THE LIFE OF RUFUS CHOATE.*
THE name of Rufus Choate is not so well known in England as that of his great contemporary and competitor Daniel Webster, but if it is to this circumstance we owe a far shorter and more --readable biography than the one which we reviewed a few weeks ago, we should be inclined to rank fame below obscurity. We can certainly ask our readers to make the acquaintance of Rufus -Choate with the full assurance that they will not resent the invita- tion. As the life of an eminent American lawyer, of one who was often and equally matched with Webster, and whose success as -an advocate was perhaps greater than Webster's, the book deserves much praise, and will be found generally readable. Mr. Brown -does not indeed always resist the temptation of spinning out his pages by the insertion of some speech which has only a local value. But he is not such a grievous sinner as Mr. Curtis. Compared with him he is almost a saint.
What will strike most English readers as a remarkable feature of the American legal system is that Rufus Choate did not rise to judicial honours. At the age of fifty he was offered a seat on the Bench of the Supreme Court of the United States, but he Ind to decline, on the ground that he could not afford to give up his private practice. At that time he was not making quite 14,000 a year, during the two or three years which succeeded his income rose to about £4,500. If this amount was too valuable to be sacrificed for a seat on the bench, it is clear that the pay of a judge of the Supreme Court must be inadequate. But another post which was offered to Rufus Choate, and which also he had to decline, brings us to a different aspect of the American system. Almost at the same time that Rufus Choate was offered a judgeship, he was asked to take the Dane Professorship of Law at Harvard College. The President and Fellows of the College recognized the fact that they were inviting no less a man than " the leader of the Bar in every department of forensic eloquence," but though his acceptance of the post would have rendered it necessary for him to renounce all practice save practice in the Supreme Court of the United States, it was thought that his reputation would gain by • The Life of Rufus Choate. By Samuel Gilman Brown. Boston, U.S.: Little, Brown, and Co. London: Low, Son, and Marston. 1870. such a restriction, and his purse would not materially suffer. The
session of the Supreme Court of the United States began in December, and continued till the middle of March, while the two law terms at Harvard lasted from the beginning of September till the middle of January, and from the beginning of March till July. The Law Professors, of whom there were three, gave daily lectures and recitations, held moot courts for the discussion of questions of law, and proposed subjects and questions for written exercises. If the work was so arranged that the Dane Professor might give his lectures in the early part of the autumn term and take a few weeks' holiday at the beginning of the spring term, he might easily combine a regular practice before the Supreme Court with the duties of his office. Such was the suggestion, but Rufus Choate, though " apparently much pleased with the brilliant and somewhat attractive prospect presented to him," declined the offer. To our English notions, it seems equally strange that Harvard should wish for an advocate in leading practice as a Professor of Law, and that a Professor of Law should be expected to teach the work of his profession. Daily lectures during nine months of the year, moot courts in which the students argued points of law and cases before a bench composed of the Professors, must form a very different school for legal education to that provided either by the Inns of Court or our English Universities. If anything similar is given us by the new scheme of legal education, we may come in time to regard law as a study and not as a mystery, as a working profession and not as a mere certificate of respectability.
It must be said that Rufus Choate practised law in this spirit.
The conscientious industry with which he got up all his cases, the attention he bestowed upon them whether they were small or great, the habit he formed of going through each newly-reported case, and working it out as if he were preparing for an argument, made him something more than a simple advocate. One of the entries in his journal is significant of the man :—
" There is a pleasure beyond expression in revising, re-arranging, and extending my knowledge of the law. The effort to do so is imperatively prescribed by the necessities and proprieties of my circumstances ; but it is a delightful effort. I record some of the uses to which I try to make it subservient, and some of the methods on which I conduct it. My first business is obviously to apprehend the exact point of each new case which I study,—to apprehend and to enunciate it precisely,—neither too largely, nor too narrowly,—accurately, justly. This necessarily and
perpetually exercises and trains the mind, and prevents inertness, dulness of edge. This done, I arrange the new truth, or old truth, or whatever it be, in a system of legal arrangement, for which purpose I abide by Blackstone, to which I turn daily, and which I seek more and more indelibly to impress on my memory. Then I advance to the question of
the law of the new decision,—its conformity with standards of legal truth,—with the statute it interprets ; the cases on which it reposes ; the principles by which it is defended by the court,—the law,—the question of whether the case is law or not. This leads to a history of the point ; a review of the adjudications ; a comparison of the judgment and argu- ment, with the criteria of legal truth. More thought,—prodaeing and improved by more writing and more attention to last cases of English and our best reports, are wanting still."
