Rufus Choate.

The works of Rufus Choate, with a memoir of his life online

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" The action of Fairchild v. Adams was for written and
verbal slander. Mr. Fairchild, while pastor of a church in
South Boston became a member of the Suffolk South Asso-
ciation of Ministers ; Rev. Dr. Adams being also a member.
Mr. Fairchild was privately charged by one Rhoda Davidson
with being the father of her illegitimate child, — and she
demanded of him a considerable sum of money. He paid her
a part of what she demanded, and promised to pay her further
sums, and wrote her a letter which was strongly indicative
of the truth of the charge. The circumstances having become
known to a few persons in his society, he asked a dismission,
under a threat of exposure, and went to Exeter, N. H., where
he was installed as a pastor. Having learned, soon after his
settlement there, that there must be a public exposure of the
affair, he attempted to commit suicide. Soon afterwards an
ecclesiastical council met at Exeter, which advised that he
should be dismissed from his charge, and degraded from the
ministry. He was about this time indicted at Boston for
adultery, but kept out of the State, and was not taken upon
the warrant till after the lapse of a considerable time. He
finally returned and took his trial, and was acquitted, as it was

1 For the following account I am in- one of the_ referees before whom the
debted to Mr. Justice Chapman, now case was tried,
of the Massachusetts Supreme Court,


understood, because the testimony of the witness Davidson
was impeached. After this acquittal he returned to his former
pursuit in South Boston, and received a call to settle there. A
council was convened, which advised his settlement, taking the
ground that his acquittal in a criminal court should be treated
by an ecclesiastical council as conclusive evidence of his in-
nocence. From this position Dr. Adams and other members
of the association always dissented, and refused to recognize
him as a minister.

" Before the meeting of the council at Exeter, some discus-
sion had taken place in respect to the standing of Mr. Fair-
child in the Suffolk South Association ; and it had been ar-
ranged that the association should be governed by the result
of that council. Accordingly after he had been degraded from
the ministry, the association passed a vote, reciting that result,
and expelling him from their body. After he had been again
installed in South Boston, he requested of the association a
copy of the vote by which they had expelled him. The copy
was accordingly furnished him, after which he sent them a
communication demanding that they should rescind the vote
as a libel, and restore him to good standing as a member ; and
he proposed to appear before them, and offer evidence and
arguments on the question of rescinding the vote, and proposed
to some of the members to make inquiries of certain persons
in respect to some of the accusations that had been made
against him. The association gave him a hearing, and after
its close, each of the members was called upon to give an
opinion, with the reasons for it. Among others Dr. Adams
gave his vote in favor of a resolution adverse to the restora-
tion of Mr. Fairchild, and stated verbally his reasons for it.
He was selected as the object of a suit, because he was a man
of influence, and because of some personal feelings ; and the
written slander consisted of the resolution that was passed, and
the verbal slander of the reasons stated by Dr. Adams for be-
lieving in the guilt of Mr. Fairchild.

" The cause was heard before referees agreed on by the
parties, and several very interesting questions arose on the
hearing. Among them was the question to what extent should
ministers and churches be influenced by the acquittal of a man
charged with a crime in a civil court. Mr. Choate contended

1850-1855.] CASE OF FAIRCHILD v. ADAMS. 169

that inasmuch as the rules of evidence are different in civil
and ecclesiastical tribunals ; inasmuch as some things are re-
garded as criminal in one that may not be in the other ; inas-
much as a defendant may he acquitted by the jury from mere
doubt, or from collusion of the party with a witness who suf-
fers his testimony to be broken down, or omits to disclose the
whole truth, the verdict ought not ipso facto to restore the
party, but should only furnish a ground of consideration for
action. The debate on this point also led him to an investiga-
tion of the constitution, history, and usages of Congregational
churches and associations of ministers. ,

