The Atlantic Monthly, Volume 06, No. 33, July, 1860

As a part of this power of merging his own individuality in that of his client was his absolute freedom from egotism, conceit, self-assertion, and personal pride of opinion. Such an instance is, of course, exceptional. Nearly all the eminent jury-lawyers we have known have been, consciously or unconsciously, self-asserting, and their individuality rather than that of their clients has been impressed upon juries. An advocate with a great jury-reputation has two victories to win: the first, to overcome the determination of the jury to steel themselves against his influence; the second, to convince their judgments. Mr. Choate's self-surrender was so complete that they soon forgot him, because he forgot himself in his case; nothing personally demonstrative or antagonistic induced obstinacy or opposition, and every door was soon wide open to sympathy and conviction. If an advocate is conceited, or vain, or self- important, or if he thinks of producing effects as well for himself as for his client, or if his nature is hard and unadaptive,–great abilities display these qualities, instead of hiding them, and they make a refracting medium between a case and the minds of a jury. Mr. Choate was more completely free from them than any able man we ever knew. Any one of them would have been in complete contradiction to the whole composition and current of his nature. Though conscious of his powers, he was thoroughly and lovingly modest. It was because he thought so little of himself and so much of his client that he never made personal issues, and was never diverted by them from his strict and full duty. Instead of "greatly finding quarrel in a straw," where some supposed honor was at stake, he would suffer himself rather than that his case should suffer. Early in his practice, when a friend told him he bore too much from opposing counsel without rebuking them, he said: "Do you suppose I care what those men say? I want to get my client's case." Want of pugnacity too often passes for want of courage. We have seen him in positions where we wished he could have been more personally demonstrative, and (to apply the language of the ring to the contests of the court-room) that he could have stood still and struck straight from the shoulder; but when we remember how perfectly he saw through and through the faults and foibles of men, how his mischievous and genial irony, when it touched personal character, stamped and characterized it for life, and how keen was the edge and how fine the play of every weapon in his full armory of sarcasm and ridicule, (of which his speech in the Senate in reply to Mr. McDuffie's personalities gives masterly exhibition,) we are thankful that his sensibility was so exquisite and his temper so sweet, that he was a delight instead of a terror, and that he was loved instead of feared. Delicacy should be commensurate to power, that each may be complete. It would seem almost impossible that a lawyer with a practice truly immense, passing a great part of his life in public and heated contests and in discussing and often severely criticizing the motives and conduct of parties and witnesses, should not make many enemies; but he was so essentially modest, simple, gentlemanly, and tender, so considerate of the feelings of others, so evidently trying to mitigate the pain which it was often his duty to inflict, that we never heard of his searching and subtile examination of witnesses, or his profound and exhaustive analysis of character and motive, or his instantaneous and irresistible retorts upon counsel, creating or leaving behind him, in the bar or out of it, malice or ill-will in a human being. One of the most touching and beautiful things we ever saw in a court-room would have been in other hands purely painful and repulsive. It was his examination of the wretched women who were witnesses in the Tirrell case. His tact in eliciting what was necessary to be known, and which they would have concealed, was forgotten and lost in his chivalrous and Christian recognition of their common humanity, and in his gentlemanly thoughtfulness that even they were still women, with feelings yet sensitive to eye and word.

In jury-trials it would be foolish to judge style by severe or classic standards. If an advocate have skill and insight and adequate powers of expression, his style must yield and vary with the circumstances of different cases and the minds of different juries and jurors. When a friend of Erskine asked him, at the close of a jury-argument, why he so unusually and iteratively, and with such singular illustration, prolonged one part of his case, he said,– "It took me two hours to make that fat man with the buff waistcoat join the eleven!"

