considered these requests as any sort of check upon the | be bound always to be a Senator, if he possibly could, House of Representatives; but all look to the Senate as for fear his successor should violate the constitution. a check upon that body, and to check the Senate they He has no more right to believe that his successor of the say the State Legislatures may instruct. If requests next month will violate the constitution, than his sucwill be of any avail as a check, why go around Robin cessor ten years hence. And if his oath requires him Hood's barn, to bring them to bear?-why not have said to hold on to defeat the one, it is equally obligatory with at once, the State Legislatures may instruct their mem-regard to the other, as far as any exertions on his part bers in the House of Representatives? "Will this be no check?" Since an example has been set by such high authority, of investigating valuable rights by the light of the verbal critic's lamp, let us see if Dr. Johnson will not extend a hand to save the people as well as to prop their masters. He defines a representative to be "One exercising the vicarious power given by another"-and vicarious is "Deputed,-Delegated,-Acting in place of another." We can find no authority here for one who acts in a representative capacity, to act according to his own will, and in direct opposition to the will of those in whose place he acts. can effect the object. Thus Senators would be bound by their oaths to continue in office for life, if they could. I have been a little surprised at seeing such language as the following from the pen of JUDGE HOPKINSON. "The people may instruct and the Legislatures may enjoin, and both will always, doubtless, be attended to with a deep respect and a powerful influence; but if with all this respect and under this influence, the representative or the Senator cannot, in his honest and conscientious judgment, submit himself to them, does he violate his official duty, and is he bound to relinquish his office? This is the question, and no affirmative anThe idea advanced by JUDGE HOPKINSON, of the im-swer to it, or any thing that implies it, can be found in propriety of the Senator's acting upon the dictation of any of the writings or speeches of any of the distinothers, and his own responsibility, seems a little disinge-guished men at that time. The doctrine is of a later nuous. The agent must be considered as released from date; it is not coeval with the constitution, nor with all responsibility, when he is ordered by his principal the men who formed it." to do a particular act. If he thinks that act illegal, or dishonorable, he need not do it, but he ought to resign. And all the responsibility rests upon the instructing Legislature. He has no right to set up his opinion or conscience as supreme law for any one but himself, and he is bound to presume that his constituents honestly differed in opinion with him. If he disobeys, he will find that the people will think it quite as probable that one man was wrong from corruption, as that a majority of their immediate representatives were corrupt. We do not maintain that "it is the official duty of the Senator to obey in all cases," but it is his moral duty in all cases in which he is instructed to do a possible act, to obey or resign. But says, Judge H., he may by his re-mockery to talk of respect and influence. It would be signation defeat his constituents. Be it so-the reponsibility is upon them; but they cannot be defeated in as great a degree, by having no representative, as by being misrepresented. No vote is better than a vote against ourselves. Admit the reverse to be true, and can an involuntary, accidental defeat of the people's wishes, by a conformity to principle, be any excuse for a wilful and predetermined defeat of their will? Can the Senator say, if I had resigned, my successor might not have arrived in time to vote for you, and so I held to my place, and voted against you? When Judge H. contends that the will of the people may be defeated by the resignation of the Senator, and that he ought there-discrepancy that the passage was quoted. It was for fore not to resign, he admits that the will of the constituent ought to prevail, and of course that instructions ought to be obeyed. The Judge seems to me here to shift his ground in some degree. He evidently considers the instructions as doing something more than giving information, for the Senator could not be convinced either by respect or influence. To instruct a representative, generally supposes a difference of opinion between the agent and principal. If this difference does not exist, the instructions will of course be obeyed, and no question arises. If it does exist, the Senator is bound to obey or resign, or he is not. If the latter is the correct doctrine, he must disobey, because his conscientious conviction requires him not to obey. Instructions then must either convince his reason, or be entirely inoperative. It is criminal in a Senator to be swerved from the conscientious conviction of his mind as to his duty, by respect for any men or their influence, however exalted they might be. To say that a Senator is not bound to obey or resign, because his conscience requires him to retain his seat and disobey-but that he will in fact sometimes obey from respect or influence, is reasoning about as correctly as it would be to say, "That he ought not to be held responsible because he is honest, but that he may be trusted because he is corrupt, or will at least stretch his conscience from respect to us." But it was not for the purpose of noticing this little the purpose of noticing the charge, that our "doctrine is of a later date; not coeval with the constitution or the men who formed it," which is indeed a startling opinion to come from a gentleman of the acknowledged candor and learning of JUDGE HOPKINSON. The opinion was expressed in the haste of private correspondence, and upon investigation will not be