Chapter III: Part 3

The national-government-men contended that the states would have too much power—the states-rights-men that they would have just enough for protection—the ultra states-rights-men that they would not be sufficiently protected, because there was no means of controlling a wilful senator. Without the right of instruction their disputes amount to nothing. The first class ought to have been satisfied, for they lost nothing; the second class ought to have seceded as they threatened, for they gained nothing; and the third class was guilty of the folly of asking a remedy for the violation of a right which did not exist. They were all mistaken—all wrong, and ignorant of what they asked and what they accepted, and we of the present day can see their errors! There is nothing new under the sun. The {687} question we now discuss is the same under a new name which was discussed in the convention. A question of _power_ between states and general government and large and small states. What was lost in constituting is to be regained by construction. What _states_ refused to give up, is to be cozened out of their _agents_. In all the conventions however, our misguided ancestors considered the senate as the last remnant of the federative features of the old government, and that senators represented distinct sovereignties, and were on the footing of ambassadors or the members of the old congress as to their constituents, and only legislators as to the general government.[1]

[Footnote 1: Of this, abundant evidence may be adduced. _Mr. Ames_, in the Massachusetts convention, assigned the ambassadorial character of senators as a reason for the length of their term.

“The senators represent the _sovereignty_ of the states; in the other house individuals are represented. The senate may not originate bills. It need not be said that they are principally to direct the affairs of war and treaties. They are in the quality of _ambassadors_ of the states, and it will not be denied that some permanency in their office is necessary to a discharge of their duty. Now, if they were chosen yearly, how could they perform their trust? If they would be brought by that means more immediately under the influence of the people, then they will represent the _state legislature_ less, and become the representatives of individuals. This belongs to the other house. The absurdity of this, and its repugnancy to the federal principles of the constitution, will appear more fully, by supposing that they are to be chosen by the people at large. If there is any force in the objection to this article, this would be proper.

“But whom in that case would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the constitution. What would become of the _state governments_, and on whom would devolve the duty of defending them against the encroachments of the federal government? A consolidation of the states would ensue, which it is conceded would subvert the new constitution, and against which this very article, so much condemned, is our best security. Too much provision cannot be made against a consolidation. The state governments represent the wishes and feelings and local interests of the people. They are the safeguard and ornament of the constitution—they will protract the period of our liberties—they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.

“A very effectual check upon the power of the senate is provided. A third part is to retire from office every two years. By this means, while the senators are seated for six years they are admonished of their _responsibility to the state legislatures_. If one third new members are introduced, who feel the sentiments of their states, they will awe that third whose term will be near expiring. This article seems to be an excellence of the constitution, and affords just ground to believe that it will be in practice, as in theory, a _federal_ republic.”

The remarks of Mr. King in the _same convention_, upon the same subject, lead irresistibly to this conclusion, although it was attempted to be reasoned away by Judge H. in his first letter—“The senators,” said Mr. K. “will have a _powerful check_, in those men who wish for their seats, who will _watch_ their whole conduct in the general government, and will _give the alarm_ in case of misbehavior.” (This is one distinct check and Mr. K. proceeds.) “And the _state legislatures_, if they find _their delegates_ erring, can and will _instruct them. Will not this be a check?_ When they hear the voice of the people _solemnly dictating_ to them _their duty_, they will be bold men indeed to act _contrary to it_.” (This makes obedience a _duty_, and the boldness and hardihood not of that virtuous kind which the Judge supposes.) “These will not be instructions sent them in a private letter, which can be put in their pockets; they will be public instructions, which all the country will see; and they will be hardy men indeed to violate them.” (This seems to suppose meanness enough to violate secret instructions, but not audacity enough to violate them in the face of day.) “The honorable gentleman said, _the power to control the senate is as great as ever was enjoyed in any government;_ and that the members thereof will be found _not to be chosen for too long a time_. They are, says he, to assist the executive in the designation and appointment of officers; and they ought to have time to mature their judgment. If for a shorter period, how can they be acquainted with the rights and interests of nations, so as to _form advantageous treaties_?” If this is not our doctrine in full, we give it up. Here is length of term advocated, not to strengthen in disobedience, but to _mature judgment as to officers_, and _acquire information as to treaties_; but as to legislative proceedings, “if they are found erring, instruct them.” Instructions are given as the remedy for a term _too long_ for _legislators_, but necessary to enable them to execute properly their executive duties.

A similar view was taken by _Mr. Parsons_ of _Newburyport_, who thought “suitable checks had been provided to prevent an abuse of power, and to continue _their dependance on their constituents_.” _Mr. Neal_ asks, “If we should ratify the constitution and _instruct_ our first members to congress, &c. &c., is there not the highest probability that every thing which we wish may be effectually secured?” _Mr. Symmes_ finally withdrew his opposition, and would, “especially as the amendments were to be a _standing instruction_ to their _delegates_, until they were obtained, give it his unreserved assent.”

So in the _New York convention, Mr. Hamilton_ says, “It will be the interest of the large _states_ to increase the representation. This will be the _standing instruction_ to their delegates.” He then argues at length to prove that the will of the people must prevail over that of the members of congress, and thus speaks: “If the general voice of the people be for an increase, it undoubtedly must take place. They have it in their power _to instruct their representatives_; and the state legislatures, _which appoint the senators_, may _enjoin_ it also upon them.”

