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a co-equal party to the Constitution, has the right to decide on the Constitution for itself, and that the general government has no such ultimate right. And, consequently, he must have intended to say, as he did undoubtedly say in effect, that each State had, under the Constitution, and according to the Constitution, the asserted rights; and which is nothing more or less than the absurdity that a State can, at the same time, be a party to the Constitution, and above the Constitution-in the Union and out of the Union: a suicidal solicism that Kentucky would now be the last to admit and the first to


Considering, in the spirit either of political philosophy, or of wise statesmanship, the structure of our national and local governments-the history of their progress-the dependence of the former on the latter-the influence of local sympathies and attachments the responsibility of the national functionaries | to the people of the States, and the irresponsibility of the State functionaries to the authorities of the Union-there can be but little doubt that the father of his country was right when he declared that there was more danger of disunion than of consolidation-that there is more of centrifugal tendency in the States than of centripital attraction in the Genera! Government. And does not our political history, and especially the recent portion of it, almost demonstrate the prophetic wisdom of that opinion?

To prevent the catastrophe of a dissolution, by secession, or nullification, it is necessary that all the powers of the general government should be recognized, and faithfully and fully maintained. Such a national and patriotic course, characterized by a becoming spirit of mutual moderation and forbearance in the exercise of conflicting powers claimed by the States and the General Government, and a prudent abstinence, by each, from the exercise of such power as may be seriously doubted, may long preserve our union and liberty, and peacefully advance our beloved country in its career of substantial prosperity and true glory.

influence and foreign politics are taking root in the virgin soil of American Republics. The old world, oppressed with the incubus of a restless and starving population, is striving to empty itself on the new-and many of our politicians invite the disgorgement and claim, for the parvenues of all grades, the privilege of ruling the children of the American stock of patriots and statesmen, who achieved our independence, founded our institutions, and consolidated our liberties: The federal, against the national principle is revived and boldly challenges popular favor-and reckless propagandism, abolitionism, freesoilism, nullification, and secession, seem to have grounded their arms only, as many fear, to embrace each other and prepare for a fraternal crusade against the peace and integrity of the Union. If there ever was a time which called, in tones of thunder, for the proclamation of true American principles, invoking, by the memory of the past. and the perils of the present, and the hopes of the future, the manly patriotism of every true-hearted Ameriean citizen, that time is NOW. On you, and such as you promise to be, mainly rest the destinies of our heavenblessed land. Search for the truth-learn your duties to country and posterity, and act like men knowing their rights and determined to maintain them-conscious of their duty, and resolved to perform it to the uttermost.

For your more perfect

In a former introductory, I endeavored to establish the fundamental principle and object of the Constitution of the United States, and to expose, as palpably inconsistent with both. the doctrines of nullification and secession. In this inaugural address, it has been my purpose to present to you, a comprenhensive outline of the powers of the government of the Union, and, incidentally, to add further illustrations of the principles vindicated in that other address. satisfaction and assurance, on these vital topics, I recommend to your careful consideration, the far more authoritative facts and arguments to be found in the "Madison Papers" -the "Letters of Publius"-the judicial expositions of the Constitution by the Supreme Our organic institutions have survived many Court of the United States, whilst John Martrials of their purity and strength. They shall was Chief Justice; and, above all, have been saved by the heroic patriotism of the history of the model administration of the such men as Washington, and Clay, and first and model President of the United States Webster, and Cass, and Foote. But the signs-the true exemplar of a wise and faithful of the times portend an approaching crisis President of a Constitutional Republic—“the more decisive of their fate, than any Father of his Country"-GEORGE WASHthrough which thay yet have passed. Foreign INGTON.


LEXINGTON, KY., November 20, 1854.

JUDGE ROBERTSON-Dear Sir: The Law Class of Transylvania University respectfully solicit a copy of your Introductory Address, of the 9th inst., for publication. WELLLINGTON HARLAN, ROBERT C. FLOURNOY,


LEXINGTON, KY., November 21, 1854.

GENTLEMEN: Our last Introductory Lecture was not prepared for any other publication than that of its delivery in your presence. But, in deference to your expressed wishes in behalf of the Law Class, I surrender it to you to be disposed of as you may think best.

Yours, respectfully,

Messrs. HARLAN and FLOURNOY, Committee.





