point in one way, and that many more of them can be explained by your theory than by the other. You can only pile up on the one hand all the facts that your theory will explain, and on the other all that the other theory cannot; and then sum them up to show that your theory is more satisfactory.

In the other two classes of argument, cases of theory, or cases of policy, as I have pointed out above, there can be no direct proof or refutation; all that you can do is to make the balance of probability as heavy as may be. The doctrine of evolution in biology, for example, as has been so often pointed out, both by believers and by unbelievers, has had and can have no direct proof. The reason why everybody accepts it to-day is that it gives an intelligible and satisfying explanation of a multitude of facts which would otherwise be irrational: we accept the theory because it does so much to simplify the universe. In the case of the dependent theories, the theory of natural selection by accidental variations, and the theory of inherited adaptations, which attempt to explain the evolution of species and genera, there is still no common agreement: one set of scientific men thrust forward one great body of facts which cry aloud for explanation and harmonizing; and another show you other facts which lie just as much on the surface and cry for explanation with just as much urgency. In these two bodies of facts, each of which is an aspect perhaps of an underlying truth as yet too large for the eye of science, each appealing to some recondite difference in temperament of sci

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