Chapter IV: Act I (4)

A right so important, so often asserted in his presence as existing, so frequently exercised in those times, if disapproved, should have been directly denounced in the letters of Publius. That great work left little to conjecture in the thorough examination which it gave of the rights reserved or the powers conferred by the constitution. Every objection which the talent of its opposers, or the ingenuity of its friends could imagine, was ably discussed. This right is no where denied or objected to. The passages on which Judge H. relies, do not in my opinion sustain him. Nothing can be found in the numbers 62 and 63, specially quoted, unfavorable to the exercise of this right, or the force of the obligation of instructions. In those numbers, Mr. Madison is meeting two objections, of a similar character, to the constitution of the Senate. The one founded on the impossibility of recall, and the other the protracted duration of the term. The objections to the power of recall, we have already partially considered, and shown the wide difference which exists between that power and the right to instruct, as they affect the course of the Senator—the one being a power which may benefit a Senator, and cannot injure him, the other placing him and his character in a great measure at the mercy of jealous rivals, or the caprice of the factious. To have a very short term, would manifestly have an effect upon the Senator analagous to that produced by the power to recall. The fear of being turned out would operate as injuriously upon his firmness and independence as the fear of being recalled. Indeed it would be a source of greater terror, as the Legislatures could be more easily induced not to re-elect an officer whose term had expired, than to resort to the harsh measure of recalling one in the midst of his career. Both these objections were then of a similar character. Either of the powers demanded, would diminish the firmness and impair the independence of the Senator—prevent a sufficient continuation in office to ensure an adequate amount of information in public affairs to enable him to regulate foreign matters with skill, or pursue any uniform course of enlightened policy—and either would at the same time deprive the Senate of one of its principal badges of usefulness, as a check to the House of Representatives, with which it would have been too similar in its character and term of office to resist effectually its impulses to yield to popular opinion, or, as the Judge perhaps more properly expresses it, popular feeling. But none of these objections apply to instructions. They do not eject the Senator from office, unless he differs with his constituents upon some important question of constitutional law which is about to be practically acted upon; or unless he has in some manner committed his honor in opposition to his constituents. In either of these cases, the mischiefs of ejection sink to insignificance compared with the mischiefs of continuance. Upon the constitutional point he ought to presume the united wisdom of the two branches of his Legislature to be more capable of judging than his own; and if he has committed his honor, he ought to suffer, and not his constituents. In either case, the resignation is the privilege {629} of the Senator, to enable him to remove himself from a delicate situation. It is not produced by the Legislature—it is no punishment—it is not a legal or official ejectment from office—it carries no stigma with it—it is an obedience to the requisitions of delicacy, and lofty honor, and not a compliance with the mandates of the Legislature. We instruct, and propriety, reason, and authority say _he_ must obey; but justice says he may resign, if he cannot obey with honor. As well might it be objected to us, that we do not compel a Senator never to resign. Resignations for instructions no more shorten the term than other resignations; and as long as any are allowed, we must allow those made to save the conscience or honor. This is the only refuge; for duty requires obedience, and it would be dishonorable to disobey. The Senator, who is called a representative, has no right to save his conscience at the expense of his constituents, and throw their whole political weight in a direction precisely opposite to their express wishes. Instructions then neither vary or shorten the term of office. If they are obeyed, what harm is done? The will of the constituent has prevailed, as it ought to do, by the theory of our government. What if he resigns? The State is without a Senator, by his voluntary act to save his honor, and his successor perhaps carries into effect the will of his constituents. Where is the breach in the constitution? The same result might happen, because the Senator did not like his colleagues, or was in ill health, or embarrassed in circumstances, or accepted a federal office, or wished to travel, or engage in agriculture. If it is unconstitutional for a Senator to resign because his conscience or honor require him not to obey instructions, then is it equally unconstitutional for him to resign for any of these reasons, or any others which might occur to him. His failure to resign, or the want of power to compel resignation, cannot absolve him from the duty of obedience.

Instructions to Senators are always given by a solemn, deliberate, recorded act, passed by an organized body of representatives, responsible themselves to the people. Every delegate must account for the principles involved in his vote; but this responsibility is not generally held over him so rigidly when he votes for a Senator, unless he votes under express instructions, or the candidates represent opposite political principles. Many excuses may be given for voting for A in preference to B, though the latter may be most popular with the immediate constituents of the delegate; but the principles in the instructions must be fairly met and fully justified, to satisfy the people. Hence a greater responsibility is secured by instructions than by frequent elections.

