by experiment. There can be no more conclusive reply to the refinements of sophistry and the ingenuity of cavil, which have been employed against it, than that which is furnished by a history of the past. To each and every objector we use one common language, inspect and examine the operation and results of the Eastern Penitentiary.

ART. X.-CHIEF JUSTICE MARSHALL.

1.-An Eulogy on the Life and Character of JOHN MARSHALL, Chief Justice of the Supreme Court of the United States. Delivered at the request of the Councils of Philadelphia, on the 24th September, 1835. By HORACE BINNEY. Philadelphia: 1835. 2.-A Discourse upon the Life, Character, and Services of THE HONOURABLE JOHN MARSHALL, LL. D., Chief Justice of the United States of America, pronounced on the 15th day of October, at the request of the Suffolk Bur, by JOSEPH STORY, LL. D., and published at their request. Boston: 1835.

THE spectacle of large multitudes of men offering their homage of reverence for those among them who have become eminent for virtue and talents, fills the mind with various emotions. It is delightful to witness public demonstrations of respect for qualities which we ourselves love and admire. They appear to testify a general appreciation of the excellence and importance of those qualities, and afford ground for hope that the blessings which they create and diffuse will be continued. Amid the solemnities of the scene, while listening to the eloquent sentences which describe the exalted character and important services of a good and great man who has departed, we forget how few there are of the nation upon which he has perhaps conferred inestimable benefits, who can properly understand his character, or fairly value the results of his exertions. Carried away by the excitement of the occasion, we imagine for a moment that the great body of the people think and feel as the attentive audience of which we form a part;-not reflecting on the vast multitude of those who know nothing of the object of our regard, except perhaps his name, and that of the office which he filled.

The mass of men are influenced only by the external and the mechanical. They are governed by images presented to the senses, not by truths addressed to the reason; and admire those qualities which operate immediately upon matter-the action and effect of which they can see and feel, rather than those superior attributes of the mind which deal with the spiritual and immate

rial, and the objects of whose exertion are abstract truths, and moral relations, which the million are for the most part unable to comprehend. So powerful is the charm of those qualities which excite the passions and affect the imagination, that they attract almost equal applause whether they be exerted for good or for evil. The man who benefits or who injures his fellow-citizens by a successful battle, is long the idol of the multitude; he who gains for them a more important, but bloodless victory, by the force of reason, is known and remembered only by the few, who can understand the nature and appreciate the difficulty of his labours. The conquering leader, whose genius, whose courage, or whose fortune, has won the freedom or rivetted the chains of his country, amid all the "pride, pomp and circumstance of glorious war," is worshipped with love and reverence by succeeding millions. The hurrah and the applause are all for the hero; whilst the sage and statesman, whose clear and profound intellect,-whose deep knowledge of the nature of man, the exigencies of society, and the history of the past, have enabled him to construct a government and establish laws, the effect of which is the protection and security of the liberty, peace and happiness of unborn generations-is by the mass scarcely appreciated or honoured in his own, and not remembered after it. His fellow citizens enjoy the prosperity, the plenty, and the social order which are the results of his labours, just as the generality of men enjoy the light of the sun, and the fruits of the earth, thoughtlessly-thanklessly-ignorant in each case of the source of their blessings, and of the nature and operation of those causes which have produced so majestic a scene of happiness and beauty.

Another reflection which naturally arises on witnessing solemnities in honour of the illustrious dead is, that those solemnities are themselves a proof of the rarity of the qualities which they are intended to commemorate. Men do not testify admiration for that which they often see, and of the millions who have died, how few there are whose life or whose death have been distinguished by the notice of their fellows, and of those few, how small a number have possessed in their full measure the noblest attributes of our nature. If a generation produces one man of great wisdom and virtue, it is fortunate. He is sufficient to adorn and illustrate the age, and the steady light of his genius marks and distinguishes it forever after. The great mass of those among whom he lived and moved, with their little interests and petty pursuits, disappear and are forgotten, whilst the truths which he discovered the principles which he established and the institutions which he created or improved, remain to influence the condition of men through the lapse of centuries.