The general course of study which was thus pursued may be traced in its most minute particulars by the help of this volume. We are told that on the publication of each new volume of the Massachusetts Reports, Rufus Choate would take every important case in which he had not been employed, make a full argument on each side, draw up a judgment, and finally compare his work with the arguments and judgments reported. If a case of his own which stood for argument was postponed from one term to another, the preparation for the first argument was merely a start- ing-point for the one which followed. "The case never seemed to be out of his mind, and whenever and wherever a thought appropriate to the case occurred to him, it was note for use." At a trial, every momentary interruption was made use of for an examination of books bearing on the subject, while the attention given to the case during its progress may be gauged by Choate's own advice to a junior. He said, " take down every adjective, adverb, and interjection that the witnesses utter." We cannot judge how much of Choate's success with juries was attributable to this exceeding care, but it is at least a coincidence that he should have been almost uniformly successful. Mr. Brown tells us of a few of his great triumphs. In one case, where a man was accused of stealing a flock of turkeys, there were no less than four trials, and each time Choate's defence made the jury disagree. There was always one dissenting juror, and at last the prosecution abandoned the case in despair. Another great defence of Choate's was made on behalf of a man named Tirrell, who was charged with having murdered his paramour, and also with having set fire to the house in which the murder was committed. Some extracts from Choate's speech, in which he set up a theory of somnambulism, are printed by Mr. Brown, but they hardly convey to our minds the impression of that power which must have been felt by thejury. Per-
baps the most notable result of the trial was that after Choate had put forth all his energies for a fee of £40, and had procured his client's acquittal on both charges, the client called upon him and suggested that half the fee should be returned. As his innocence of the crimes charged was obvious to two juries, he argued, his counsel had evidently been paid too much for the conduct of such simple causes. We do not know whether Mr. Bagehot, who complains in his able paper in the June number of the Fortnightly that clients cannot have direct access to counsel, would approve of this style of doing business, and, indeed, we read that in general Rufus Choate avoided personal contact with his clients in criminal cases. We are told of his usual practice :— " When talking with a client respecting a defence, his rule was, never to ask him whether he did the act ; yet he was very watchful for signs of innocence or guilt. After an interview with a person who consulted him as to a disgraceful imputation under which he was labour- ing, he remarked, He did it, he sweats so.' " Mr. Brown shows us on one occasion, and on one only, a band- to-hand encounter between Webster and Rufus Choate, in which the latter was placed at great disadvantage. The question at issue was the validity of a will, which was attacked by the heirs- at-law on the ground that one of the attesting witnesses was insane. Choate was for the heirs-at-law, while the will was supported by Webster. According to the statement of a lawyer who was present, Choate put forth gigantic efforts, and almost led the jury to return "an impulsive, if not a foolish verdict." Webster, on the other hand, felt or affected to feel that he had an easy case and a sure victory, and seemed to restrain himself in order that he might persuade the jury of the lightness of his task. It was however, a sufficient triumph for Choate that he nearly won such a case, though the fact that he lost it broke the uniformity of his success. That success indeed lay chiefly in his criminal defences. We hear of a compliment being paid him on this score which rather embarrassed him — " It was the case of the Missouri, an American vessel stranded on the coast of Sumatra, with specie on board. The master of the stranded vessel, one Dixey, and Pitman, the master of the vessel that came to her aid, agreed together to embezzle the greater part of the specie, and pretend that they had been robbed of it by the Malays. Mr. Choate was cross-examining Dixey very closely to get out of him the exact time and nature of the agreement. The witness said that Pitman pro- posed the scheme, and that he objected to it, among other reasons, as dangerous. To which, he said, Pitman made a suggestion intended to satisfy him. Mr. Choate insisted on knowing what that suggestion was. The witness relucted at giving it. Mr. Choate was peremptory, and the scene became interesting. Well,' said Dixey at last, if you must know, he said that if any trouble came of it we could have Rufus Choate to defend us, and he would get us off if wo were caught with the money in our boots.' It was several minutes before the Court could go on with the business. For a few moments Mr. Choate seemed uncertain how to take it. He did not relish the nature of the compliment, and yet it was a striking tribute to his fame that two men, at the antipodes, should concoct a great fraud relying upon his genius to save them ; and so the opposing counsel, Mr. Dana, put it, in his argument, aptly quoting the Quce regio in ten•is."
Probably Rufus Choate would have preferred a less universal but a more solid recognition. The fame of an advocate is tempting enough, but one does not like it made an inducement to the commission of crime.
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