In New York, Massachusetts, North Carolina and Illinois, divorces may be decreed by the Judiciary for one cause, and that is the same for which marriage may be dissolved in England.

parties, as in other individual controversies? But the hazard of injustice, and the uncertainty of the matrimonial tenure incident to the practice of arbitrary and unlimited legislation on the subject of Divorces, present the strongest In Kentucky, a statute of 1809 authorizes objection to its policy. Should such vital injudicial divorces A VINCULO for several pre- terests and inestimable rights depend on the scribed causes. But nevertheless, the Legis-ARBITRIUM of a legislative body which cannot lature has adopted a practice of divorcing for determine a private right to a horse, a cow, or those and many other causes, by simple enact- even a pig? ment. Both the policy and constitutional authority of this accustomed procedure have been, and still are arraigned by many of our most prudent countrymen and wisest jurisconsults.

But the question of power is even more important than that of policy. Does the power, as assumed and generally exercised, exist? This is a grave question never yet judicially settled.

The first ground is, in our apprehension, neither so comprehensive nor so strong as the last.

Can the policy be either wise, just, or benifi- Those, who deny the power, do so generally eent? Can such a miscellaneous multitude as on one or both of two grounds. Ist. The conthe Legislature of Kentucky be a suitable tri-stitutional prohibition against the enactment bunal for the final decision of such important of any Statute "impairing the obligation of individual rights as those generally involved in contracts"-and, 2nd. The organic distributhe application for divorce? Can it be expec- tion of all the sovereignty of our State among ted that each of the members who acts and three co-ordinate departments, Legislative, votes will either feel a proper degree of res- Judiciary and Executive, and the fundamental ponsibility, or deliberately investigate or un-interdiction to the Legislature of any judicial derstand all the facts of every one of the mul- authority over private rights. titude of cases presented for legislative decision, at every session? And moreover, may there not be reason for apprehending that the personal solicitude of individual members to succeed That marriage is an obligatory contract, is in particular cases confided to their manage- not now doubted. Nor, consequently, can ment, might operate unjustly on other cases, there be any doubt that it possesses obligations and mischievously on general legislation? It that might be impaired by legislation. But it is a fact that important measures of general is more than a contract-it is an organic relaconcern have been defeated or adopted by the tion, on which the prosperity and even the exinfluence of those sympathies and combinations. istence of organized society essentially depend; And it is a fact also that divorces have often and therefore, the sovereign authority of every been enacted without the knowledge of one of State, having the inherent and inalienable the parties, and sometimes without that of right of self-preservation, must necessarily either of them. possess, to a conservative extent, the power to It must be admitted, however, that our leg-control that relation, for the public welfare. islature have lately become more judicial by Hence, as the voluntary disruption of this doadopting the practice of notifying the party mestic relation is deemed inconsistent with complained of, and summoning witnesses. the interest of well-regulated society, it is not But whether this usage is adhered to in every allowed by our system of jurisprudence; and case, or how long it may be continued, we consequently, contracts of marriage cannot, cannot tell. We know, however, that this extra-like agreements merely commercial, be disneous business impedes general legislation, pro- solved by the mutual consent of the parties. tracts the sessions, and greatly augments the | On this general ground, we were once inclined public expenditures, even to an amount almost to the opinion that marriage is not such a equal, every year, to the united salaries of the contract as was contemplated when the constiwhole judicial corps, who could, much more tution prohibited legislative impairment of fitly, perform the same service without any ad-contracts. But subsequent reflection has ditional compensation.

Is it not surprising that the constituent body, habitually so astute and jealous in reference to the treasury and the conduct oftheir functionaries, seem not to have been yet awakened on a subject so important to them, in both a prudential and economical point of view, as that of legislative divorcing?

shaken, if not changed that opinion. The power, which certainly exists consistently with the constitution, of dissolving marriage for a breach of any of its obligations by either party, may be enough for all the necessary or useful purposes of the governinent; and if any divorces have ever been granted by our Legislature or Courts, without an actual or supposed Would they not-if they would consider breach of obligation, expressed or implied, this matter-deem it much better for the Leg-such cases have escaped our observation and islature, by a comprehensive general enact- must be rare; and although marriage is indisment, to prescribe all the proper causes for Divorce and leave the decision of each of those causes to the judiciary, and at the cost of the

soluble without the consent of the sovereign authority, yet, when that consent is given, a dissolution for a breach of the contract cannot

impair, but only, so far, enforces the obligation against popular passions and delusions, by asof the contract. Unless, therefore, the Legis-suring intelligence, deliberation, responsibility, lature should attempt to divorce man and wife and exemption from passion in the enactment against the consent of both, or without any of laws. This theory is as beautiful as it is delinquency or fault inconsistent with the ob- philosophical. It is that, in a popular govject or implied obligation of the marriage contract, the inquiry, whether such a contract is protected by the constitution, would be irrelevant; and, in the language of Chief-Justice Marshall, (in the case of Dartmouth College vs. Woodward,) we may say that "when any State Legislature shall pass an act annulling all marriage contracts, or allowing either party to annul them without the consent of the other, it will be time enough to inquire whether such an act be constitutional."

