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1



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THB



AMERICAN



LAW REVIEW.



1876-1877.



EDITORS :

MOORFIELD STOREY,
SAMUEL HOAR.



VOLUME XI.



BOSTON:
LITTLE, BROWN, AND COMPANY.

1877.



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Entered according to Act of Cong^ress, in the year 1877, by

Little, Brown, & Co.,

In the Office of the Librarian of Congress, at Washington.



CAMBRIDGE :
PRESS OP JOHN WILSON AND SON.



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TEEE



AMERICAN LAW REVIEW.



Vol. XL] BOSTON, OCTOBER, 1876. [No. 1.



SOME REMINISCENCES OF RUFUS CHOATE.

Many anecdotes have been published of Mr. Choate, and many
of his quaint sayings have long been current in the profession.
The writer of this article was for two years a student in his
office, had a good opportunity of becoming acquainted with him,
and remembers some instances of his wit and humor and peculi-
arities that have not hitherto been published. It is thought they
may be worthy of preservation, as relating to so distinguished an
ornament of the American bar ; and they may be relied on as hav-
ing happened under the writer's own observation, or as received
from the best authority.

Mr. Choate was generally very regular in his attendance at the
office ; coming to it at nine o'clock, or earlier, and spending the
mornings there. Upon entering his room (an inner one), ha
closed the door, and all his consultations with clients were pri-
vate, — very different from the custom which is said to prevail in
Sicily, where the lawyer and all his clients sit together in one
room, and each of the latter states his case in presence of those
assembled, and receives the advice, not only of the lawyer, but
of all his neighbors. The students, who sat in an outer room,
did not go into Mr. Choate 's room unless he was alone ; and then
he was almost always found standing at a high desk, or leaning
slightly against a tall counting-house chair, pen in hand, and dili-
gently studying and writing. I never knew him to be annoyed
by interruption. I never heard him say he was busy, or even
ask to be excused from answering a question then. He would at



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BOME BEMINISGENCES OF BUFUS CHOATB.

^ desired information, or refer to some law-book in
abject was discussed, or, whatever the topic, easily
it, as if it had just been the subject of his medita-
was his great alertness of mind,
its were, of course, very chary of visiting his room,
he was alone. Not so a fellow-lawyer in the same
ne day (he was in the habit of doing it) burst into
I room, and, without any apology, broke in upon a
which Choate was holding with several gentlemen
portant case, and shouted, '' Choate, I have caught
famous Greek authors in a most egregious blunder !
repeating the Greek words — " that the half is more
lole. Now, that is impossible." — "Suppose," re-
tte, evidently amused at the state of excitement the
" you translate the word by better instead of more.
better than the whole, — just as half a speech may
)re to the purpose, than the whole." — " That won't
}d the man with great pertinacity. "The word
and every one knows the statement is a mathemati-
y." And he left the room, rejoicing in his ex-
f the stupidity of the old Greek.
: member of the bar and Mr. Choate took the
a witness produced by the latter. After the busi-
lished, the counsel came into the office. " Well,
ite," said Mr. P., '' I don't think you have made any
that witness : there are too many hiati in his testi-
[mpossible 1 " said Choate. '' But there were : you
noticed them yourself." — "I couldn't," rejoined
Ton couldn't 1 Why not ? " — " Because hiatus is
I declension." And then Choate gave his peculiar,
drawing in his breath deeply, while his whole face
fun.

lawyer was employed to defend a man who was

stealing a watch from a fellow-boarder. It was

tain Mr. Choate for the defence, as senior counsel.

man ^ called upon him for this purpose ; and well

man, the late Allen C. Spooner, once moyed the court to postpone
he was engaged. The jadge refused the application, sajing, "I
d aware, Mr. Spooner, that this court sits here for the despatch of
beg your Honor's pardon/' replied Mr. Spooner : " I thought it sat
linistration of justice." The request was granted.



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BOME BEMINISCENOES OF BUFUS CHOATB. 8

known as the former was among his contemporaries for quick-
ness, acuteness, and vigor of intellect, he told me he was
surprised and mortified at the number of questions that Choate
put to him which he could not answer. At the trial, the com-
plainant testified that early in the morning, while he was in bed,
the defendant entered his room, went to a table on which the
watch was lying, took it up, looked towards the bed, where tiie
witness was pretending to be asleep, and, holding the watch in
his hand, very quietly left the room ; that he saw all this plainly,
and could not be mistaken ; that he supposed it to be a joke, as
he and the accused were old friends, and, when leaving the
breakfast-table, said to him that he would take his watch, ex-
pecting it would be immediately given up to him ; that the de-
fendant, to his astonishment, denied having touched his watch
and having been in his room that morning ; that it was only after
finding, upon repeated requests, he could not obtain his property
in an amicable way, that he had very reluctantly resorted to
the process of the law. This was certainly a very strong case
against the defendant. If the statement were believed by the
jury, there was no chance of acquittiJ.