A Senator who loves his country more than his place, can never _fear_ instructions. They cannot, of course, then impair his independence or his firmness. The most which the fear of them ever could effect, would be to make him do the will of his constituents, which could surely do him no special harm. It was never supposed that the duration of office was to make a Senator firm against his constituents, and independent of their expressed will. But he was to be firm against his own fears, and independent of the House of Representatives or popular commotion. He is surely sufficiently far removed from the latter, when it can only affect him through the deliberate voice of two separate houses of the State Legislature. And then in truth it cannot affect _him_—_he_ has nothing to dread: it only affects _the vote_ of which he is the depository, and cannot remove him from his place. Is there no difference between a disposition to cater to every temporary whim or caprice which may sweep over the multitude, for _fear_ of not being re-elected at the end of a short term, and a voluntary obedience to their deliberate will, expressed through two branches of their representatives? The House of Representatives will be sensitive at once to any commotion among the people. A temporary and dangerous excitement might lead them into improper acts, for _fear_ of being turned out at the end of their short term. This house was expected to be thus sensitive, but the Senator's tenure of six years was given as a check to prevent this tendency from carrying the other house too far. That cannot be called a popular commotion which reaches him by the deliberate voice of two separate legislative bodies, acting under responsibility; but must be assumed by the Senator to be the deliberate judgment of all the people: it is, at all events, the deliberate judgment of all to whom he has a right to look. The Legislature has power by the constitution to elect him, and this carries with it the right to instruct him. But they exercise both these powers vicariously, and if they mistake the will of the people, they are responsible for their instructions, not the Senator for his obedience. His responsibility is removed by obedience or resignation. If he is “the anchor against popular fluctuations,” it is proper that like all other anchors, he should be hauled up when a favorable and permanent breeze enables the ship to proceed; and of this—not the anchor, but—those above it must judge. And if he hooks his fluke too deeply in the moorings, it is clear that unless there is a “capstan and cable” somewhere, he transcends the sphere of his utility, and does more harm than good by making a temporary stay a permanent fixture. PATRICK HENRY wanted to give the Legislature power in such cases to _cut_ the cable; and I think it would be well if such a power could be lodged with the _people_ in cases of disobedience, or other flagitious offences on the part of Senators.

But to meet the argument of the Judge fully, it is only fair to quote it:

“Mr. Madison's second reason for having a Senate, or second branch of the Legislative Assembly, is thus stated: ‘The necessity of a Senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.’ If this is true of the House of Representatives of the United States; if their intemperate and pernicious resolutions are to be guarded against and controlled by the more sedate and permanent power of the Senate, how much stronger is the reason when applied to the Legislatures of the States? Having their narrow views of national questions, and their local designs and interests as the first objects of their attention, it seems to me to be a strange absurdity to put the Senate as a guard and control over the House of Representatives, and then to have that Senate under the direction and control of the Legislatures of the States—or it may be, on a vital question, under the direction of the Legislature of the smallest State in the Union. Are there no local impulses and passions to agitate these Legislatures? no factious leaders to seduce them into intemperate and pernicious resolutions—and to induce them to prefer some little, local advantage, to ‘the general welfare?’ To give to the Senate the power, the will, and the courage to oppose and control these sudden and violent passions in the more popular branch of our national legislature, Mr. Madison says, ‘It ought moreover to possess _great firmness_, {630} and consequently ought to hold _its authority_ by a tenure of considerable duration.’ But what can that firmness avail, how will it be shaken, of what possible use will it be, if the Senator is bound to follow the dictates of a changing body, subject, emphatically to sudden impulses and seductions, at a distance from the scene of his deliberations, and deprived of the sources of information which he possesses, and acting in a _different sphere of duty_ from that he moves in? Firmness in an agent who has no will of his own, no right to act but on the dictation of another, would not only be superfluous, but a positive evil and disqualification. It would produce struggles and perhaps refusal, where his duty was to submit. The more pliable the instrument in such a case, the belter would it answer the purposes it was designed for. To be firm, says Mr. Madison, the Senator must hold his authority by a tenure of considerable duration. But how can this be, if he is to hold it from year to year as the Legislature of his State may change its opinion on the same subject, and require him to follow these changes or to resign his place? The tenure of the Constitution, as Mr. Madison understood it, is essentially changed by this doctrine. These changes of opinions and measures are, in the opinion of Mr. Madison, a great and dangerous evil in any government, and show ‘the necessity of some stable institution’ such as our Senate was intended to be—but such as it cannot be on this doctrine of instructions.”