ernment, the aggregate reason of the dominant mass must be made to prevail over its passions, and reflecting judgment over hasty impressions, occasional prejudices, and temporary excitements-that the will of the majority would be fluctuating, uncertain, and unsafe until it shall have been secreted through the constitutional organs-and that, when thus elaborated and rectified, it should be permitted to prevail, if mankind be acknowledged capable of self-government. And, if all the constitutional organs But the second objection is more applicable, would always perform their proper functions, and may not be so easily resisted or evaded. as originally contemplated, the practical gov The boundary line between the legislative and ernment would be as benificent as the theoretthe judicial field is not defined with a precision ical is provident and wise. But there is a either distinct or susceptible of absolute cer- class of timid or deluded representatives who tainty; and the practice of special legislation will not maintain their constitutional positions for particular cases and persons has increased-but surrender their own deliberate and inthe difficulty of defining the legislative func- structed opinions and echo the passions, prejution in this country. But any act, in any dices, or inconsiderate wishes of the constituform, which decides private rights from facts ent multitude. Such a course tends to underproved or assumed, must be judicial, and in mine the constitution and frustrate its power no sense legislative; and therefore, if a legis- and ends-and if it should become prevalent, lature divorce a wife on the ground of alleged there will be an eventful transition from a regmisconduct of the husband, they not only de-ulated and ballanced republic to an unregulatermine his rights, but decide the alleged fact, ted and uncontrollable democracy-a transiand seem to exercise the judicial function. Such an act might be an usurpation; and therefore void, unless the legislature have power to divorce a wife without either the consent or the fault of her husband. And does this power exist? Does that constitution, which guards private property and commercial contracts against legislative interference, leave the most important of all social rights and all its incidental and consequential interests exposed, naked and helpless, to the tide of legislative passion or caprice? This is a question we are not disposed now to discuss.

The stability and security of democracy have been assured by two modern expedients: 1st, representation judiciously organized and guarded; and, 2nd, the distribution of the three great functions of political sovereignty among as many separate bodies of magistracy, and the delegation of the judicial function to the judiciary department exclusively.

tion from a government of intelligence to one of passion, from a constitutional government to the tyranny of faction and anarchy. And how awful is the responsibility of those functionaries who, by such examples of recreance and servility, are helping passion and ignorance to usurp the reigns of government from reason and light in whose hands our Fathers placed them!

But there is still another and more hopeful safeguard in the constitutional separation of judicial from legislative power, and the institution and probity, and made sufficiently independent of a chosen judiciary selected for its learning to feel unmoved by cupidity or ambition. This is the great Bulwark of stability and justiceand without such a fundamental organization there could be no security. The concentra. tion of legislative and judicial power in the same hands would, as the history of man proves, be despotism in EMBRYO.

If the will of the numerical majority could be always deliberate, calm and rational, it And, therefore, our partition wall between ought always to prevail as the ruling power of making the law and applying it conclusively a State; and, on this hypothesis, no fundamen- to the facts of individual cases is the most imtal restrictions on that will would be, politi-portant and inviolable structure of our politcally, either necessary or proper. But this ical fabric. It is the great Breakwater contheory can never be safely exemplified in the structed and embedded by the wisdom of ages imperfect state of fallen man; and no rational to stay the surges of the agitated ocean. And, and prudent being would be willing to confide as long as it shall remain untouched by the all his rights to the unchecked will of a major- popular or law-giving hand, the humblest citiity of his fellow citizens. The great object, zen may look unmoved on the foaming tide therefore, of all constitutions was to provide and feel secure. But let this embankment checks on the majority. And representation, also be undermined or give way, and then the as here organized, was intended as one security flood, unchecked, may soon inundate the land

and desolate the land we hold most dear-life, play conspicuous parts, may possibly hang that liberty, property, religion-and all. country's destiny.

The friends of constitutional liberty and justice cannot, therefore be too jealous of the assumption by the legislature of any portion of judicial power. Let that department, within its allotted sphere, prescribe the rule of conduct and of right; but never suffer it to take from any freeman his chartered right to be tried and judged by the constitutional tribunal of impartail and enlighted judgment.

