Part 6

How bright wert thou when Shem's admiring eye, Thy burning, flaming arch did first descry; When Zerah, Nahor, Haram, Abram, Lot, The youthful _world's gray fathers_, in one knot, Did, with intentive looks, watch every hour For thy new light, and trembled at each shower

evidently suggested that fine stanza of Campbell—

When o'er the green undeluged earth Heaven's covenant thou didst shine, How came the _world's gray fathers_ forth To watch thy sacred sign.

But the verse which follows is an admirable addition of his own.

And when its yellow lustre smiled, O'er mountains yet untrod, Each mother held aloft her child, To bless the bow of God.

This finishes the picture, and makes it perfect. And Vaughan's two first lines,

Still young and fine, but what is still in view, We slight as old and soil'd, though _fresh_ and new,

together with his two last,

Who looks upon thee from his glorious throne, And minds the covenant betwixt ALL and ONE,

obviously kindled Campbell's two closing stanzas—

As _fresh_ in yon horizon dark, As _young_ thy beauties seem, As when the eagle from the ark First sported in thy beam.

For faithful to its sacred page, Heaven still rebuilds thy span, Nor lets the type grow pale with age That first spoke peace to man.

A splendid improvement indeed! In short, Campbell's Rainbow (or the best part of it, from the fifth verse to the end,) is but a sort of _secondary_ of Vaughan's, though it is not in this case, as in nature, fainter, but _triumphantly_ brighter and more beautiful than the first.[1]

[Footnote 1: Perhaps the reader may like to see Vaughan's piece entire. Here it is.

THE RAINBOW.—_By Henry Vaughan._

Still young and fine! but what is still in view We slight as old and soil'd, though fresh and new; How bright wert thou when Shem's admiring eye, Thy burning, flaming arch did first descry; When Zerah, Nahor, Haram, Abram, Lot, The youthful world's gray fathers, in one knot, Did, with intentive looks, watch every hour For thy new light, and trembled at each shower. When thou dost shine, darkness looks white and fair; Storms turn to music, clouds to smiles and air; Rain gently spends his honey-drops, and pours Balm on the cleft earth, milk on grass and flowers. Bright pledge of peace and sunshine! the sure tie Of thy Lord's hand, the object of his eye! When I behold thee, though _my_ light be dim, Distant and low, I can in _thine_ see Him, Who looks upon thee from his glorious throne, And minds the covenant betwixt _All_ and _One_.]

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RIGHT OF INSTRUCTION.

Quare quoniam de re publica quærimus, hoc primum videamus quid sit id ipsum quod quærimus.

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Est igitur, inquit Africanus, res publica _res populi_; populus autem non omnis hominum coetus quoquo modo congregatus, sed coetus multitudinis juris consensu et utilitatis communione sociatus.

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Quare cum _penes unum_ est omnium summa rerum, _regem_ illum unum vocamus, et _regnum_ eius rei publicae statum.

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Itaque si Cyrus ille Perses _iustissimus fuit sapientissimusque rex_, tamen mihi populi res; ea enim est, ut dixi antea, publica; non maxime expetenda fuisse illa videtur, cum regeretur _unius nutu_. Ac modo si Massilienses nostri clientes per delectos et principes cives _summa iusticia_ reguntur, inest tamen in ea condicione populi _similitudo quædam servitutis_.

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Cur enim regem appellem Jovis optimi nomine hominem dominandi cupidum aut _imperii singularis_, populo oppresso dominantem, non _tyrannum_ potius?

_De Re Publica._

For the Literary Messenger to contain temperate articles upon general politics, and political economy, is in the humble opinion of the individual now writing, as manifestly proper, as it would be obviously the reverse for it to embark in the slightest degree in party strife. He was therefore decidedly pleased with the appearance of an article of the temper and tone of the letter in the last number upon the RIGHT OF INSTRUCTION. That article has so universally been attributed to the pen of the amiable and learned JUDGE HOPKINSON, that it would be affectation not to consider him as its author. This avowal, whilst it renders the boldness of an attempt at reply the more fearfully conspicuous, also renders more glaringly manifest the impropriety of suffering the gauntlet so gallantly thrown by so able and courteous a champion into the teeth of all Virginia's chivalry, to remain unaccepted. The fear that business, or inertness, or a belief that the question is settled, should prevent our distinguished men from entering the lists, and thus leave the impression that the cause of the Honorable Judge was deemed too righteous for our knights to risk the fate of the combat, has induced one little fitted for the controversy, with no little trepidation, to enter the lists. To drop a stale metaphor, I will venture to suggest a few plain reasons for thinking the argument of the Judge not entirely conclusive.