" Another question was, whether associations of ministers
had power to expel their members for alleged oifences, without
being held in an action of slander to prove to a jury that the
party is guilty. On the part of Mr. Fairchild, it was con-
tended that these bodies had no privileges in this respect beyond
that of the ordinary slanderer, who utters a charge of crime
against his neighbor where the matter does not concern him.
On the part of Dr. Adams it was contended that the case came
within the class called privileged communications; — that is,
when in the transaction of business or the discharge of a duty,
one person has proper occasion to speak of another, and in good
faith and without malice alleges that he has been guilty of a
crime. In such cases he may defend himself in an action for
slander by proving that he thus acted, and without proving to
the jury that the accusation is true. The discussion of this
question led to an investigation of the authorities to be found in
the books of law in reference to the general doctrine, and also
to the nature and history of associations of ministers, and their
relation to the churches. My minutes of the points and
authorities are pretty full ; but they would give no idea of the
style and manner of Mr. Choate's argument.

" The referees were of opinion that associations are privileged
to inquire into the conduct of their members, and in good
faith to pass votes of expulsion, stating the reasons of their
proceeding, and are not responsible to legal tribunals for the
accuracy of their conclusions. They were satisfied that Dr.
Adams acted in good faith, and made an award in his favor,
which after argument, was sustained by the Court. The case
is reported in 11 Gushing, 549."

VOL. I. 15


In May, 1851, Mr. Choate argued a cause, which, whether
estimated by the interests at stake, or the signal abiHty of the
counsel, or the subtleness of the questions at issue, would
undoubtedly be considered one of the most important in which
he was ever engaged. It was that generally known as the
" Methodist Church Case." It was heard in New York,
before the Circuit Court of the United States, Justices Nel-
son and Betts presiding. At the time, it was, from obvious
reasons, of the deepest interest to the whole Methodist world
of the United States, and although it concerned property
alone, yet the members and presses of the Church at the
North always maintained most urgently, and apparently most
truthfully, that the pecuniary gain or loss was quite inconse-
quential; that the real question was whether the General
Conference of Churches could lawfully act so as to destroy
the entirety of the Church ; that if it could divide the Church
in this instance, there was no limit to the future sub-divisions
that might be made. It is, also, proper to state that the
Church at the North was anxious to harmonize the existing
dispute, and, it is understood, made, as they thought, a very
liberal offer of compromise, which was rejected by the South-
ern Church.

This dispute originated in that prolific source of ill — slave-
ry. Various questions, growing out of the connection of the
Southern Churchmen with slavery, had, at various times,
arisen in the Church, leading to a growing alienation of the
two sections. Finally, at a General Conference of the then
united Church, held at New York in June, 1844, a "plan of
separation" was drawn up, looking to a final division of the
Church, which, among other matters, provided that each sec-
tion of the country should have its own Church, independent
of the other ; that ministers of every grade might attach
themselves without blame to either Church, as they preferred ;
that a change of the first clause of the sixth restrictive article
should be recommended, so as to read : " They shall not
appropriate the produce of the Book Concern other than for
the benefit of travelling, supernumerary, superannuated and
worn-out preachers, their wives, widows, and children, and
such other purposes as a General Conference may deter-
mine ; " that on the adoption of this recommendation by the


Annual Conferences, the Northern Agents should deliver to
the Southern Agents so much of certain property belonging
to the Church as the number of travelling preachers in the
Southern, bore to the number of the same class in the North-
ern Church; that all the property of the Church within the
limits of the Southern organization should be forever free
from any claim of the Church, and that the Churches, North
and South, should have a right in common to use all copy-
rights of the New York and Cincinnati "Book Concerns" at
the time of settlement.

Included in this was the large property called the " Book
Concern," the proceeds of which were to be appropriated as
the change in the first clause of the sixth article above stated
shows, and which was originally instituted by that class which
is now its beneficiaries. This " Book Concern " was vested
in agents, and against them this action was brought by the
Southern agents to compel a delivery of their share of the

The plaintiflFs maintained that the resolutions of the General
Conference were of binding force, and that the General Con-
ference of the Southern Church had acted upon them in good
faith, and passed resolutions declaring the expediency of sep-
aration ; and that, after this action of the Southern Confer-
ence, a council of Northern Bishops met at New York, and
passed resolutions ratifying the " plan " of the General Con-
ference of 1844i, regarding it as of binding obligation.