Our Anglo-American union has organized a great moral revolution, and is now, with the world's gaze upon it, testing a mighty problem for all mankind. The Mississippi valley may soon hold a preponderating authority in the councils of that union. In this hopeful valley the educated and professional classes, and especially the enlightened in jurisprudence, will possess a controlling power; and among these, and perhaps decisive influence. Transylvania's sons must exercise a pervading

And if it be the legislative will that a wife may be divorced from her husband for any It is on this ground that we feel especially prescribed cause, ought or not the decisive the peculiar importance and momentous requestion whether the cause exists be deter-sponsibility of this law Department. mined in the same manner as all other questions knows that it may not bless, save or destroy of fact involving public right? This is an im- the hopes, not of this generation only, but of portant enquiry.

unboru millions?

Who

Even the Parliament of England, whose will strive to illustrate its beneficence? Knowledge, Will you, its pupils, all is law, never, in the plentitude of omnivorous fidelity, pure love of country, and honorable power, grants a divorce until the only fact ambition will be your best armor in the conflict upon which it will dissolve marriage has been for which you are preparing. With these alone established by a regular trial and sentence in an ordinary court of justice. And not only you may hope to be useful in your day, and expect to achieve virtuous renown. Any other was this the invariable practice also of Virgi- panoply would be a dead weight which might nia prior to our separation from her, but Ken-crush you to the level of the vulgar herd of tucky never departed from it until the year useless drones or ephemeral bustlers. 1805-when, for the first time, her legislature, Resolve to be useful, and the end is almost passed an act peremptorily divorcing a husband attained. Correggio, when a boy, resolved to be a distinguished artist-and that instant, his But our purpose here is neither decision nor fate was sealed, and posthumous fame was sediscussion-but only general suggestion for cured. And it is credibly reported of an emiinciting reflection and research. And, therenent American, that, when taking final leave fore, our allotted time being about to expire, of college, with nothing but "poverty and we will now close the subject, by only repeat-parts" and a fixed resolution to become what ing, that God himself instituted marriage and he has already been, he said to the President declared, in the very act of his creation, that of the institution, "You shall, one day, hear "it is not good for man to be alone."

from his wife.

from DANIEL WEBSTER." And now DartPupils academic, medical, jurisprudential mouth, like the mother of Washington, is can-all-We welcome you to the classic halls of nonized by the association of her name with Trausylvania. Partially dismantled for years, that of her illustrious son. Will all or any of she is now, at last, completely rigged and you, in the votive spirit of the New Hampshire manned; and, with all her sails hoisted and boy, resolve, as he once resolved, to illustrate her tri-colored banner floating in the light the name of this your ALMA MATER? Shall of an auspicious re-dawning, she launches on Transylvania ever hear from you? And what a broad sea, with flattering hopes of surviving shall she hear? The long line of her distinevery adverse gale and triumphantly surmount-guished sons has already hallowed her fame ing every opposing billow. Though patched and shed a lustre on this western world. and renovated from hull to mast, she is the MAGNA MATER VIRUM, Cornelia-like, she is same old ARGO that, in the infancy of the justly proud of her jewels. Will you add to West and Kentucky's heroic age, gallantly their number, or will you cast a shade on her bore aloft the "golden fleece" of science. Em- bright escutcheon? barked on this long-tried, good old ship, you May you all contribute to swell the volume need no insurance. She will neither sink nor of her fame-may you ennoble your own fail. May your voyage be prosperous, and names, and earn a grateful remembrance that land you well equipped for the rich harvest shall never fade away. And, when you come that ripens before you in this valley of hope. A to take your last leave of these scholastic walls, better theater was never prepared for the use-may you, each and all, make a sacramental ful employment of honest talents, or the hon-resolve that Transylvania shall hear from you? orable development of a noble patriotism. and when she does, may the intelligence be The age, in which you live to act, is evidently such as to swell her venerable heart with a most portentons. The country on whose mother's joy.

bosom providence has been pleased to cast Thus, on a subject full of harmony and full your lots, is full of promise; and on the event-joy, we have commenced with "HARMONY,” ful drama in which it may be your fortune to and close with “Jox.”

PRELECTION.

LEXINGTON, Feb. 24th, 1847.

DEAR SIR: At a meeting of the Senior Class of the Transylvania Law School, the undersigned were appointed a Committee representative of the wishes of the whole Class, who, through us, solicit for publication a copy of the able and eloquent Valedictory Address delivered to our Class last evening. Hoping to receive a favorable response, we have the honor to be

Your friends and obedient servants,

DAVID KERR,

JOHN KERR,

J. WATSON BARR,

WM. ATWOOD,

WALTER C. WHITAKER.