The Virginia doctrine of instructions is thus laid down by the Judge. “I understand that doctrine to be, that the instructions of a State Legislature to a Senator of the United States, are an authoritative lawful _command_, which he is bound implicitly to obey, and which he cannot disobey without a violation of his official duty as a Senator, imposing upon him the obligation to resign his place if he cannot, or will not, conform to the will of his Legislature.” There is but one fault to be found with this definition, which is the insertion of the word “_official_” instead of the word “_moral_.” We hold the obligation to obey instructions or resign to be a moral duty of the man, incident to the acceptance of the office, rather than the _official_ duty of the Senator. The latter duties are prescribed by the constitution, the former are established by general principles of political ethics. This distinction may seem to be rather nice than important, since the establishment of either would lead to the same practical result. But as we are now discussing the propriety of that result, it is important to know precisely upon what principles the right is based, lest we lose our cause by a mistake in terms. If we contended for the official duty of the Senator, we could look _only_ to the constitution for the establishment of the right, but contending for the moral duty as an honorable man and an honest politician, we may look to any source not incompatible with the provisions of that instrument. The learned Judge proceeds, after laying down his definition to state his objections. The doctrine appears to him “to be absolutely incompatible with the cardinal principles of our constitution, as a representative government; to break up the foundations which were intended to give it strength and stability, and to impart to it a consistent, uniform, and harmonious action; and virtually, to bring us back to a simple, turbulent democracy, the worst of all governments—or rather, no government at all.” We Virginians must be permitted to join issue with the Judge upon each of these conclusions, and I for one must confess that my mind is not satisfied either by the ingenuity or learning displayed by him. But as his reasons for his conclusions are developed in the progress of his argument, perhaps it will be better to unfold our objections to his conclusions whilst following his reasoning.

The Judge sustains his views in the first place, by combatting the arguments of some writer in the Richmond Enquirer, who had endeavored, it appears, to sustain the republican doctrine by the federal authority of MESSRS. KING, JAY and HAMILTON, and for this purpose quotes their speeches in the New York Convention, which adopted the federal constitution. The Judge also sustains his opinions upon general principles. He labored under the disadvantage of not having the debates of the New York Convention before him, and was therefore compelled to reason upon the isolated extracts quoted in the Enquirer, without examining the context of the speeches for modifications or explanations of the particular expressions quoted. The present writer having neither the debates in the New York Convention or the Enquirer before him, cannot enter into this branch of the subject. This he regrets, because, although the question is one which must be decided upon its merits, and not upon authority, yet to prove that the federal doctrines of the present day are contrary to those entertained by the founders of their own party, who were eminent and patriotic men, and largely concerned in the foundation of our government, would divest their doctrine of all the respect and sanctity which great names and great antiquity will sometimes give even to principles intrinsically wrong. The Judge then wisely endeavored to defend the federal patriarchs from our republican heresies, and made an effort to carry the war into Africa by showing, that even some of our republican fathers had repudiated our cherished doctrine. But has he succeeded in either? Without entering into that branch of the subject, we may be permitted to glance at his reasoning.

“Let us see. Mr. King is represented to have said, that ‘the Senators will have a _powerful check_ in those _who wish for their seats_.’ This is most true—and in fact it is to this struggle for place that we owe much of the zeal for doctrines calculated to create vacancies. Mr. King proceeds—‘And the State Legislatures, if they find their delegates erring, can and will _instruct them_. Will this be no check?’ The two checks proposed, in the same {624} sentence, and put upon the same footing, are the vigilance of those who want the places of the Senators, and the instructions which the State Legislatures can and will give to them. They are said to be, as they truly are, _powerful checks_, operating with a strong influence on the will and discretion of the Senator, but not as subjecting him, _as a matter of duty_, either to the reproaches of his rivals or the opinions of the Legislature. To do this, a check must be something more than powerful; it must be irresistible, or, at least, attended by some means of carrying it out to submission—some penalty or remedy for disobedience. I consider the term _instruct_, as here used, to mean no more than counsel, advise, recommend—because Mr. King does not intimate that any right or power is vested in the Legislature to compel obedience to their instructions, or to punish a refractory Senator as an official delinquent. It is left to his option to obey or not, which is altogether inconsistent with every idea of a _right to command_. Such a right is at once met and nullified by a right to refuse. They are equal and contrary rights.”