Inaugural addresses in the Law Department and, guided by its light, as their pole-star, of Transylvania are intended to be introducto-they framed the constitution of the American ry to the didatic course of the succeeding ses-Union on principles of practical wisdom as sion. Our subject on the present occasion is well as the dictates of universal benevolence. therefore jurisprudential, or political rather; This, an analysis of their great work will and we fear that it will not be attractive to abundantly prove. many, and especially to the fair of our audit


Our declaration of Independence recognises and proclaims the great phenominal truth that No branch of American Jurisprudence is so all American citizens are entitled to equal poimportant, or is, therefore, so interesting to litical privileges, and that any just govern every citizen of the United States as our or- ment among them must be instituted by themganic institutions-all, whether social or civil, selves, as co-equals, and solely for the benefit founded on equal rights and moved and sus-and security of each and all of them. Instructtained by the settled opinion of the majority ed in the principles of civil and religious lib of citizens. How that motive power is polit-erty, trained in habits of social and political ically organized and how it should govern ac-equality, and practiced in local self-govern cording to the principle and spirit of the con- ment, as they had been in their colonial pupilstitution of the United States, is a vital ques-age for more than three generations; the mation of Union and Liberty, the practical solu-jority felt that they were prepared, if men on tion of which will test the durability and fix earth could be qualified, for such popular inthe value of American Democracy. stitutions; and, consequently, in their State and National constitutions, they determined The first instinct of our race is selfish-the to try the experiment of such self governnext social: society-indispensable to civiliza-ments on the basis of the representative printion-cannot exist without the guardianship ciple qualified and guarded by organic checks of government, which, to be either rational or and balances. Taught by enlightened reason hopeful, must be adapted to the moral condi- and their own experience, as well as by the tion and genius of the people. If they are history of past ages, that a pure Democracy is sufficiently equal in moral power and suffi- both impracticable and unsafe and could nev ciently virtuous and enlightened to maintainer justice and stability, organized Democracy is the legitimate, and best form, but, for a people of an opposite character, it would be the

And this is our theme.


accomplish the ends of any just government, they had discovered that, to combine stability and security with universal liberty and equality, fundamental limitations on the legislative will of the majority are indispen

As the best and wisest men often err in feel-sable. ing and in judgment, no form of Democracy While they knew that, when in a state of would be sound or safe, among any people, un-natural freedom, the numerical majority neces less, by some fundamental organization, it se-sarily have the right to establish the organic cures individuals and minorities against the law, and that a dissentient minority must occasional passions and delusions of a domi- therefore, either acquiesce in the form thus nant majority, however it may be constituted adopted or become expatriated, they also saw or however high may be its moral grade. That that practical government would often deviate democratic form which recognises the political from the track prescribed by any theoretic form equality of all the citizens, must, to secure the which should leave to the majority legislative ends of all good government--peace, justice omnipotence. No prudent man would prefer and liberty--be so organized as to prevent the such a delusive form, nor could any just man transient errors of the numerical majority from live under it long in either peace or safety. doing mischief before the sober reason of the The great desideratum therefore was such an commonwealth can be brought wholesomely organism as would, as far as human contrito operate. This is proved by the imperfec-vance could, leave to each citizen all the natu tions of our race in its best temporal state,ral right and to the majority all the political as well as by the history of all popular gov-power consistent with the security of the mi ernments on earth. He who denies it virtually nority, however small or unpopular. This is denies the necessity of any civil government, the most difficult problem in Republican gov and he who doubts it is no statesman, and ernment, and has never yet been solved unless should never be a law-giver. its solution may be found in our Anglo-Amer ican constitution.