Upon the cross-examination, Mr. Choate said, " You have
known the defendant many years ; have you not ? *' — ** I have."
" How many ? " — " Perhaps twenty." — "As man and boy ? "
" Yes, sir." — *'In all this time, did you ever hear a single syl-
lable against his character for honesty ? " — ** No, sir." — " Has
not every one spoken well of him as an honest, straightforward
man ? " — " Yes, sir." — " Have you not been very intimately
acquainted with him ?" — " I have, sir." — "Has he not been a
bosom friend of yours ? Have you not asked his opinion and
advice respecting your own affairs?" — "I have, sometimes."
" And you found him always true and reliable ? " — " I think
I did, always, sir." — "Have you ever put your watch under
your pillow ? " — "I have, sometimes." — " This is a terrible
chaise you bring gainst your best friend. If he is convicted, it
sends him to the State's prison. I suppose, before making such
a charge against a dear old friend that may ruin him for ever,
you made yourself absolutely certain, beyond all chance of mis-
take, that the Watch was really gone. Did you look under your
pillow, where you say you sometimes put it, to see if it might
not be there ? " — " Yes, sir, I did ; and it was not there."



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4 80MB REMINISCENCES OF BUFUS CHOATE.

The last answer was enough to throw doubt oyer the rest of
the witness's testimony. It rendered it uncertain whether he
had actually seen the accused take away his watch ; because if
he had, and had no doubt of it, why should he afterwards look
for his watch under the pillow ? This doubt, the prisoner's gen-
eral good character, and Choate's eloquent appeal in his behalf,
were sufBcient to induce the jury to acquit. Immediately after
the trial, the complainant said to me, " Confound it 1 why did I
say I looked under my pillow ? I know I saw the man take my
watch. I never looked under my pillow ; but Choate put the
questions in such a way, that I could not help saying I did, when
I didn't." He told the truth. The accused ran off, without, I
will add, paying Choate a farthing for saving him from the State's
prison ; and, shortly after, the watch was sent to the right owner
by a respectable woman, to whom the culprit had given it as an
engagement-present, and who, from the trial, discovered the
crime of her lover, and also the right owner of the watch.

I may as well state in this connection as in any other, that I
remember Choate's saying, " Never browbeat a witness on the
cross-examination : it only makes him more obstinate and hostile.
When I began to practise law, I used to think it very fine to be
severe, and even savage, towards my opponent's witnesses ; but
I soon found it would hot do, and I reformed my method alto-
gether. Violence does no good : the gentle method is the best.
It is the old story of the sun and the wind." His courtesy to wit-
nesses was well known, and also the fact that he drew more from
the most reluctant witness by the skill and suavity of his exami-
nation than others by harshness, or attempts to intimidate.

Mr. Choate related the following anecdote of his early life to
a young member of the Suffolk bar who was regretting some
mistake or oversight he had made : One stormy night, during
his residence in Danvers, he was called upon at a late hour to
draw up the will of a dying man who lived sever3,l miles distant.
He went, performed the service, and returned home. But after
going to bed, as he lay, revolving in his mind each provision of
the paper he had so rapidly prepared, there flashed across his
memory an omission that might cause the testator's intention to
be misunderstood. He sprang from his bed, and began dressing
himself rapidly, to the great surprise of his wife ; only answering
her inquiries by saying that he had done what must be undone,



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SOME BHSDnSCENCES OF BUFUS CHOATB. 6

and, in the thick of the storm, rode again to his dying client,
explained the reason of his return, and drew a codicil to the will
which made every thing sure. Mr. Choate then added, "A
clever man will blunder sometimes ; but a blockhead blunders —
exvi terminV^

A blacksmith having failed in business, a friend, to enable him
to start once more, loaned him some iron, which a creditor at-
tached at the forge. The friendly owner sued in trover for his
iron. Choate appeared for him, and pictured the cruelty of the
sheriff's proceeding as follows : ^^ He arrested the arm of indus-
try as it fell towards the anvil ; he put out the breath of his bel-
lows; he extinguished the fire upon his hearth-stone. Like
pirates in a gale at sea, his enemies swept every thing by the
board, leaving him, gentlemen of the jury, not so much — not so
much as a horse-shoe to nail upon his door-post to keep the
witches off." The tears came into the blacksmith's eyes at this
affecting description. One of his friends, noticing them, said to
him, '* Why, Tom, what's the matter with you ? What are you
blubbering about ? " — *' I had no idea," was the reply in a whim-
pering tone, — "I had no idea I had been so much OrC^arhuBed ! "
Nor had he, till Choate told him.

