When it is remembered that a great lawyer in the United States is called upon (as he is not in England) to practise in all our courts, civil and criminal, law, equity, and admiralty, and, in addition to all the complicated questions between parties, involving life, liberty, and property, arising therein, that he is to know and discuss our whole scheme of government, from questions under its patent laws up to questions of jurisdiction and constitutional law,--it will be seen what a field there is for the exhibition of the highest talents, and how few lawyers in the country can become eminent in all these various and important departments of mental labor. In their whole extent Mr. Choate was not only thoroughly informed as a student and profound as a reasoner, but his genius produced such a fusion of imagination and understanding as to give creativeness to argumentation and philosophy to treatment of facts.
We propose to try to give some idea of those mental characteristics and peculiarities in which he differed from other lawyers, and to indicate some salient points of his genius and nature which went to make up so original and interesting an individuality. Immense labor and talent will no more produce genius or its results, than mere natural genius, without their aid and instrumentality, can reach and maintain the highest rank in any of the great departments of life or thought. With true genius, imagination is, to be sure, paramount to great and balanced faculties; but genius is always demonstrating its superiority to talent as well by its greater rapidity and certainty in seizing, arranging, and holding facts, and by the extent of its acquisitions, as by its superior philosophic and artistic grasp and vision.
Though Mr. Choate was so much more than a mere lawyer, it was in court that he displayed the full force and variety of his powers. Hic currus et arma. We shall, however, speak more especially of his jury-trials, because in them more of his whole nature was brought into play, and because of them and of his management of them there is and can be no full record. The arguments and triumphs of the great advocate are almost as evanescent and traditionary as the conversation of great talkers like Coleridge. In what we have to say we cannot be expected to call up the arguments and cases themselves, and we must necessarily be confined to a somewhat general statement of certain mental qualities and characteristics which were of the secret of his power. We shall be rewarded, if we succeed in giving in mere outline some explanation of the fact, that so much of interest and something of mystery attach themselves throughout the country to his name and genius.
A jury-trial is in itself dramatic; but mere eloquence is but a small part of what is demanded of a great advocate. Luther Martin and Jeremiah Mason were the most eminent American examples of the very many great jury-lawyers who were almost destitute of all that makes up popular eloquence. A jury-lawyer is of course greater with it, but he can do entirely without it. Almost all great trials appeal to the intellects rather than to the passions of jurors. What an advocate needs first is thorough knowledge of law, and that adaptiveness and readiness of faculty which are never surprised into forgetfulness or confusion, so that he can instantly see, meet, reason upon, and apply his legal learning to the unexpected as well as the expected points of law and evidence as they arise in a case. Secondly, he must have thorough knowledge of human nature: he must not only profoundly discuss motives in their relations to the laws of the human mind, and practically reconcile motives with conduct as they relate to the parties and witnesses in his cases, but he must prepare, present, develop, guide, and finally argue his case, within the rules of law, with strict reference to its effect upon the differing minds of twelve men. It would be difficult to name any other field of public mental effort which demands and gives scope for such variety of faculty and accomplishment.
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!"