overthrow the government of a State, was a levying of war? It might be a conspiracy, but it was not treason within the Constitution-and Burr's accomplices were discharged of their high crime. And upon his own memorable trialthat strange scene in which these men, the prisoner and the judge, each so striking in appearance, were confronted, and as people said, "two such pairs of eyes had never looked into one another before "-upon that trial the scales of justice were held with absolutely even hand. No greater display of judicial skill and judicial rectitude was ever witnessed. No more effective dignity ever added weight to judicial language. Outside the court and through the country it was cried that "the people of America demanded a conviction," and within it all the pressure which counsel dared to borrow was exerted to this end. It could hardly be passed by. "That this court dares not usurp power, is most true," began the last lines of Marshall's charge to the jury. "That this court dares not shrink from its duty, is not less true. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace." That counsel should, he said, be impatient at any deliberation of the court, and suspect or fear the operation of motives to which alone they could ascribe that deliberation, was perhaps a frailty incident to human nature, "but if any conduct could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regrets."

The result was acquittal, and as was said by the angry counsel for the Government, "Marshall has stepped in between Burr and death!" Though the disappointment was extreme; though, starting from the level of excited popular feeling, it made its way upward till it reached the dignity of grave dissatisfaction expressed in a President's message to Congress; though the trial led to legislative alteration of the law, the judge was unmoved by criticism, no matter from what quarter, and was content to await the judgment of posterity that never, in all the dark history of State trials, was the law, as then it stood and bound both parties, ever interpreted with more impartiality to the accuser and the accused.

Once only did Marshall enter the field of authorship. Washington had bequeathed all his papers, public and private, to his favorite nephew, who was one of Marshall's associates on the bench. It was agreed between them that Judge Washington should contribute the material and that Marshall should prepare the biography. The bulk of papers was enormous, and Marshall had just taken his seat on the bench and was deep in judicial work. The task was done under severe pressure, and ill health more than once interrupted it; but it was a labor of love, and his whole heart went out toward the subject. His political opponents feared that his strong convictions, which he never concealed, would now be turned to the account of his party, but the writer was as impartial as the judge. He recalled and perpetuated the intrigues and cabals, the disappointments and the griefs which, equally with the successes, were

part of Washington's life; but full justice was done to those men whom both Washington and his biographer distrusted and opposed. It is agreed that for minuteness, impartiality and accuracy, the history is exceeded by none. There were those who said the work was colorless, and others were severe by reason of the absolute truth which became their most absolute punishment, but no one's judgment was as severe as Marshall's own, save only as to its accuracy. Once only was this seriously questioned, and by one of the most distinguished of his opponents, and the result was complete vindication.

It is matter of history that upon Washington's death the House had resolved that a marble monument should be erected in the city of Washington, "so designed as to commemorate the great events of his military and political life." But, as Marshall tells us, "that those great events should be commemorated could not be pleasing to those who had condemned, and continued to condemn, the whole course of his administration." The resolution was postponed in the Senate and never passed, and almost the only tinge of bitterness in his pages is that those who possessed the ascendency over the public sentiment employed their influence "to impress the idea that the only proper monument to a meritorious citizen was that which the people would erect in their affections." This he wrote in 1807 and repeated in 1832, and in the next year the people resolved that this should no longer be. The National Monument Association was then formed, and Marshall was its first president. Under its auspices, and with the aid, long after, of large appropriations by Congress, the gigantic column within our sight is slowly and gradually being reared.

Near the close of his life, when he was seventy-four years old, Marshall was chosen a member of the convention which met, in 1829, to revise the Constitution of his native State. It was a remarkable body. The best men of the State were there. Some of them were among the best men in the country, for then, as always, Virginia had been proud to rear and send forth men whose names were foremost in their country's history. Prominent among them were Madison, Monroe, and Marshall. Even then party spirit ran high. Two questions in particular, the basis of representation and the tenure of judicial office, distracted the convention as they had distracted the people. On both these questions Marshall spoke with his accustomed dignity and not less than his accustomed force, and his words were listened to with reverent respect. Upon the subject of judicial tenure he spoke from his very heart, "with the fervor and almost the authority of an apostle." He knew better than any how a judge, standing between the powerful and the powerless, was bound to deal justice to both, and that to this end his own position should be beyond the reach of anything mortal. "The judicial department,” said he, "comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all. Is it not to the last degree important that he should be rendered perfectly and completely independent, with nothing to control him but God and his conscience?" And his next words were fraught with the wisdom of past ages, let us hope not with prophetic foreboding: "I have always thought, from my earliest youth till now, that the greatest scourge an angry heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary."