I must admit my inability to perceive the propriety of the Judge's conclusions from Mr. Madison's premises. He is afraid of instructions, because _single_ and numerous bodies are apt to yield to passion and faction, and he hence thinks it absurd to place the Senate as a check upon the House of Representatives, if the State Legislatures are to remain as a check upon the Senate. There seems to be a double fallacy in this. Does the Senate possess an exclusive patent of exemption from faction and passion, and the other frailties of human nature, to which the House of Representatives and _both_ branches of the State Legislature, are to be held peculiarly liable? The Senate, as a body, would not be _checked_ by the State Legislatures, unless a _majority_ was instructed; and if this was the case, we must suppose instructions sanctioned by so many bodies to be the dictates of true wisdom, and not the offspring of faction and passion. If only a few Senators are instructed, we must suppose the object to be deemed important by the instructing States; and so far from the likelihood of sudden or violent passion, or the seductions of factious leaders thus affecting Legislation, we find the securities proposed by Mr. Madison quadrupled in numbers, increased by the distance of the bodies, and doubled by the difference in their constitution. If two federal legislative bodies are likely to ensure the defeat of faction and passion, when both belong to the same government—the members of both are members of the same political parties, and both meet at the same place, how much less likely is passion or faction to succeed _by means of instructions_, when it has first to encounter the federal House of Representatives, and then in succession a State House of Delegates, and a State Senate, and lastly the chance of an uninstructed, or differently instructed majority in the federal Senate. Surely Judge H. forgot the dignity and candor of the philosophical inquirer, and in vindication of a favorite theory, assumed the armor of a partizan, when he contended, that the faction and passion intended to be defeated by the constitution of the Senate, would be promoted by adding additional checks—checks, too, which we cannot doubt were contemplated as one of the principal means of rendering the check afforded by the Senate effective. So far from promoting hasty, passionate, or factious legislation, do not these numerous checks present almost too many difficulties to the execution of the deliberate will of the people, which the Judge admits ought to govern? In doubtful questions, when parties are nicely balanced, a few recreant representatives, in either of the _four_ bodies, can easily defeat any measure, however necessary, or earnestly desired by their constituents. If we suppose with the Judge, that the Senate is to be entirely controlled by the State Legislatures, then we should have _fifty-three_ different deliberative bodies, representing the people in different capacities, and by different ratios, acting upon _one subject_. No measure could be carried through this ordeal by faction or passion, and instead of bringing us “back to a simple turbulent democracy,” we should have the best and the greatest quantity of checks upon turbulent legislation, of which any country could boast. If measures thus passed were not wise, it must be because the intelligence of the country is defective, and not because it is blinded by passion. The same reasoning applies to the instructions of any less number than the whole, because the uninstructed Senators must be presumed to act in accordance with the opinions of their constituents, and thus whether the instructed members carry their point, or are overruled by a majority, the deliberate sense of the community governs. But upon the theory of Judge H., not the sense of the community, whether deliberate or vaccillating, but the arbitrary and adverse will of the _individuals_ who happen to be Senators, disposes of every thing which we hold dear—not only the lives and fortunes of our people, but the very constitution of our country. If a _State_ may have “narrow views,” so may an _individual_. If a State may not wish to be taxed to cut a little inland canal, two thousand miles off, a Senator may wish an embassy, or a department, or a bank accommodation, or a federal judgeship. But if the States do have local views and interests, are they not bound to protect them, and have they not _equal votes_ in the Senate for this very purpose? Mr. Jay says, “enlightened policy will soon teach that the interests of the whole can only be promoted by a proper regard for the interests of the parts.” If the States wish to oppress others, or advance themselves at the expense of all, they will be certainly overruled by the majority. If they wish to protect themselves from oppression, they ought to have weight, and no human being should have power to throw their own weight against them.

The people of the states would be peculiarly destitute of protection, if they could not instruct their Senators, because from the size of the districts and number of the constituents, it would be extremely difficult, if not impossible, to instruct a member of the House of Representatives, and hence PATRICK HENRY'S uneasiness for fear the Senator should disobey. What if the Senate should be “on a vital question under the control of the smallest state in the Union?”—Are the two houses of the Legislature of the smallest state less honest or less intelligent, than the individual Senator, who by supposition is about to oppose his own constituents and at least half of his co-Senators? Where is the evil? The will of the Legislature, which is responsible, prevails over that of the Senator, who is not responsible, unless he is for disobedience. Which adjustment of the question ought, by the theory of our government, to be {631} most satisfactory? We cannot hold instructions to be an evidence of _passion_ or _faction_ in the Legislature, but disobedience we must hold to be a ground for suspecting the Senate. If neither of these operated, I can conceive no reason for not resigning, when obedience would be wicked or disgraceful. If Mr. Madison required firmness and independence in the Senator, against the instructions of his own constituents, as well as against the acts of the House of Representatives, as Judge H. supposes, then it is clear that he knew and understood the right, and its obligation, _and feared it_, and wished to provide against it, by protecting the Senator from its force. If such was his purpose, how egregiously has he failed—how bungling has been his work—how disingenuous his course—how unlike in all respects, is this to the other works of that great man? The length of term did not protect from instructions, because a Senator of one year may be instructed as well as one of six years. Where is the protection against this awful right? Mr. M. knew that it existed under the articles of confederation, and was exercised, yet he did not prohibit it in the constitution. He feared the power to recall, and he took away that; but it seems he feared this right, and left it. It is true that he provided no punishment for disobedience, but none existed under the confederation, and none had ever been found necessary in the British Parliament, the Convention of New Hampshire, the Congress, or the State Legislatures. If he feared the right, he must have wished it uprooted, yet he left it precisely as he found it. He was particularly cautious in concealing his antipathy in the Virginia Convention and the Federalist. In the latter he speaks of firmness necessary to resist the House of Representatives, and transient popular commotions which might affect that body, and I doubt not he meant to require firmness in obedience to instructions against the wishes of the House of Representatives as much as in any thing else. In the Virginia Convention he heard loud calls for the protection of the right, yet never denied its existence.

