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Lexington, Nov. 13th, 1836.
TO THE HON. GEORGE ROBERTSON,
SIR, We have the honor of expressing the thanks of the Law Class, for the very able and appropriate Introductory Lecture delivered by you in the Chapel of the University, on the 12th inst., and of requesting a copy of the same for publication.
Having shared the high gratification of hearing your Lecture, we take great pleasure, in pursuance of their desire, in making this application. We have the honor to be, with the highest consideration,
THOS. A. MARSHALL, Jr.
A. J. LAFON,
CALEB M. MATHEWS.
Lexington, Nov. 13th, 1836.
GENTLEMEN,--As my late Introductory Lecture was intended for the benefit of the Law Class of Transylvania, it is at their disposal; and I am pleased to learn from your polite note of the 13th inst., that it was deemed satisfactory.
Accept for yourselves and for the class my acknowledgments, for such a testimony of approbation, and an assurance of the perfect good will of Your and their friend,
Messrs. Marshall, Titus, Lafon, and Mathews.
HAVING, in our last Introductory Lecture,, per time and in a becoming manner, to a regiven a very general analysis of the nature of storation and firm establishment of their long LAW, and comprehensive classification of its lost privileges. As long as this tower shall elements, we shall, in this address, attempt a stand and this flag shall still wave-civil and more particular consideration of the most in- and religious liberty, with all their countless teresting branch of American Jurisprudence blessings, are sure and safe. But let the the political organization of the North American bulwark sink and the American American Union. This, also, being limited emblem fall-and with them must perish for by the occasion, will necessarily be summary a time, if not forever, the dearest rights and and imperfect, and will, therefore, only em- most cherished temporal hopes of christian or brace an outline of a circumstribed view of the civilized man. Civil and religious liberty are origin and nature of the Federal Constitution, indissolubly associated. One connot exist seand of the only means of preserving unim-curely, if at all, without the guardian compaired, and of rendering most effectual, the panionship of the other. peculiar fundamental institutions of our common and much distinguished country.
Until both shall universally prevail, man can never attain his proper rank in the scale The lapse of the last eighteen hundred and of being, or his ultimate destiny upon earth. thirty-six years, has not been marked by an And looking, with either a christian or philoevent more interesting to mankind, than the sophic eye, on the progress of events for ages adoption of their national constitution by the past, we have some reason for cherishing the people of the North American States. The hope that our favored land is the preparatory affairs of men, like the phenomena of the theatre, and our civil institutions the initial physical world, being controlled by instru- means intended by an overruling Providence mentalities progressively developed in the on- for establishing, in all time to come, and for ward course of an immutable Providence, en-extending throughout the world, human liberlightened philanthropy looks back on the ty, human happiness, and human glory. The Lutheran Reformation-the invention of the union and harmony of these confederate States, Printing Press-the discovery of the Magnet's and the consequent prevalence of the federal polarity-the transatlantic voyage of Colum-constitution, are indespensable to the enjoy bus-the discovery of America-its coloniza-ment and security of our liberty and peace. tion-the persecutions which contributed to its For both reason and history proclaim, as an civilization—and the civil Revolution of "76," axiomatic truth, the political aphorism of our which liberated its northern half from the do- whole country:-"UNITED we stand--DIminion of European priests and monarchists--VIDED we fall!" not only as among the causes, pre-ordained It is under the influence of such sentiments by a wise and benignant God, for the regener- and such prospects, that we feel, in all its ation of man, but as pioneers appointed by magnitude, the peculiar great comparative imHeaven for leading the way to the Ark of civ-portance to mankind of the rare and signal il and religious liberty, constructed by the event of adopting the Constitution of the Unipeople of these States, in 1788, for themselves, ted States. and, as we hope, for all posterity. If this The discovery of America was among the last and best experiment for the consolidation most memorable of human events, not beof human rights, and the exaltation of human cause it opened a new theatre for commercial destiny, made and still progressing in an age enterprise and for the exquisition of fortune and in a land most propitious to success, shall, and of fame, but chiefly because it has led to like all that have gone before it at last fail, other and consequential events already most the cause of Democracy must be discredited interesting, wonderful and ennobling: and, of and degraded in the opinion of mankind. But these, the federal constitution of '88 is not the the simple fact that such an experiment has least important. Without this our Declarabeen tried in such a country and at such ation of Independehee, and the glorious Revtime, and has so far succeeded, stands beforeolution which succeeded it, might, like similar the admiring world a pyramid of strength to agents in fanatical France, have been deluthe friends of equal rights; and the spangled banner of our Union, though waving yet alone on its peerless top, encourages all men, of every country and clime, to aspire, at a pro