In the same convention, _Mr. Jay_ says, “The senate is to be composed of men appointed by the state legislatures: they will certainly choose those who are most distinguished for their general knowledge; I presume they will also _instruct them_; that there will be a _constant correspondence_ supported between the senators and the _state executive_, who will be able, from time to time, to afford them all that particular information which particular circumstances may require.” He seems to have considered senators in the light of _ambassadors_, and never to have contemplated the contingency of a state executive's refusing to send instructions to senators!

There was an attempt made in this convention to carry an amendment, making senators ineligible for more than six years in a term of twelve, and subjecting them to a power of recall, but it was negatived—its opponents alleging that the _states_ had as much power of _control_ as any constituents ought to have, or as the _people_ had in the other house, and that to render senators ineligible a second term would be highly impolitic—excluding useful and experienced citizens from office.

In the convention of _North Carolina, Mr. Davie_, in giving the reasons for the introduction of a vice president, says: “It was owing with other reasons, to the _jealousy_ of the _states_, and particularly to the extreme jealousy of the _lesser states_, of the power and influence of the larger members of the confederacy. It was in the senate that the several political interests of the _states_ were to be preserved, and where all their powers were to be perfectly balanced.” Hence, he concludes, the _casting vote_ ought to be in the hands of a man, possessing the confidence of all the states in a great degree, and responsible to no particular one.

In the _convention of Pennsylvania, Mr. Wilson_, in answer to the fears of some as to the _independence of senators_, says: “In the system before you, the senators, sir, those _tyrants that are to_ devour the legislatures of the states, are to be _chosen by the state legislatures themselves. Need any thing more be said on this subject?_ So far is the principle of each _state's retaining_ the power of self-preservation, from being weakened or endangered by the general government, that the convention went further, perhaps, than was strictly proper, in order to secure it; for in this second branch of the legislature, _each state_, without regard to its importance, is entitled to an _equal vote_.” Further on, he says: “The truth is, and it is a leading principle in this system, _that not the states only_, but _the people_ also shall be here represented.” Again: “_States_ now exist and others will come into existence; it was thought proper that they should be _represented_ in the general government.”

Such were the opinions of those who “assisted in framing the government;” but the idea now is, that senators _represent_ and protect, not their own states, but the whole union, even in opposition to the interest or safety, and expressed wishes of their states.]

One remark of Judge H. will finish our consideration of this portion of his letter. “This (right of instruction) {688} is practically to give the legislatures a power to recall their senators, as instructions may always be given, which _must be disobeyed by an honest man_.” Such could not be given by an _honest man_. This supposes a _majority_ of each legislature always dishonest, and ready to pass dishonest instructions, not to effect legislation, but merely to eject an _honest_ senator. What could induce this? only _one_ could take the place, and the rest must be prostrated, unless the people too be dishonest. A new election would place honest men in power, _they_ would give honest instructions to the dishonest senator, and by our rule he must obey and honest measures prevail, or give place to an honest man. So that the rule is likely to work as much good as harm in any contingency, unless honest men are necessarily corrupt state legislators, or a dishonest man an honest senator, or the _people_ thoroughly corrupt. If the latter is true, unless we could find an honest king, we must be content with a corrupt government.

In his former letter the Judge complained that there was no mention of this right in the constitution,[2] and now declares that “not a syllable can be found any where from any body which hints at this right.” I trust this popular periodical now bears many syllables from high authority having an “awful squinting” that way, and visible to the naked eye. But there is still higher evidence, not only of the knowledge of this right by our ancestors, but of the high value and sanctity of it in their estimation. It was incorporated into the first Virginia bill of rights, thence copied _verbatim_ by the Virginia convention on the federal constitution, in a bill of rights which that body proposed to attach to the federal constitution, and copied again _verbatim_ in the recommendations of amendments by the _North Carolina_ convention on the constitution.[3]

[Footnote 2: _Mr. Bowdoin_. “The whole constitution is a declaration of rights. The rights of _particular states_ and private citizens not being the object or subject of the constitution, they are only incidentally mentioned. In regard to the _former_, it would require _a volume_ to describe them, as they extend to every subject of legislation not included in the powers vested in congress.”—_Debates Massachusetts Convention_.]

[Footnote 3: See fifteenth article of Virginia bill of rights, _passed unanimously_ in the Virginia convention, _June 12th, 1776_, in these words. “XV. That _the people_ have a right peaceably to assemble together, to consult for the common good, _or to instruct their representatives_; and that _every freeman_ has a right to _petition_, or _apply_ to the legislature for redress of grievances.”

