entific men, there lies a fruitful subject of argument. Each side throws at the heads of the other its hardest facts, and as far as it can dodges those that are thrown back. In such cases the skill lies in massing the facts that make for you, and lightening the weight of those that make against you.

All such debates, too, are quite consistent with a sincere desire to find and advance the truth. In the long run the piling up of irrelevant facts and indefensible theories does advance man in his restless, predestinated search for the absolute truth; for every generation or two there comes a man who can look over the barriers built up by the parties, and set new limits to what is useful and what is futile in the unending discussion. In the mean time, if you are going to take a hand in such arguments bear in mind that what you can actually accomplish is only this piling up of facts and this drawing to the light of the general truths which they contain; speak therefore modestly and without acrimony, since the real judge of your theories is time, and he is to be neither bullied nor hastened.

In arguments on questions of policy the same doctrine holds true. Here again you can make no direct proof; the best that you can do is to show that your policy is the best for the interests of the people whom you try to persuade. The arguments in the Income Tax Case are full of light on this point. I have already shown that Mr. Choate rested his argument on the fact that one of the prime objects of the Constitution was to protect private property. Mr. Olney, the

Attorney-General, on the other hand, argued that since "taxation is an uncommonly practical affair," it must be left to the discretion of Congress; and he contended that the Court should not "substitute its discretion for that of Congress in respect of the subjects of taxation, and all the distinctions and discriminations by which taxation is sought to be equitably adjusted to the resources and capacities of the different classes of society." Mr. Carter, on the same side with Mr. Olney, emphasized the object of Congress to redress"in some degree the flagrant inequality by which the great mass of the people were made to furnish nearly all the revenue, and leave the very wealthy classes to furnish very little of it in comparison with their means." And a little later he argued :

"It is said to be class legislation, and to make a distinction between the rich and the poor. It certainly does. It certainly is class legislation in that sense. That was its very object and purpose. This is a distinction which should always be looked to in the business of taxation. Unfortunately, heretofore it has been observed in the wrong direction, as I have already pointed out, and the poorer class prodigiously overburdened."

And, finally, Mr. Justice White, in his dissenting opinion, brings the statement of his understanding of the law to a close by two pages of solemn and weighty warning of the dangers that result when a court of final appeal disregards established precedents. Now all these considerations have serious force, Mr. Justice White's especially; and they all made for a deci

sion against Mr. Choate. To the majority of the Court, however, they seemed less serious than the clear intention of the framers of the Constitution to protect the richer States against unfair taxation by the poorer States. The opinion of the majority of the Court declares that

"the acceptance of the rule of apportionment was one of the compromises which made the adoption of the Constitution possible, and secured the creation of that dual form of government, so elastic and so strong, which has thus far survived in unabated vigor. If by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the States of which it is composed, would have disappeared; and with it one of the bulwarks of private rights and private property."

In the final result, therefore, the decision, as in all cases which decide policy and in which there is an even balance, turned on the inevitable differences of temperament which produce the political parties of all civilized nations. On the one side are the conservatives, who hold that the security of what each man has inherited or has earned for himself is the strongest safeguard for the advances of civilization and the best security for progress; and on the other the liberals or progressives who, seeing that advance is made only by change, are always concerned lest vested rights should become shackles to progress. In this particular case the law was so doubtful that each side put forward facts and con

siderations of almost even weight, and explanations of almost equal plausibility and power of reconciling them. In the choice between these opposing theories of the meaning of the law and of the Constitution the judges were divided; and the case was settled by the majority, to whom the vested rights of property seemed more important than a theoretically more even distribution of the burden of supporting the government. In this case, as in so many of the constitutional cases decided by Chief Justice Marshall, the decision was in the large sense political; for it was the expression of the trend of public opinion. Accordingly, though the decision had to turn on the text of the Constitution and on the cases which had interpreted that text, yet Mr. Choate in his argument appeals to large considerations of national policy; and both the Chief Justice in declaring the judgment and the judges who dissented recognize explicitly this larger and deeper bearing of the case.

Indeed, in all the larger questions on which mankind differs, underneath the various arguments for or against a given explanation or policy there is an ineradicable difference of temperament: just as mankind falls on one side or the other of five feet eight inches of height, so on many of these large questions of liberalism or conservatism, of free will or determinism, of generalizing and specializing, of minute learning or broad culture, there is an analogous final difference. Nevertheless, since questions of policy will always rise up to be decided, and therefore there must be arguments, you must assume in such cases

that these deep-rooted and final differences of temperament have not become active: that, as is always true, there is a large part of your audience, whose minds, either through indifference or from ignorance of the subject, are still open. Then you must, as in questions of fact, again trust to your sagacity. Here its task is to find every fact and every aspect of the case which will link themselves to their interest, or which will make the other policy seem useless or dangerous, and then to harp on them until their force is decisive. This exercise of your sagacity has so much more to do with feelings than with thoughts, however, that I will leave further discussion of it until I come to persuasion.

23. Finally, in discussing this element of argument that is called persuasion, I shall divide it into two parts: (1) that which is separable from the rest of the argument, the illustrations, examples, and supposititious cases which directly stimulate the feelings of the audience; and (2) that more subtle appeal to the feelings of the audience which lies in the kindling of the style, in the expression of the interest and strong emotion of the writer by the swifter, more agitated rhythm and fuller resonance of his speech. In whichever way it works, this element of persuasion belongs to that aspect of literature which has to do with the feelings; and, as depending on the personal equation of the writer, it is much less easy than the intellectual element to catch and generalize from, and almost impossible to teach. All that I can do is to