The Four Ages Of Joseph Choate


Choate’s closing address before this board lasted two days and covers a hundred and twenty-five closely printed book pages. It is a masterpiece not only of law but of history, for the bulk of it is Choate’s detailed reconstruction of the confused and terrible two days on which the Second Bull Run was fought as the Union generals groped their way, in a cloud of messengers, misunderstood orders, and steadily mounting errors, toward disaster.

The villain of the piece, in Choate’s version, was Pope. Brought to the East by Lincoln in the hope that he might be the general who could defeat Lee, Pope took command with a vainglorious order of the day that began “I have come to you from the West, where we have always seen the backs of our enemies. …” The Second Bull Run made a laughingstock of him. As Choate saw it, Pope had sought a scapegoat and settled on Porter. In the courtroom he chopped him up as thoroughly as the Army of Northern Virginia had on the battlefield.

Choate reserved his noblest passage for Porter himself, however, citing his long campaign for relief as the first, great convincing argument of innocence which presents itself upon the threshold of this case … I suppose that General Porter … has never had a single waking hour that has not been inspired with the prayer that he might not die until he should be able … to clear his name. … This conscience which has been implanted within us is a great and powerful engine for support or for destruction. It may make—Shakespeare says it does make—“cowards of us all”… But when it takes the shape of what Virgil calls the “mens sibi conscia recti,” the heart conscious of its own innocence, it can carry a man, as it has carried General Porter, through perils such as have never yet been found upon the battle-field. …

The review board vindicated Porter completely, Congress passed a bill restoring him to his rank, and he later served successively as commissioner of public works, police commissioner, and fire commissioner of the city of New York. Choate took no fee for his efforts.

The most important litigation Choate ever engaged in, and his most significant triumph, was the series of cases brought in the Supreme Court of the United States to test the constitutionality of the income-tax law. In the Civil War the Federal government had levied and collected an income tax, which the Supreme Court decided was constitutional. After the war it was repealed, but in 1894 Congress passed another income-tax law that, despite the earlier decision, a group of insurance companies decided to challenge. The government’s case was led by the Attorney General, Richard Olney, and included dire forecasts of what might happen if the income tax were declared unconstitutional: infuriated mass-meetings, riots in the street, the Supreme Court itself perhaps swept away. After three days of this Choate rose to reply with the insouciance and force that had done so much to make his reputation: If the Court please: After Jupiter had thundered all around the sky, and had leveled 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 learned Olympian friend; he had often felt their force, but he knew that it was largely stage thunder, manufactured for the particular occasion. … It never would have occurred to me … that if in [the Court’s] wisdom you found it necessary to protect a suitor who sought here to … invoke the protection of the Constitution which was created for us all, it was an argument against your furnishing such relief and protection that possibly the popular wrath might sweep the Court away. It is the first time I have ever heard that argument presented to this or any other court.

Choate declared that among the framers of the Constitution lay one ever-present fear: that a number of states might be able to combine their voting strength in the House of Representatives, where revenue legislation must originate, to levy an unjust tax on a smaller group of states or even on a single state. For that reason, he argued, the Constitution (Article 1, Sections 2 and 8) provides that direct taxes, such as a tax on income, must be levied among states according to their populations by census; that is, representation and direct taxation go hand in hand.

He then pointed out that the wartime income tax, which exempted the first two thousand dollars of income, had pressed unfairly on the four richest states: New York, Pennsylvania, Massachusetts, and New Jersey. They had paid 80 per cent of that tax, though holding only 83 of 356 seats in the House of Representatives, less than 25 per cent. If the tax of 1894 were allowed to stand, he said, the same four rich states would pay at least 90 per cent of it.

There was more, but that was the gist and it sufficed. In two related decisions the Supreme Court declared the income tax unconstitutional. When William Jennings Bryan, campaigning for the Presidency in the following year, tried to make an issue of the Court’s action on the ground that it protected the rich, he got nowhere.