JOSEPH HODGES CHOATE

CHAPTER VII

THE NINETIES (Concluded)

INCOME-TAX CASE-HIS ARGUMENT-MR. SOUTHMAYD'S BRIEF-CONSTANT ACTIVITIES-THE VENEZUELA SENSATION-DUNRAVEN-AS SEEN IN ACTION-IRRIGATION CASE-STANFORD CASE-MCKINLEY ELECTED THE BACCHANTE-HE RUNS FOR SENATOR-TOBACCO CASE -HIS SON'S CLASS POEM-NAUMKEAG-TAMMANY TRIUMPHS-THE ADDRESS ON RUFUS CHOATE-ROOSEVELT FOR GOVERNOR-JUDGE DALY RUMORS ABOUT AN AMBASSADORSHIP-IN WASHINGTON-APPOINTED AMBASSADOR TO ENGLAND HIS LAW PRACTICE REVIEWED

In March, 1895, Mr. Choate made an argument before the Supreme Court against the income tax and reargued it in May of the same year. It has been considered his greatest argument on a matter purely of law. His record is full of celebrated cases. He once said his most famous exploit at law was the Fitz-John Porter case because two court-martials had decided it adversely and the true facts were very hard to gather and put before a court. But then he did that comparatively early in his practice, which perhaps made him look the more kindly on it. Mr. Strong says that the Sage-Laidlaw case provided jury trials as famous as any in the New York records, but neither the Porter nor the Laidlaw case had much to do with the law. The lay pubic inclined to suppose that Mr. Choate was not much of a lawyer, but was a considerable humorist, but in the income-tax case he had no compunction about furnishing the evidence to destroy that theory.

He thought the case was of great importance to civilization a case that would build a proper rampart around the rights of property, which he seemed always to feel were the real underpinning of civilization. As to that, "Holland," a very well known New York newspaper correspondent, said in the Philadelphia Press, May 7, 1895:

"If Mr. Choate meets the expectations of his brethren of the bar in this city with the argument which he proposes to make to the Supreme Court upon the rehearing of the income-tax case, his speech will probably rank with those greater efforts like Webster's in the Dartmouth College case, which have served the country so well in influencing a constitutional interpretation of incalculable value in securing the protection to property and the liberty of individuals. When Mr. Choate went to Washington in April to make his first argument in opposition to the constitutionality of the law he was inspired far more by the impulse of the patriot than the professional zeal of the lawyer. He felt very deeply upon this question. To him it seemed as though a decision affirming the constitutionality of the law would be the most dangerous influence in its results which this country has met with since the pro-slavery men of the South determined upon secession. It seemed to him if the Supreme Court should find itself impelled to declare this law constitutional, that then we should have the most startling illustration of the influence of Populism, and he felt as though such a decision would in the impulses which would follow it simply accelerate the purposes of the Populists so that the next legislative attempt of theirs would be greatly to increase the amount of taxes taken from the wealthy and also greatly to increase the dis

crimination in favor of those who have not great possessions.

"After Mr. Choate returned from Washington he had astounding evidence of public sentiment. His mails contained many letters, not all of them from men of wealth, speaking in the highest terms of the statesmanlike view which he took in his argument. He found that there were thousands of citizens who felt exactly as he did, that this discrimination against the rich was to be, if maintained, only the beginning of greater and greater discriminations of that sort. He found that the Bar Association of this city with but few exceptions approved his argument and its purely legal elucidations. When it was determined to ask for a rehearing, it being believed by the lawyers that the Supreme Court would grant it, and had in fact intimated so much in the earlier decision, Mr. Choate gave every moment that he could spare from his other duties to further study of this question. He became more and more impressed with the great danger involved. He spoke with very great seriousness of the crisis, and he was persuaded that upon another argument it was reasonable to hope that a majority of the court would become convinced that the law, tainted in part, was tainted in whole.

"I have heard a number of lawyers speak of the argument which Mr. Choate had in mind to deliver to the Bench, and they spoke as though they expected one of those masterly addresses which are fully equal to the great occasion which inspires them. Whether Mr. Choate gave his friends some idea of what he would say or not, I did not learn, but it was evident that the bar of this city expects perhaps the finest of Mr. Choate's powers in this address."

Mr. Choate lived to see the income tax that he abolished restored and paid, but at least he must have approved of what the money thus raised was spent for. His old friend and antagonist, James C. Carter, was the big gun among the distinguished lawyers opposed to him. The Tribune, March 13, 1895, says:

"Mr. Carter spoke two and one-half hours, and was immediately followed by Mr. Choate, who, in the remaining forty minutes of the session, made the preface of his argument and outlined its scope. In the beginning he said: 'If the Court please, after Jupiter had thundered all around the sky, and had levelled everything and everybody by his prodigious bolts, Mercury came out from his hiding place and looked around to see how much damage had been done. He was quite familiar with the weapons of his Olympian friend. He had often felt their force, but he knew that it was largely stage thunder, manufactured for the particular occasion, and he went his round among the inhabitants of Olympus, restoring the consciousness and dispelling the fears of both gods and men that had been prostrated by the crash. It is in that spirit that I follow my distinguished friend; and shall not undertake to cope with him by means of the same weapons, because I am not master of them.

" "It never would have occurred to me to present either as an opening or closing argument, to this great and learned court, that if, in their wisdom, they found it necessary to protect a suitor who sought here to cling to the Ark of the Covenant and invoke the protection of the Constitution which was created for us all, against your furnishing that relief and protection, that possibly the popular wrath might sweep the Court away. It is the

first time I ever heard the argument presented to this or any other court, and I trust it will be the last.'"

The World, The Tribune and other papers had summaries of Mr. Choate's argument. That in The World, March 30, 1895, is signed by David Graham Phillips and runs as follows:

"When future American historians fix the due proportion and value of events they will give more space in their histories to the great debate upon the income tax before the Supreme Court of the United States than to the whole four years' administration of many Presidents. 'I do not believe,' said Joseph H. Choate, closing this debate, 'that any member of this court ever sat or ever will sit to hear a case the consequence of which will be so far reaching as this.' And he spoke from a profound and just conviction.

"The Supreme Court, the court of final resort for 70,000,000 people, the custodian and final judge of our rights and liberties under the Constitution, has considered and decided many great questions and has heard the splendid eloquence of many a great lawyer. But never was a question more vital presented to it in the arguments and rhetoric of lawyers more eminent or more famous. Of these lawyers three were pre-eminent— Joseph H. Choate, the most famous throughout the nation; George F. Edmunds, most admired of constitutional lawyers, and James C. Carter, whom lawyers call the leader of the bar in the United States.

"The matter about which the battle raged under these distinguished leaders was the power of Congress to tax the people. As we all know, taxation has been the great question in all histories. It is the goad of taxation that