adhered to. The doctrine was not only existing and well understood prior to our constitution, but was coeval with represen The argument which contends that a Senator should not resign when he receives instructions which he cannot conscientiously obey, because his successor may obey, and thus perhaps violate the constitution, seems the most fallacious of all. It seems that because he has sworn as Senator to support the constitution, he must not resign. This oath surely only applies to his Sena-tation. That the agent should conform to the express torial career, and when his place is resigned his oath is expunged. If construed with the strictnesss required by the Judge, it would prevent his ever leaving his seat, or resigning, or declining a re-election. He would will of his principal, is so natural, that we cannot doubt its establishment at once, wherever the valuable representative principle has been introduced into government. It is one of its chief recommendations. We There are a few more remarks in the same speech which we cannot forbear from quoting. PATRICK HENRY was afraid to trust the power over both the sword and the purse to Congress, and was very jealous of the clause allowing Congress the power to keep secret certain matters, supposing that under the mantle of public necessity they would conceal their votes, and would violate the rights and instructions of their constituents have recorded evidence of the exercise of this power | THEIR CONSTITUENTS, without determining the quesmany times, and from remote periods, in the British tion, to convince them of their being mistaken, and of Parliament. Many of these instances of command and the propriety of adopting it." This was a matter of obedience are collected by MR. LEIGH in his Report to overwhelming importance to the people of New Hampthe Virginia Legislature in 1812. The British Parlia- shire, in which their representatives were convinced ment was the great model upon which our statesmen that they ought to decide in a particular way, but being framed our constitutions, and with its principles and his- instructed differently, they would not carry out their tory they always evinced an astonishing familiarity. own views, though in fact correct; but the whole conWe cannot suppose them ignorant of this great and vention resigned, to endeavor to convince them of their obvious principle-a principle, beyond all question, of error. MR. MARSHALL quotes this instance of a whole much more doubtful propriety in England then, and body being prevented by instructions from doing the even now, than it can ever be in this country; because only work which they assembled to do, as a matter by in England a few places elect representatives for the no means astonishing or culpable, though he himself whole body of the people. But even there the true was of the same opinion with the representatives of theory prevails, and the wisdom to which the consti- New Hampshire. It was an example of good princitution looks as governing the whole country, is that of ple worthy of all imitation. the electors, and not the delegates. However small, ignorant, or obscure the place may be which sends a member, in that place the constitution supposes the wisdom to reside which is necessary to give one vote in Parliament, and not in the individual through whom the vote is given. If the constitution is in error, reform that, but do not usurp powers for the representatives. Hence the fate of the eloquent Burke before the electors of Bristol. In distributing more equally the elec-without being detected. To this MR. MARSHALL says, tive power, our ancestors evinced both their justice and their wisdom. They saw no reason for supposing one portion of the country possessed of much more wisdom than another, whilst all alike required protection. The power of instructions and short terms they supposed a sufficient check to enable the people to protect them-impossibility of this. Must they then not trust them to selves. Abundant evidence may be adduced to show others? To whom are they to trust them but to reprethat those great men were familiar with the importance, sentatives who are accountable for their conduct?" He and obligation, and frequent exercise of this right. To then shows that secrecy is allowed in the British governprove this, we need go no farther than the Debates of ment, and proceeds thus. "We are threatened with the the Virginia Convention which adopted the federal con- loss of our liberties by the possible abuse of power, stitution. That constitution was no where more tho- notwithstanding the maxim, that those who give may take roughly discussed, or more warmly opposed, or opposed away. It is the people who give power and can take it by men of more ability, than in that convention. Yet back. What shall restrain them? They are the masin their debates we find the right asserted both by oppo-ters who gave it, and of whom their servants hold it.” nents and advocates of the constitution; the one party We cannot doubt that one holding these sound republicontending that the right was not sufficiently secured can principles, then at least, approved the noble examby power to enforce its obligation-the other that the ple of resignation on account of instructions, which he nature of the office, and the character of the men, had just before quoted. would be a sufficient guarantee of their obedience. PATRICK HENRY was the great champion of the opInstructions are frequently mentioned as a regular, position in that convention, and so decidedly federal in legitimate, unquestionable mode of controlling the will his construction of its terms after its adoption, that he of the representative. And the idea of disobedience is was afterwards elected to oppose MR. MADISON'S celenever suggested except in connection with other possi-brated resolutions of '98. Yet we find him admitting ble gross moral and official misconduct. Disobedience the right of instruction in its fullest extent throughout