Atlantic Monthly Vol. 6, No. 33, July, 1860 by Various
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Various >> Atlantic Monthly Vol. 6, No. 33, July, 1860
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Whatever may have been Mr. Choate's defects of character or of style,
no competent judge ever saw his management of any case in court, from
its opening to its close, without recognizing that he was a man of
genius. It mattered not whether the amount involved was little or
great, whether the parties were rich or poor, wise or ignorant,
whether the subject-matter was dry or fertile,--such were his
imaginative insight, his knowledge of law and of human nature, his
perfection of arrangement, under which every point was treated fully,
but none unduly, his consummate tact and tactics, his command of
language in all its richness and delicacy to express the fullest
force and the nicest shades of his meaning, and his haggard beauty of
person and grace of nature, that every case rose to dramatic dignity
and to its largest relations to law, psychology, and poetry; and
thus, while giving it artistic unity and completeness, he all the
more enforced his arguments and insured his success. How widely
different in method and surroundings from the poet's exercise of the
creative faculty in the calm of thought and retirement, on a selected
topic and in selected hours of inspiration, was his entering, with
little notice or preparation, into a case involving complicated
questions of law and fact, with only a partial knowledge of the case
of his antagonist! met at point after point by unexpected evidence
and rulings of law, often involving such instantaneous decisions as
to change his whole combinations and method of attack; examining
witnesses with unerring skill, whom he was at once too chivalrous and
too wise to browbeat; arguing to the court unexpected questions of
law with full and available legal learning; carrying in his mind the
case, and the known or surmised plan of attack of his antagonist, and
shaping his own case to meet it; holding an exquisitely sensitive
physical and mental organization in such perfect control as never to
be irritated or disturbed; throwing his whole force on a given point,
and rising to a joyousness of power in meeting the great obstacles to
his success; and finally, with little or no respite for preparation,
weaving visibly, as it were, before the mental eye, from all these
elicited materials, his closing argument, which, as we have said, was
all the more effective, because profound reasoning and exquisite tact
and influence were involved in it as a work of art.
He had the temperament of the great actors,--that of the elder Kean
and the elder Booth, not of Kemble and Macready,--and, like them, had
the power of almost instantly passing into the nature and thought and
emotion of another, and of not only absolutely realizing them, but of
realizing them all the more completely because he had at the same
time perfect self-direction and self-control. The absurd question is
often asked, whether an actor is ever the character he represents
throughout a whole play. He could be so, only if insane. But every
great actor and orator must be capable of instantaneous abandonment
to his part, and of as instantaneous withdrawal from it,--like the
elder Booth, joking one minute at a side-scene and in the next having
the big tears of a realized Lear running down his cheeks. An eminent
critic says,--"Genius always lights its own fire,"--and this constant
double process of mind,--one of self-direction and self-control, the
other of absolute abandonment and identification,--each the more
complete for the other,--the dramatic poet, the impassioned orator,
and the great interpretative actor, all know, whenever the whole mind
and nature are in their highest action. Mr. Choate, therefore, from
pure force of mental constitution, threw himself into the life and
position of the parties and witnesses in a jury-case, and they
necessarily became _dramatis personae_, and moved in an atmosphere of
his own creation. His narrative was the simplest and most artistic
exhibition of his case thus seen and presented from the point of
their lives and natures, and not from the dry facts and points of his
case; and his argument was all the more perfect, because not
exhibited in skeleton nakedness, but incorporated and intertwined
with the interior and essential life of persons and events. It was in
this way that he effected the acquittal of Tirrell, whom any
matter-of-fact lawyer, however able, would have argued straight to the
gallows; and yet we have the highest judicial authority for saying
that in that case he did his simple technical duty, without
interposing his own opinions or convictions. We shall say a word,
before we close, of the charge that he surrendered himself too
completely to his client; but to a great degree the explanation and
the excuse at once lie in this dramatic imagination, which was of the
essence of his genius and influence, and through which he lived the
life, shared the views, and identified himself with a great actor's
realization, in _the part_ of his client.
In making real to himself the nature, life, and position of his
client,--in gathering from him and his witnesses, in the preparation
and trial of his case, its main facts and direction, as colored or
inflamed by his client's opinions, passions, and motives,--and in
seeking their explanation in the egotism and idiosyncrasy which his
own sympathetic insight penetrated and harmonized into a consistent
individuality,--he, of course, knew his client better than his client
knew himself; he conceived him as an actor conceives character, and,
in a great measure, saw with his eyes from his point of view, and, in
the argument of his case, gave clear expression and consistent
characterization to his nature and to his partisan views in their
relations to the history of the case. We have seen his clients sit
listening to the story of their own lives and conduct, held off in
artistic relief and in dramatic relation, with tears running down
cheeks which had not been moistened by the actual events themselves,
re-presented by his arguments in such coloring and perspective.
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.
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