And what are those qualities which thus make a man a blessing to the world and set him apart from his fellows, as a being

of a different nature? Principally the power to perceive truth and the desire to do good; qualities which may not at first sight, strike all as being very astonishing or remarkable. Yet none are more rare. It is their union which forms the wise and virtuous man, and when we reflect that all the crime and misery and degradation in the world are produced by the adoption of error and the indulgence of evil passions-we learn to revere wisdom and to love virtue.

In the carly stages of society-whilst the minds of men are solely occupied in providing the means of subsistence, in repelling or in making aggression, courage and skill in war are the only virtues required, and the only ones which obtain respect. The higher qualities of mind have no opportunity for development or stimulus for exertion. But as a nation becomes more populous and secure,-as property increases and the relations of men are multiplied, a complicated system of laws and government becomes necessary. Objects are afforded for the exercise of reason, and those who are exempt from the necessity of daily toil, begin to feel the impulses of taste-the desire for knowledge-and the enjoyments of intellectual exertion. Superior excellence becomes difficult and rare, because in the advancement of society the standard of excellence becomes more exalted, and to reach it, requires a union of qualities which nature has bestowed with a penurious hand. Thus it is that whilst history records the names of a countless throng of heroes and warriors-how small is the number of philosophers and poets: of those who have enlarged the bounds of human knowledge, discovered truth, promoted the happiness of society, or attempted to elevate and refine the sentiments and desires of man.

It is some consolation to reflect, that if civilization, which multiplies so greatly the wants, the pursuits and relations of men, requires for its further progress, the constant exercise in important stations of the highest powers of human nature,-its effect is to develop and bring forth those powers, wherever they exist, into active usefulness. The demand produces the supply. Statesmen and philosophers and lawyers are found, not in ages of barbarism and poverty, but are the growth of wealth and security. They conduct that portion of the business of a community which regulates and governs all the rest, and the proper performance of such duties requires mental endowments of the highest order, strengthened and sharpened by exercise and cultivation. Very few men out of a generation are so gifted, and the administration of government and the conduct of public affairs, are of necessity, for the most part, committed to the hands of mediocrity. Nothing indeed is more rare than a union of all the great qualities necessary for the discharge of important public duties in a community far advanced in wealth and refinement. Even where the nation is lucky enough

to possess men so accomplished, such is the blindness and perverseness of human nature, that it is still an accident if they are permitted to exercise their powers in a proper sphere; and Providence can scarcely bestow upon a people a more valuable blessing, than a man who brings to a station of extensive and permanent influence, all the qualities necessary for the perfect performance of its duties.

Among the various offices which the affairs of a free, populous, and wealthy nation, governed by a complicated system of law requires-we should select that of a judge as demanding a rarer combination of excellence than any other. It is his province to administer the principles of an abstruse and difficult science, the acquisition of which requires long and laborious study-and the application, powers and qualities of a rare and peculiar nature. He must be wise, learned, and virtuous. His judgment must be calm and rapid, his knowledge various and profound, his manners dignified and courteous, his temper firm and mild, his integrity unimpeached and unimpeachable.

"The higher judicial offices of our country," says Mr. Binney in his Eulogium on Chief Justice Tilghman, "are posts of great distinction, and they owe it to their attendant exertion and responsibility. They put in requisition the noblest faculties of the mind, the finest properties of the temper, and not unfrequently they task to the utmost the vigour of an unbroken constitution. Very few, if any of their duties are mechanical. There is no routine by which their business is employed without the expenditure of thought. The cases which come before a judge are new either in principle or in circumstance; and not seldom the facts which ask for the application of different principles, are in the same cause, nearly in equipoise. There is consequently an interminable call upon the judge to compare, discriminate, weigh, adopt, reject, in fine to bring into intense exercise his whole understanding. Where the profession is candid and well-instructed, nothing that is obvious, and little that can be made so without deep consideration, is referred to the decision of the judges. For them the universal intelligence of the world is at work, to complicate the contracts and duties of men. For them are reserved those Gordian knots, which though others may cut, they must at least appear to untie. Every judgment is made under great responsibility to the science;-it must be a rule for the future as well as for the past. It is made under an equal responsibility to the partics;-the judge is the defaulter when through his means the defaulter escapes. It is under a higher responsibility to heaven;-the malediction of an unjust sentence is heavier upon him that gives, than upon him that receives it."

