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WILLIAM PINKNEY: THE SUPREME COURT'S GREATEST ADVOCATE

By Stephen M. Shapiro

"Even this envy owns, now those charms are fled"
— William Mason —

[Stephen M. Shapiro, formerly Deputy Solicitor General of the United States, is currently a partner at Mayer, Brown & Platt. He is co-author of R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice (1986).]

Throughout his long career as Attorney General, William Wirt was haunted by the spectre of William Pinkney. And undoubtedly Pinkney was a great haunter. Wirt could not recall his first encounter with Pinkney without a convulsive shudder. Wirt had prepared his case for days; he had compiled a brilliant speech; and he was fully equipped to challenge Pinkney's "papal infallibility." When, however, Wirt arrived at the Supreme Court, he discovered to his horror that he had misplaced his notes. The grim result was inescapable. Pinkney delivered an oration in his most vehement and masterful manner while Wirt confessedly sank under the "conscious imbecillity" of his own faltering performance. In his next grapple with Pinkney, Wirt vowed, the tables would be turned. Whatever the difficulty, whatever the cost, he would beard "that damned magician Glendower." Wirt, after all, was proceeding under the authority of President Monroe; he was the Attorney General of the United States; and the will of the federal government could not be frustrated by legal chicane. This time Pinkney routed Wirt with a speech so overwhelming that the jury acquitted Pinkney's client — an infamous pirate — without even leaving the jury box.

In the golden age of law that followed the American Revolution, the Supreme Court bar was populated by legal giants cut of the same cloth as John Marshall and Joseph Story. It was an era of interminable speeches, brilliant triumphs, wild temerities, and mortifying defeats. There was Daniel Webster, "black Dan" who could argue the Devil out of his due. There was the indefatigable Walter Jones, who argued more than 300 cases in the Supreme Court. There was the exiled Irish patriot, Thomas Addis Emmet, a man "older in sorrows than years," and of legendary eloquence. And there was the aristocratic William Wirt, who served as Attorney General for 12 years and appeared in nearly every important constitutional case of his day. But none of them was as great as William Pinkney.

Chief Justice Marshall, who observed the lions of the legal profession from 1801 to 1835, declared that Pinkney was "the greatest man he had ever seen in a court of justice." Chief Justice Taney, who presided from 1836 to 1864, found "none equal to Pinkney." Justice Joseph Story delivered an identical verdict: "His clear and forcible manner of putting his case before the Court, his powerful and commanding eloquence, and, above all, his accurate and discriminating law knowledge, give him, in my opinion, a great superiority over every other man whom I have ever known." His rivals at the bar were equally awed by Pinkney. Walter Jones pronounced Pinkney "the man of the century." Thomas Addis Emmet deemed him "the greatest of advocates." Pinkney's genius extorted tribute even from the envious William Wirt: "to compare Pinkney with Webster is to measure the relative brightness of the sun and a farthing candle."

Pinkney's career was one of astonishing dynamism. Born in Annapolis in 1764, he passed his childhood years in pastoral seclusion. His father was a Tory loyalist; but when the harrow of Revolution passed over the nation, William Pinkney sided with the patriots. As a youth he secretly lent his aid to General Washington's troops. Following the war, the Pinkney estate suffered confiscation — the penalty prescribed for Tory loyalists — leaving the family in destitution. Samuel Chase, later Associate Justice of the Supreme Court, discovered Pinkney at a debate in Annapolis and invited him to his office to study the law. As a fledgling member of the Maryland bar, Pinkney attended the Maryland ratification convention and, like his mentor Samuel Chase, voted against the federal constitution, apparently on the ground that it lacked a bill of rights. In short succession, Pinkney was elected a member of the Maryland Legislature, Mayor of Annapolis, Attorney General of Maryland, and a Member of Congress. While Pinkney was still a young man, President Washington selected him to represent the United States in the nation's first international arbitration. President Jefferson later appointed Pinkney Minister to Great Britain. Upon his return to the United States, President Madison named him to serve as Attorney General of the United States. When relations with Great Britain disintegrated once again, Pinkney sounded the tocsin in fiery pamphlets, led a battalion of riflemen in the War of 1812, and suffered a near-fatal wound at the battle of Bladensburg. President Monroe later named Pinkney Minister to the imperial court of Russia, and, upon his return to America, he served as United States Senator for Maryland, delivering famous speeches on the Missouri Compromise and the Treaty Power of the federal government.