Suppose a question arises in the House of Representatives dangerous to a state. It is carried in that body by passion or faction against such manifestations of popular will as can be given. It is believed the Senators will go the same way. The people have no resource left, but instructions through their State Legislature. If this has no effect, our servants are our masters, and we are ruled by an oligarchy the more odious, because it presents us with a mockery of representation.

But it seems that Mr. Madison thinks the Senate “may be sometimes necessary as a defence _to the people_ against _their own temporary errors and delusions_; he justly applauds the _salutary interference_ in critical moments, of some respectable and temperate body of citizens, to check the misguided career, and to suspend the blow mediated by _the people against themselves_, until reason, justice, and truth can regain their authority over the public mind.” This is correct reasoning, but it cannot apply to the States or their Legislatures, but must allude to the people of the Union and the House of Representatives. The Senate cannot defend the people of any state from their _own temporary delusions_, or afford a _salutary interference_ with the proceedings of a State Legislature. The latter body is supposed competent to act for itself, and not to require the _protection_ of the United States Senate, and still less of an _individual Senator_. This argument might be urged _in favor_ of a Senator instructing a State Legislature, with more propriety than _against_ the reverse operation, because under the present system the State Legislatures have no connection with the United States Senators unless they instruct them, and thus if they choose to be wilful and refuse to instruct them, which by this new construction would be to ask his advice, they may ruin the people by their temporary errors and delusions, without ever giving their Senator the power to save them by the salutary interference of his “respectable and temperate” mandate.

But it is admitted that a _temporary_ delusion may possibly exist among the people, which may induce the House of Representatives to pass acts so dangerous that it may be necessary for the Senate to “_suspend_” them. “But the _deliberate_ sense of the community, ought and ultimately will prevail.” And yet a Senator has _power_ to defeat this deliberate sense, as well as the _temporary_ errors and delusions. He may _suspend_ a good act, or he may fail to _suspend_ a bad act. He may not only not concur with the House of Representatives when he ought, but he may concur with it when he ought not. Shall we have no “capstan and cable” to draw up our anchor in the one case, and no power to throw it out in the other? Must the temporary delusion prevail over the people's rights for six years, or the deliberate sense be delayed its healthy action for six years? Either question may be of vital and immediate importance. The single vote may saddle us with an enormous bank, with a controlling capital and an unlimited charter, or an oppressive tariff, which could not be repealed without ruin to many, or continued without ruin to ourselves. The temporary delusion may be a spirit of fanaticism, which may annihilate at a single blow, and forever, political peace and domestic happiness in half the Union, and yet the Senator may be infected with the contagion. A judgeship for life, or boundless wealth, may warp honest opinions, or buy up bankrupt profligacy. In short, a Senator may be sometimes wrong as well as the House of Representatives and the two branches of a State Legislature, and if he is a despot for the time of his election, he may do infinite mischief:—if he can be controlled by his State Legislature in particular votes by special instructions, he cannot do much harm, and may do as much good as the wisdom of his state, which is wiser than he is, will permit. Mr. Madison, when he spoke of the _interference_ of the Senate, never could have meant to characterize the solemn and deliberate acts of a _State Legislature_, as the _temporary errors and delusions of the people_. Besides being too accurate in his language for this construction, he could not but believe that instructions would convey at least the best judgment of a majority of the Legislature. And he could not suppose it necessary for the United States Senator to protect the people against the best judgment of their own Legislature. The State Legislatures, in practice, possess the sovereign authority of the State; they make laws, and dispose of our persons and property; shall we appeal from them to their creature, the Senator, for _protection?_

If MR. MADISON had meant this he would certainly not only have prohibited State instructions to the Senator, but enforced Senatorial instructions to the {632} Legislature. Why were we left without this protection from our temporary errors and delusions in so many important cases, and only provided with it in those cases in which we venture to instruct Senators? This doctrine proves too much. Why was Mr. Madison silent in our Convention, when his coadjutors asserted this right? When HENRY so often objected a want of power to enforce it, why did Mr. M. not say at once it did not exist, and end the objection? If he had said so, and contended for the correctness of his position on the ground that the Senator must be firm against his own masters, and independent of his own constituents, to protect the people of the States from themselves, would this constitution have been ratified by Virginia? Never. One blast of HENRY'S soul-stirring bugle would have called all his kindred spirits around him—he whose keen scent could snuff tyranny in the tainted gale, would have spurned an elective as haughtily as he had an hereditary tyrant—the debates would have ended there—the friends of the constitution and of Madison would have deserted him—the deceptive parchment would have been trodden under foot, and its noble champion left its only advocate. No one can read HENRY'S anxious searching after the responsibility of Senators, and his earnest calls for the power of enforcing obedience, and believe it would have been otherwise. He laughs to scorn the argument that they will be good men, from which MR. MADISON wishes him to infer that they would obey. With what withering contempt then would he have received a proposition to make them _constitutionally_ independent, as he feared they would be actually? And to have told him that this was necessary to make them _firm against us_, would have been only an aggravation of the insult.