In reply to this, the defendants, admitting many of the
plaintiffs' allegations, rested their defence mainly on the fol-
lowing propositions : —

1. That the resolutions of the General Conference of lS4i4>,
when properly understood, do not impart an unqualified assent
of that body to a division of the Methodist Episcopal Church
into two separate and distinct organizations or churches ; that
the assent thereby given was conditional and contingent, and
that the conditions were not complied with, nor has the con-
tingency happened.

2. That, if otherwise, the General Conference was not
possessed of competent power and authority to assent to or
authorize the division. And

8. That the division, therefore, that took place was a nul-


lity, and the separate organization a wrongful withdrawal and
disconnection from the menmbership, communion and govern-
ment of the Church, by reason of which the travelling, super-
numerary, and worn-out preachers, composing the separate
organization, are taken out of the description of the benefi-
ciaries of the fund.

The decision of Justice Nelson was adverse to the North-
ern party ; and this view was subsequently maintained by the
Supreme Court in Washington.

In July of this year (1851J, Mr. Choate again addressed
the Law School at Cambridge, or rather "The Story Associa-
tion," composed of the past and present members of the School.
And here, moved by the dangerous heresies which seemed to
him too familiarly received in the community, the orator urged
upon the profession the new duty, as he called it, of checking
the spirit of disloyalty, by correcting the public judgment, — by
enlightening and directing the public sense of right. " This
then," he said, " is the new duty, the opus aureum, to cherish
the Religion of the Law — to win back the virtues to the ser-
vice of the State, and with Cicero and Grotius, to make loyalty
to Law the fundamental principle in each good man's breast.
The capital defect of the day is, not that conscience is too much
worshipped, but that it is not properly limited. Its true sphere
is not properly seen and circumscribed. Men think that by
the mere feeling within them of a sense of right, they can
test great subjects to which the philosophy of ages leads the
way, and can try a grand complex polity, embracing a multi-
tude of interests and conflicting claims and duties. But these
ethical politics do not train the citizen ab extra to be enlight-
ened on these subjects.

" Morality should go to school. It should consult the build-
ers of Empire, and learn the arts imperial by which it is pre-
served, ere it ventures to pronounce on the construction and
laws of nations and commonwealths. For, unless the genera-
tion of Washington was in a conspiracy against their posterity,
and the generation of this day, in high and judicial station, is
in the same plot, the large toleration which inspires the Con-
stitution and the Laws, was not only wise, but was indispensa-
ble to forming or keeping any union, and to the prosperity of
us all.


" Let the babblers against the laws contemplate Socrates in his
cell about to quaff' the poison which Athens presented to him.
He is pleading with his disciples for the sanctity of the very
law which condemns him : he refuses to escape ; and, ' after
a brief discourse on the immortality of the soul,' he dies. Let
them learn, that ere laws and constitutions can be talked about,
they must at least be the subject of a special study. Their
transcendental philosophy must c6ndescend to study, not only
the character, but even the temper, of a people, and this not
a priori, but as it appears in the local press and public demon-
strations. Then they would observe that there are three great
things adverse to the permanence of our National Government,
— its recency, its artificial structure, and the peculiar facili-
ties tvhich the State organisations afford for separation ; and
from this study they would learn how little they know what a
work it was to found and keep the Republic and its laws.
' Tantce molis erat Romanam condere gentem.'