All men of great powers of practical influence over the minds of men know how stupid and dull of apprehension the mass of mankind are; and no one knows better than a great jury-lawyer in how many different ways it is often necessary to present arguments, and how they must be pressed, urged, and hammered into most men's minds. He is endeavoring to persuade and convince twelve men upon a question in which they have no direct pecuniary or personal interest, and he must more or less know and adapt his reasoning and his style to each juror's mind. He should know no audience but the judge and these twelve men. Retainers never seek and should not find counsel who address jurors with classical or formal correctness. Napoleon, at St. Helena, after reading one of his bulletins, which had produced the great and exact effect for which he had intended it, exclaimed,–"And yet they said I couldn't write!"

The true Yankee is suspicious of eloquence, and "stops a metaphor like a suspected person in an enemy's country." A stranger, who looked in for a few minutes upon one of Mr. Choate's jury-arguments, and saw a lawyer with a lithe and elastic figure of about five feet and eleven inches, with a face not merely of a scholarly paleness, but wrinkled all over, and, as it were, scathed with thought and with past nervous and intellectual struggles, yet still beautiful, with black hair curling as if from heat and dewy from heightened action and intensity of thought and feeling, and heard a clear, sympathetic, and varying voice uttering rapidly and unhesitatingly, sometimes with sweet caesural and almost monotonous cadences, and again with startling and electric shocks, language now exquisitely delicate and poetic, now vehement in its direct force, and again decorated and wild with Eastern extravagance and fervor of fancy, would have thought him the last man to have been born on New England soil, or to convince the judgments of twelve Yankee jurors. But those twelve men, if he had opened the case himself, had been quietly, simply, and sympathetically led into a knowledge of its facts in connection with its actors and their motives; they had seen how calmly and with what tact he had examined his witnesses, how ready, graceful, and unheated had been his arguments to the court, and how complete throughout had been his self-possession and self-control; they had, moreover, learned and become interested in the case, and were no longer the same hard and dispassionate men with whom he had begun, and they knew, as the casual spectator could not know, how systematically he was arguing while he was also vehemently enforcing his case. He, meanwhile, knew his twelve men, and what arguments, appeals, and illustrations were needed to reach the minds of one or all. He did not care how certain extravagances of style struck the critical spectator, if they stamped and riveted certain points of his case in the minds of his jury. With the keenest perception of the ridiculous himself, he did not hesitate to say things which, disconnected from his purpose, might seem ridiculous. One consequence of these audacities of expression was, that, when it became necessary for him to be iterative, he was never tedious. They gave full play to his imaginative humor and irony, and to his poetic unexpectedness and surprises. A wise observer, hearing him try a case from first to last, while recognizing those higher qualities of genius which we have before described, saw, that, for all the purposes of persuasion and argumentation, for conveying his meaning in its full force and in its most delicate distinctions and shadings, for analytic reasoning or for the "clothing upon" of the imagination, for all the essential objects and vital uses of language, his style was perfect for his purpose and for his audience. His excesses came from surplus power and dramatic intensity, and were pardoned by all imaginative minds to the real genius with which they were informed.