It is surprising to hear JUDGE HOPKINSON say, that the hundreds of individuals who compose the State Legislatures, from all parts of their respective states, “have no means of knowing the public sentiments which are not equally open to the Senators; nor are their inducements to conform to them more persuasive and strong.” If this was not an error, it would be perhaps best for the legislatures to delegate their powers to several individuals, and go home. Those wise men, whose judgment is capable of protecting the state from its own errors, and at the same time, know so well public sentiment, and have every inducement to conform to it, would constitute the best legislature. But so much of an error is the first part of the proposition deemed, that the usual and most accurate method of examining into popular sentiment, is by the sentiments of the representatives. Each is supposed best to know and to represent the opinions of his own county or district, and their united will is thought to be as accurate an approximation to the will of the people as human ingenuity can make. There is nothing else which affords us even data for estimating that will. The individual Senator has not probably a better knowledge of the wishes of the people than many of the single individuals who compose the legislature, especially if he is sent from a remote state, and has been long absent.

The inducements which the Senator may have to conform to the will of the people, may be as persuasive and strong as those of the members of the state legislature; and if they are, he will obey, unless his inducements to conform to the will of some one else are more persuasive and stronger. A Senator is a great man, and may expect executive promotion if this or that man is President, or this or that measure carried. We must suppose the latter inducements to preponderate, when he frustrates the will of the people, expressed in the only form in which it can reach him.

The Judge again quotes MR. MADISON. “MR. MADISON goes so far as to say, that as our governments are entirely _representative_, there is a total exclusion of the people, in their collective capacity, _from any share_ in them.” This is true, and makes it the more iniquitous to deprive them of any share through their representatives. If they can neither act themselves, or act by their representatives, they only elect masters, and it is nonsense to say the will of the people prevails. Mr. M. could only have meant that no act of the people, in their collective capacity, was a governmental act; he did not mean to say that they were slaves, who periodically elected masters, but that they should never act in person, and only by their servants. The inference drawn from this remark, viz: that the Senator ought not to be bound by the will of all the people in his state, must be fallacious. If all the people of a state came to the Senate chamber, and wished to give a vote, they could not vote except through their Senator. It is so ordained in the constitution; but how can it be thence inferred that the Senator is not bound to obey them? This however is impracticable, and the Senator can only know the will of his state through the legislature. That body constitute his constituency. Whether it properly represents the people or not, is a question between its members and the people. No Senator would have thought of looking beyond his own constituents, but from the fact that _they_ happen to act vicariously. If the same number of individuals, not being representatives, were selected by the constitution to elect Senators in the several states, it is clear that the Senators could not look to the public opinion of any persons except the electors. We must presume that the constitution meant to place the full power of instruction (if the right exists) exclusively in that body in which it had sufficient confidence to place the power of selection, and which only could practically exercise it. If the Senator does doubt, or is even sure that the legislature does not conform to the will of its own constituents, it will afford him no excuse for a similar violation. If a representative can look at all beyond the opinions of those who have a right to vote, then there is no limit. Where there are high freehold qualifications to suffrage, and instructions are given by every voter, a delegate may say, “The unqualified individuals outnumber you, and I will assume that they think differently”—nay, he may say, “the women, the children, the free blacks, paupers, Indians and slaves think differently, and they are a majority of my constituents.” What then becomes of those guards and checks in the constitutions, which presume superior wisdom in a particular class of persons, or that certain rights require especial protection, if the delegate may thus, by creating a new and fancied constituency for himself, and one too which can never act upon him, and the opinions of which can never be known either by instructions or elections, set aside the sovereignty vested by the constitutions? This would establish a government of petty tyrants, under ideal responsibility to a fancied constituency. Why was the election of Senators not given at once to the {633} people of the states? I have no doubt one of the principal reasons was the impossibility of instructing. I do not believe Virginia would have adopted the constitution, with no means of instructing Senators. If the people of the states had elected, the legislature would then have only had power to request them, as it now has over the members of the House of Representatives. The legislature possessed the double advantage of facility of action, and a comparison and a discussion of views from all quarters, in selection and instruction, neither of which could be possessed by the people. The members of the legislature are Senatorial electors, chosen for that purpose by the federal government, and cannot strip themselves of the power and give it to the people of their state—nor could a state convention take it away from them. What right, then, has a federal Senator to say the people of Ohio do not sanction instructions given by her legislature, any more than to say the people of Maine or Louisiana do not sanction the same instructions. He has as much to do with the people of one state as of another.

Let us hear the Judge again.