" To exercise this conservative influence, to beget a distrust
of individual and unenlightened judgment, on matters of such
vast import and extent, and to foster a religious reverence for
the laws, is the new duty which the times demand of the legal

During the years 1851 and 1852, notwithstanding the
increasing demands of his profession, Mr. Choate continued
deeply interested in national politics. There were many at
the North dissatisfied with the compromise measures of 1850,
and alienated from Mr. Webster, on account of his speech on
the 7th of March. There were others who believed those
measures to be in general wise and conciliatory, and that Mr.
Webster never assumed a position more dignified and patriotic,
or showed a more profound sense of the demands of the whole
country. The Massachusetts Whigs of this class determined
to call a public meeting, in order to present to the country the
name of that great statesman as a candidate for the Presi-
dency. The convention was held on the 25th of November,
1851, and proved to be one of the largest, most respectable,
and most enthusiastic gatherings of the year. It was presided
over by Hon. George Ashmun ; and the principal address was
made by Mr. Choate. Of all the tributes to Mr. Webster,
never was one more hearty, more sincere, or more stirring than



that which he then dehvered. His whole soul was alive with
his theme. A sense of the injustice which that great statesman
had suffered ; of the angry and slanderous attacks made upon
him by the little and malignant ; of the insult which one of the
boards of the city government had contrived to inflict by re-
fusing to him — the first citizen of the State — permission, to
speak in Faneuil Hall ; the ingratitude with which many at
the North had requited his long and arduous and grand ser-
vices, — all inspired the orator to a strain of fervid declama-
tion which swept the vast assembly with him as if but one
spirit moved them all.

The early part of the year 1852 was marked by nothing of
peculiar interest. In March he made a powerful argument in
an India-Rubber case, in Trenton, N. J. Mr. Webster was
on the opposite side — one of his latest appearances in a case
of great importance. Mr. Choate was said to have surpassed
himself in learning, strength, and brilliancy; but of the argu-
ment, as of the great majority of speeches at the bar, abso-
lutely nothing remains — ipsce periere ruince.

The Whig Convention for the nomination of a candidate for
the Presidency, — the last National Convention of the party, —
met in Baltimore on Wednesday the I6th of June, 1852.
The secret history of it is yet to be written.

The place of meeting was a spacious hall. The members
occupied a raised platform in the centre ; spectators, from all
parts of the country, sat upon benches at the sides, while the
gallery was filled with ladies. Two days were spent in effect-
ing an organization, and preparing a series of resolutions. It
was considered doubtful whether a platform could be agreed
upon, binding the party to the " compromise measures," as they
were called. As these measures were not entirely acquiesced
in by many of the Northern members, it was supposed to be
the policy of some to make the nomination without a declara-
tion of political sentiments on the question of slavery, and then
to resolve that no such declaration was necessary. If this
were the plan, it did not succeed. It was understood that
General Scott had written to some member of the Conven-
tion assenting to these ' measures,' though for some reason
the letter had not been produced. The resolutions were at
length read, and all eyes turned toward the seats occupied by

1850-1855.] BALTIMORE CONVENTION, JUNE, 1852. l^Q

the Massachusetts delegates. Mr. Choate presently rose ; it
was about half past five o'clock on the afternoon of Friday.
The thousand fans ceased to flutter, and the hall was silent
with expectation. He began in a quiet manner, as he usually
did, with an allusion to the general sentiment of the plat-
form itself, and then broke into a more fervent strain of
thanksgiving to God, that a sentiment urged before, many
times and in many places, seemed now likely, by so near an
approach to unanimity, to be adopted and promulgated by
that authority, among the highest which he recognized, the
National Whig Party of the United States, in General Con-
vention assembled.

" Sir," said he, " why should not this organ of one of the
great national parties, which, pervading the country, while
they divide the people, confirm the Union, — for I hold that
these party organizations, wisely and morally administered,
are among the most powerful instrumentalities of union, —
here, now, and thus declare, that, in its judgment, the fur-
ther agitation of the subject of slavery be excluded from,
and forbidden in, the national politics '^ Why should it not
declare that if agitation must continue, it shall be remitted
to the forum of philanthropy, of literature, of the press, of
sectional organization, of fanaticism, organized or unorgan-
ized ; but that the Federal Government has in this field closed
its labors and retires, leaving it to the firmness of a perma-
nent Judiciary to execute what the Legislature has ordained "?

