[Illustration: RUFUS CHOATE]
Rufus Choate, one of the greatest, if not the greatest, of advocates who
have appeared at the English or American bar, was one of the most
remarkable products of what is ordinarily considered hard, prosaic,
matter-of-fact New England. He was a man quite apart from the ordinary
race of lawyers or New-Englanders. He was as different from the typical
New-Englander as was Hawthorne or Emerson. He had the imagination of a
poet; and to his imagination, singular as it may seem, was largely due
his success in handling questions of fact before juries.
He was born of good old English stock, in the southeastern part of the
town of Ipswich, in the county of Essex and State of Massachusetts, on
the first day of October, 1799. His ancestors had lived in Essex County
from a very early date in its history and had filled important public
positions. He was born and bred in sight of the sea, and his love for it
stayed with him through life. One of his most eloquent addresses was on
'The Romance of the Sea.' And in his last illness at Halifax, his
keenest pleasure was to watch the ships sailing in front of his windows.
Dropping into sleep on one occasion, a few days before his death, he
said to his attendant, "If a schooner or sloop goes by, don't disturb
me; but if there is a square-rigged vessel, wake me."
Mr. Choate had the ordinary education then given in New England to young
men who had a love of learning. He began with the district school; from
there he went to the academy at Hampton, New Hampshire; and later he
entered Dartmouth College, where he graduated the first scholar in his
class, in 1819. It is hard to find an accurate standard of comparison
between the scholarship of that period and that of the present. No
doubt, in our New England colleges of to-day there is a larger number of
young men who have a considerable store of knowledge on many subjects of
classical learning. But it is very doubtful if the graduates of Harvard
and Yale of to-day are able to read the standard classic authors at the
day of their graduation, with the ease and accuracy of Mr. Choate at the
end of his active professional career in the year 1859. His continued
devotion to the classics is shown by the following extract from his
journal in the year 1844, while he was a member of Congress:--
"1. Some professional work must be done every day.... Recent experiences
suggest that I ought to be more familiar with evidence and Cowen's
Phillips; therefore, daily for half an hour, I will thumb
conscientiously. When I come home again, in the intervals of actual
employment, my recent methods of reading, accompanying the reports with
the composition of arguments upon the points adjudged, may be properly
resumed.
"2. In my Greek, Latin, and French readings--Odyssey, Thucydides,
Tacitus, Juvenal, and some French orator or critic--I need make no
change. So, too, Milton, Johnson, Burke--_semper in manu--ut mos est._
To my Greek I ought to add a page a day of Crosby's Grammar, and the
practice of parsing every word in my few lines of Homer. On Sunday, the
Greek Testament, and Septuagint, and French. This, and the oration of
the Crown, which I will completely master, translate, annotate, and
commit, will be enough in this kind. If not, I will add a translation of
a sentence or two from Tacitus."
A similar extract from his journal under the date of December 15th,
1844, reads:--
"I begin a great work,--Thucydides, in Bloomfield's new edition,--with
the intention of understanding a difficult and learning something from
an instructive writer,--something for the more and more complicated,
interior, _inter-State_ American politics.
"With Thucydides, I shall read Wachsmuth, with historical references and
verifications. Schomann on the Assemblies of the Athenians, especially,
I am to meditate, and master Danier's Horace, Ode 1, 11th to 14th line,
translation and notes,--a pocket edition to be always in pocket."
Throughout his life Mr. Choate kept up his classical studies. Few of the
graduates of our leading colleges to-day carry from Commencement a
training which makes the study of the Greek and Latin authors either
easy or pleasant. Mr. Choate, like nearly every lawyer who has ever
distinguished himself at the English bar, was a monument to the value of
the study of the classics as a mere means of training for the active
practical work of a lawyer.
Mr. Choate studied law at Cambridge in the Harvard Law School. Nearly a
year he spent at Washington in the office of Mr. Wirt, then
Attorney-General of the United States. This was in 1821. Thereafter he
was admitted to the bar, in September, 1823. He opened his office in
Salem, but soon removed to Danvers, where he practiced for four or five
years.
During these earliest years of his professional life he had the fortune
which many other brilliant men in his profession have experienced,--that
of waiting and hoping. During his first two or three years, it is said,
he was so despondent as to his chances of professional success that he
seriously contemplated abandoning the law. In time he got his
opportunity to show the stuff of which he was made. His first
professional efforts were in petty cases before justices of the peace.