Such are the difficulties incident to the administration of justice in our state courts. The duties of Chief Justice of the United States, so complicated is our system of government and law, are more arduous and more varied, and task to the utmost the noblest powers of the mind. They are well described by Judge Story in the Discourse of which we have placed the title at the head of this article.

"The Chief Justiceship of the United States is a station full of perplexing duties, and delicate responsibilities, and requiring qualities so various, as well as so high, that no man, conscious of human infirmity, can fail to approach it with extreme diffidence and distrust of his own competency. It is the very post, where weakness, and ignorance, and timidity, must instantly betray themselves, and sink to

their natural level. It is difficult even for the profession at large fully to appreciate the extent of the labours, the various attainments, the consummate learning, and the exquisite combination of moral qualities, which are demanded to fill it worthily. It has hitherto been occupied only by the highest class of minds, which had been trained and disciplined by a long course of public and professional service for its functions. Jay, Ellsworth, and Marshall, have been the incumbents for the whole period since the adoption of the Constitution; and their extraordinary endowments have in a great measure concealed from the public gaze the dangers and the diffi culties of this dazzling vocation.

“There is nothing in the jurisprudence of the States, which affords any parallel or measure of the labours of the National Courts. The jurisprudence of each State is homogeneous in its materials. It deals with institutions of a uniform character. It discusses questions of a nature familiar to the thoughts and employments of the whole profession. The learned advocate, who finds himself transferred, by public favour or superior ability, from the state bar to the state bench, finds the duties neither new, nor embarrassing in their elements or details. He passes over ground, where the pathways are known and measured; and he finds pleasure in retracing their windings and their passages. He may exclaim with the poet, Juvat iterare labores; and he indulges a safe and generous confidence in his own juridical attainments.

"How different is the case in the National Courts! With whatever affluence of learning a Judge may come there, he finds himself at once in a scene full of distressing novelties and varieties of thought. Instead of the jurisprudence of a single State, in which he has been educated and trained, he is at once plunged into the jurisprudence of twenty-four States, essentially differing in habits, laws, institutions, and principles of decision. He is compelled to become a student of doctrines, to which he has hitherto been an entire stranger; and the very language, in which those doctrines are sometimes expressed, is in the truest sense to him an unknown tongue. The words seem to belong to the dialect of his native language; but other meanings are attached to them, either so new, or so qualified, that he is embarrassed at every step of his progress. Nay; he is required in some measure to forget in one cause, what he has learned in another, from its inapplicability or local impropriety; and new statutes, perpetually accumulating on every side, seem to snatch from his grasp the principles of local law, at the moment, when he is beginning to congratulate himself upon the possession of them. Independent of this complicated intermixture of State Jurisprudence, he is compelled to master the whole extent of Admiralty and Prize Law; the public and private Law of Nations; and the varieties of English and American Equity Jurisprudence. To these confessedly Herculean labours he must now add some reasonable knowledge of the Civil Law, and of the Jurisprudence of France and Spain, as they break upon him from the sunny regions of the farthest South. Nor is this all; (though much of what has been already stated must be new to his thoughts) he must gather up the positive regulations of the statutes and treaties of the National Government, and the silent and implied results of its sovereignty and action. He must finally expand his studies to that most important branch of National Jurisprudence, the exposition of constitutional law, demanding, as it does, a comprehensiveness of thought, a calmness of judgment, and a diligence of research, (not to speak of other qualities,) which cannot be contemplated without the most anxious apprehensions of failure. When these various duties are considered, it is scarcely too much to say, that they present the same discouraging aspect of the National Jurisprudence, which Sir Henry Spelman has so feelingly proclaimed of the municipal jurisprudence of England, in his day;Molem, non ingentem solum, sed perpetuis humeris sustinendam.

"These, however, are but a part of the qualifications required of the man who holds the office of Chief Justice. He must also possess other rare accomplishments, which are required of one, who, as the Head of the Court, is to preside over its public deliberations, and its private confidential conferences. Patience, moderation, candour, urbanity, quickness of perception, dignity of deportment, gentleness of manners, genius, which commands respect, and learning, which justifies confidence;―These seem indispensable qualifications to fill up the outlines of the character."