At a trial of a cashier of one of the South Boston banks,
charged with embezzlement, Choate, who appeared for the de-
fence, argued that the cashier was compelled to do what he had
done by his superior officers, the directors ; that they had swin-
dled the public ; that they were the responsible parties, and
should suffer the punishment. He was proceeding to flay the
directors ; when one of them^ rose in court, and, in great anger,
began to denounce Choate, who, hardly allowing himself to be
interrupted, said mildly, " I beg the director to be seated, as he
wishes to be treated with moderation in a court of justice. " And
then, instantly breaking out into a scream, and with the greatest
impetuosity, he exclaimed, ** I tell you, gentlemen of the jury, my
client was as helpless in the hands of these directors as an infant
surrounded by ten thou9and Bengal tigers ! " I give this as a
specimen of the extravagance which Choate sometimes allowed
himself. No one, however, smiled : every one looked grave, and
fall of sympathy for the unfortunate infant thus encircled, and
ready to bewail the inevitable catastrophe. It is well known
diat Choate could say and do things in court that in other men



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6 SOBCE REMINISCENCES OF BUFUS CHOATE*

would have excited shouts of laughter, but which, coming from
him, produced no such effect. The reason was his intense ear-
nestness.

Mr. Choate's indifference to money was well known. He un-
doubtedly lost thousands of dollars by carelessness in collecting,
and negligence in charging for his services. The only account-
book he kept while I was with him was his office-docket, in
which actions were entered by any one in his office who made
out a writ. He would sometimes come into the office, and
exclaim, "My kingdom for J500 — for $400 — $1001 Where
does the money go ? No matter where. Where shall it come
from? That's the question of the hour, the minute. Upon
whom shall I make a raid ? Let me see." And he would turn
to his docket, and, after I had made out a few bills from the par-
ticulars given me, receipt them, and ask me to collect them. I
seldom found any difficulty in collecting, and no one objected
to the charges. Sometimes, when a man did not pay, Mr*
Choate would ask me to get his note, which he indorsed, sent to
a bank to be discounted, and, at maturity, perhaps had to take
it up himself.

He subsequently got a cash-book, and entered, as the first
item, " The office debtor to one quart of oil, 87J cents." The
next entry was six months later, and closed the record. I have
heard of another account-book, in which the only entry was a
debit for the price of the book.

A member of the bar called upon him to induce him to be
senior counsel in defence of a man accused of murder, and, in
the course of the conversation, stated that his client had no
money. " What ! " exclaimed Choate, " hands reeking with
human blood, and not a cent in his pocket ! Outrageous 1 "

On a very hot day, Mr. Choate was arguing a case at a law
term of the Supreme Court, before the full bench. He evidently
had the wrong side. Besides other cases against him, a decision
of the Supreme Court of Pennsylvania had been cited, which
was exactly in point, and conclusive against his positions. He
was apparently in the full tide of successful argument, and was
approaching its end, when the Chief Justice said, " What do
you say to the Pennsylvania case, Mr. Choate ? " — " Your Hon-
ors, I have not forgotten that case. By no means. I was coming
to it directly. By turning to it, you will notice that the decision



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80BIE BEMINISGENCES OF BUFUS OHOATB. 7

was given in the month of July, in the height of the hot season^
in the extremely hot town of Harrisburgh, in the interior of the
State, far away from the ocean-breezes which here, at this mo-
ment, are beginning to fan the heated brow of justice. We all
know that Homer sometimes nods ; and I submit to your Hon-
ors whether it is not indisputable that the judges of the Supreme
Ck)urt of Pennsylvania — convened in the very heated interior of
the State, in the extremely hot month of July, probably on
one of the hottest days of that loonth, and in the afternoon^ as
the report fortunately happens to inform us — were, at the time
of pronouncing this abnormal decision on which my brother so
much relies, either most of them profoundly asleep, or aU * nod-
ding, nid, nid, nodding,' and so not responsible for the strange
doctrines laid down." There was great merriment among the
judges, and it was increased by the profound gravity of Choate.
The Chief Justice (Shaw) shook his sides till I thought he would
roll o£F his chair.

A story circulated in the office, for the truth of wl^ich I do
not vouch. I only "tell the tale as 'twas told to me." A
stranger called upon Mr. Choate, and said that he had come to him,
as the head of the Suffolk bar, to consult him upon a matter very
important to himself. It seems, that, at a hotel, the man had had
a dispute with one of the waiters, who finally told him to go to
h — ^1. "Now," he continued with an air of great importance,
" I ask you, Mr. Choate, as one learned in the law, and as my
legal adviser, what course, under these very aggravating circum-
stances, is it best for me, in your judgment, to pursue ? " Choate
requested him to state again, in order of time, every thing that
occurred, and to be careful not to omit any thing, and, when
this had been done, remained for a few moments as if lost in
deep thought. At last, with the utmost gravity, he spoke : " I
have been running over in my mind all the statutes of the United
States, all the statutes of the Commonwealth of Massachusetts,
and all the decisions of all the judges thereon, and I am satisfied
there is nothing in them that will require you to go to the place
you have mentioned ; and donH you goJ*' The man, it is pre-
sumed, followed this good advice.

