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titude, in its day, with a command which none could resist. How "shrunken and wooden" do we find the carved image of that fame in these dusty crypts of the law! We look elsewhere in vain. The overlabored actor himself has had no time or no inclination to embody and preserve the brilliant thoughts or the learned reason which, in the utterance, so dazzled and charmed the hearers. The finer essences have fled-the dead skeleton only remains. Even in the life-time of the oracle, the new generation grows up around him,-hearing only some remembered notes of that sweet music, which, day by day, are growing less distinct, and whose last echoes fade, before the minstrel himself has sunk into the tomb. Such is the fame which has no better organ than the tongue,

"A thing beyond us, e'en before our death."

Mr. Wirt's fate, in this respect, forms no exception to that of the mass of his profession. We have seen how laboriously he had toiled through the never-ending engagements of his position. He was at this period of his life employed in the greater number of the most important cases in the Supreme Court. He was also deeply immersed in the practice of the courts of Baltimore and Annapolis. His business seemed to be under a daily increase, until it now engrossed nearly every moment of his time, and, as we have already observed, seriously impaired his health. His family was large; his sons and daughters were fast advancing to that age when they were to be introduced upon the stage of active life; his expenses, of course, were enlarged; new comforts, new luxuries, new necessaries were to be provided. An abundant and profitable practice met all these new demands: but his gay castles in the air began to vanish, and many a gilded fancy which floated around the head of the ardent adventurer, from the days of his earlier manhood, now departed to that region of happy dreams, which has drawn its stores of gaudy relics from human credulity and hope ever since man deserted the realms of Paradise.

At this time a case of great importance, and which gained great celebrity, was about to be argued before the Supreme Court. It is well known to the profession as the Steamboat Case, from New York,-Gibbons against Ogden,-reported in

the ninth volume of Wheaton. Wirt and Webster were associated for the appellant, Gibbons. Oakley and Emmett were opposed to them. It is said by the bar, that no cause, up to that date, in the Supreme Court, had ever excited a greater degree of interest and expectation in the country than this: that none was ever argued with greater ability. The chief question in the case was whether certain laws of New York, which conferred upon Messrs. Fulton and Livington the exclusive right to navigate the waters of that State with steamboats, were or were not in violation of the Constitution of the United States. Messrs. Wirt and Webster affirmed and sustained the unconstitutionality of these laws, with great power of argument, learning and illustration. Their opponents, with the zeal natural to the citizens of the great State which had granted the exclusive privilege, and with all the resources which the highest legal attainments and the most accomplished skill could supply, vindicated the laws in question. It is said to have been a most brilliant passage at arms in a forensic tourney. The New Yorkers were unsuccessful. The Court decided the case in favor of the appellants. Mr. Wirt's speech is preserved in the report. It was written out by himself, and is said to be "entirely conclusive." Still, however, it is not the actual speech itself, though it embodies, perhaps fully enough, all the strong points. Those who have witnessed Mr. Wirt's oratorical efforts, will testify to the difficulty of ever furnishing an exact report, even by himself, of the finest passages in which his taste often led him to indulge. He was in the habit often of turning aside from the direct path of argument, to amuse himself and his hearers with an occasional gambol of wit or fancy, which came with most graceful playfulness to relieve the stress and weariness of mere dialectics. These digressions he could not report, or if he could, his taste or judgment would be apt to reject them as unsuitable to a grave exposition of his argument. All such passages were, therefore, apt to evaporate under his hand. In the case before us, there is one passage, however, which, as it had a particular point in reference to the adversary argument, has been preserved; and although not new to the professional reader, it will doubtless interest many who may peruse these Memoirs.

Before I proceed to lay this extract before my reader I must invite his attention to the following letter, which gives a short and pleasant note of preparation for the combat which was then in expectation:



WASHINGTON, February 1, 1824.



Calhoun advised me the other day to study less and trust more to genius; and I believe the advice is sound. He has certainly practised on his own precepts and has become, justly, a distinguished man. It may do very well in politics, where a proposition has only to be compared with general principles with which the politician is familiar. But a lawyer must understand the particular facts and questions which arise in his cause, before genius has any materials to work upon: and in that preparatory examination consists the labor of the profession. The official questions which are propounded to me, too, are all out of the usual walks of my profession, and call upon me to explore new paths, and frequently to chop out an original trace, with my own hands, through the wilderness. My opinion books are full of this labor and will save much trouble to my successor. If they were published they would do me more honor than any thing else I have ever done. This I confess is modest, but I am writing to a friend.