But these enormous patriotic exploits, encompassing a multitude of distinguished careers, were to Pinkney mere diversions from his real calling — the private practice of law. He turned to statecraft, he told his friends, to give himself a chance "to breathe a while; the bow forever bent will break." His more strenuous exertions were reserved for his profession. Pinkney was the undisputed master of maritime and prize law in the United States. He was expert in marine insurance law, the law of estates, real property law, international law, criminal law, and constitutional law. He appeared in innumerable cases in the Maryland trial and appellate courts. And he presented 84 arguments in the Supreme Court of the United States, the theatre of his greatest achievements.

Pinkney's arguments were something new and startling in the courtrooms of America. His knowledge of the law vastly exceeded that of his peers; he prepared his speeches for weeks on end; and he delivered them with a passionate vehemence that swept all opposition before him. In addition to his possession of logical powers that would be the envy of a mathematician or general in the field, Pinkney possessed the finer skills of poetic ornamentation. He had learned from his brothers at the English bar the style of classical allusion, which was whipped into them from their earliest youth. George Ticknor, New England's elder literary statesman, observed that Pinkney left his rivals far behind him: "He left behind him, it seemed to me at the moment, all the public speaking I had ever heard."

Despite their high contemporary esteem, few of Pinkney's speeches have survived. In contrast to Daniel Webster, who doggedly transcribed his speeches and circulated them to the public, Pinkney delivered his orations without leaving any written memorial. Fortunately, Pinkney's admirer, Francis Wheaton, the Supreme Court's Reporter of Decisions, copied down large portions of his arguments in two famous cases — The Nereide, 9 Cranch 388, and McCulloch v. Maryland, 4 Wheaton 316 — the first of which was a defeat for Pinkney, and the last a timeless victory.

The Nereide argument was a well-publicized duel of wits between Pinkney and one of his leading rivals, Thomas Addis Emmet. The two great advocates had exchanged bitter words in a case earlier in the 1815 Term; and each was now on his mettle for the contest, which lasted four full days. Pinkney contended in The Nereide that goods transported by a neutral shipper on board an enemy ship were subject to seizure by American privateers. After demonstrating that the shipper had effectively adhered to the enemy, Pinkney attacked Emmet's claim that such a belligerent might wrap himself in the banner of "neutrality:"

"We . . . have Neutrality, soft and gentle and defenceless in herself, yet clad in the panoply of her warlike neighbours — with the frown of defiance upon her brow, and the smile of conciliation upon her lip — with the spear of Achilles in one hand and a lying protestation of innocence and helplessness unfolded in the other. Nay, . . . we shall have the branch of olive entwined around the bolt of Jove, and Neutrality in the act of hurling the latter under the deceitful cover of the former."

"Call you that Neutrality which thus conceals beneath its appropriate vestment the giant limbs of War, and converts the charter-party of the compting-house into a commission of marque and reprisals; which makes of neutral trade a laboratory of belligerent annoyance; which . . . warms a torpid serpent into life, and places it beneath the footsteps of a friend with a more appalling lustre on its crest and added venom in its sting?"

Freed of the "cretan labyrinth of topics and authorities that seem to embarass it," the issue was only too plain: Emmet's claim of "neutrality" was "in the balance of the law lighter than a feather shaken from a linnet's wing" when the "maritime strength of this maritime state . . . [was] thrown into the opposite scale." Had his florid oratory carried him too far? Pinkney could not be sure. After all, he reminded the Court, his gorgeous metaphors, "hastily conceived and hazarded," were amply justified by the presence of ladies of fashion — "this mixed and (for a court of judicature) uncommon audience."

Unhappily, Pinkney's eloquence did not carry the day; but it did command the admiration of all in attendance, including Chief Justice Marshall, who paid the losing advocate extraordinary tribute in his opinion (9 Cranch 430):

"With a pencil dipped in the most vivid colors, and guided by the hand of a master, a splendid portrait has been drawn exhibiting this vessel and her freighter as forming a single figure, composed of the most discordant materials of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty which ought always to belong to those who sit on this bench, to discover its only imperfection: its want of resemblance."