“_Instruction and resignation_ are not the means proposed by Mr. Madison to protect us from the corruption or tyranny of the Senate. He suggests no interference, in any way, on the part of the State Legislatures with their Senators, nor any control over them, during their continuance in office; but finds all the safety he thought necessary, and all that the constitution gives, in the ‘_periodical change_ of its members.’ In addition to this, much reliance, no doubt, was placed, and ought to be so, on the expectation that the State Legislatures would appoint to this high and responsible office, only men of known and tried character and patriotism, having themselves a deep stake in the liberties of their country, and bound by all the ties of integrity and honor to a faithful discharge of their trust.”

Mr. Madison is here again providing against a rottenness in the Senate, which would not only set instructions at defiance, but every moral and political duty. He says, in effect, “you are afraid of a six years tenure, but you need not fear that, because at any given period only one third can have that duration, one third will hold for four, and one only for two years. Fear of not being re-elected, or a decreasing interest in the usurped power, will prevent them from corruption, tyranny, disobedience, and other iniquities. If all were at the same time tyrants of six years duration, you would be in danger; but the shortening term of some, and the hope that others will stay honest, is your protection. The honest ones will obey you from principle, the corrupt from fear.” This I conceive to be his opinion written out. For, says Mr. Nicholas in his presence, “we can instruct them”—and Patrick Henry says, in effect, “If they are bad men they will not obey—we ought to have a power of impeachment or recall, to make them obey; the rotation is not in my opinion sufficient surety of their obedience.” In those days goodness was thought to ensure obedience, but now it is thought if they are good men, “bound by all the ties of integrity and honor to a faithful discharge of their duty,” they will not obey, or need not, because so intelligent and so good—as if obedience was not the highest duty, or misrepresentation was the part of a faithful representative.

But let us look to the Federalist as we did to Dr. Johnson, in behalf of the other party. We find MR. MADISON, as well as his great coadjutors, HAMILTON and JAY, speaking of the Senate, not as a little oligarchy, or Holy Alliance of absolute sovereigns for six years, but as an assembly of the _States_. Measures, says he, will have to be approved first by a majority of the people, and then by a majority of the _States_. The States will be interested in preventing this, or carrying that. Thus again indicating the necessity of giving the _States_ an influence over the _people of the Union_. Among the reasons for giving the elections to the State Legislatures, he says it not only favored a select appointment, “but gives to the State _governments_ such an agency in the formation of the federal government, as _must secure the authority of the former_, and may form a convenient link between the two systems.” The link is formed by the election, but if the Senators then become independent and firm against their constituents, what _secures the authority_? The federal argument supposes the Senator at the moment of his election, to lose all connection with his State, and become entirely a federal officer, representing all the United States. If this is true, how is State authority secured by his election? Mr. Madison's argument in favor of the Senate, based upon the assertion that every resolution or law will have to pass first a majority of the people, and then a majority of States, is a gross fallacy, if the States have nothing to do with the matter. He says, this “complicated check on government may prove injurious,” &c.; but how is it more _complicated_, if the Senators are independent, than the British Parliament is rendered by the House of Lords, or any State government by its Senate? He also speaks of the power of the larger _States_ to defeat small _States_ when unreasonable, by power over the supplies.

But there is yet better evidence of Mr. Madison's opinion upon this subject than all this. He has himself as a legislator, exercised the right. I have not the instructing resolutions before me, but I discover the fact from my copy of the resolutions of '98, '99, and the debate of 1800.[1]

[Footnote 1: _House of Delegates, Monday, January 20, 1800._

_Resolved_, That five thousand copies of the Report of the Select Committee, to whom were referred the answers of several States upon the Resolutions of the last Legislature, the said answers [and also the _instructions to the Senators_ of this State in the Congress of the United States, together with the names of those who voted on each of these subjects,] be printed without delay; and that the Executive be requested, as soon as may be, to distribute them equally, in such manner as they shall think best, among the good people of this Commonwealth.

Attest,

WILLIAM WIRT, C. H. D.
H. BROOKE, C. S.

_Note by the Publisher_.—The part contained in brackets is not embraced in the present publication.]

We approach now the last ground taken by the Judge, and that on which we should have supposed ourselves most impregnable—I mean the _Constitution_. I should have said there is nothing in that instrument to forbid, or which is inconsistent with the right to instruct, and therefore it exists. And for this, with many other authorities, we might have quoted JOHN MARSHALL, (Virginia Debates, 297-8.) “MR. JOHN MARSHALL asked if gentlemen were serious, when they asserted that if the State governments had power to interfere with the militia, it was by implication? If they were, he asked the committee whether the least attention would not show that they were mistaken? The State governments had not derived their powers {634} from the general government. But each government derived its powers from the people; and each was to act according to the powers given it. Would any gentleman deny this? He demanded if powers not given were retained by implication? Could any man say so? Could any man say that this power was not retained by the States, as they had not given it away? For, says he, does not a power remain till it is given away? The _State Legislatures had power to command and govern their militia before, and have it still, undoubtedly, unless there be something in this Constitution that takes it away._”