To-morrow begin my toils in the Supreme Court, and about to-morrow week will come on the great steamboat question from New York. Emmett and Oakley on one side, Webster and myself on the other. Come down and hear it. Emmett's whole soul is in the cause, and he will stretch all his powers. Oakley is said to be one of the first logicians of the age; as much a Phocion as Emmett is a Themistocles: and Webster is as ambitious as Cæsar. He will not be outdone by any man, if it is within the compass of his power to avoid it. It will be a combat worth witnessing. I have the last speech, and have yet to study the cause; but I know the facts and have only to weave the argument. Now if you will come down, you will kill two birds with one stone. We will first feast you, and then cure you and send you home a well man. Don't make light of this proposition, and put me off

with "I wish it was in my power." It is in your power. You have only to will it and it is done, and that you ought to will it, heaven and earth know. If you do not, you will be quite as much to blame as the man who kills himself with strong drink. In point of morality, there will be no difference between you. You cannot make a sound distinction between the two cases, to save your life. So do the thing that is right and give us none of your "clishmaclaver," as Burns says.

To be serious, my dear friend, let me conjure you to remember that this is a case of life and death with you, and I beseech you on the bended knees of my heart, to be prompt and decisive in your efforts at recovery. You know how submissively I yielded myself to your friendly importunity when my own life was thought in danger, and do not let me beg you in vain, now that the case is reversed. I have done.

I shall not be able to write to you again during the session of the Supreme Court, but do you write to me again and again, and cheer and animate me in the battle I am to fight. One "well done" from you has always had more effect on me than the applause of thousands.

My wife and fireside unite in cordial greetings and prayers for health to you and yours—and I am as ever, till time shall be no more. Your friend,


Our extract from the speech in the steamboat case will be confined to the peroration, which has been cited more than once, as one of the best and most characteristic specimens of Mr. Wirt's eloquence. Certainly, we may regard it as a very finished passage, in that department of oratory which is most popular and captivating to the multitudes who throng the forum; but I am unwilling to offer it as a specimen of the highest order of his eloquence, or to give it a rank above that more severe logical and sustained train of argument which, having less to flatter the public taste, usually draws less commendation, but which evinces much higher powers of intellect and true eloquence than these more favored appeals to the heart or imagination of mixed assemblies. Many a dexterous speaker is to be found, able to charm the wise, no less than the simple, by pointed repartee, witty sarcasm, or brilliant play of VOL. 2-15

imagination, but whose wings would speedily dissolve in the heat and radiance of those upper regions of thought and boundless vision, where great minds only have a pinion to bear them safely. Mr. Wirt's argument in this case was still better than his peroration. Mr. Emmett, at the close of his speech, had occasion to refer to the great benefactions which the State of New York had conferred upon the Union, by the solid patronage she had given to Fulton in the course of his efforts to bring the steamboat to perfection. "Where," said he, "can you travel without having your eyes delighted and some part of the fatigues of your journey relieved by the presence of a steamboat? The Ohio and Mississippi she has converted into rapid channels for communicating wealth, comforts and enjoyments, from their mouths to their head waters. And the happy and reflecting inhabitants of the States they wash, may well ask themselves whether, next to the constitutions under which they live, there be a single blessing they enjoy from the art and labor of man, greater than what they have derived from the patronage of the State of New York to Robert Fulton? But the mighty benefits that have resulted from those laws are not circumscribed even by the vast extent of our Union. New York may raise her head, she may proudly raise her head, and cast her eyes over the whole civilized world; she may there see its countless waters, bearing on their surface countless offsprings of her munificence and wisdom. She may fondly calculate on their speedy extension in every direction and through every region, from Archangel to Calcutta ; and justly arrogating to herself the labors of the man she cherished, and conscious of the value of her own good works,* she may exultingly ask,

'Quæ regio in terris, nostri non plena laboris ?'"

The reply of the Attorney General to this passage of Mr. Emmett's speech, is thus reported:

In the report of this speech by Wheaton, it reads, "And, conscious of the value of her own good works, she may turn the mournful exclamation of Æneas into an expression of triumph, and exultingly ask," &c. These words in italics were interpolated after Mr. Wirt's reply, when the case was made up for publication,— as we shall see hereafter. The introduction of them here takes away the chief point of the reply, and to a certain extent renders that reply unintelligible.

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