Despite the chilling presence of the investigative faculty of the great Chief Justice, Justice Story's dissenting opinion in The Nereide embraced Pinkney's argument with all the warmth of its original delivery. He later declared: "I hope Mr. Pinkney will prepare and publish his admirable argument; it will do him immortal honor."

To every advocate, it is said, providence directs one special case that calls on his forensic gifts in a way that is perfectly suited, predestined and foreordained. For William Pinkney, that case was McCulloch v. Maryland, which he argued before the Supreme Court for three full days. Scholars have noted that John Marshall's opinion for the Court in McCulloch is an epitome of Pinkney's speech, stripped of its amplification and soaring rhetoric. It was Pinkney who explicated the "necessary and proper clause" of the Constitution; and it was Pinkney who demonstrated that the power of the state to tax a federal instrumentality constituted the power to destroy.

Pinkney's argument was prophetic in its description of the importance of the Supreme Court's ruling in McCulloch:

"Sir, it is in this view that I ascribe to the judgment that may be pronounced in this case a mighty, a gigantic influence, that will travel down to the latest posterity, and give shape and character to the destinies of this republican empire . . . . I have a deep and awful conviction . . . that upon that judgment it will mainly depend whether the constitution under which we live and prosper is to be considered, like its precursor, a mere phantom of political power to deceive and mock us — a pageant of mimic sovereignty calculated to raise up hopes that it may leave them to perish — a frail and tottering edifice, that can afford no shelter from storms either foreign or domestic — a creature half made up, without a heart or brain, or nerve or muscle — without protecting power or redeeming energy — or whether it is to be viewed as a competent guardian of all that is dear to us as a nation."

Pinkney's argument, Justice Story believed, set a new standard of excellence for the bar:

"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."

Daniel Webster, who argued on the same side as Pinkney in the McCulloch case, has often been accorded the palm of victory. However, Pinkney's modern biographer, Professor Robert M. Ireland, has shown through the private correspondence of Justice Duvall that, before Pinkney's extraordinary oration, the Court entertained "very strong doubts" about the correct result. Pinkney simply swept them away with the "mighty besom" of his overwhelming argument.

Pinkney's magnetism as an advocate stemmed from the strange union of his forensic "vehemence" and the beauty of his verbal portraiture. He would regale the audience with oratorical bouquets, and rip his opponents to tatters. His speeches were marvels of legal erudition, romantic fancy, and despotic insolence, poured forth in hypnotizing profusion.

In his arguments, Pinkney did not neglect to make an offering to his muse — usually an extravagant compliment to the ladies of fashion who attended his performances and inspired his rhetoric. In the midst of a heated debate, he would start his speech anew upon spotting a group of late arriving ladies. Once he remarked, with greater deference to his claque of feminine admirers than to the bench, that "he would not weary the court by going thro a long list of cases to prove his argument, as it would not only be fatiguing to them, but inimical to the laws of good taste, which on the present occasion, (bowing low) he wished to obey." To entertain the ladies, William Wirt complained, Pinkney would adopt "his tragical tone in discussing an act of Congress." On such occasions, the belles of the city sat entranced for hours; and when Pinkney finished speaking, the audience in the courtroom arose and dispersed as if the Court had adjourned.

Without fail, the dandiacal Pinkney would flatter, eulogize, and patronize the ladies — the more exalted the company, the more uninhibited the praise. Dolly Madison would excite poetic transports. Still more would the Empress of Russia:

"Of the reigning Empress it is impossible to speak in adequate terms of praise. It is necessary to see her to be able to comprehend how wonderfully interesting she is. It is no exaggeration to say, that . . . she combines every charm that contributes to female loveliness, with all the qualities that peculiarly become her exalted station. Her figure, although thin, is exquisitely fine. Her countenance is a subduing picture of feeling and intelligence. Her voice is of that soft and happy tone that goes directly to the heart, and awakens every sentiment which a virtuous woman can be ambitious to excite. Her manner cannot be described or imagined. It is graceful, unaffectedly gentle, winning, and at the same time truly dignified. Her conversation is suited to this noble exterior . . . . It is not, therefore, surprising that she is alike adored by the inhabitants of the palace and the cottage, and that every Russian looks up to her as to a superior being. She is, indeed, a superior being, and would be adored, although she were not surrounded by imperial pomp and power."