In Virginia convention on the federal constitution, Friday, 27th June, 1788, _Mr. Wythe_, from the committee on amendments, reported the Virginia bill of rights, with this preamble, “That there be a bill of rights asserting and securing from encroachment the essential and unalienable rights of the people, in some such manner as the following.” (Here follows the bill, including the fifteenth article.) The same clause, with others, was carried in the North Carolina convention, by a vote of 184 to 84, the minority objecting to other clauses. This proves that the right was _known_ and _valued_, as a _natural_ and _unalienable_ right of the people, and of course the states when constituents, and considered a _different thing_ from _consultation_, _petition_, _advice_ or _remonstrance_. _Every freeman_ may _petition_ or _remonstrate_, but the _people_ must _instruct._]

JUDGE HOPKINSON “has not referred to the opinions of MR. BURKE, because the argument stands here on a different and stronger ground.” Yes, stronger—on our side. _First_, because states are represented _as such_, in their _sovereign capacity_; and apart from general representative principles, their ambassadorial character requires obedience. _Secondly_, because small districts elect for vast regions in England, and here power is equally distributed, for the avowed purpose of equal representation and protection. And _thirdly_, because in England a member of the House of Commons has no constitutional right of _resignation_; it is prohibited; and by our rule, he must there obey in _all cases_.

As to the _first_, even Blackstone admits that members of Parliament ought to obey if they represented separate communities, and did not serve for the whole realm. He says, “every member is chosen for the whole, and hence is not bound, like a deputy in the United Provinces, to consult his particular constituents.” But here they are elected for _states_, by analogy to the old congress and the diet of the United Provinces.[4] MR. HAMILTON says in the Federalist, (No. 9,) “The proposed constitution, so far from implying an abolition of the state governments, makes _them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate_, and leaves to their possession certain exclusive and very important portions of sovereign power.” MR. MADISON says, in No. 45, “The _state governments_ may be regarded as _constituent_ and essential parts of the federal government.” MR. LANSING, who had been a member of the federal convention, said in the New York convention, “I believe it was undoubtedly _the intention of the framers of this constitution_ to make the lower house the proper, peculiar representative of the interests of the people—the senate of the _sovereignty of the states_.” For this reason he wished a power of recall to make them more dependent upon their states, “of whose independence it was _designed by the plan_ that they should be the bulwark, and check to the encroachments of the general government.” MR. SMITH, in the same convention, was also very apprehensive of senatorial disobedience, and advocated Mr. Lansing's amendment. He says, “with respect to the second part of the amendment, I would observe, that as the senators are the _representatives of the state legislatures_, it is reasonable and proper that they should be _under their control_. When _a state sends an agent_ commissioned to transact _any business_, or perform _any service_, it certainly ought to have a power to recall him.” I presume this authority, with that in a previous note, will sufficiently establish this point.

[Footnote 4: “In Switzerland and _Holland_ the different parties (states) send deputies, commissioned and _instructed_ by themselves, who debate, but have no other power than what is conferred only by the people, or may be subsequently given.” (_Harrington_, _Oceana_, 51.) This bears a close resemblance to the powers of the old congress.]

II. As to the second reason, it received sufficient consideration in my former number.[5]

[Footnote 5: _Judge Hopkinson_ is against _all instructions_, but thinks his reasoning stronger in the case of senators, because the right is not reserved. I am for _all instructions_, and especially those to senators, because of their character as ambassadors, representing sovereignty, and because it is a reserved state right, secured by our international compact, in which all is reserved which is not _given_, and in which a representation of sovereignties, as such, was insisted upon and yielded. But even as to popular instructions, the case is much stronger here than in England, for reasons intimated in my last. Lee us see how it has stood there, long before the reform bill, and long before the American {689} revolution brought up all the questions of representation and taxation for discussion and decision. In the most ancient times, when the connection between vassal and lord was very close, and the vassal had little to which the lord could not lay claim, the commons were considered as represented in the commune concilium, by the lords and great barons under whom they held; but the king's tenants _in capite_, holding _immediately_ from the crown, could not be considered, by the most liberal construction, as thus represented, and they were therefore admitted into parliament, in propria persona, in their own right. When these became too numerous thus to be admitted, they of their own accord, to avoid inconvenience, appeared by _proxy_. As the towns, cities, and boroughs began to receive incorporations, to grow in importance and wealth, especially personal property, an aliquot part of which was always granted, they too being unrepresented by the lords, were required to send _proxies_; and it was subsequently extended to knights for the shires, as the feudal fetters wore away. These _proxies_ had no power but that conferred by their constituents. (See Pettyt's Antient Right of the Commons of England, p. 14; 1 Gordon's History of Parliament, 215)—(Lex Parliamentaria, 113 and 117.) “And Note, If any new project was proposed in Parliament for raising subsidies or supplies, the commons usually replied thereto that they were not _instructed_ by their principals in that matter, or that they durst not consent to such tax, &c. without conference with their countries.” “And Note, Blackstone (Book I, 168) says, a member of the house of commons cannot vote by proxy, because ‘he is himself but a _proxy_ of a multitude of other people.’” Representation in the Parliament of _Scotland_ went through a similar process. (See Lord Somers' Tracts, vol. 12, p. 610.) In the seventh parliament of the reign of James the First of Scotland, (1427) “the small barons were allowed to send commissioners, and were charged with the fees of their deputies,” and this was the first instance of _elective_ members to the Scottish parliament.

In Burgh's Political Disquisitions, (London, 1774) the American doctrine in its most rigorous extent is found applied in full vigor to members of parliament, and sustained by an abundant series of precedents from the earliest times, and quotations of the strongest language from members of Parliament in sustaining the duty of obedience, and the advice and opinions of the best English authors, to the same purport. (See vol. I, from p. 180 to 205—many instances of instruction and obedience against the sentiments of the representative, a few of which are in _Mr. Leigh's_ report of 1812.)