Committee.

LEXINGTON, February 26th, 1847.

GENTLEMEN: The Valedictory, of which you so courteously request a copy for publication, is the substance of one prepared by me for a similar occasion ten years ago. It is as it is-yours.

And may you, and those you represent, each and all, carefully follow its counsels, exemplify its principles, and attain the destinies to which they point, and, if properly regarded, will surely conduct you.

Truly your friend,

GEORGE ROBERTSON.

Messrs. Kerr, &c., &c.

ADDRESS.

Gentlemen of the Senior Class of the

may be usefully and honorably distinguished. Your recent opportunities and your prefessional pretensions, impose on you peculiar obligation to your ALMA MATER, to yourselves, your friends and your country. Much will be expected, much required of you-and be assured that all you have and can acquire and do, will

Law Department of Transylvania: Our didatic course is now finished. We as perceptors, and you as pupils, are here together for the last time; and the memories of the past, and the prospects of the future, now all at once clustering around our hearts, impress this closing scene with an unusual pathos and so-be necessary for the proper fulfillment of your lemnity.

Your voyage of discovery, though toilsome, has, we trust, been correspondingly profitable. And now, in sight of TERRA FIRMA, it is natural that each of you should feel some of the emotions of Virgil's voyager, when-cheered with the first glimpse of recognized land, long sought and desired as his home-he cried out ITALIUM! ITALIUM! But, unlike his joy, yours is mixed with sorrow-and, unlike his hope, yours is clouded with the unknown shadows of uncertain destinies.

various duties, or the realization of high and honorable anticipations.

you, are destined first for the Bar. The sphere We may presume that most, perhaps all of of the popular and enlightened Lawyer is very comprehensive and elevated. It embraces the personal, social, and civil rights of his fellow men, and all the various and important interests and relations that depend on human laws. To act usefully and honorably in such a sphere, requires careful discipline, great knowledge and rare endowments, moral and intellectual. After long and interesting associations, pecu- Ministering at the alter of Justice, lawyers liarly endearing we shall all soon part should have clean hands, wise heads, and where or when to meet, or whether ever again pure hearts, lest they profane the temple of on earth, no one knows; and where you are jurisprudence, and sacrifice the lives, the libto land, and what is to be your doom, the un-erty, the property, and the reputation of those written page of time to come alone can tell.

Having now finished your soholastic course, you will soon take leave of this institution, of your preceptors, and of each other, and enter as men, each for himself and in his own strength, on the sober and important business of active life, in which your own conduct may fix your destinies for good or for ill, for weal or for woe, for time and for eternity.

In an

who repose on their counsel and trust in their protection. The welfare of society depends, to a great extent, on the character and conduct of legal men. And, notwithstanding the prevalence of a vulgar prejudice against them as a class, they have an acknowledged and commanding influence, and therefore must necessarily do much good or much harm. intoductory discourse we made some general Although our professioual relations are now suggestions once, respecting the eminent dignidissolved, we feel it our duty before we sepa-ty of jurisprudence and the high rank and inrate, to tender to you the offering of our fare-fluence of the gentlemen of the bar; and those well blessing and parting counsel; and this last suggestions have been since coroborated on an duty, resulting from our recent relations, is not interesting occasion, illustrated with much learthe least difficult to us or important to you.ning by an eminent citizen attached to a rival In attempting to discharge it we feel its pecu-profession, who, in estimating the relative inliar delicacy and responsibility; and therefore, fluence of the various classes of society, concewith becoming sensibility and solicitude, we ded the second place to the lawyers-the first invoke your candid consideration of the vale-being, of course, allotted by him to the fair. dictory suggestions which we will proceed to offer with all the sincerity and plainness of a parting friend.

Having been under our tutilage, and bearing with you our credentials our precepts and our hopes, we feel a solicitude, almost paternal, for your future welfare and usefulness. We have faithfully endeavored by proper tuition, to enlighten your minds with the elements of jurisprudence and to prepare you for becoming, in proper time, useful citizens, sound jurists and enlightened statesmen. In all these relations you

Such a juxtaposition, if deserved, should be as inspiring as it must be grateful and honorable. But to merit and maintain it, requires a purity of purpose, a propriety of conduct, and a degree of intelligence which have not always characterized professional men of every denomination; and this is an age of renovation and light; all branches of knowledge, and all orders of society, are in a rapid progress of improvement. To maintain its high rank and ensure a benificent influence, the western Bar must be quickened by the regenerating spirit of