devotion to the Federalist party, which had aided Burr in his election contest with Jefferson, and which Jefferson had completely vanquished, made many people think that the Chief Justice's rulings, favorable to Burr, were due to partiality, caused either by personal friendship and sympathy for the accused, or by a desire to annoy and injure the President. In a book, published in 1807, just after the trial, it is charged that, after Burr had been committed for trial, but was out on bond, he and the Chief Justice dined together at the home of Mr. Wickham, one of Burr's counsel. I have not been able to discover whether that charge has ever been denied, but the meeting may have been accidental, or, if not, it may only be said to have been in bad taste. However that may be, and in spite of all criticisms, the rulings of the court seem to have been eminently fair, and, according to the authorities of that day, sound, although many people, at the time, thought it was not easy to reconcile the charge of the Chief Justice, that saved Burr, with the language used by the Supreme Court in the earlier case of United States v. Bolman & Swartout, to the effect that, "if a body of men be actually assembled for the purpose of effecting, by force, a treasonable object, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." The facts, as charged in the indictment, could not be proven. The Chief Justice justly thought he could not hold that Burr was legally present at Blennerhassett's Island, while, in fact, he was absent at the time of the overt acts of treason alleged.

The fame of the great Chief Justice is secure, and the whole profession honor and glorify his name, though willing to see some of his leading opinions modified or abandoned. He undoubtedly did more than any other man to elevate and strengthen the Supreme Court, giving it a scope and majesty not enjoyed by any other court in the world; but it should nevertheless be pointed out that, through his influence, that court, in some doubtful instances, has overruled the highest state courts and set aside the statutes deliberately passed by the representatives of the people in the legislatures of the states and in Congress itself, until, at last, whether for good or ill, I will not say now, the Supreme Court, in effect, has a veto on all important national legislation, regulating among other important things the powers of the states, the money of the people, the railroads, the public revenues and the administration of our colonies. While the executive has gained great power at the expense of Congress, the Supreme Court has apparently gained on both. In the future, it is not unlikely that all the greatest public questions of the day will, sooner or later, be heard and be substantially decided by the Supreme Court.

Jefferson and Marshall were probably our two greatest men of the first half of the past century. They hated each other. They represented irreconcilable opinions on some of the greatest political problems of the past hundred years, and both were strong partisans; and yet both were pure, patriotic men, brilliant and yet wise. In the philosophy of human rights and in the science of government, Jefferson's genius shone with the brighter lustre; but in the exposition of our Constitution and in the adjustment of the

rights and duties of our states with each other, and with the Federal government, Marshall stands foremost. His principles were necessary to knit us together indissolubly in perfect concord, and to make our Constitution supply indefinitely the needs of the Republic; but if Democratic institutions are long to endure here, in their original simplicity and vigor, the principles of Thomas Jefferson also must be studied and cherished as in the early days of the Republic. Though both these men had faults to be regretted, and though they were so irreconcilably divided in life, they should now be united, affectionately and reverently, in a common fame. The illustrious judge and the great tribune of the people-we can admire and revere them both. It is a duty to keep up, as we are trying to do to-day, a clear idea of their splendid public services, and of our inextinguishable debt of gratitude.

STURGIS v. CROWNINSHIELD.

Ladies and Gentlemen:

By Bernard Flexner.

I propose to attempt to consider the case of Sturgis v. Crowninshield in its philosophical rather than its legal aspect; to point out how, in the treatment of such questions as arose in it, Chief Justice Marshall kept steadily in view the purpose which runs unceasing through his work, namely, the consolidation and organization of a nation with a common national interest and aspiration up to a certain point, beyond that point with the freedom, which local diversities and the necessities of growth demand.

Marshall can be properly estimated only in the light of the conditions that preceded his activity, and the tremendous revolution which he wrought therein. Of the two types into which great men may be divided, it is easy to determine that to which he belongs. The first comprises men great, absolutely, great by reason of an endowment, the recognition of which is simply inevitable, men who could by no possibility have been "mute, inglorious Miltons;" the second, those great rather by reason of their delicate adjustment to certain existing conditions, which their peculiar constitutions are aptly fitted to meet and to exploit.

Shakespere and Goethe are, among men of thought, typical of the former class; Frederick II and Mirabeau among men of action. One can think of no environment short of a Siberian waste, which these mighty and turbulent spirits would not have molded to their purposes. Marshall belongs to the second class. He was, it is true, in many respects an unusual man. His keenness of intellect, his logical acumen, his comprehensive grasp, mark him as the possessor of very rare qualities in a very high degree. Yet he might in certain places and certain ages have possessed all these and have passed through life unremarked, except in the narrow circle of his personal experience. But the formation of the Federal gov ernment and his elevation to the Chief-Justiceship created a setting that was absolutely and uniquely suited to his peculiar genius.

It was to him the same sort of appropriate opportunity that called Cromwell from his plow and his Bible, to embark, at forty, on the new and untried courses that shortly made him a king in all but name; the same sort of providential good fortune that kept Lincoln out of the land office and territorial governorship in order to entrust to his unknown and unexplored genius the guidance of the nation through a series of crises to every one of which he unexpectedly rose. True enough, Marshall was no unknown man. He had served with ability in the legislature of Virginia, in Congress and the state department at home and abroad; the similarity resides wholly in the peculiar and unique fitness which marked him for the Chief-Justiceship as plainly as Cromwell was marked for the Protectorate or Lincoln for the Presidency.