Something has here been said of Marshall's inner life in its earlier years, and no man's life was ever more dear to those around him than was his from its be

ginning to its close. His singleness and simplicity of character, his simplicity of living, his love for the young and respect for the old, his deference to women, his courteous bearing, his tender charity, his reluctance to conceive offence and his readiness to forgive it, have become traditions from which in our mem. ories of him we interweave all that we most look up to with all that we take most nearly to our hearts.

As the evening of life cast its long shadows before him, the labor and sorrow that come with four score years were not allowed to pass him by. Great physical suffering came to him; the hours not absorbed in work brought to him memories of her whose life had been one with his for fifty years. The "great simple heart, too brave to be ashamed of tears," was too brave not to confess that rarely did he go through a night without shedding them for her. No outward trace of this betrayed itself, but lest some part of it should, all unconsciously to himself, impair his mental force, he begged those nearest to him to tell him in plain words when any signs of failing should appear. But the steady light within burned brightly to the last, however waning might be his mortal strength. He met his end, not at his home, but surrounded by those most dear to him. As it drew near he wrote the simple inscription to be placed upon his grave. His parentage, his marriage, with his birth and death, were all he wished it to contain. And as the long summer day faded, the life of this great and good man went out, and in the words of his church's liturgy, he was "gathered to his fathers, having the testimony of a good conscience, in the communion of the catholic church, in the confidence of a certain faith, in the comfort of a reasonable, religious, and holy hope, in favor with God, and in perfect charity with the world."

And for what in his life he did for us, let there be lasting memory. He and the men of his time have passed away: other generations have succeeded them; other phases of our country's growth have come and gone; other trials, greater a hundred fold than he or they could possibly have imagined, have jeoparded the nation's life; but still that which they wrought remains to us, secured by the same means, enforced by the same authority, dearer far for all that is past, and holding together a great, a united and a happy people. And all largely because he whose figure is now before us has, above and beyond all others, taught the people of the United States, in words of absolute authority, what was the Constitution which they ordained, "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity."

Wherefore with all gratitude, with fitting ceremony and circumstance; in the presence of the highest in the land; in the presence of those who make, of those who execute, and of those who interpret the law; in the presence of those descendants in whose veins flows Marshall's blood, have the Bar and the Congress of the United States here set up this semblance of his living form, in perpetual memory of the honor, the reverence, and the love which the people of his country bear to the great Chief Justice.

The ceremonies were concluded with a benediction by the Rev. Dr. J. G. Armstrong.

III.

FLINT AND PÈRE MARQUETTE RAILROAD COM

PANY v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

Submitted December 8, 1884.-Decided January 5, 1885.

This was an appeal from the Court of Claims. The facts are stated in the opinion of the court.

Mr. J. F. Farnsworth for appellant.

Mr. Solicitor-General for appellee.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

In this case the appellant sued in the Court of Claims to recover $14,394.71, alleged to have been earned by the Flint and Père Marquette Railroad Company under a contract for postal service, and which the Postmaster-General had withheld, as a reduction of compensation under the Post Office Appropriation Act of July 12, 1876, and that of June 17, 1878.

The appellant is a corporation, organized under the laws of Michigan by the purchasers at a judicial sale of the railroad property and franchises of the Flint and Père Marquette Railroad Company, under proceedings to foreclose mortgages which expressly conveyed to the mortgagees all choses in action and all claims and demands whatsoever, including claims against the United States. The sale undoubtedly passed the interest and title of the mortgagor to the claim sued on, if that was capable in law of being assigned.

As it has just been decided in the case of the St. Paul and Duluth Railroad Company that the assignment and transfer of such a claim was rendered void as against the United States by Rev. Stat. § 3477, the appellant had no title to the claim sued on, which it could enforce in the Court of Claims.

The judgment of that court is accordingly

Affirmed.

INDEX.

ADMIRALTY.

See COLLISION.

ADMISSIONS.

See EVIDENCE, 5, 6.

AGREED STATEMENT.

See PRACTICE, 7.

APPEAL.

See HABEAS CORPUS, 2.

APPEAL BOND.

1. It is within the discretion of a Circuit Court to take an appeal bond

.

in which each surety is severally bound for only a specified part of

the obligation. N. O. Insurance Co. v. Albro, 506.

2. The omission in an appeal bond, to mention the term at which the judgment was rendered, is not fatal; but may be cured. Ib.

ARMY.

See LONGEVITY PAY;

OFFICERS OF THE ARMY AND NAVY.

ARREST OF JUDGMENT.

A motion in arrest of judgment can only be maintained for a defect ap

parent upon the

for this purpose.

record, and the evidence is no part of the record Bond v. Dustin, 604.

See JURISDICTION, A, 11.