the humblest suitor may at any time challenge the authority of President or Congress, or both combined.

Under all forms of government we must sooner or later reach a finality. If not the king, it must be somebody else; and the Supreme Court, composed of learned men, quite excluded from the pale of actual or practical politics, having control neither of the sword nor of the purse, has as many chances in favor of ability and impartiality as any ultimate tribunal that has ever been devised. It can only act within a limited sphere; and by the framework of our institutions aggression on its part is impossible. What acts did Jefferson refer to as constituting the "unalarming advance?" The decisions in Marbury vs. Madison and Cohens vs. Virginia; and yet neither of these has seriously "engulphed" public liberty, or deprived the States of any valuable right.

It must, however, be said that Jefferson's objections to the jurisdiction of the Supreme Court to annul the acts of the other departments as being in violation of the Constitution were not so plainly erroneous as they seem to us now. He was not alone in his opinions, but was sustained by intelligent statesmen in all of the States. There were only a few State precedents for the exercise of such an imposing jurisdiction. English precedents were all against it. The Constitution conferred no such expressed power, and hence for the strict constructionist it did not exist.

In Marbury vs. Madison the court base the decision on the ground that when an act of Congress conflicts with the Constitution, the latter being the fundamental and higher law, must prevail. But in Luther vs. Borden, 7 How. 1, it was held that there were various political acts of the President which the courts had no right to review. The court say: "It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would

be difficult, we think, to point out any other hands in which the power would be more safe, and at the same time equally effectual."

If this doctrine was expanded a little, and should be extended to Congress, it would overthrow the rule prescribed in Marbury vs. Madison.

No doubt at first it must have appeared most singular to see seven judges in their black robes sitting in a room in the basement of the capitol, which John Randolph called "the cave of Trophonius," passing on the validity of laws enacted by Congress in the full enjoyment of its high prestige and authority as representatives of the people.

It is needless to pursue the subject farther. Next to the formation of our government the decision in Marbury vs. Madison is perhaps the most important event in our history. It estab lished the only distinctively original principle in our institutions. It did not erect an infallible tribunal, because that is impossible; but it provided for a peaceable settlement of questions of the most disturbing character, and smoothed the way for harmonious intellectual and economical development. Slavery was by the terms of the Constitution excluded from national control, and the result was a civil war of unparalleled proportions and ruinous results. Time has amply vindicated the irresistible logic of Marshall, against which the tremendous influence of Jefferson could make no impression, and which nothing else has been able to shake. Since the rule was established we have had nearly a hundred State conventions that have formed State Constitutions, but not one has departed from the principle asserted in this great case decided a century ago, or has in the least impaired the power of the courts of last resort to define the exact constitutional limits beyond which legislative and executive power cannot go. Such unanimity in public sentiment is probably without historic parallel.

Had the case been decided otherwise our Constitutions, State and Federal, would have been mere ropes of sand. Every department of each might have had its own code of constitutional law, all equally authoritative. With our forty-five States this would be confusion worse confounded. We should have neither unity, harmony nor perpetuity; for a house that is divided against itself cannot stand. Anarchy and the South American system of pronunciamentos must have been the result. Very recently the Australian Confederation has given its sanction to the principle announced in the Marbury case.

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The bar may look back upon this important piece of history with a sentiment of honest and unmixed pride. It is required that all the judges of the courts of last resort shall be men learned in the law. Hence they are all men belonging to the legal profession; and to them has been thus solely entrusted for a century the most responsible duty of guarding in their last sanctuary the lives, reputation, liberty and property of every citizen by enforcing constitutional restraints solemnly devised for their protection. Never has there been any secular duty so delicate, so high or so holy; the confidence thus reposed in our profession, surpassing anything previously known, should awaken feelings of gratitude; and should stimulate us to endeavor to render it in every way worthy of the honor thus confidingly and generously conferred. It may be that the victories of peace are usually less renowned than those of war, but they are also far less costly and less cruel. Many questions that have divided the minds of patriots and of statesmen, and that have distracted the country, have been quietly adjusted by the courts without a drumbeat, without a march of a battalion, or the shedding of a drop of blood. Such victories as these are at least beyond the reach of disparagement. To the bar and to its representatives is assigned this most far-reaching task, requiring for its performance great abilities, with profound learning, a keen sense of justice, perfect uprightness, accomplished statesmanship, and a vision undimmed by passion or prejudice; examples such as the best training and discipline of the bar can alone supply. A good bench is the emanation of a good bar; and hence the responsibilities of the bar even in matters solely relating to good government are weighty and incalculable.