In the _Irish_ parliament, which met in November 1767, there was scarcely a town or county which had not instructed its representative to vote in favor of a limitation of their parliaments to seven years; and so eager were they, that all required the most positive assurances, and some even exacted an _oath_ from their members to vote for the bill. The bill was passed, and its subsequent history affords a curious instance of legislative cunning and popular firmness. (See London Magazine, 1768, p. 131.)

In the session of 1733-4, (An. 7, Geo. II) _Sir William Wyndham_, in the house of commons, in a speech on _Mr. Bromley's_ motion for repealing the septennial act, said of an opinion of _Mr. Willes_, (afterwards chief justice) of a character very similar to that advanced by _Judge Hopkinson_, (to wit: “After we are chosen, and have taken our seats in this house, we have no longer any dependance upon our electors, at least so far as regards our behavior here; their whole power is then devolved upon us, and we are in every question to regard only the public good in general, and to determine according to our own judgment. If we do not—if we are to depend upon our representatives, and to follow blindly the _instructions_ they send us, we cannot be said to act freely, nor can such parliaments be called free parliaments. Such a dependance would be more dangerous than a dependance upon the crown”)—that it was “not only a _new_ doctrine, but it was the _most monstrous_, the _most slavish_ doctrine that ever was heard, and such a doctrine as he hoped no man would _ever dare_ to support within those walls. He was persuaded that the learned gentleman _did not mean_ what the words he happened to use seemed to import—for though the people of a county, city or borough may be misled, and may be induced to give instructions which are contrary to the true interest of their country, yet he hoped he would allow that in times past the crown has oftener been misled; and we must conclude that it was more apt to be misled in future, than we can suppose the people to be.” (See Com. Debates VIII, pp. 172, 188. The whole debate might be read with advantage by many modern _republicans_.) Here, whatever right the crown had to control parliament, is vested in the legislatures as to senators, and the people as to legislatures, as they are sovereigns; hence, whether whig or tory rule prevails, we ought to have the right of instruction.

The immortal _Sidney_, in his discourses on government, goes to the full extent of our present doctrines. “Many in all ages, and sometimes the whole body of the commons, have refused to give their opinion in some cases till they had consulted with those that sent them; the houses have been often adjourned to give them time to do it; and if this were done more frequently, or that the towns, cities and counties had on some occasions given _instructions_ to their deputies, matters would probably have _gone better_ in parliament than they have often done.” He seems satisfied with subsequent rejection as sufficient punishment for violation of duty, but does not hence infer that there are no duties. “Whensoever any of them has the misfortune not to satisfy the major part of _those that chose him_, he is sure to be rejected _with disgrace_ the next time he shall desire to be chosen. This is not only a sufficient punishment of such faults, as he who is one of five hundred may probably commit, but as much as the greatest and freest people of the world did ever inflict upon their commanders that brought the greatest losses upon them.” (Discourses on Government, section 38.) This rejection from office is the only punishment provided by our constitution in cases of impeachment of the highest officers.

Quotations might be multiplied, but “this little taste shall suffice.” It must be remembered that these doctrines prevailed under a constitution which allowed of no resignation, and where fifty-six members (or about a ninth part of the English representation) were elected by only three hundred and sixty-four votes—where _one man_ sent a representative from _Sarum_, and one from _Newton_, and _two_ sent one from _Marlborough_—and the elective franchise was so unequally and unjustly distributed, that parliament never truly represented the wealth, population, or wishes of all England, or any section, or even a single election district, or any class of persons or property, unless the representatives of the single freeholders of Newton and Sarum constituted an exception! When our “_novel doctrine_, conjured up for party purposes,” has prevailed there _time out of mind_, who shall deny its propriety here? Lords have proxies, and may instruct them, though the absent principals may be gambling in Brussels, or revelling in Parisian debauchery, and neither hear or read the debates; shall that be denied to the majesty of the people which is yielded to the dignity of a half fledged lordling, sunk in vices which disgrace the human character?]

III. If any thing could render a relaxation of our rule tolerable in England, it would be that feature of their constitution which will not permit resignation. As that constitution “will not intend a wrong,” it must suppose constituents utterly incapable of giving instructions “which no honest man can obey”—and it must hold a member entirely irresponsible, morally and legally, for a vote in obedience to them. Such is the fact, and this arrangement prevents that possibility of the defeat of their wishes by resignation, which the judge so much deprecates, and which he sets up as a reason or excuse for wilful disobedience. This absence of a constitutional privilege of resignation renders members, when once elected, indebted entirely to the courtesy of the crown for their escape from their seats when disagreeable. Another feature of their constitution makes the acceptance of office under the crown, (except a few offices of state) _ipso facto_ vacate a seat in parliament. Hence we often hear of gentlemen's accepting the Chiltern Hundreds.[6]

[Footnote 6: “A member when duly elected, is not only compelled to serve in parliament, but he cannot at any future period either resign his seat or be expelled from the house except by some legal disqualification. In order, therefore, to meet the views of those members who may wish to resign their seats, it has been the practice, ever since the year 1750, for such members to accept {690} the office of steward of the Chiltern Hundreds, which being an appointment under the crown, their seats are of necessity vacated. The office, however, is a merely nominal one. The stewards who accept it desire neither honor nor emolument from it, the only salary attached to the appointment being twenty shillings a year. The Chiltern Hundreds are districts in Buckinghamshire belonging to the crown. The appointment to the office of the steward of these Hundreds is vested in the Chancellor of the Exchequer, who, as a matter of course, grants it to every member who applies for it.”—_Random Recollections of the House of Commons_.