Every great advocate must, at times, especially in the trial of capital cases, be held popularly responsible for the acquittal of men whom the public has prejudged to be guilty. This unreasoning, impulsive, and irresponsible public never stops to inform itself; never discriminates between legal acumen and pettifogging trickery, between doing one's full duty to his client and interposing or misrepresenting his own personal opinions; and never remembers that the functions of law and the practice of law are to prevent and to punish crime, to ascertain the truth, and to determine and enforce justice,–that trial by jury, and the other means and methods through which justice is administered, are founded in the largest wisdom, philanthropy, and experience,–that they cannot work perfectly, because human nature is imperfect, but they constitute the best practical system for the application of abstract principles of right to the complicated affairs of life which the world has yet seen, and which steadily improves as our race improves,–and that every great lawyer is aiding in elucidating truth and in administering justice, when doing his duty to his client under this system. Our trial by jury has its imperfections; but, laying aside its demonstrated value and necessity in great struggles for freedom, before and since the time of Erskine, no better scheme can be devised to do its great and indispensable work. The very things which seem to an uninformed man like rejection or confusion of truth are a part of the sifting by which it is to be reached. The admission or rejection of evidence under sound rules of law, the presenting of the whole case of each party and of the best argument which can be made upon it by his counsel, the charge of the judge and the verdict of the jury,–all are necessary parts of the process of reaching truth and justice. Counsel themselves cannot know a whole case until tried to its end; their clients have a right to their best services, within the limits of personal honor; and lawyers are derelict in duty, not only to their clients, but to justice itself, if they do not present their cases to the best of their ability, when they are to be followed by opposing counsel, by the judge, and by the jury. The popular judgment is not only capricious,–it not only assumes that legal precedents, founded in justice for the protection of the honest, are petty technicalities or tricks through which the dishonest escape,–it is not only formed out of the court-room, with no opportunity to see witnesses and hear testimony, often very different in reality from what they seem in print,–but it visits upon counsel its ignorant prejudices against the theory and practice of the law itself, and forgets that lawyers cannot present to the jury a particle of evidence except with the sanction of the court under sound rules of law, and that the law is to be laid down by the court alone.

A man thoroughly in earnest in any direction is more or less a partisan. Histories are commonly uninfluential or worthless, unless written with views so earnest and decided as to show bias. As the greater interests of truth are best subserved by those whose zeal is commensurate to their scope of mind, so it is a part of the scheme of jury-trials, that, within the limits we have named, counsel shall throw their whole force into their cases, that thus they may be presented fully in all lights, and the right results more surely reached. The scheme of jury-trials itself thus providing for a lawyer's standing in the place of his client and deriving from him his partisan opinions, and for urging his case in its full force within the limits of sound rules of law, it almost invariably follows, that, the greater the talent and zeal of the advocate, and the more he believes in the views of his client, the more liable he is to be charged with overstating or misstating testimony. Mr. Choate never conceived that his duty to his client should carry him up to the line of self-surrender drawn by Lord Brougham; but, recognizing his client's full and just claims upon him, entering into his opinions and nature with the sympathetic and dramatic realization we have described, he could not faithfully perform the prescribed and admitted duty of the advocate,–necessarily, with him, involving his throwing the whole force of his physical and intellectual vitality into every case he tried,–without being a vehement partisan, or without being sometimes charged with misstating evidence or going too far for his client. Occasionally this may have been true; but we see the explanation in the very quality of his genius and temperament, and not in conscious or intentional wrong-doing.

His ability and method in his strictly legal arguments to courts of law are substantially indicated in what we have already said. His manner, however, was here calm, his general views of his subject large and philosophic, his legal learning full, his reasoning clear, strong, and consequential, his discrimination quick and sure, and his detection of a logical fallacy unerring, his style, though sometimes fairly open to the charge of redundancy, graceful and transparent in its exhibition of his argument, and his mind always at home, and in its easiest and most natural exercise, when anything in his case rose into connection with great principles.

While exhibiting in his jury-trials, as we have shown, this double process of absolute identification and of perfect supervision and self-control,–of instantaneous imaginative dips into his work, and of as instantaneous withdrawal from it,–of purposely and yet completely throwing himself in one sentence into the realization of an emotion, thus perfectly conveying his meaning while living the thought, and yet coming out of it to see quicker than any one that it might be made absurd by displacement,–he always had, as it were, an air-drawn, circle of larger thought and superintending relation far around the immediate question into which he passed so dramatically. Within this outer circle, attached and related to it by everything in the subject-matter of real poetic or philosophic importance, was his case, creatively woven and spread in artistic light and perspective; and between the two (if we do not press our illustration beyond clear limits) was a heat-lightning-like play of mind, showing itself, at one moment, in unexpected flashes of poetic analogy, at another in Puck-like mischief, and again in imaginative irony or humor.