seemed to be considered as treachery to the constituent. As my authority is not accessible to all of your readers, you must allow me to quote liberally to sustain my opinions, at the hazard of encumbering your pages. "The honorable gentleman has asked, if there be any safety or freedom when we give away the sword and the purse? Shall the people at large hold the sword and the purse, without the interposition of their representatives? I apprehend that every gentleman will see the the state and federal governments, and never seeming to suppose that the obligation would be doubted, but at the same time contending with a wonderful forecaste that the responsibility of our representatives would be no protection to us, because though instructed, they would be out-voted by other delegates who could not be instructed by us. He says at page 230, "He tells us At page 69, MR. JOHN MARSHALL, So happily characterized by JUDGE HOPKINSON as "that great and pure man, that true and fearless patriot," in answer to an argument of PATRICK HENRY, founded on the as-responsibility is secured by direct taxation. Responsiserted rejection of the constitution by certain states, bility, instead of being increased, will be lost forever by says, "New Hampshire and Rhode Island have reject it. In our state governments our representatives may be ed it, he tells us. New Hampshire, if my information severally instructed by their constituents. There are no be right, will certainly adopt it. The report spread in persons to counteract their operations. They can have no this country, of which I have heard, is that the repre- excuse for deviating from our instructions. In the genesentatives of that state having, on meeting, found they ral government other men have power over the busiwere INSTRUCTED TO VOTE AGAINST IT, RETURNED TO ness. When oppressions may take place, our repre : sentatives may tell us we contended for your interest, | federation, yet those articles do not mention a power to but we could not carry our point, because the represen-instruct, or a punishment for disobedience, any more tatives from Massachusetts, New Hampshire, Connec- than the present constitution. The subsequent power ticut, &c. were against us. Thus, sir, you may see to punish by recall is the only differenee. If we conthere is no real responsibility." Here are instructions tinue the same sentence, we shall find that he has coureferred to as a complete security in the state govern- pled disobedience with bribery, and complains equally ment against any legislation objected to by the people, of absence of power to punish either. "If they give and as completely obligatory upon our representatives away, or sacrifice your most valuable rights, can you from the state in Congress, and only failing to be a impeach or punish them? If you should see the Spanish complete protection there too, because we cannot instruct ambassador bribing one of your Senators with gold, the representatives of New Hampshire, &c. He places can you punish him? Yes-you can impeach him bethe representative in the attitude of apologizing, not fore the Senate. A majority of the Senate may be for disobedience, but failure in accomplishing the wishes sharers in the bribe-will they pronounce him guilty of the people. Disobedience did not seem to enter his who is in the same predicament with themselves? imagination, much less the right to disobey. Where, then, is the security? I ask not this out of triunph, but anxiously to know if there be any real security." It would seem from this that the old patriarch was not thoroughly convinced of the incorruptibility of Senators, and wished to provide some mode of punishment for their offences, from the high moral crime of disobedience, to the petit larceny business of taking a bribe-and he even supposed a majority of the Senate might be guilty of the latter offence! The views of this illustrious man, and zealous cham He is there again expressing his fears that the transactions in the Houses of Congress will be kept secret, and clearly thinks there would be no danger, if our representatives were all good men and would obey instructions, except that of being overruled by a majority. "But it will be told that I am suspicious. I am answered to every question, that they will be good men. In England they see daily what is going on in Parliament. They will hear from their Parliament in one thirty-ninth part of the time that we will hear from Congress in this scattered country. Let it be proposed in England to lay a poll tax, or enter into any measure that will injure one part and produce emoluments to another; intelligence will fly quickly as the rays of light to the people. They will INSTRUCT their representatives to oppose it, and will petition against it, and get it prevented or redressed instantly. Impeachment follows quickly a violation of duty. Will it be so here? You must detect the offence and punish the defaulter. How will this be done when you know not the offender, even though he had a previous design to commit the misdemeanor? Your Parliament will consist of sixty-five. Your share will be ten out of the sixty-five. Will they not take shelter by saying they were in the minority— that the men from New Hampshire and Kentucky out-voted them? Thus will responsibility, that great pillar of free government, be taken away." He thus thinks the clause of secrecy will be used as a shield to conceal the offenders who violate instructions, or otherwise betray their constituents. In another place we find the same great orator plainly referring to the exercise of this right, as one of the greatest bulwarks of freedom; and inveighing against the constitution because it gives the Senators the power (not the right) to disobey with impunity. He would have the legislature to possess the power to recall in cases of disobedience. Look to his remarks at pages 252 and 253. He says, speaking of the project to barter away the navigation of the Mississippi