Very soon however his great ability, with his untiring industry and his
intense devotion to any cause in his hands, brought the reputation which
he deserved, and reputation brought clients.
In 1828 he removed to Salem. The Essex bar was one of great ability. Mr.
Choate at once became a leader. Among his contemporaries at that bar was
Caleb Cushing. Mr. Choate at first had many criminal cases. In the year
1830 he was, with Mr. Webster, one of the counsel for the prosecution in
the celebrated White murder case.
In 1830 he was elected to Congress as a member of the House of
Representatives, at the age of thirty-one years. At once he laid out a
course of study which was to fit him for the duties of his public life.
An extract from it reads as follows:--
"Nov. 4, 1830.
"_Facienda ad munus nuper impositum_.
"i. Pers. quals. [personal qualities], Memory, Daily Food, and Cowper
_dum ambulo_. Voice, Manner, _Exercitationes diurnae_.
"2. Current politics in papers. 1. _Cum Notulis_, daily,--Geog.,
&c. 2. Annual Reg., Past Intelligencers, &c.
* * * * *
"4. Civil History of U. States--in Pitkin and original sources.
"5. Exam. of Pending Questions: Tariff, Pub. Lands, Indians,
Nullifications.
"6. Am. and Brit. Eloquence,--Writing, Practice."
Then follow in his manuscript upwards of twenty pages of close writing,
consisting of memoranda and statements, drawn from a multitude of
sources, on the subjects laid down by him at the beginning as the ones
to be investigated.
In Congress he found himself in competition with many men of marked
ability. Among the members of Congress then from Massachusetts were Mr.
Webster in the Senate; and in the House, John Quincy Adams, Edward
Everett, Nathan Appleton, George N. Briggs, and John Davis. In the
Senate, from other States, were Peleg Sprague from Maine,--one of the
ablest jurists this country has produced; Samuel Prentiss, Mr. Marcy,
Mr. Dallas, Mr. Clayton, Mr. Clay, and Mr. Benton. In the House were
James M. Wayne, Mr. McDuffie, Mr. Polk, Mr. Corwin, and Mr. Verplanck.
Among men of this calibre Mr. Choate at once, with ease, took rank as
one of the first. He made but two speeches during the session; but these
gave him a position which he ever afterwards held among the most
eloquent and convincing speakers in public life.
In April 1833 Mr. Choate was re-elected to Congress. At this session he
made a speech on the removal of the public deposits by President Jackson
from the Bank of the United States. The following incident shows his
power as an orator:--
Benjamin Hardin was then a member from Kentucky, of the House of
Representatives; and was himself intending to speak on the same side of
the question with Mr. Choate. In such cases, Mr. Hardin's rule was to
listen to no other speaker before speaking himself. Consequently when
Mr. Choate began speaking, Mr. Hardin started to leave the House. He
waited however for a moment to listen to a few sentences from Mr.
Choate, and with this result, as told in his own words:--"The member
from Massachusetts rose to speak, and in accordance with my custom I
took my hat to leave, lingering a moment just to notice the tone of his
voice and the manner of his speech. But that moment was fatal to my
resolution. I became charmed by the music of his voice, and was
captivated by the power of his eloquence, and found myself wholly unable
to move until the last word of his beautiful speech had been uttered."
At the close of this session Mr. Choate resigned his seat in Congress
and went to Boston, there to follow the practice of his profession. At
the Boston bar he met a remarkably brilliant group of men. There were
Jeremiah Mason, whom Mr. Webster is said to have considered the
strongest man that he ever met in any legal contest; Franklin Dexter;
Chief Justice Shaw (then at the bar); Judges Wilde, Hoar, and Thomas,
afterwards of the Massachusetts Supreme Court; Mr. Fletcher, Judge
Benjamin R. Curtis, Sidney Bartlett, Richard H. Dana, William D. Sohier,
Henry W. Paine, Edward D. Sohier, with others whose names are now almost
forgotten. These men formed a bar the like of which has seldom if ever
been assembled in any one jurisdiction. Here too Mr. Choate at once came
to the front. With every talent which could make a man a great
advocate,--with a marvelous memory, a keen logical intellect, a sound
legal judgment,--he had now acquired a large professional experience and
a very complete professional training. As has been seen, he had a
thorough classical training,--that is, of the kind best fitted to his
needs. His professional studies before beginning his professional
practice had been the best then attainable; very possibly, for him, they
were quite as good as can be had at any of the law schools of to-day.