" Why should we not engage ourselves to the finality of
the entire series of measures of compromise ] Does any
member of this body believe that the interests of the nation,
the interests of humanity, our highest interests, our loftiest
duties, require an attempt to disturb them 1 Was it need-
ful to pass them 1 Did not a moral necessity compel it ]
Who now doubts this ] I do not deny that some good
men have done so, and now do. I am quite well aware that
fanaticism has doubted it, or has affected to doubt it, to the
end that it may leave itself free, unchecked by its own con-
science, to asperse the motives of the authors and advocates
of this scheme of peace and reconciliation, — to call in ques-
tion the soundness of the ethics on which it rests, and to agi-
tate forever for its repeal. But the American people know.

1-j:Q memoir of RUFUS CHOATE. [Chap. Vill.

by every kind and degree of evidence by which such a truth
ever can be known, that these measures, in the crisis of their
time, saved this nation. I thank God for the civil courage,
which, at the hazard of all things dearest in life, dared to pass
and defend them, and ' has taken no step backward.' I rejoice
that the healthy morality of the country, with an instructed
conscience, void of offence toward God and man, has accepted
them. Extremists denounce all compromises, ever. Alas ! do
they remember that such is the condition of humanity that the
noblest politics are but a compromise — an approximation — a
type — a shadow of good things — the buying of great bless-
ings at great prices 1 Do they forget that the Union is a
compromise ; the Constitution — social life, — that the har-
mony of the universe is but the music of compromise, by
which the antagonisms of the infinite Nature are composed
and reconciled 1 Let him who doubts — if such there be —
whether it were wise to pass these measures, look back and
recall with what instantaneous and mighty charm they calmed
the madness and anxiety of the hour ! How every counte-
nance, everywhere, brightened and elevated itself! How, in a
moment, the interrupted and parted currents of fraternal feel-
ing reunited ! Sir, the people came together again, as when, in
the old Roman history, the tribes descended from the mount of
secession, — the great compromise of that constitution achieved,
— and flowed together behind the eagle into one mighty host
of reconciled races for the conquest of the world.

" Well, if it were necessary to adopt these measures, is it
not necessary to continue them 1 In their nature and office,,
are they not to be as permanent as the antagonisms to which
they apply ] Would any man here repeal them if he could
command the numerical power '? Does he see anything but
unmixed and boundless evil in the attempt to repeal them ^
Why not, then, declare the doctrine of their permanence ^
In the language of Daniel Webster, ' Why delay the declara-
tion ] Sink or swim, live or die, survive or perish, I am
for it.'

" Sir, let me suggest a reason or two for this formality of an-
nouncement of such a declaration in such a platform. In the
first place, our predecessors of the Democratic Convention, in
this hall, have made it indispensable. If we do not make it as

1850-1855.] BALTIMORE CONVENTION, JUNE, 1852. I'^'J'

comprehensive and as unequivocally as they have, we shall be
absorbed, scattered ! — absorbed by the whirlpool, — scattered
by the whirlwind of the sentiment of nationality which they
have had the sagacity to discern and hide under. Look at
their platform, and see what a multitude of sins of omission
and commission, bad policy and no policy, the mantle of na-
tional feeling is made not ungracefully to cover. And re-
member that you may provide a banquet as ample as you will;
you may load the board with whatever of delicacy or necessity;
you may declare yourselves the promoters of commerce, where-
soever, on salt water or fresh water, she demands your care ;
the promoters of internal improvements, — of the protection
of labor, promising to the farmer of America the market of
America, — of peace with all nations, entangling alliances with
none, — of progress, not by external aggression, but by internal
development ; spread your board as temptingly as you will, if
the national appetite does not find there the bread and water of
national life, the aliment of nationality, it will turn from your
provisions in disgust.

" Again : some persons object to all such attempts to give
sacredness and permanence to any policy of government, or
any settlement of anything by the people. They object to
them as useless, as unphilosophical, as mischievous. The
compromise measures are nothing, they say, but a law ; and,
although we think them a very good law, yet better turn
them over to the next elections, the next Presidential canvass,

Online LibraryRufus ChoateThe works of Rufus Choate, with a memoir of his life → online text (page 20 of 57)