Pinkney's gladitorial nature placed an equally passionate stamp on his rhetoric. The rebellious son of a Tory, whose inheritance had been confiscated and who shifted for himself, had many old scores to settle. He withdrew from other men. He insisted on being addressed like one of the great. His contemporaries recalled that he seldom laid open his heart: he kept something to himself he scarcely told to any. This inner tension relieved itself in compulsive midnight work, in pacing the floors before dawn to memorize his great speeches — speeches which Chancellor Kent described as "bold, dogmatic, arrogant, sarcastic, denunciatory, vehement, and masterly."

The same fierce psychological chemistry that propelled William Pinkney to professional eminence plunged him into preposterous extremes of vanity. Pinkney, according to his friend Theophilus Parsons, was "vain of his vanity." All manner of absurdities whisked through his head. The corpulent, middle-aged Pinkney wore rigid stays to give him the figure of a youth; his servants pelted him with fine salt to preserve his florid complexion; he attended the proceedings of the Supreme Court in amber-colored doeskin gloves, a giant cravate, and a blue coat studded with gilt buttons. William Pinkney, Ticknor observed, was "a man formed on nature's most liberal scale, who, at the age of fifty, is possessed of the ambition of being a pretty fellow, wears corsets to diminish his bulk, uses cosmetics and dresses in a style which would be thought foppish in a much younger man."

Pinkney's vanity often rendered his court appearances perfect specimens of theatrical contrivance. On one occasion, Pinkney's friend, H. M. Brackenridge, happened upon him "in a bushy dell or thicket, worthy of the pastorals of Theocritus." Pinkney was there rehearsing one of his courtroom speeches. For a full hour the outline was traced, and certain passages repeated and elaborated with every variety of emphasis and intonation. That, however, was only the prelude to a cunning subterfuge designed to magnify Pinkney's courtroom stature:

"I did not fail to be at the court-house the next morning. The court and bar were waiting impatiently for Mr. Pinkney. They were all out of humor; a messenger had been sent for him. He came at length, with a somewhat hurried step. He entered, bowing and apologizing: ‘I beg your honor's pardon, it really escaped my recollection that this was the day fixed for the trial. I am very sorry on my own account, as well as on account of others; I fear I am but poorly prepared, but as it cannot be avoided, I must do the best in my power.' He was dressed and looked as if he had just set out on a morning walk of pleasure, like a mere Bond Street lounger. His hat, beautiful and glossy, in his hand, his small rattan tapping the crown. He drew off his gloves, and placed them on the table. He was dressed most carefully, neatly but plainly, and in the best fashion. His coat was of blue broadcloth, with gilt buttons; his vest of white Marseilles, with gold studs, elegantly fitting pants and shining half boots; he was the polished gentleman of leisure accidentally dropped down in a motley group of inferior beings."

A stunt so outrageous could have but one possible outcome. It was, of course, a complete success:

"The words and sentences seemed to flow into each other in perfect musical harmony, without sudden break or abruptness, but rising and falling, or changing with the subject, still retaining an irresistible hold on the attention of the listeners. No one stirred; all seemed motionless, as if enchained or fascinated, and in a glow of rapture, like persons entranced — myself among the rest although some portions of the speech were already familiar to me, having heard them before, and this circumstance threatened to break the spell: but the effect was complete with the audience, and the actual delivery was so superior to the study, that the inclination to risibility was checked at once, and my feelings were again in unison with those around me. It was a most wonderful display, and its effect long continued to master my feelings and judgment."