sive, and have prepared our beloved country, first for the wild fury of anarchy and vice, and next for a domestic crown and tyrant chains forged by the ambition of some vene
rated Chieftain or loving demagogue, and supreme national sovereignty even to the exrivetted by the perverted passions of his de- tremity of delegating, at one time, to General luded victims. Our colonial fathers of the Washington, dictatorial power-and the peorevolution, not contemplating ablolute inde-ple of all the States, having confided plenary pendence, but intending only to maintain their power, not only acquiesced, but never, in any right, according to the British constitution, to instance, claimed a right to control the authorexemption from parliamentary taxation with-ity of the common head, nor ever arrogated a out parliamentary representation, and to re-right to secede or to make a separate peace. sist the pretension of Great Britain to supre-But jealous, as well of central as of foreign macy over them in all cases whatsoever at-power, and sensible of the importance of detempted to be enforced by the stamp act and fining and limiting federal authority, the peotea duty,-instituted a Congress of representa-ple finally adopted the Articles of Confederatives from twelve of the then thirteen colon- tion which had been prepared, principally by ies, for consulting about the common welfare. B. Franklin, as early as 1775, but were not That Council, called "the Delegates appoint-unanimously ratified until the year 1781. That ed by the good people," and emanating of form of association was also the offspring of course, virtually, though not in every instance, the popular will-for, although it was approv directly and in form, from the popular will, fed, in form, by the respective State Legislamet, for the first time, in the city of Philadel-tures, it derived all its authority from the phia, on the 4th of September, 1774, and ex-sanction of the people-because their repreercised supreme authority, in the name, and sentatives only acted out their will and had no for the benefit, of all the people of all those power to bind them without their consent. colonies, and not in the name, nor in the be- But the Articles of Confederation were, in half, of the colonial governments. Pursuant effect, as well as in terms, nothing more than to the recommendation of that assembly, aa treaty between States, each claiming to be Congress of delegates chosen by the people of free and altogether independent. Though it the thirteen United States, as the former col-stipulated that each State and the people of onies were then for the first time called, and cach State should be bound by the authorized entrusted by their constituents with more def- acts of the federal Congress, in which each inite powers of sovereignty, convened at the State, large or small, had one and but one same place, in "Carpenter's Hall," in May, vote,-yet it not only conceded power totally 1775; and proceeded to prepare for a defen- inadequate to the purpose of a superintending sive war; and, on the 4th of July, 1776, and controlling public authority, and declared adopted the Declaration of Independence in that the Congress should possess no other or the name, and by the authority, of "the peo-greater power than that which was expressly ple of the United States," and not in the name granted-but it neither created nor delegated nor by the authority of the colonial govern-any one of the essential faculties of governments. It was to put down those governments ment-Congress might, to a very circumscriband to substitute others according to their own ed extent advise, recommend, declare, urge will, that the people of all the thirteen colo- and entreat-but it could, by its own means nies united and announced, as their joint act, or its own power, enforce nothing. All its the equa rights of man and their determina- acts were addressed to the Confederate States, tion to maintain for themselves, to the utter- as independent and absolute sovereigns-they most, all the privileges of independence and were not addressed to nor could they directly self-government. They alone had a right to operate upon the individual people or any one make that announcement-it was made by citizen of any one of the States. And the them and for them alone, and for all equally federal functionaries had neither judicial nor and in common,-and was nobly maintained executive authority--each of which is indesby them, under the panoply of approving pensable to the existence and the idea of sovHeaven and the standard of their own union,ereignty or government.