His range of reading and information was extremely wide. He had had
several years of experience at Washington in Congress. And ever since
leaving the law school his mere professional studies had been most
severe. It is hard to see how any man could be better equipped for
professional practice than Mr. Choate was at this time.
His success at the Boston bar was phenomenal. He was in a contest with
giants. Mr. Webster alone could be deemed to dispute with Mr. Choate the
place of supremacy. The general verdict has been that for pure
intellectual power Mr. Webster was the superior. But it may well be
doubted whether as an all-round advocate Mr. Choate did not carry off
the palm. The common idea of Mr. Choate has been that his marvelous
eloquence was his great source of strength and success in his forensic
contests. This is an error. Eloquent he undoubtedly was; few men have
ever been more so. But unless in frontier communities, eloquence alone
has never commanded great success at the bar--if indeed it has ever
existed--without strong logical power and sound judgment. The power of
convincing intelligent men always depends largely and mainly on
soundness of judgment in the selection of positions. Especially is this
so in the profession of the law. There have been, no doubt, many
instances where men of eloquence have captivated juries by appeals to
passion or prejudice. But in the vast majority of cases, success as an
advocate cannot be had without sound judgment in the selection of
positions, coupled with the power of clear logical statement. Mr. Choate
was no exception to this rule. Mr. Henry W. Paine, one of the leaders of
the Boston bar in Mr. Choate's time,--himself one of the most logical of
men,--once said that he did not care to hear Mr. Choate address a jury,
but to hear him argue a bill of exceptions before the full bench of the
Supreme Court was one of the greatest intellectual treats. With the
ordinary twelve men in a jury-box Mr. Choate was a wizard. His knowledge
of human nature, his wide and deep sympathies, his imagination, his
power of statement, with his rich musical voice and his wonderful
fascination of manner, made him a charmer of men and a master in the
great art of winning verdicts. So far as the writer is able to form an
opinion, there has never been at the English or American bar a man who
has been his equal in his sway over juries. Comparisons are often
condemned, but they are at times useful. Comparing Mr. Choate with Mr.
Webster, it must be conceded that Mr. Webster might at times carry a
jury against Mr. Choate by his force of intellect and the tremendous
power of his personal presence. Mr. O'Conor once said that he did not
consider Mr. Webster an eloquent man. "Mr. Webster," he said, "was an
intellectual giant. But he never impressed me as being an eloquent man."
The general judgment is that Mr. Webster had eloquence of a very high
order. But Mr. Choate was a magician. With any opponent of his time
except Mr. Webster, he was irresistible before juries. Mr. Justice
Catron of the United States Court is reported to have said of Mr.
Choate, "I have heard the most eminent advocates, but he surpasses them
all." His success came from a rare combination of eloquence, sound
logical judgment, and great powers of personal fascination.
In another respect the common opinion of Mr. Choate must be corrected.
His great powers of persuasion and conviction undoubtedly gave him some
victories which were not deserved by the mere merits of his cases. From
this fact there went abroad the impression that he was a man without
principle, and that his ethical standards were not high in his selection
and conduct of cases. This impression is quite contrary to the judgment
of the competent. The impression was due largely to his success in the
celebrated defense of Tirrell. Tirrell was indicted for the murder of a
woman named Bickford, with whom Tirrell had long associated, who was
found dead in a house of ill-repute. At about the hour when the woman
lost her life, either by her own hand or by that of Tirrell, the house
caught fire. The cause of the fire was not proved. Tirrell had been in
her company the preceding evening, and articles of clothing belonging to
him were found in the morning in her room. Many circumstances seemed to
indicate that the woman had been killed by Tirrell. He was also indicted
for arson in setting fire to the house. In addition to other facts
proved by the defense, it was shown by reputable witnesses that Tirrell
had from his youth been subject to somnambulism; and one of the
positions taken by Mr. Choate for the defense was that the killing, if
done by Tirrell at all, was done by him while unconscious, in a
condition of somnambulism. Tirrell was tried under both indictments and
was acquitted on both. The indictment for murder was tried before
Justices Wilde, Dewey, and Hubbard. The indictment for arson was tried
before Chief Justice Shaw and Justices Wilde and Dewey. The foreman of
the jury stated that the defense of somnambulism received no weight in
the deliberations of the jury. The judgment of the profession has been
that the verdicts were the only ones which could properly have been
rendered on the evidence. In the arson case the charge to the jury was
by Chief Justice Shaw, and was strongly in favor of the defense. No
doubt the defense was extremely able and ingenious. But the criticisms
against Mr. Choate for his conduct of those cases, in the opinion of
those members of the profession best qualified to judge, have been held
to be without good foundation. Lawyers--that is, reputable ones--do not
manufacture evidence, nor are they the witnesses who testify to facts.