“On the 2d of March, 1623, (!) it is agreed, That a man, after he is duly chosen, cannot relinquish.”

See this and other precedents, and the reasons for the principle on which this part of the parliamentary constitution stands, collected in “Volume II of Hatsell's Proceedings and Precedents in the House of Commons.” The rule is firmly established, but thus easily evaded when inconvenient.]

In England no one seems to have objected to this right, that it cannot be enforced, or disobedient delegates punished, although there, delegates may alter or refuse to alter the constitution itself, in despite of their constituents—still less is the want of power to recall, or the length of term urged against it. If this last was a sound reason, then it would follow that members of the old parliaments were bound to obey, but not those elected since the septennial act! That is, the stronger the reason for the right the weaker it becomes, which militates against every principle of British law.

The sublime and eloquent BURKE appeared before the electors of Bristol in all the proud consciousness of lofty virtue and commanding intellect. But strip his arguments of the gilded cloud of drapery flung around them by the magic of his fancy, and his sophistry, naked, unadorned, loses half its force by losing all its beauty.[7] The most powerful and legitimate argument he uses, applies only to the expediency of disobedience in that particular case, and if his facts were correct, ought to have excused him, if such an offence can ever be excused. “Was I not to foresee, or foreseeing, was I not to endeavor to save you from all these multiplied mischiefs and disgraces.” He then artfully asks, if the “little, silly canvass prattle of obedience to instructions would save them from the ‘pelting of the pitiless storm.’” Thus presenting them only the awful _alternatives_ of _destruction_ or disobedience, and appealing to subsequent _developements_ to prove that disobedience was their preservation. By placing it in this position, he ventures to ridicule instructions. His next best argument also applied only to special cases. He appeals to “near two years tranquillity” to prove that “the late horrible spirit was in a great measure the effect of insidious art, and perverse industry, and gross misrepresentation.” In a word, any thing but the deliberate sense of the people. From this it seems the people ought not to be tranquil under insult, or their deliberate will may be mistaken for a “fashionable gale.” After thus fortifying himself by all the strength which his ingenuity and eloquence could give to his own peculiar position, he ventures to fire his gilded shot at the sacred citadel. He contends that if the “dislike had been much more deliberate, and much more general than it was,” he ought not to make the “opinions of the greatest multitudes the masters of his conscience,” unless they “were the standard of rectitude,” which was not expected of him. All they asked was, in a question of expediency, that he would substitute their judgment for his own. He doubts if “Omnipotence itself can alter the essential constitution of right and wrong,” much less such _things_ as his constituents and himself. This was pretty gilding for their chains merely. They never attempted to alter the constitution of right and wrong, but to judge the one from the other; and the question was not between them and Omnipotence, but the electors of Bristol and the “sublime and beautiful” BURKE.

[Footnote 7: “And vice itself loses half its evil by losing all its grossness.”—[Reflections on the French Revolution.]]

He next contends that the delegate owes his _judgment_ as well as his exertions to his constituents—which is true—and the debt is paid when they ask to set aside his judgment for theirs. He admits the delegate should sacrifice his _will_ to his constituents, but that government is a matter of judgment and of reason—not of inclination; and asks, “What sort of reason is that in which the determination precedes the discussion—one set of men deliberate, and another decide—and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?” I might ask what sort of a will is this conceded, which is never to prevail? Can there be no reason or judgment—no discussion—no deliberation—no arguments out of parliament? Can the people neither talk, or think, or read? This argument wholly falls, when the instructions are given, after both popular and parliamentary discussion has spread all the light upon the subject through the country.

Now what remains of MR. BURKE'S great defence of disobedience? His arguments all go to expediency in particular cases, and not the _right_, when stript of the difficulties he throws around its exercise. Take him from his position, and strip him of his gorgeous and dazzling armor, and he must stand a pigmy confessed before all, as he was before the electors of BRISTOL.

JUDGE HOPKINSON finds fault with MR. TYLER for resignation. “He had sworn to support and defend the constitution against _wrong from any quarter_,” and he violated his duty and his oath, it seems, by resigning. “Where is the difference,” he indignantly exclaims, “between the sentinel who turns his own arms upon the citadel he was bound to defend, and one who gives up his trust to the _enemy_, that he may do the work of ruin which the conscience of the latter forbids.” The difference is rather between the sentinel who, being ordered to shoot a traitor brother from the battlements, turns and kills his commander—and one who, with the same orders, retires with leave from the service, and suffers another to do what affection for a brother, or perhaps participation in his designs, will not permit him to accomplish.