The founders of our religious and political liberty felt that great truth as self-evident;

The first object of the constitution of the

Fundamental guarantees of cardinal rights,

United States was to consolidate the people of enactment of law. But the Judiciary is equalthese states into one nation, and only one na- ly a supreme power, and equally utters th tion, for all foreign and international purposes, constitutional and sovereign judgment of th and also for all domestic purposes involving same constituency in the exposition and ad the harmony, justice, and integrity of the ministration of all the laws of the Union in Union, or in which no one state should be ex- every judicial case. One of these departments clusively concerned. To effect that aim the is as supreme as the other; the one representing next object was to establish a national gov- the organic sovereignty of the people in their ernment with powers co-extensive with the legislative function, and the other representend, and so organized as to secure their prac-ing their organic sovereignty in their judicial tical, to the full extent of their theoretic, su- function; and no political organization can be premacy, and, consequently, divest the State theoretically wise or practically safe, unless it governments of all antagonistic sovereignty. confides each of those distinct functions to And the next object was to secure the peo- separate organs of the people and, to a conple of the Union and States against any abuse servative extent, makes them independent of or usurpation of power by the General Gov-each other, and so far independent also of the ernment, or by its organs or functionaries. To passions of any ascendant party as not to be effectuate these objects the organic structure is afraid to do their duty as contemplated by the skillful and elaborate: 1st, the government of founders of the government. The constituthe Union is endowed, to the extent of its na- tion of the United States is, organically, a tionality, with all the functions of the most beautiful illustration of this great principle absolute sovereignty, Legislative, Judicial, of political liberty. and Executive-2d, to prevent concentration and preserve a safe equilibrium, each of these and limitations on legislative power, are defunctions is confided to a separate department signed to restrain the governing majority. If of magistracy, each, te a eonservative extent, that majority, through its legislature, should made independent of the others, and intended, violate any of these guarantees or overleap any to the like extent, to be above popular passion of those limitations, the constitution would and to act in defiance of it, so as to assure the only mock the outraged citizens unless it had prevalence of reason, the reign of wisdom, and provided, for their security, a tribunal vested the maintenance of justice and order. Each with power and armed with the will to proof these three organs represents, and one in nounce the unconstitutional enactment void, equal degree with another, the popular sover- and to prevent the enforcement of it. Aneneignty; the legislative, when acting within its lightened, conscientious, and intrepid judiciprescribed sphere, exercises the legislative ary is the only safe depository of that power. function of the people of the United States; Any legislative act inconsistent with the conthe Judiciary, when it decides on and applies stitution is necessarily void, and therefore, the law in a case within its jurisdiction, ex- cannot be law; because the legislature, derivercises the judicial function of the same peo-ing all its authority from the constitution, canple; and the Executive magistracy, under the like circumstances, exercises the executive function. Consequently, every constitutional act of either of these organs of the people of the United States is, for the occasion, deemed And the Judiciary, appointed to utter and to be the echo of the rectified popular voice, uphold the law, must necessarily decide that a and is, politically, the act of the constituent legislative act conflicting with the constitution body. Wherefore, the act of each, within its is not law, but that the constitution inviolate prescribed sphere, is as supreme as the power is the supreme and, to the extent of the conof the original and ultimate sovereign, the flict, the only law. All men being frail and people, could make it; and, the constitution be- fallible, and the best of them being, in some ing fundamental and inviolable, every such degree, under the influence of interest and authoritative act is a supreme law to all the ambition, no Judge, who is dependent on a functionaries of the general and the local gov-bare popular majority for his office and its ernments and to every citizen of every State emoluments, can be expected, always or very and of the United States-when the Judiciary often, to enforce law or sustain the constitution pronounces a judgment, it is as much the sen- against the interest or the will of that same tence of the people of the United States as dominant, and, often, proscriptive majority. any executive or legislative act could be deem- And therefore Judges of the United States are ed to be their act. The Judiciary, like Con-appointed by the President and Senate, to gress and the President, is the people's ap-hold their offices during good behavior, and pointed organ of one of the three elementary functions of all sovereignty. And in a constitutional sense and for every legal purpose, the people speak as authoritatively through their courts as they do through their Congress or their President. The Legislative, therefore, is not the supreme power; but it is a supreme power. It is the constitutional exponent of the sovereign will of the constituent mass in the

not make that a law which is prohibited by the charter of its power, the organic will of the people, which is supreme over all and inviolable by all.

cannot be removed except on impeachment sustained by two-thirds of the Senate. The Judiciary is thus placed by the constitution above the power of the majority. Some such fundamental anchorage is indispensable to security and stability against the passions and occasional errors of the majority of any free people entitled to universal suffrage. The legis lative majority cannot safely possess the judi

cial power or the right to control it. Such an unchecked authority might soon paralyze all the guarantees and limitations of the constitution.