The severe tests of cross-examination usually elicit the truth. No one
ever charged Mr. Choate with manufacturing evidence. And no lawyer of
good judgment, so far as the writer is aware, has ever charged him with
practices which were not in keeping with the very highest professional
standards.
In the space here allotted, any attempt to give an adequate idea of Mr.
Choate's professional and public work is quite out of the question. In
addition to the conduct of an unusually large professional practice he
did a large amount of literary work, mainly in the delivery of lectures,
which at that time in New England were almost a part of the public
system of education. Throughout his life he took an active part in
politics. He attended the Whig convention at Baltimore in 1852, where
General Scott received his nomination for the Presidency, and where Mr.
Choate made one of the most eloquent speeches of his life in his effort
to secure the nomination for Mr. Webster.
Mr. Choate finally killed himself by overwork. Though a man of great
physical strength and remarkable vitality, no constitution could stand
the strain of his intense labors in the different lines of law,
literature, and politics. His magnificent physique finally broke down.
He died on July 13th, 1859, being not quite sixty years. His death was
an important public event. In the public press, at many public meetings
throughout the country, and by public men of the highest distinction,
his death was treated as a public misfortune. In his day he rendered
distinguished public services. He had the capacities and the interests
which fitted him to be a great statesman. Had it not been for our system
of short terms, and rotation in office, Mr. Choate would probably have
remained in public life from the time of his entry into Congress, would
have been a most valuable public servant, and would have left a great
reputation as a statesman. As it was, he left, so far as now appears,
only the ephemeral reputation of a great advocate.
This scanty sketch can best be closed by a quotation from the address of
Richard H. Dana at the meeting of the Boston bar held just after Mr.
Choate's death. That extract will show the judgment of Mr. Choate which
was held by the giants among whom he lived and of whom he was the
leader:--
"'The wine of life is drawn.' 'The golden bowl is broken.' The age of
miracles has passed. The day of inspiration is over. The Great
Conqueror, unseen and irresistible, has broken into our temple and has
carried off the vessels of gold, the vessels of silver, the precious
stones, the jewels, and the ivory; and like the priests of the temple of
Jerusalem after the invasion from Babylon, we must content ourselves as
we can with vessels of wood and of stone and of iron.
"With such broken phrases as these, Mr. Chairman, perhaps not altogether
just to the living, we endeavor to express the emotions natural to this
hour of our bereavement. Talent, industry, eloquence, and learning,
there are still, and always will be, at the bar of Boston. But if I say
that the age of miracles has passed, that the day of inspiration is
over,--if I cannot realize that in this place where we now are, the
cloth of gold was spread, and a banquet set fit for the gods,--I know,
sir, you will excuse it. Any one who has lived with him and now survives
him, will excuse it;--any one who like the youth in Wordsworth's Ode,--
'--by the vision splendid
Is on his way attended,
At length ... perceives it die away,
And fade into the light of common day.'"
It will also tend to secure justice to Mr. Choate's memory, if there be
here recorded the statement by Judge Benjamin R. Curtis of the judgment
of the men of Mr. Choate's own profession, as to the moral standards by
which Mr. Choate was governed in his practice. Judge Curtis said in his
address at the same meeting of the Boston Bar:--
"I desire, therefore, on this occasion and in this presence, to declare
our appreciation of the injustice which would be done to this great and
eloquent advocate by attributing to him any want of loyalty to truth, or
any deference to wrong, because he employed all his great powers and
attainments, and used to the utmost his consummate skill and eloquence,
in exhibiting and enforcing the comparative merits of one side of the
cases in which he acted. _In doing so he but did his duty. If other
people did theirs, the administration of justice was secured._"
[Signature: Albert Stickney]
All the citations are from 'Addresses and Orations of Rufus Choate':
copyrighted 1878, by Little, Brown and Company