This new theory makes every resigning senator responsible for _all_ (or none) of the unconstitutional acts of his successor. MR. TYLER must bear MR. RIVES' expunging sins, to avoid which he resigned; MR. LEIGH must suffer if his successor establishes a bank or other form of monarchy; MR. TAZEWELL is responsible for MR. RIVES' vote on the force bill, and MR. RIVES for MR. LEIGH'S vote censuring the President, to escape which he resigned. Political parties have been censuring the wrong men. This new light, like an ignis fatuus, will lead them into a direction opposite to the one they wish to pursue. The incumbent is never {691} responsible when his predecessor has resigned. Resignation in a senator is at all times as criminal as desertion of his post by a sentinel, and when he is succeeded by a senator of different opinions (which he cannot prevent) it is equivalent to treason. To what a labyrinth of error are we led, by forcing reason to follow a foregone conclusion?

Let us examine it. Because senators are sworn to protect and defend the constitution, if they quit their posts and thus make room for another who may, or certainly will violate it, they themselves violate their oaths, their duty and the constitution. These are Judge H.'s premises. But Mr. Tyler's resignation was of such a character, therefore he violated the constitution. But any senator who will ever violate that instrument is not a fit guardian for it, and ought instantly to resign. Mr. Tyler did so, therefore he ought to have resigned. Then his resignation was right because it was wrong!

Again. Mr. T. violated the constitution by resigning—not by the act itself, but by enabling Mr. Rives to do it; but the guilt could only be incurred by one person, by one vote, and as Mr. T. had clearly incurred the guilt by a previous act, Mr. R. was innocent. But if Mr. R. did not violate the constitution, and Mr. T.'s guilt depended upon that, he too is innocent, and _there was no violation because there was no violation!_ But any reasoning which makes a man both right and wrong, or the constitution not violated because it is violated, must be intelligible and acceptable to those who make two persons who come to “opposite conclusions upon the same case” both right, and only infer from the difference that some one else is wrong!

Who shall be impeached—who punished under this new doctrine? Resignation is not unconstitutional, but is made criminal by an ex post facto act. As the subsequent acts could not be committed without the resignation, all the guilt attaches to the resigning member. Neither MR. RIVES or MR. LEIGH can thus commit any sin in propria persona. MR. TYLER sins in MR. RIVES, and MR. RIVES is responsible, not for his own acts, but those of MR. LEIGH. This is a roundabout responsibility with a vengeance, which makes no one responsible until he resigns, and is beyond the reach of impeachment.

But upon the Judge's own grounds, what better argument could be offered against senatorial infallibility, than this violation of the constitution by Mr. Tazewell, Mr. R. and Mr. T. and the promise to violate it by MR. LEIGH? Four successive _guardians_ of the state have betrayed their trust. They have deserted their posts, and left the constitution at the mercy of the legislatures, as “a rag floating upon the winds.” What can the legislatures do when thus left unchecked, unguarded, and the constitution a prey “to wild democracy?” The high criminality of the senators is enhanced by the fact that he is instructed by “a majority of six or eight out of one or two hundred, and he knows a large proportion of the majority to be men of little knowledge, of strong passions and prejudices, with a servile adherence to party purposes—men whom he would not regard in any concern of his own of the value of a dollar,” and in the minority he knows all to be eminent statesmen. Of what a stupendous violation of duty are these men guilty? They leave the state and the statesmen a prey to these vile demagogues in a new election, which the stupid constitution has put it into their power to make, without the guardian care and saving disobedience of some kind senator to protect us from their rashness. The more the Judge exaggerates the crime, the less worthy he makes the guardian; the more frequent the offence, the less infallible the senatorial wisdom and virtue. If senators commit these high crimes, they ought to be controlled by the ordinary guardians of the state—the legislature. We have now had this crime committed by a senator of each party in each manner, and promised by a third. Mr. R. resigned when first instructed by this wicked majority, and Messrs. Tyler and Leigh _obeyed_. The second time MR. TYLER resigned, and MR. LEIGH promised to resign, and MR. RIVES obeyed. When senators thus differ, what has become of the firmness and guardian care and infallibility which was to protect us? Which shall we follow? One or other of the two has in every instance, by this theory, violated the constitution. How shall we act? They are right and we are wrong, but how can we avail ourselves of the superior wisdom they have developed? What complexity—what difficulty—what a mass of error and confusion in the legislatures—what a waste of inexplicable and incongruous wisdom on the part of senators! Oh that our short-sighted ancestors had so ordered it that the guardian should instruct the ward, instead of the reverse!

This doctrine of non-resignation for fear a successor should violate the constitution, assumes that immediately after a senatorial election, a majority of each legislature becomes and must continue knaves or fools. It operates with much more force against a new election than instructions. It proves that senators ought to hold office for life; that all legislatures after the first have been incompetent, and all to come will be incompetent, from want of honesty and discretion to elect senators. But as it is admitted by all to be the best body for that purpose, and was selected as such by the convention, it follows that no body, since the first senate perhaps, ever has been or can be competent to elect senators. The state legislatures can only be incompetent because the _people_ want honesty or capacity enough to elect men capable of electing senators. _A fortiori_ are they not sufficiently honest or capable to elect presidential electors, or the house of representatives, which are even more important. The government must lapse into anarchy because there is not sufficient honesty or capacity in it to govern it. And it must continue so, because an ignorant and corrupt people without a government cannot better their condition. Nor can any form of hereditary government be established, because it is absurd to say that _chance_ is a better guide than the simplest reason; and where the wisdom of all combined is not sufficient, it is absurd to look for greater wisdom in a _few_ or in _one_. Thus it seems to me that a denial of the right of instruction is not only inconsistent with a representative government, but the reasons on which it is founded are inconsistent with any government.

