the hall was full almost to suffocation, and many went away for want of room.”

On March 6, 1819, only three days after the close of Pinkney’s argument, Chief Justice Marshall rendered his renowned opinion, upholding to their fullest extent the rights of the National Government to charter the Bank as a Federal agency and to the exclusive control of such Federal agency, and holding the attempt on the part of the State of Maryland to tax it an interference with the Federal rights under the Federal Constitution (4 Wheaton, 316).

As soon as the decision was made known, the country at once was divided upon political lines in regard to it.

Judge Story wrote on Sunday, March 7:

“It excites great interest, and in a political view is of the deepest consequence to the nation. It goes to establish the Constitution upon its great original principle.”

The National Intelligencer of March 13 said: “The Supreme Judicial authority of the nation has rarely, if ever, pronounced an opinion more interesting in its views or more important in its operation.” The newspapers of the Eastern and Northern States almost unanimously praised the decision.

On the other hand, the papers of the States upholding the theories of Jefferson and the strict States' Rights doctrines bitterly assailed it. Niles' Register of March 13 said:

"A deadly blow has been struck at the Sovereignty of the States, and from a quarter so far removed from the people as to be hardly accessible to public opinion ....

We are awfully impressed with a conviction that the welfare of the Union has received a more dangerous wound than fifty Hartford Conventions, hateful as that assemblage was, could inflict . . . and which may be wielded to destroy the whole revenues and so do away with the Sovereignties of the States."

The Richmond Enquirer said: “If such a spirit as breathes on this opinion is forever to preside over the judiciary, then indeed it is high time for the State to tremble; that in all their great fights may be swept away one by one, that those sovereign States may dwindle into paltry and contemptible corporations."

Chief Justice Marshall wrote to Judge Story, May 27, 1819:(1)

“This opinion in the Bank case continues to be denounced by the democracy in Virginia. An effort is certainly making to induce the Legislature which will meet in December, to take up the subject and to pass resolutions very like those which were called forth by the alien and sedition laws in 1799 ….If the principles which have been advanced on this occasion were to prevail, the constitution would be converted into the old Confederation.”

(1) Mass. Hist. Soc. Proc., 2d series, Vol. XIV.

In 1821, the great question of State Sovereignty was again the important subject before the Court; and on March 3-5 Marshall rendered his opinion in Cohens v. Virginia (6 Wheaton, 264), reaffirming the supreme power of the Court to review decisions of the State courts in criminal as well as civil proceedings. Philip P. Barbour and Alexander Smythe appeared for the State of Virginia, and William Pinkhey and David B. Ogden for the plaintiff.

The decision caused much excitement in the newspapers of the country, and was bitterly attacked by the upholders of States' Rights in letters and speeches. Niles' Register said, March 17, 1821:

“The decision was exactly such as expected for we presumed that that high tribunal would act consistently and on the termination of the case about the bank of the United States, McCulloch v. Maryland, we had no manner of doubt as to the result . . . and that the State Sovereignty would be taught to bow to the judiciary-of the United States. So we go. It seems as if almost everything that occurs had for its tendency that which every reflecting man deprecates.”

On July 7, 1821, Niles' Register said:

“The decision . . . still claims the attention of some of our ablest writers, and the correctness of it is contested with a fine display of talents and profound reasoning by ‘Algernon Sidney’ in the Richmond Enquirer and ‘Hampden’ in the Washington City Gazette C to which we refer those who are not already satisfied on the subject. For ourselves, though not exactly prepared to submit, it seems as if it were required that all who do not subscribe to their belief in the infallibility of that court are in danger of political excommunication.”

Of the criticism on the case, Marshall wrote to Story, June 15, 1821 (1)

“The opinion of the Supreme Court in the lottery case has been assailed with a degree of virulence transcending what has appeared on former Occasions . . . I think for coarseness and malignity of invention Algernon Sidney Spencer Roane, Judge of the Virginia Court of Errors and Appeals] surpasses all party writers who have ever made pretensions to any decency of character.”

Jefferson’s views of the opinion were vigorously expressed by him two years later in a letter to Judge William Johnson, June 12:, 1823:

(1) See Mass. Hist. Soc. Proc., 2d Series, Vol. XIV (1900-1901).

“On the decision of Cohens v. State of Virginia in the Supreme Court of the United States in March, 1821, Judge Roane (presiding judge of the Court of Appeals of Virginia) under the signature of Algernon Sidney wrote for the Enquirer a series of papers on the law of that case. I considered these papers maturely as they came out, and confess that they appeared to me to pulverize every word that had been delivered by Judge Marshall of the extra-judicial part of his opinion, and all was extra-judicial, except the decision that the act of Congress had not purported to give to the corporation of Washington the authority claimed by their lottery of controlling the laws of the States within the States themselves.

“The practice of Judge Marshall of travelling out of his case to prescribe what the law would be in a moot case not before the court is very irregular and very censurable.”

The most alarming effect of the opposition to the strong centralizing tendency of the Supreme Court opinions was the steady increase of propositions to limit the powers of that Court by legislation or constitutional amendment. Those who favored such measures pointed to the fact that between 1809 and 1822 the Court had exercised its power to declare unconstitutional, in whole or in part, nine statutes in eight States (Georgia, New Jersey, Virginia, New Hampshire, New York, Maryland, Louisiana and Pennsylvania). Jefferson wrote, January 19, 1821:

“I am sensible of the inroads daily making by the Federal into the jurisdiction of its co-ordinate associates, the State governments. Its legislative and executive branches may sometimes err, but elections and dependence will bring them to rights. The judiciary branch is the instrument which, working like gravity, without intermission, is to press us at last into one consolidated mass.”