in the same cause and for the same end. The Government is the body of constituted pubDeclaration of Independence was, therefore, lic authority possessing the right and the pow not only a popular, but a national act-theer to govern. To govern necessarily inel..des Revolutionary war was equally national-it not only the right to prescribe the rule, but was carried on under the auspices of the con- the authority and power also to enforce it. tinental Congress until 1781, when the arti- Without both attributes, there is, in fact, no cles of confederation were adopted by the 13th regular or established government. To anState, Maryland-and the Treaty of 1783 was nounce the public will and compel the obser made with the United States, as one nation, vance of it are the functions of government. and acknowledged their independence, as one The public will cannot be LAW unless the United Republic. In the mean time each body politic, whose will it is, has a right to State had, for itself, established a distinct enforce it, against the resisting will of any government for purposes altogether local. But citizen, or of any constituent part of the ag the general Congress regulated all affairs gregate community. And, consequently, as common to all as one struggling and united the articles of Confederation delegated none community. This national council exercised of the officient faculties of government, the
The confederate Congress had power to declare war, but none to carry it on-power to make treaties, but none to secure the observance of them-power to appoint ambassadors
Union which they contemplated was altogether which, when it occurred, was, in itself, a federal, depending on the will of each State grievous evil. For had not the confederation for its duration and harmony, and destitute of been altogether nerveless, our present constiany cement or inherent conservative principle tution may never have been adopted; and the or power whatsoever. Such a union-if union ultimate and probably not remote consequenit could be called-could not long exist-and ces would have been disastrous. But the palcould not exist at all in peace and concord.pable and total inadequacy of an ideal govThe emphatic history of the short-lived con- ernment enabled the enlightened and disinterfederacy of the States furnishes abundant and ested patriots of that day of gloom and desmelancholy proof of this truth, in itself al-pair to urge, just before it was too late, most self-evident. successful appeals to the understandings of a As man, however pure and wise, is very majority of their countrymen of the thirteen fallible, and as "the heart of man is deceitful confederate States, in favor of the absolute above all things and desperately wicked," it necessity of adopting a common Government, is necessary to his own welfare, no less than armed with authority sufficient for preserving to the peace and security of his fellow men, union and domestic order, and for maintaining that he should be subject to civil rule and co- the external rights of all the States and of ercion. And the uncontrollable self-will of all the people, as one undivided nation. And sovereign States is as incompatible with the hence that, which was cause of mortification effectiveness and durability of a federal union and alarm to our predecessors, may be ground instituted for the common welfare of the of joy and gratitude to us. whole, as the natural independence of individual man is, to the prosperity, security, or even existence of a society of men organized for the benefit of each and all. In each case and as much in one as in the other, the common will and the common interest must pre- and other diplomatic agents, but none to pay vail, and the whole must possess sufficient pow-them one farthing; and to borrow money, but In fine, power to er to control every part-and consequently, none to ensure payment. the law of the whole must be the paramount say, but none to act-a right to declare much, law for each constituent member. Were not but no authority to do any thing. And, therethis self-evident, we might find apposite and fore, even the treaty acknowledging their inunanswerable illustrations of its truth in the dependence was not executed by all the history of all mere confederations among sov- States; and Congress, though it made the ereigns-and especially in that of the Amphyc-treaty, had no power to compel the fulfilment tionic Council-the Achaean League, which of its stipulations-because nothing that fedapproximated more nearly the character of eral authority recommended could be enforced practical government-the Helvetic, the Ger- without the intervention and sanction of evmanic, and the Belgic Confederacies, also ex-ery sovereign State; and whenever any such hibiting the semblance of political power-recommendation was effectuated, it was done and more especially also, our own Articles of by state and not by federal power. If this be Confederation, which only delineated the shad-government it is that kind only which may be ow of a helpless body, without power, sub-imagined to exist when every citizen of every stance or life. State shall, in every instance, think rightly No dispassionate and enlightened man, can and act rightly, without the fear or coercion contemplate the annals of our confederation of civil Law; and then no government will be from 1783 to 1788, without feeling a thorough necessary, or can exist otherwise than theconviction that, had not a more vital and effi-oretically and passively.
cient system been substituted for the Articles The necessity of essential renovation and of Confederation, consolidation or dissolution, even radical re-edification was seen and felt and consequent despotism, in some of its hydra by WASHINGTON and his compatriotsforms, would have speedily and certainly fol- and the following sentiments from his hallowlowed the imbecility, anarchy, jealousy, colli-ed and oracular pen were also theirs:-"It is sions, and distrusts, which characterized that indispensable to the happiness of the individshort, but most awful and eventful period ual States that there should be lodged somewhich intervened the Treaty of Independence where, a supreme power to regulate and and the adoption of the Federal Constitution. And our own warning his tory portrays, in no false colors, the necessary effects of a natural cause--the lifelessness of the confederation, without an inherent spark of vitality or principle of cohesion.
govern the general concerns of the confederate republic, without which the union cannot be of long duration." "Whatever measures have a tendency to dissolve the Union, or contribute to violate, or lessen the sovereign authority, ought to be considered hostile to the liberty And here we have another and striking ex- and independence of America, and the authors emplification of the aphorism that, in the in-of them treated accordingly." And for the scrutable dispensations of Providence, the purpose of preserving the liberty of the States, greatest good not unfrequently arises from that, he recommended, as indispensable,-"An in
dissoluble union of the States under one fed-jarmed with power in the highest political sense, eral HEAD.