This power, like that of regulating the militia, was claimed and exercised by the State Legislatures before this Constitution, and is not taken away; therefore, by the reasoning of MR. MARSHALL, in whose presence this right was frequently asserted, it still exists, not _by implication_, but as an original power not given away. But JUDGE HOPKINSON pursues a reverse mode of reasoning, and thinks the right does not exist—first, because not expressly granted by the Constitution—and secondly, because no form of proceeding is prescribed by which a refractory Senator could be compelled to obey. We must answer to the first, that the power is not granted but reserved, and is always understood to exist where representation exists, unless expressly prohibited. For the second, we must say, that no human ingenuity could devise a mode of compelling a refractory Senator to obey, because he may keep his purpose concealed until he votes; and that a power of subsequent punishment has never been given to _constituents_ over their delegates in any representative government, and would be more objectionable and dangerous in this case than any other, on account of the peculiar relative situation of the two governments. The _power_ of disobedience, of giving bad votes, and voting from corruption instead of conviction, is in the hands of all representatives, without power of punishment in the hands of constituents—can it thence be inferred that they have the _right_ thus to act? The Constitution requires, for wise purposes, an indefinite and absolute power of attorney irrevocable for six years, and any form of punishment, to be effective, must interfere with this requisition. There are legal powers, which it would be a gross violation of moral duty to execute, and we must hope for some principles of virtue to actuate our Senators as well as other fiduciaries, without keeping their limbs always bound in cords, and their necks under the axe. There was no power to punish for this offence under the confederation. The power to recall was distinct from it, and though it might punish offences, could not create duties. Our instructions are private. The Senate has nothing to do with them. Our Senator may burn them. The Senate cannot punish him, and we could not, if he took a bribe. Suppose a legislator is always intoxicated, or spends his nights in riot, or gaming, and is thus rendered stupid and inefficient, or careless. This will be admitted to be a violation of duty, but his constituents cannot prevent it, or punish him. Constituents have no power even to compel attendance, nor can they recall for non-attendance, whether produced by wickedness or misfortune; and yet MR. JAY says—“All the States will have an equal influence in the Senate, _especially_ while they continue to be careful in appointing proper persons, and _insist_ on their punctual attendance.” There is no such power given in the Constitution. If they cannot instruct they cannot insist upon attendance. The word “_especially_” here shows that the writers of the Federalist did not consider the influence of the States and of their Senators as by any means synonimous, but looked to the former to control the latter, by appointing proper persons, or such as would obey.

The Judge thinks this power cannot flow, from the circumstance of the Senators receiving their _appointment_ from the State Legislatures. He says, the President and Senate _appoint_ Judges—“but are they to obey them?” Surely not. The Judges do not, either in fact or in theory, _represent_ the President and Senate. Nor are they appointed to attend to their interests or _legislate_ for them. The power does not flow from the faculty of appointing, but from the relation of constituent and representative. The Judge is elected for the soundness of his judgment, his knowledge of law, and his nice powers of discrimination in deciding controversies between the parties before him. He is the agent of nobody, and represents only the justice of the country, which requires him to be free from any extraneous influence. The Senator is elected for the skill and ability and faithfulness with which he will _represent_ our interests and wishes. He is our attorney, not our judge. He is under our control, and we are not subject to his jurisdiction.

Let us suppose with the Judge, the case of a number of attornies, with powers irrevocable for six years, and indefinite within certain limits—the acts of a majority of attornies to be binding on all the principals, but the power of choosing any individual as attorney left open to the principals. Could they not be instructed? Could not the principals require a valid bond and security to obey or resign? If the attornies could judge exclusively of the limitations, and could bind their principals, might they not be tyrants and absorb all the fortunes of their principals. If selected to attend to the foreign trade of a set of merchants, they might control their domestic trade and interfere in their household matters. What injustice is done to any principal when the same right is extended to all? Is there not reciprocity? Is the right not a necessary protection? If a minority instructs for bad purposes it is overruled; if a majority instructs, its will ought to prevail. The advocate of the opposite doctrine supposes a right of the co-principals in the will of the delegate in opposition to that of his master, to be violated by our doctrine. Is this a part of the bargain?—a legitimate advantage?—Is the association not for mutual advantage, but to enable the cunning man to overreach his copartner by the ignorance or treachery of his agent? What may be a gain to-day may be a source of ruin to-morrow. Unless this game of overreaching is played, where is the loss by instructions? They must be either out-voted, or accord with the will of a majority. Do not proxies in joint stock companies always vote as directed by their principals? Would it be thought honorable to hold a proxy and disobey the will of the principal? What have the co-principals to do with the reason for the agent's acts? Whether he obeys the will of his principal, or his own will, they are equally bound, and the question is between him and his employer. They have still less right to object to his resignation, because the agent is nothing in the contract, but the _act_ is every thing. Whether the agent {635} is bound by oaths and bonds and security to obey, or is left free, he is equally a legal agent.