MR. TYLER admits our principle and says he would obey, but for constitutional scruples, but having these he resigns. This seems a simple, intelligible, respectful course; but Judge H. “whose political metaphysics surpass my understanding,” loses himself in a labyrinth of doubt and obscurity. He says in effect “I will do as I please,” makes the matter simple enough. All {692} despotisms are simple, and simple people submit to them. “Obey or resign” is not too complicated to be understood by men as enlightened as senators ought to be, and seems more suitable language between masters and servants. He creates a new difficulty by making senators not enlightened, but simpletons, groping in the dark in each case, to know whether they must obey _or_ resign. All such should resign at once, for Judge H.'s theory is based only upon exalted wisdom, and cannot save him, if he is a “simple novitiate” seeking a _rule_ to guide him in a plain duty. He would be a “simple novitiate” indeed who would inquire “what legislature he should obey.” Common sense would seem to say the question only arises upon the instructions actually before him in all cases, and he could not obey a legislature which did not instruct, or instructed last year, or forty years ago, or may instruct forty years or a month hence. I cannot see where the Judge finds authority for his “playing for the rubber, or taking his chance for a third heat,” (as he facetiously remarks, “_especially in Virginia_,”) unless the senator has second sight, and then the argument proves that he ought to obey, not only promptly, but _a year in advance_. But it is better to _count out with honors_ and gain _his points_, than run the risque of losing by this _odd trick_.

The strangest perversion runs through these comments upon Mr. Tyler's course. The firmness before required is forgotten. The senator must disobey if he finds great men against his constituents—the opinion of a JAMES MADISON, or even a disappointed minority of his own constituents, if _in his opinion_, possessed of more intellect than the majority, may be obeyed in preference. A majority of constituents seems to be the only body, to be utterly disregarded.

But the leaning on authority is not yet sufficient; we are to be defeated not only by _concurrence_, but _difference of opinion_, as the following paragraph proves:

“I cannot refrain from remarking that these gentlemen, (Messrs. Tyler and Leigh,) both professing to maintain the true and orthodox doctrines of ‘Instruction,’ and exerting their powerful and cultivated intellects to explain them through many a labored column, at last bring themselves to opposite conclusions on the same case. Is it possible to give a more impressive illustration and evidence of the fallacy of the whole faith than that two such men, both indoctrinated in the same school, should, when brought to the practical application of their principles, so differ about their import and obligation?”

I should humbly conceive it proved the fallacy of that faith which holds that a senator cannot be wrong. Two senators “come to opposite conclusions upon the same case,” and it proves not as simple mortals would suppose, that _one_ must be wrong, but that the _legislature_ is wrong. If _their difference_ only proves error in some one else, we cannot wonder at the vast estimation in which senators are held by their admirers. But their difference is not so great as supposed. One says I cannot obey, and, therefore, I resign now; the other says you want me to resign, but I will not now, but at the beginning of next session. Here is the same conclusion from the same case. Mr. Leigh postponed, but why will he resign at last? He gives no reason, but the instructions, and no one has suggested any other. He must resign on account of the disagreeable feelings produced by the peculiar position of being a misrepresenting representative. Those feelings are required and expected by our theory in the bosoms of all conscientious senators. So even the difference which was to destroy us, is one of _time_—not of _principle_. As to the argument that some of the voters of last year gave contrary instructions the year before, if true,—it does not prove them less worthy of respect now than then,—indeed, the last being the more deliberate, is the more worthy opinion; and as Mr. Tyler obeyed the first, _a fortiori_ he was bound to obey the last, or resign.

I have done. Long as I have been with you, I have only touched the most striking points. There are two documents which would have shed light upon the obscurest part of this subject, I mean the letter of ELDRIDGE GERRY to the Massachusetts convention, on the constitution of the senate, and JAMES MADISON'S history of the constitution, and debates of the convention. These were inaccessible, but whenever examined they must confirm the views taken here. Though the Sun of Montpelier has sunk in glory, below the horizon, it will thence shed a brilliant but mellowed light upon its noon-day track, and mystic truths so long hidden by its dazzling brilliancy, may be read by its milder rays, engraven in letters of gold upon the imperishable arch of Heaven. We must abide the coming of that time in mute faith, confiding in what we have already learned from Moses and the prophets; but, if it be no profanity to quote the sacred founder of our religious faith in defence of our hallowed constitution, I would say, “If they hear not Moses and the prophets, neither will they be persuaded, though one rose from the dead.”

ROANE.

'TIS THE LAST DAY OF SUMMER.

'Tis the last day of Summer,
Now fading away,
As behind yon blue mountain,
The sun hides its ray;
And the low breeze is sighing,
So chilly and drear,
That, methinks, the wood whispers,
Stern Autumn is near!