liberating in a temperate moment and with the experience of other nations before them, on the plan of government most likely to secure their happiness, would first be aware that The same conservative' principle, though those charged with the public happiness might An obvious precaution not so manifestly, is yet as essentially, em- betray their trust. bedded in the organization of the legislative against this danger would be to divide the department. The constitution of Congress-trust between different bodies of men who the mode of electing the two separate branch-might watch and check each other. es-the terms for which the members of each "It would next occur to such a people that branch are elected-and the concurrent sanc-they themselves were liable to temporary er tions required for any legislative act, were, rors through want of information as to their each and all, designed for assuring more in-true interest; and that men chosen for a short telligence, deliberation and care, than could be time and employed but a small portion of that expected in the constituent masses, under the in public affairs, might err from the same This reflection would naturally sug most auspicious circumstances; and the cause. purpose of all this elaboration of checks on igno-gest that the government be so constituted as rance, passion, and precipitancy, was to save that one of its branches might have an oplegislation from the instability, imperfections, portunity of acquiring a competent knowl and errors, incident to all popular masses of edge of the public interests. Another reflec all grades of intelligence and degrees of vir- tion equally becoming a people on such occa tue-but few individuals of them, feeling sion would be rhat they themselves, as well proper responsibility, and still fewer possess as a numerous body of representatives, were ing the qualities of wise or competent law- liable to err from fickleness and passion. A givers-and, altogether, therefore, if each were necessary fence against this danger would be a Plato, an unsafe legislative body. Even a to select a portion of enlightened citizens, single representative assembly, especially whose limited number and firmness might when multitudinous, is an unsafe depository seasonably interpose against impetuous coun of legislative power. This has been demon-sels. It ought, finally, to occur to a people destrated, as in revolutionary France, by all such liberating on a government for themselves, that, bodies in every country and in every age as different interests necessarily result from which has tried the hopeless experiment. And, the liberty meant to be secured, the major inconsequently, the constituent body itself, more terest might, under sudden impulses, be numerous and excitable, feeling less responsi-tempted to commit injustice on the minority. bility, more subject to commotion, and alloy- How is this danger to be guarded against on ed with much larger infusions of ignorance the republican principles? How is the danand passion than any chosen assembly of se-ger, in all cases of interested coalitions to oplect representatives, must always be incompe-press the minority, to be guarded against? tent for wise and just legislation. The repre- Among other means, by the establishment of sentative is, therefore, a vital principle of a a body in the government sufficiently respectRepublic: and a division of the Legislature able for its wisdom and virtue to aid on such into two independent branches, so constituted emergencies the preponderance of justice by as that each may operate as a check on the throwing its weight into that scale. Such beother, is not much less necessary and the objects of the second branch in the This theory is exemplified and commended by proposed government, he thought a consideraall the constitutions of the States, as well as ble duration ought to be given to it. He did by that of the Union. The constitution of the not conceive that the term of nine years could United States, much more impressively than that of any one of the States, stereotypes the conviction of its architects and approvers, that the safety of the people and the integrity of the Union require a Senate so elected and so constituted as to feel, in a much less degree than the popular branch, the contagious sentiments aad passions of the constituent masses. That such was the chief purpose of the peculiar organization of the Senate of the United States is not only obvious on the face of the constitution itself, but is proved by the following extracts from the debates on that subject in the Federal Convention. On a proposition to elect Senators for nine years, Mr. Madison said: "In order to judge of the form to be given to this institution, it will be proper to take a view of the ends to be served by it. These were, first, to protect the people against The convention having fixed six years as their rulers-secondly, to protect the people the Senatorial term, and Mr. Ellsworth having against the transient impressions into which proposed that the Senators should be paid by they themselves might be led. A people de- their respective States, Mr. Madison said, on

threaten any real danger-that, as it was more than probable that we were now digesting a plan which, in its operation, would decide the fate of republican government, we ought not only to provide every guard to liberty that its preservation could require, but be equally careful to supply the defects which our own experience had particularly pointed out."

Governeuer Morris, speaking of the object of the Senate said: "What is this object? To check the precipitation, changeableness, and excesses of the first branch. Every man of observation had seen, in the democratic branches of the State Legislature, precipita tion-in Congress (then consisting of only one body) changeableness-in every depart ment excesses against personal liberty, private property, and personal safety.”

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