A member of the bar tells me, that at the time of the trial of
the Tufts Will case, in which Webster and Choate were counsel
for the plaintiff, and Samuel Hoar and Augustus Peabody for the



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8 SOME REMIKISCENOBS OF BUFUS OHOATE.

defendant, he was dining at Parker's restaurant, which was then
in the basement of the building on the comer of Court Street
and Court Square. Webster and Choate were seated at the next
table in the public dining-room. Mr. Choate, as junior counsel,
had finished his work in the case, and, as usual with him at such
a time, was nervous and indisposed, and partook of nothing but
tea and toast. Webster, on the other hand, although he was to
make his argument in the afternoon, was indulging in beef, ale,
and brandy and water, ad libitum^ and was as comfortable as if
he had a month's vacation before him. When the court-house
bell rang, Webster went into court, and soon commenced his
argument, apparently without having taken any time to prepare
it. His first remark, in reference to some rather angry discus-
sion that had taken place, was, " My advice to my brother is, to
keep cool ; and let him always remember that truth is a pearl
to be obtained only in still waters." At its close, Choate came
to his office, where he exclaimed most enthusiastically, " The
greatest argument Webster ever madel Magnificent beyond
even the powerful appeal he made in the E[napp case for the ad-
mission of the confession of the prisoner ! " Some one then asked
Choate what he thought of Jeremiah Mason, who had previously
been employed in the Tufts case. " A very great lawyer," he
replied ; " but he is not juicy ^

I never saw Choate lose his self-possession in court, except
once. He was arguing a case to a jury. Judge Wilde presiding.
The judge interrupted him with the remark, " Mr. Choate, the
witness did not make the statement you attribute to him."
" With your Honor's permission, I will say that I cannot be mis-
taken. I took down every word the witness uttered, and have it
here in black and white, just as I have stated. If your Honor
will look at my notes, you will find it so." Turning to the jury,
he went on : " Just as I have told you, gentlemen of the jury,
the witness testified ; " and he then repeated the statement.
The judge, again interrupting, said gruffly, " I don't want to
look at your notes, Mr. Choate ; and, if I did, you know I could
make nothing of them. The witness did not say what you
state." . Then leaning forward, and pointing his finger at Choate,
he continued : " You wanted him \Jb say so and so, Mr. Choate,
and you did your best to try and make him ; hut you couldtUt do
tY." Choate stood for a few moments silent, evidently embar-
rassed, and then took up another part of the case.



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SOME BEMINISOENOES OF BUFUS CHOATEL 9

While I was in his office, he was to deliver an address at Marl-
borough Chapel, to which admission was to be had by tickets,
which were distributed, and not sold. I had thought of asking
him for a ticket when he came to the office in the afternoon ;
but, as he did not make his appearance, I determined, with some
hesitation, to apply at his house. I called there, and, on learn-
ing that he was at home, requested the servant to ask him if he
would be kind enough to let me have a ticket of admission to
hear his address in the evening. The servant, soon returning,
said Mr. Choate wished to see me. I was shown to his bed-
chamber, and, on entering, found him in bed, with a wet cloth
around his head, and looking utterly miserable. He said he was
suffering from one of his worst headaches, and that he should
not be able to go to the meeting that evening. I replied that the
people would be disappointed not to hear him, but would be
more sorry for the cause. " The doctor says I must not go out.
But that is only one side. Don't you think I had better go ? I
want to hear both sides of the case, or how can I decide it justly ?
Now, if you say I can go, I think I will. What I want is en-
couragement." I told him we should all be glad if he were well
enough to speak that evening, and could speak without injury to
himself ; but that I supposed the doctor must be obeyed. " Gren-
eraUy, but not always," he said quickly : ^' sometimes the pa-
tient may deviate with advantage." And then he added, " You
will find some tickets on the mantel-piece ; take as many as you
want : but I warn you not to come to the speech ; there's
nothing in it." I relate this anecdote to show the pleasant and
familiar way in which Choate chatted, — even when very un-
well, — and also the power of his will, manifested by his actually
attending the meeting, and making a splendid speech under such
adverse circumstances. When I went to the Chapel that even-
ing, I did not believe that he had left his bed. As I went up the



Online LibraryJames Marcus BandyThe American law review → online text (page 1 of 97)