On September 2, 1821, he wrote:

"To consider the judges as the ultimate arbiters of all constitutional questions, is very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is 'boni judices est amplificare jurisdictionem,' and their power the more dangerous, as they are in office for life and not responsible as the other functionaries are to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots."

And again, on March 4, 1823, he wrote:

“There is no danger I apprehend so much as the consolidation of our government, by the noiseless and therefore unalarming instrumentality of the Supreme Court.” (1)

Already in 1807-1808, soon after the Burr trial, attempts had been made in each branch of Congress to amend the Constitution so that all judges should hold office for a term of years and be removable by the President on address by two-thirds of both Houses. This proposition was supported by resolves of the Legislatures of Pennsylvania

(1) On December 25, 1820, Jefferson had written to Thomas Ritchie: "The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our Constitution from a coordination of a general and special government to a general and supreme one alone .... Having found from experience that impeachment is an impracticable thing, a mere scare-crow, they consider themselves secure for life; they skulk from responsibility to public opinion, the only remaining hold on them, under a practice first introduced into England by Lord Mansfield. An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge who sophisticates the law to his mind by the turn of his own reasoning.
 A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government."
 See Writings of Thomas Jefferson, Vol. X, pp. 169, 184, 197, 246.

and Vermont, as well as by action of the House of Delegates in Virginia and one branch of the Legislature in Tennessee.

After the decision in the Cohens case, a Virginia member of Congress, in April, 1822, introduced a bill to repeal so much of the Judiciary Act as gave the Supreme Court power to revise final decisions of State courts; and a member from Kentucky proposed a Constitutional amendment giving appellate jurisdiction to the Senate in any case in which a State was a party. In December, 1823, Senator Johnson of Kentucky introduced a bill to change the Judiciary Act so as to require that no State law should be declared unconstitutional by the Court unless seven judges concurred; and in March, 1824, Senator Martin Van Buren from the Committee reported a bill. Representative Wickliffe, in January, 1824, offered a bill to repeal the entire twenty-fifth section of the Judiciary Act. The bills failed to pass, and another effort in 1855 met a similar fate(1)

Of such attacks, Judge Story wrote to Jeremiah Mason, January 10, 1822:

“I am glad you write somewhat encouragingly respecting the Judiciary. My only hope is in the discordant views of the various interested factions and philosophists. Mr. Jefferson stands at the head of the enemies of the Judiciary, and I doubt not will leave behind him a numerous progeny bred in the same school. The truth is and cannot be disguised, even from vulgar observation, that the Judiciary in our country is essentially feeble, and must always be open to attack from all quarters. It will perpetually thwart the wishes and views of demagogues, and it can have no places to give and no patronage to draw around it close defenders. Its only support is the wise and the good and the elevated in society; and these, as we all know, must ever remain in a discouraging minority in all Governments. If, indeed, the Judiciary is to be destroyed, I should be glad to have the decisive blow now struck, while I am young, and can return to the profession and earn an honest livelihood. If it comes in my old age, it may find me less able to bear the blow, though I hope not less firm to meet it. For the Judges of the Supreme Court there is but one course to pursue. That is, to do their duty firmly and honestly, according to their best judgments.”

(1) See Senate Journal, Dec. 10, 1823, pp. 40, 41, March 11, 1824, pp. 229, 232. See also Annals of Congress, 1823-1824, PP. 915, 916-921; Annals of Congress, 1824-1825, Jan. 25, PP. 365, 370.

In 1827, three cases of immense effect upon the future commercial development of the country were decided. In the first–Brown v. Maryland (12 Wheaton, 419) the Court announced for the first time the “original package” doctrine (1) and the phrase “police power” first appeared. Like most of the other cases of this period, it turned on the issue of States' Rights. It was argued by Attorney-General Wirt and W. M. Meredith(2) against Roger B. Taney and Reverdy Johnson and was decided March 12.

The constitutionality of State bankruptcy statutes was definitely settled by the decision, February 19, 1827, of Ogden v. Saunders (12 Wheaton, 213) –a case which had been twice argued by a remarkable array of counsel first, March 3-5, 1824, by Henry Clay, David B. Ogden and Charles G. Haines for the debtor, and by Daniel Webster and Henry Wheaton for the creditor, and reargued in 1827 by William Wirt, Edward Livingston, David B. Ogden, Samuel Jones and William Sampson (the three latter from New York) against Webster and Wheaton. The final decision was given in favor of Webster’s client, although the majority of the Court decided against his argument denying the power of the States to pass bankruptcy laws (3) Marshall, Story and Duvail, however, dissented on the constitutional point; and the opinions rendered were so intricate that Webster wrote to Nicholas Biddie, February 20, 1827:

“You see what a fire the judges have made on the question of State bankrupt laws. No two of those who are for the validity of such laws agree in their reasons. Those who are against their validity concur entirely. Is there not an old saying–if there be not let it go for a new one- that truth is one; but error various.”

(1) The beginning of the "original package" rule may be traced to State statutes adopted under the Articles of Confederation, in Maryland and Pennsylvania.
 See interesting historical discussion of this case in The Federal Power over Carriers and Corporations, by E. Parmalee Prentice (1907).
(2) Born in 1799, University of Pennsylvania 1812, Attorney-General of Pennsylvania 1861-1867.
(3) See National Bankrupt Law in Amer. Jurist, Vol. I (January, 1829).
See also Review of Dane's Abridgment, Vol. IX, in Amer. Jurist, Vol. IV (July, 1830), in which it is said: "As long as Congress neglects to make a bankrupt law, this decision will certainly have a very satisfactory effect in leaving the States to supply this defect in national legislation."