As he recovered himself from abandonment to some part of his case or argument to guide and mould the whole, so, going into his library, he could, as completely, for minutes or for hours, banish and forget his anxieties and dramatic excitements, and pass into the cooling air and loftier and purer stimulations of the great minds of other times and countries and of the great questions that overhang us all. His mind, capacious, informed, wise, doubting, "looking before and after," here found its highest pleasures, and its little, but most loved repose. "The more a man does, the more he can do"; and, notwithstanding his immense practice, and that by physical and intellectual constitution he couldn't half do anything, he never allowed a day of his life to pass, without reading some, if ever so little, Greek, and it was a surprise to those who knew him well to find that he kept up with everything important in modern literature. Rising and going to bed early, taking early morning exercise, having a strong constitution, though he was subject to sudden but quickly overcome nervous and bilious illness, wasting no time, caring nothing for the coarser social enjoyments, leading, out of court, a self- withdrawn and solitary life, though playful, genial, and stimulating in social intercourse, with a memory as tenacious and ready as his apprehension was quick, with high powers of detecting, mastering, arranging, and fusing his acquisitions, and of penetrating to the centre of historical characters and events,–it is not strange, though he may not have been critically exact and nice in questions of quantity and college exercises, that his scholarship was large and available in all its higher aims and uses.

It will naturally be asked, how such qualities as we have described manifested themselves in character, and in political and other fields of thought and exertion. Fair abilities, zeal, industry, a sanguine temperament, and some special bent or fitness for the profession of the law, will make a good and successful lawyer. Such a man's mind will be entirely in and limited by the immediate case in hand, and virtually his intellectual life will be recorded in his cases. But with Mr. Choate, the dramatic genius and large scope and vision which made him superior to other great advocates at the same time prevented his overestimating the value of his work in kind or degree, showed him how ephemeral are the actual triumphs and how small the real value of nearly all the questions he thus vitalized into artistic reality, when compared with the great outlying truths and principles to which he allied them. Feeling this all through his cases, at the same time that he was moulding them and giving them dramatic vitality, they took their true position from natural reaction and rebound, with all the more sharpness of contrast, when he came out of them. With such a nature, it could be assumed a priori as a psychological certainty, at any rate it was the fact with him, that a certain unreality was at times thrown over life and its objects, that its projects and ambitions seemed games and mockeries, and "this brave o'erhanging firmament a pestilent congregation of vapors," and that grave doubts and fears on the great questions of existence were ever on the horizon of his mind. This gave perpetual play to his irony, and made it a necessity and a relief of mind. Except when in earnest in some larger matter, or closely occupied in accomplishing some smaller necessary purpose or duty, his imagination loved the tricksy play of exhibiting the petty side of life in contrast to its realities, just as in his cases it found its exercise in lifting them up to relations with what is poetic and permanent. But, though irony was thus the natural language of his mind, it did not pass beyond the limits of the mischievous and kindly, because there was nothing scoffing or bitter in his nature. It was fresh and natural, never studied for effect, and gave his conversation the charm of constant novelty and surprises. He loved to condense the results of thought and study into humorous or grotesque overstatements, which, while they amused his hearers, conveyed his exact meaning to every one who followed the mercurial movement of his mind. It will readily be seen how a person with neither insight into his nature nor apprehension of his meaning should, without intending it, misinterpret his life and caricature his opinions,–blundering only the more deeply when trying to be literally exact in reporting conversations or portraying character.