'Tis the last day of Summer,
And sad is the smile,
That now lights up the gloom,
Where it lingers awhile;
Whilst the cloud that is wreathing,
So gaily the west,
But reveals by its brightness,
The tempest's dark crest.

'Tis the last day of Summer,
And fleet as its ray
Hath departed, so fleetly,
Doth life speed away!
But beyond _this drear gloom_,
Is a resting place given,
Where the spirit shall bask,
In the summer of Heaven.

T. J. S.

_Frederick County, Aug. 31st, 1836_.

{693}

THE LEARNED LANGUAGES.

The youthful votary of knowledge, naturally infirm of purpose, is ever prone to despond and falter in a pursuit the utility of which is not immediate and palpable; yet he listens with amiable credulity to the matured in judgment and the ripe in scholarship. It should therefore be the duty and pride of such to cheer onward the ingenuous, even in those studies whose inceptive difficulties alarm him. Hence we read with feelings of regret and surprise an article in the August number of the Messenger, from the pen of Mathew Carey, Esq., the inevitable tendency of which will be to discourage students of the Classics, and to diminish the estimation, already too low, in which they are held in the south. We should be deterred from entering the list against a name so imposing, and one which deserves so well of his adopted countrymen, if we did not reflect that the inherent strength and self-tenability of a good cause greatly outweigh the most splendid abilities in sustaining a bad one. _Magna est veritas et prævalebit._ So thus we hurl our white pebble from the river of Truth at the forehead of Goliah.

Before we rush in _medias res_, permit us to premise that, if we chose to decide this question with Mr. Carey by a preponderance of authorities, the rich libraries of our university would supply an array of illustrious names as long as that of John Lackland's barons. But reason and experience shall be our only authorities, than which there are none greater, not even Locke or Carey.

The universality of the study of the dead languages is objected to. “A young Englishman, unless he goes to the University of Cambridge, has scarcely a notion that there is any other kind of excellence.” But one would suppose that the practice of studying them by all enlightened nations, for so many centuries, ought to be conclusive evidence of their utility; because mankind are so much influenced by interest, that they are ever ready to abandon whatever does not promote it. Our opponents, however, tell us that they were engrafted into seminaries of learning in ages less enlightened than the present—that such is the force of prejudice and custom, they have been continued as a course of education despite their many disadvantages. Is this true? Have not mankind long since shaken off their idolatrous veneration for antiquity? The whole cumbrous and chaotic mass of feudal error has fallen before the full blaze of modern discoveries and improvements. But modern reformers and experimentalists, in removing the rubbish of ignorance, and the rust of antiquity from literary institutions, spared the languages in which Mæonides and Maro bequeathed to posterity models more potent for inspiring genius than all the waters of Castalia, in which Demosthenes and Cicero gave utterance to sentiments which, even at this distant day, have impelled many to deeds of noblest patriotism. Spared did we say? They have done more; they have recommended redoubled attention to them. It is a fact, that the learned languages are more extensively cultivated now than at any former period, and that too by utilitarian and practical Englishmen—by intellectual and acute Germans—by scientific Frenchmen—by economical, pence-counting Scotchmen, in the teeth of opponents, powerful, gifted, active. If they are worthy of so much attention in Europe, _a fortiori_, they are worthy of it here, for the obvious reason that, breathing as they do the spirit of liberty and republicanism, they furnish ideas more congenial and valuable to that form of government in which these principles are recognized, than to an oppressive one, where Brutus is stigmatized as a murderer, and the burning words of the two mighty scourges of tyranny regarded as dangerous food for popular lips. In a free country eloquence is the lever that heaves the body politic. In the Classics the purest models are found. Hence we infer that they are the appropriate study of American youth, and that it would be our highest glory to outstrip Europe in a knowledge of them, as we have already done in the science of government.

In reply to the argument that the languages consume too much time from the acquisition of English, we assume high ground, and lay down the predicate that the study of them is the shortest, best and easiest way to learn English. This idea will be illustrated by attending to the _modus operandi_ of teaching. Before a student can acquire the idea contained in the simplest sentence of a dead language, he must ascertain the English meaning of every word in it; and before he can render it correctly, he must study into what English moods, tenses, and cases the words of his translation are to be put. If he do not this, he will be liable to render a Latin or Greek imperfect by an English future, and vice versa; hence it is evident that he must have not only his classical books, but that an English Grammar, a Geography, and a Dictionary must be ever at his side. Take an illustration. The crude, disarranged sentence, “vinco Scipio Hannibal in Africa,” and the English translation, (Scipio conquered Hannibal in Africa) are given him to reduce to good Latin, and to explain the three proper names. To do this he must refer to his English Grammar, to find in what mood, tense, number, person and voice the verb “conquered” is, and then take up the English books containing the required information concerning Scipio, Hannibal and Africa: thus, in correcting this short sentence, learning, perhaps, more of English Grammar, Geography, and History, than of Latin. We are persuaded that nine-tenths of our southern teachers will tell Mr. Carey, that in their schools, consisting of Classical and English students, the Latin scholars are the better English scholars—that they are the better writers and speakers, the more cheerful and industrious, the more influential with their fellows, and that they require in their studies a larger number of English books than the other.