to Spain, and the right of the United States to that navigation-pion of freedom, are still further developed at page 283. "American interest was fully understood-New Jersey called her delegates for having voted against this right. Delegates may be called and instructed under the present system, but not by the new constitution. The measure of the Jersey delegates was averse to the interest of the state, and they were recalled for their conduct." In this paragraph he did not mean to say that instructions would not be given, or ought not to be obligatory, but that bad men would have it in their power to disobey without fear, because they could not be recalled. This at least is the only construction which will make his language consistent with that previously quoted, and that which now follows, from the same speech and the same page. "At present you may appeal to the voice of the people, and send men to Congress positively instructed to obey your direction. You can recall them if their system of policy be ruinous. But can you, in this government, recall your Senators? or can you instruct them? YOU MAY INSTRUCT THEM, and offer your opinions; but if they think them improper, they may disregard them." Here he thinks it would be a breach of duty to disregard them, and he objects to leave the power of disobedience in the hands of Senators, without the power to recall them, which he thinks made the control over them complete under the confederation, and would make it so under the constitution. But surely the power of subsequent punishment, or of providing against future mischief, from the hands of the same individual, does not create an antecedent duty either moral or official. The suggestion of punishment or prevention, implies the previous or possible violation of an existing duty. And the absence of a power to punish or prevent, cannot diminish the obligation of such duty, if admitted to exist. HENRY considered the force of instructions complete, by the mere power to recall, which certainly could not undo or invalidate the act done in violation of instructions; he therefore considered this recalling power necessary to make bad men perform the duty of obedience. He was satisfied with the articles of con MR. NICHOLAS, in reply to some of these remarks by HENRY, says at page 257, "But we are not to calculate any thing on New Jersey. You are told she gave INSTRUCTION to her delegates to vote against the cession of that right (the navigation of the Mississippi.) Will not the same principles continue to operate upon the minds of the people of that state? "We cannot recall our Senators. We can give them instructions, and if they manifestly neglect our interest, we have sufficient security against them. The dread of being recalled would impair their independence and | posed to us in the debates of the Virginia Convention, firmness." let us follow him to the pages of "The Federalist," so triumphantly quoted by JUDGE HOPKINSON, and see if he is there opposed to this sacred principle. A right so important, so often asserted in his presence MR. NICHOLAS thinks the dread of being recalled would impair independence and firmness; not the dread of being instructed, as contended for at the present day. He considers instructions as an efficient mode of insur-as existing, so frequently exercised in those times, if ing the desired course upon any specific question, on which it might be necessary to resort to them, but that a power of recall would produce a vaccillation and weakness in the course of the Senator, which might be highly mischievous. He clearly thinks the Senator must follow the wishes of his constituents, when specially instructed as to their will; but when not instructed, that he ought firmly and independently to act as he thinks best, and not as if he was in perpetual dread of losing his seat. He wishes a preventive remedy and not a punishment. No Senator ought to fear instructions, because they do not punish or injure him; on the contrary, they remove a fearful responsibility from his shoulders—a responsibility so great as to make the power of recall a constant source of terror: because a recall would disgrace him as far as the Legislature could produce that effect by its displeasure. But if a Senator either obeys instructions or resigns from conscientious scruples, he reaps honor instead of disgrace. A Legislature might recall, from caprice, or faction, or the envy of influential men, and the stigma | could not be avoided by any good conduct on the part of the Senator; but if he is instructed, whether from any improper cause, or from the best, he cannot be injured or disgraced unless he wilfully disobeys. If the instructions are bad, and he either obeys or resigns, all the odium must fall upon the instructing Legislature, and not upon him. He will be sustained by their common ultimate masters, the people, and the Legislature will not. Can it now be said that this doctrine is a new one, conjured up long since the formation of the constitution? When we find that instrument sustained in the convention by one party, on the ground that this very right existed in sufficient force in the State Legislatures, and would be regarded by men of sufficiently high standing and integrity to be elected Senators-and opposed by the other party, at one time, because the Legislature had no power to punish a violation of the right admitted to exist, and at another, because though complied with, it would not afford adequate protection, because our instructed delegates might be defeated and overruled by a majority coming from other States. In these debates MR. MADISON had so many objections of a graver import to answer, that he never seems to have thought it worth while to answer, specially, arguments based upon the mere possibility of the violation of an admitted duty by representatives of as high character as the Senators were likely to be-because all such arguments were answered specially by his coadjutors, (as in the