It has been shrewdly said, that, "when the Lord wants anything done in this world, he makes a man a little wrong-headed in the right direction." With this goes the disposition to overestimate the importance of one's work and to push principles and theories towards extremes. The saying is true of some individuals at or before certain crises in affairs; it is not true of the great inevitable historical movements, any more than the history of revolutions is the history of nations. Halifax is called a trimmer. William Wilberforce was a reformer. Each did a great work. But it would be simply absurd, except in the estimation of the moral purist, to call Wilberforce as great a man or as great an historical and influential person as Halifax. Halifax saw and acted in the clear light and large relations in which the great historian of our own times wrote the history of the Stuarts. Wilberforce was a purer man, who acted more conscientiously and persistently within his smaller range of life and thought. It would have been inconsistent with Mr. Choate's nature for him to have been "wrong-headed" in any direction. Such largeness of view, such dramatic and interpretative imagination, such volatile play of thought and fancy, and such perception of the pettiness and hollowness of nearly all the aims and ambitions of daily life we cannot expect to find coexisting with the coarser "blood-sympathies," the direct passion, and the dogged and tenacious hold of temporary and smaller objects and issues, which distinguish the American politician, or with the narrowness of view, the zeal, and the moral persistency which characterize the practical reformer. There was, therefore, in his nature a certain want of the sturdier, harder, and more robust elements of character, which, though commonly manifesting themselves in connection with self-assertion and partisan zeal, are indispensable to the man who, in any large and political way, would take hold of practical circumstances and work a purpose out of them. We admire him for what he was. We do not condemn him for the absence of qualities not allied to such delicacy and breadth of nature. It is simply just to state the fact.

He had too little political ambition to seek his own advancement. He never could have been a strictly party man. His interest in our politics was a patriotic interest in the country. While he recognized the necessity of two great parties, he despised the arts and intrigues of the politician. His modesty, sensibility, large views, and want of political ambition and partisan spirit prevented interest, as they would have precluded success in party management. Had he spent many years instead of a few in the national Senate, he never could have been a leader in its great party struggles. He had not the hardier personal and constitutional qualities of mind and character which lead and control deliberative bodies in great crises. He would not have had that statesmanlike prescience which in the case of Lord Chatham and others seems separable from great general scope of thought, and which one is tempted to call a faculty for government. But he must have been influential; for, besides being the most eloquent man in the Senate, his speeches would have been distinguished for amplitude and judgment in design, and for tact and persuasiveness in enforcement. They might not have had immediate and commanding effect, but they would have had permanent value. His speech upon the Ashburton Treaty indicates the powers he would have shown, with a longer training in the Senate. More than ten years had passed between that speech and his two speeches in the Massachusetts Constitutional Convention, upon Representation and the Judiciary, and in that time a great maturing and solidifying work had been going on in his mind. Indeed, it was one sure test of his genius, that his intellect plainly grew to the day of his death. We would point to those two speeches as giving some adequate expression of his ability to treat large subjects simply, profoundly, artistically, and convincingly. Many of his earlier and some of his later speeches and addresses, though large in conception and stamped with unmistakable genius, want solid body of thought, and are, so to speak, too fluid in style. This obviously springs from the qualities of mind and from the circumstances we have indicated. In court, the necessities of his case and the determination and shaping of all his argument and persuasion to convincing twelve men, or a court only, on questions requiring prompt decision, kept his style free from everything foreign to his purpose. But, released from these restraints, and called upon for a treatment more general and comprehensive than acute and discriminating, his style often became inflamed and decorated with sensibility and fancy. His mind, moreover, was overtasked in his profession. His unremitting mental labor in the preparation and trial of so many cases was immense and exhausting. It shortened his life. That his genius might have that free and joyous exercise necessary to its full use and exhibition in literary or political directions, an abandonment of a great part of his professional duties was indispensable. This was to him neither possible nor desirable. The mental heat and pressure, therefore, under which he wrote his speeches and addresses, and the necessity for the exercise of different methods of thought and treatment from those called into play at the bar, explain why (with a few noble exceptions) they do not give a fair or full exhibition of his genius and accomplishments. But in them his judgment never lost its anchorage. Unlike Burke, who was the god of his political idolatry, his sensibility never overmastered his reasoning. Through a style sometimes Eastern in flush and fervor, and again tropical in heat and luxuriance, were always seen the adjusting and attempering habit of thought and argument and the even balance of his mind.