and co-extensive with the objects and interests of the Union. And, in answer to an enquiry by one member, and an objection by another, he and several other members made concurrent explanations, such as the following: Governeur Morris explained the distinction between a Federal Union and a National Supreme Government-"the former being a mere compact, resting on the good faith of the parties-the latter having a complete and compulsive operation. He contended that, in all commuuities there must be one supreme power, and one only."
against delinquent States, but argued very cogently "that punishment could not, in the nsture of things, be executed on the States collectively; and that therefore such a Government was necessary as could directly operate on individuals."
As early as 1781, Pelatiah Webster, in an able pamphlet, demonstrated the insufficiency of the articles of confederation, and suggested a Continental Convention for improving the instrument of Union. In 1782 Alexander Hamilton urged the same thing, with objects rather more explicit. In 1784, Noah Webster, in one of his miscellaneous publications, proposed the adoption of "a new system of government, which should act, not on the States, but directly on individuals, and vest in Congress full power to carry its laws into effect." So far as we know this was the first And George Mason, of Virginia, observed, proposition for a sepreme national government not only that the confederation was deficient -a constitution of national sovereignty in- in not providing for coercion and punishment stead of a league among sovereigns. But often afterwards many illustrious citizens urged the same thing. In April 1787, James Madison, in a letter to Edmond Randolph said: "I hold it for a fundamental point that an individual independence of the States is utterly irreconcilable with the idea of an aggregate sovereignty. I think, at the same time, that a consolidation of the States into one simple republic is not less unattainable than it would be inexpedient. Let it be tried then whether any middle ground can be taken which will at once support a due supremacy of the national authority, and leave in force the The confederate Congress having, without local authorities, so far as they can be subor- success, urged the States to delegate to it dinately useful. Let the National Government some power over the regulation of external be armed with positive and complete authority commerce-without some unity and uniformin all cases where uniform measures are nec-ity in which there could be no union long-the essary, as in trade, &c., &c." This was, Legislature of Virginia, in January 1786, at probably, the first recorded proposal of a the instance of James Madison, appointed Constitution of a General Government, na- commissioners to meet similar representatives tional and supreme as to all national interests and federal also with local supremacy in the States to the extent of concerns exclusively affecting each State seperately and alone.
Upon such explanations and arguments this Virginia programme was adopted by an almost unanimous vote-Connecticut alone voting against it! And the Constitution, as adopted, is but a proper amplification and wise organization of the principle thus planted as the vital germ.
to be appointed in other States, in compliance with a request previously made by that ancient Commonwealth-with authority to confer respecting the propriety of adopting some As soon as the Federal Convention was uniform system of commercial regulation. organized, Edmund Randolph, as the selected And accordingly commissioners from New organ of the Virginia delegation, submitted York, New Jersey, Pennsylvania, Delaware, the following as the foundation on which the and Virginia, met at Annapolis in September, Convention should build: 1786-and recommended a convention of re"1. That a union of the States merely Fed-presentatives of all the States in Philadelphia, eral will not accomplish the objects proposed in May, 1787-"to devise such further provisby the Articles of Confederation,-namely, ions as shall appear to them necessary to rencommon defence, security of liberty, and gen-der the Constitution of the federal governeral welfare. ment adequate to the exigencies of the Union." "2. That no treaty or treaties among the At the time thus designated, the representawhole or part of the States, as individual sov-tives of twelve States-Rhode Island declincreignties, would be sufficient. ing-assembled in Philadelphia, and, after
3. That a National Government ought much difficulty and mutual concession, agreed, to be established, consisting of a supreme on the 17th of September 1787, to recommend Legislative, Executive, and Judiciary." the adoption of the present constitution, to
For himself, his colleagues, and his State,"be laid before the United States in Congress he made an able speech explaining their pur-assembled" and afterwards to be submitted to poses, and vindicating the necessity of a a convention of Delegates chosen in each Government, in lieu of a League-a Nationa! | State by the people thereof, under a recomGovernment operating supremely on every mendation of their Legislature for their assent citizen of the United States, instead of a confederation of State sovereignties, without any common sovereignty over them-a Government
and ratification." And the People in Convention, as the only true sovereigns, who had a right thus to act, did ratify it, and thereby im