instance of Mr. Nicholas) and generally by himself, in frequent asseverations that objections of that character, founded on the frailty of human nature, struck at the root of representation, and sapped the foundation of republican government. If his silence upon this particular subject was not a direct sanction of the arguments of his coadjutors, it certainly cannot be construed into disapprobation of their doctrine. Since we cannot find this illustrious statesman op disapproved, should have been directly denounced in of the Senator, to enable him to remove himself from a cannot affect him-he has nothing to dread: it only delicate situation. It is not produced by the Legisla- affects the vote of which he is the depository, and cannot ture-it is no punishment-it is not a legal or official remove him from his place. Is there no difference beejectment from office-it carries no stigma with it-it tween a disposition to cater to every temporary whim is an obedience to the requisitions of delicacy, and lofty or caprice which may sweep over the multitude, for fear honor, and not a compliance with the mandates of the of not being re-elected at the end of a short term, and a Legislature. We instruct, and propriety, reason, and voluntary obedience to their deliberate will, expressed authority say he must obey; but justice says he may through two branches of their representatives? The resign, if he cannot obey with honor. As well might it| House of Representatives will be sensitive at once to be objected to us, that we do not compel a Senator any commotion among the people. A temporary and never to resign. Resignations for instructions no more dangerous excitement might lead them into improper shorten the term than other resignations; and as long acts, for fear of being turned out at the end of their as any are allowed, we must allow those made to save short term. This house was expected to be thus sensithe conscience or honor. This is the only refuge; for tive, but the Senator's tenure of six years was given as duty requires obedience, and it would be dishonorable a check to prevent this tendency from carrying the to disobey. The Senator, who is called a representa- other house too far. That cannot be called a popular tive, has no right to save his conscience at the expense commotion which reaches him by the deliberate voice of his constituents, and throw their whole political of two separate legislative bodies, acting under responweight in a direction precisely opposite to their express sibility; but must be assumed by the Senator to be the wishes. Instructions then neither vary or shorten the deliberate judgment of all the people: it is, at all term of office. If they are obeyed, what harm is done? events, the deliberate judgment of all to whom he has The will of the constituent has prevailed, as it ought to a right to look. The Legislature has power by the do, by the theory of our government. What if he constitution to elect him, and this carries with it the resigns? The State is without a Senator, by his volun- right to instruct him. But they exercise both these tary act to save his honor, and his successor perhaps powers vicariously, and if they mistake the will of the carries into effect the will of his constituents. Where people, they are responsible for their instructions, not is the breach in the constitution? The same result the Senator for his obedience. His responsibility is might happen, because the Senator did not like his removed by obedience or resignation. If he is "the colleagues, or was in ill health, or embarrassed in cir- anchor against popular fluctuations," it is proper that cumstances, or accepted a federal office, or wished to like all other anchors, he should be hauled up when a travel, or engage in agriculture. If it is unconstitutional favorable and permanent breeze enables the ship to for a Senator to resign because his conscience or honor proceed; and of this-not the anchor, but-those above require him not to obey instructions, then is it equally it must judge. And if he hooks his fluke too deeply in unconstitutional for him to resign for any of these the moorings, it is clear that unless there is a "capstan reasons, or any others which might occur to him. His and cable" somewhere, he transcends the sphere of his failure to resign, or the want of power to compel resig- utility, and does more harm than good by making a nation, cannot absolve him from the duty of obedience. temporary stay a permanent fixture. PATRICK HENRY Instructions to Senators are always given by a solemn, wanted to give the Legislature power in such cases to deliberate, recorded act, passed by an organized body of cut the cable; and I think it would be well if such a representatives, responsible themselves to the people. power could be lodged with the people in cases of disoEvery delegate must account for the principles involved bedience, or other flagitious offences on the part of in his vote; but this responsibility is not generally held Senators. 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. 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 neces sity 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 the House of Representatives of the United States; if their ininto intemperate and pernicious resolutions.' If this is true of temperate 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 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 smallest State in the Union. Are there no local impulses and of their expressed will. But he was to be firm against passions to agitate these Legislatures? no factious leaders to sehis own fears, and independent of the House of Repre- duce them into intemperate and pernicious resolutions—and to sentatives or popular commotion. He is surely suf-induce them to prefer some little, local advantage, to the gene. ficiently 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 ral 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, VOL. II-80 |