With all of his vehemence and vanity, with all of his energy and utter want of self restraint, it is not surprising that William Pinkney clashed personally as well as professionally with his rivals. Emmet and Wirt invoked the code duello; Webster threatened fisticuffs; and many other brothers of the bar chattered with rage over Pinkney's despotic and dogmatizing manner. Francis Wheaton confided to Chancellor Kent that Pinkney was the "brightest and meanest of mankind." Not the least galling of Pinkney's accomplishments was his ability to earn a golden harvest of fees — reputed to be more than $20,000 per year — more than any American lawyer ever garnered prior to the Civil War. A sizable portion of that fortune, his detractors noted, he expended annually on his luxurious wardrobe. Yet for all his vanity, William Pinkney never encouraged any reporter to write down his speeches; preservation of speeches would be no more than "unprofitable and expensive prolixity," he told Wheaton. In the ultimate act of egotism, Pinkney did not deign to gather up his own fallen words. He was a man for the forum, not the closet. Taney remarked that Pinkney "would not have bartered a present enjoyment for a niche in the Temple of Fame. He was willing to toil for the former, but made no effort to leave any memorial of his greatness."

In his last argument before the Supreme Court, which took place in 1822, William Pinkney opposed Daniel Webster in Ricard v. Williams, 7 Wheaton 59, a case which raised property law issues of vexing complexity. Pinkney had prepared his speech for more than a week and was both sick and exhausted as the crowds thronged the Court to hear him. Pinkney, it was quickly observed, labored under an illness which burdened his speech, and yet he assailed the listening ears of the Court for two full days. The Justices urged him to rest before continuing; but he replied to Francis Wheaton that "he did not desire to live a moment after the standing he had acquired at the bar was lost, or even brought into doubt or question." Following the completion of argument, Pinkney suffered a collapse; the bow so often bent had finally snapped.

When Pinkney was carried home in an exhausted state, Theophilus Parsons left with him the newly published Spy by James Fennimore Cooper. Cooper's tale was a vivid conspectus of the great events of Pinkney's lifetime: the outbreak of the Revolution; the victories of General Washington; the clash between Patriot and Tory; and the renewal of war in 1812. Pinkney's imaginative excitement over the book precipitated the onset of delirium. The mighty tide of his intellect was ebbing away. Within a few days of his last argument in the Supreme Court, the Collosus of Maryland was gone. There was no mistaking the cause: Pinkney, quite simply, had worked himself to death.

The public was stunned by the news of Pinkney's death. They felt as if some shocking reversal of the course of nature had occurred. Pinkney, who stood before them in the full pride of his strength, was suddenly laid in the dust in his fifty-seventh year. His career had symbolized unbounded achievement, the upswing of the culture cycle of 1776. His funeral oration, delivered in the traditional puritan manner, was a memento mori of an earlier day:

"But there is a greater moralist still; and that is Death. Here is a teacher who speaks in a voice which none can mistake; who comes with a power which none can resist. . . . The noblest of heaven's gifts could not shield even him from the arrows of the destroyer; and this behest of the Most High is a warning summons to us all."

The Justices of the Supreme Court adjourned proceedings as a mark of their "profound respect" for Pinkney. They resolved to wear black crepe armbands for the residue of the Court's term. The members of the bar adopted an identical resolution. Labor in the Capitol was suspended. A funeral procession of some two hundred coaches accompanied Pinkney to his grave; no procession of its like had been seen before in Washington. In all respects, the pomp and ceremony befitted the flamboyant orator.

In their dejection, Pinkney's admirers feared that his fame was now extinguished forever. Where now were his tricks, his quiddities? Pinkney's fame, said Theophilus Parsons, was only "written as in running water." In fact, however, it was not entirely so. Strange as it seemed, Attorney General Wirt could not put out of mind the memory of "that damned magician Glendower." As Wirt confided in his correspondence: "No man dared to grapple with him without the most perfect preparation, and the possession of all his strength. Thus, he kept the Bar on the alert, and every horse with his traces tight." It was not only the war horses of the bar who remembered Pinkney. Aspiring neophytes like Rufus Choate, who witnessed Pinkney's last argument, constructed their own forensic style on his model. Biographic notices of Pinkney appeared and reappeared. Students were exhorted to study the fragments of his speeches. The magician's spell, in fact, was advancing, not receding. The passage of time only confirmed that Pinkney had set the standard for those who appeared before the nation's highest Court. He had given the new institution a fund of public respect and intellectual glamour. To the utter chagrin of Attorney General Wirt, it was plain that Pinkney's ghost would not soon quit the place.

Copyright © 1999 Mayer, Brown & Platt. This Mayer, Brown & Platt article provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.



 
 
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