But is it fair to judge of rights which appertain to the structure of our government, and are necessary for its proper administration, and the safety of the people, by analogy to a private association of individuals, whose rights, if not regulated by express contract, are regulated by the arbitrary dictates of positive law? You may suppose a private association to be regulated by any principles which you may please to fancy, and hence may suppose the right of instruction to exist or not at your pleasure. But you cannot infer from what you suppose to exist in this fancied compact, that an analogous right does or does not exist in the great positive governmental compact. That must be tried by its positive terms, and not by fanciful analogies.

Wherever a Constitution rests the power to elect _a representative_, there lies the power to instruct. A Senator is responsible only for his own conduct, not that of his constituents; if their instructions are not approved by the people, they are responsible. Shifting responsibility destroys responsibility. If a Senator may defeat the will of his constituents in any case, he may in all, however unanimous the people and the legislature may be, and however important and permanent the consequences of his vote. If his firmness and independence may defeat his constituents, and he call solemn acts of the legislature temporary delusions, so may he under a delusion, defeat the deliberate wisdom of the people. Persons now living have seen Senators disobey and defeat the deliberate judgment of the people, expressed by several successive legislatures, sanctioned by repeated State elections, and sustained by the concurrent opinions of a majority of the States, the House of Representatives, and a vast majority of the American people. If this is right, then our government is under the control of a despicable and vexatious aristocracy.

The Judge contends that we must extend our doctrine to cases of impeachment, or give it up. It must embrace every thing or nothing. If the State Legislature has the power of exception, it may instruct in some cases of impeachment, and forbear in others. It may instruct to condemn or acquit. If the Senator can make the exceptions, then says the Judge, this power is an _empty name_. This is too true. The Senator can have no power to make exceptions, and yet under this assumed right nine-tenths of the disobedience which has ever been committed has been cloaked. The Judge has never heard whether impeachments were included in the doctrine, because he is the first person who ever broached that doctrine. When the Senate sits as a court of impeachment, or upon executive appointments, they cease to be our _representatives_, they become ex officio jurors or councillors of State, and in either capacity we have no more right to instruct them than we have to instruct the Chief Justice, or the President. They cease to be Legislators, and belong for the time to the Executive, or Judicial departments. In both cases private rights are concerned, character and opinion is involved, and evidence may be taken. Judgment is to be given and not a law passed. We can instruct to do an act, but not to form an opinion—to vote, but not to give judgment as to fitness for office, or the propriety of rejecting an officer. We do not see the force of the Judge's reasoning which forces our doctrine to apply to impeachments. The Senator acts in two capacities, as distinct as if they were held by two individuals. They are held up in the Federalist as judicious exceptions to the maxims which require the legislative, executive, and judicial departments to be separate. The Senator takes a new oath in trying impeachments. We have no more right to instruct our Senators when made judges or councillors by the constitution, than when made permanent judges or ministers or heads of department by the President. And the inability to instruct in the latter cases, had as well be brought up against us as in the former, as a reason for not instructing them when acting as _our representatives_. We can _will_ an act to be done, _but not_ that the innocent are guilty, or the reverse. The Judge's definition ought to have exceptions for these cases, unless he holds them as all others do, as excluded _of course_ by their nature from the controversy.

In fine, this is a right which the Legislatures can, will and ought to exercise. They can and ought to demand pledges, which no honorable man could disregard. Is there not always an implied pledge from the nature of the office and the understanding upon the subject? Nay, is there not in Virginia at least a tacit pledge given by all Senators elected since the adoption of MR. LEIGH'S report and resolutions in 1812?—The last of those resolutions is in these words—“_Resolved_, That after this solemn expression of the opinion of the General Assembly, on the right of instruction, and duty of obedience thereto, _no man ought henceforth to accept the appointment of a Senator of the United States from Virginia, who doth not hold himself bound to obey such instructions._” Is not acceptance of office under this resolution a tacit pledge, as binding as express words could make it?

I must conclude, having already occupied too much space in your valuable magazine, but the subject was too interesting and important to justify one in attempting to vindicate our cherished doctrines from the attack of so able a champion as JUDGE HOPKINSON, in too cursory an examination of his views. In conclusion, I must remark, that although we have to lament the misfortune of differing with that able and learned gentleman, and the lamented and illustrious MARSHALL, we feel no doubt of the support of HENRY, JEFFERSON, and

ROANE.[2]

[Footnote 2: One word more. This article was written in great haste for the August number. Instead of this an addition to his letter was published by _Judge Hopkinson_, under his own name, in that number. It requires notice as imperiously as his letter. It _must_ be noticed in the October Messenger. But _briefly_, very _briefly_. Subsequent investigation has satisfied the writer, that the Judge's opinions, both as to the _novelty_ and _weakness_ of our doctrines, are much less supported, either by _authority_ or _reason_, than he had supposed, when he was writing this article. He thinks even the Judge himself may be convinced that “politicians of a later date” than the adoption of the constitution, are not the “authors of the doctrine of instructions.” R.]