Finally there was some collision between Jefferson and Marshall, growing out of the trial of Aaron Burr. In 1800 Jefferson and Burr ran on the same ticket for President and Vice-President. As the law stood at that time the candidate receiving the highest number of votes became President, and the candidate receiving the next highest number became Vice-President. As Jefferson and Burr received an equal number of votes the election was thrown into the House of Representatives, where the Federalists held the

balance of power. Burr had only been placed on the ticket on account of his local influence, no one intending that he should be made President; but he secretly intrigued with the Federalists to supplant his leader. In this proceeding he was thwarted by Hamilton, who favored his old enemy Jefferson, whom he knew to be honest, rather than Burr, whom he knew to be dishonest.

Long before Burr engaged in his wild undertaking to reenact the part of Napoleon on the Western Continent by making himself emperor of Mexico, Jefferson had learned of his intrigues against him in the presidential election of 1800. Whether this circumstance had any influence on the conduct of the trial is only a matter of conjecture. All that we can say is that Jefferson urged the prosecution with the utmost vigor. He no doubt regarded Burr as a very dangerous man. In a special message sent to Congress on the subject he included an extract from a letter from General Wilkinson. During the course of the trial Burr applied to the court for a subpoena duces tecum, directed to Jefferson, commanding him to bring the letter into court, stating that he had demanded a copy of it in vain. C. J. Marshall, presiding in the court with the district judge, Griffin, granted the prayer of the defendant. Jefferson complained of this act of the court bitterly. He wrote to Hay, the district attorney, that his business as President required his presence at Washington, and that he could not be forced to go to parts of the country as distant as Richmond to testify in the courts.

I have lately seen an address by a distinguished speaker laudatory of Judge Marshall, treating this decision as clearly erroneous. In this conclusion I am unable to agree. The court only gave an order for the production of the paper, and did not require the attendance of the President. The letter did not purport to be a public document; and the refusal to give a copy tended to show that it was not public. The order made was extremely well guarded, leaving the way open for any objections or reservations that the President might make. No one in this country is above the law; and it is an alarming doctrine that if a private paper happens to get into the custody of the President a person accused of

crime may be hanged because it is inaccessible to him and to the

courts.

The result of the proceeding was that the letter was sent to the district attorney, to be held subject to the order of the court. It was then that Burr discovered that he did not want it.

Partisans endeavored to cast blame on Marshall for the acquittal of Burr; but the prosecution for treason broke down completely. However reckless and wicked the enterprise of Burr may have been, there was no pretense that there was any proof of an overt act of treason against the United States. If he had been convicted he would have been a martyr; and he fell far short of deserving such an honor. He was reserved for a worse fate. Though acquitted, the trial showed him to be so worthless and unprincipled, so made up of duplicity, that this man who had come within one vote of filling the seat lately occupied by Washington, became a wanderer and an outcast.

Though I think that in his contest with Marshall and the Supreme Court Jefferson was quite in the wrong, yet that fact hardly detracts from the commanding position that he holds in American history. He failed in other things that were worthy of success. What misfortunes would not have been averted if he had succeeded in his efforts to stifle African slavery in its infancy! He was a man far and away ahead of his age. He alone of the men of his time perceived the true value of popular education, and for that he labored unceasingly. He devised as an inscription for his tomb: "Here was buried Thomas Jefferson, author of the Declaration of Independence, of the Statute of Virginia for Religious Freedom, and Father of the University of Virginia." These were titles enough for fame. Nothing was said about his having been twice elected to the highest office in the gift of the people. Nothing about the Louisiana purchase, which doubled the extent of the territory of his native land; nothing about the exploring expeditions by which he laid the foundation for the acquisition of the Oregon Territory, and opened the gateway to the Pacific. He failed in trying to establish a decimal system of weights and measures, but his hand is seen in our monetary system and in the sur