Here were two checks proposed by Mr. King to prevent misconduct in a Senator. The first was a continuing check, and would always operate upon his conduct, unless he was willing to give his rivals a great advantage, and would control him if he wished a re-election. The other was a check in the hands of the Legislature, ready to be applied to the _prevention_ of any _specific_ act of mischievous tendency by the Senator, and seems to have no connection in Mr. King's mind with the first check mentioned. The question put by him seems to imply that his mind considered this check as positively and inevitably effectual in any case in which it might be applied. We must remember that he was arguing in favor of adopting the constitution, and offered a second check by which honor and duty would control the Senators, upon whom the fear suggested in the other check would have no effect. But let us consider them with Judge H. in connection, and suppose that Mr. King meant to consider the two checks as parts of one whole, and that the instructions would be a check _because_ others wished for the seat. This construction would make it very clear that Mr. K. thought the Senator would be obliged to obey or _resign_, because unless such was his duty, his competitors for the seat could not possibly accomplish their wishes by means of instructions. Mr. K. only called the first a _powerful check_, and not _both_, as the Judge inadvertently says. With regard to the last, Mr. K. triumphantly asks, “_will this be no check?_”—as if he considered that as conclusive, and this check certainly operative in cases to which the first would not extend. It is true Mr. K. says nothing about the power of the Legislature to enforce obedience, because they have no such power, but he puts an interrogatory, which he clearly thinks cannot be answered in the negative, and leaves the question as if the duty of obedience was too clear for dispute. If this was not his idea, whence his triumphant manner? Did any body ever doubt the power of a Legislature to advise or petition their Senators? Then why parade so paltry and worthless a right with so much pomp, and as a valuable security to the States? What good was this right to do those who wished for the seats?

What if the State Legislatures do not have power to punish? They have no power to punish any official delinquences in the Senator, however gross and palpable, or any other violation of moral duty. They have no right, if they enjoyed the gift of divination, to prescribe the course of the Senator by law, providing for all contingences, nor can they order punishment by an ex post facto law, or cause punishments to be inflicted without a regular judicial trial, for any offence, except an immediate violation of their own order. Even if a Senator violates his positive pledge, the Legislature cannot punish him. They appear to be in this respect like all other constituencies, at the mercy of their representatives. Whether he acts morally or officially wrong, they cannot as constituents punish him. Impeachment seems to be the only remedy provided by any constitution, for any delinquency of any Legislator acting in his official capacity; and this being in the hands of the body to which he belongs, is generally inefficient. It seems to be a sufficient answer to all arguments founded upon the incapacity of the Legislature to punish for a violation of this particular duty, to say that it cannot punish for a violation of any duty. Can it be hence inferred that the Senator has no duties? Unless it can, our adversary's argument is defective. Suppose it had the power to punish generally for what it deemed offences? Can any one doubt that it would punish this as one of the highest? But the power of _subsequent_ punishment, or its absence, can neither create or extinguish a _previous_ moral or official duty.

The Judge, in my humble judgment, begs the question, when he says, “it is left to his _option_ to obey or not”—“a right to command is at once met and nullified by a right to refuse.” Our doctrine contends that he has no right to refuse, but we grant that he has the physical _power_ to disobey, without the moral right. The only option which we allow him is that of resigning or obeying. If he resigns, of course, in ceasing to be our representative or servant, our commands cease to be of any force with regard to him.

The verbal criticisms entered into by the Judge, do not appear to me to sustain his case. To instruct is doubtless in its primitive meaning to _teach_, but the question is, when applied to the Senator,—teach what? Not certainly to give general information. Is it to impart superior knowledge upon the specific question to the Senator? This militates against the federal doctrine of the superior wisdom of the Senator; it supposes the legislative wisdom to be greater than his, and of course, as such, it ought to prevail. For what purpose would they enlighten him, if he was not bound to pursue the proper course thus pointed out? It must be remembered that _teach_ does not mean to advise or request. If this legislative teaching, is not to give general information, or impart superior wisdom in particular cases, or request, or advise a particular course, only one thing remains to which the word teach can be applied, and that is the _will_ or _wishes_ of the Legislature; and the fact of teaching would seem to imply that he was to do their will if he knew what it was. They never teach unless they believe he intends to act contrary to their wishes, and their instructions are to inform him that he the servant has mistaken the will of his principal, and thus instruction given in cases of misapprehension or mistake of the will of the constituent, becomes the polite term for a command in other cases. This signification of command, is also one of the regular meanings of the word. Johnson gives “Authoritative mandate” as one of its significations. To give less force than this to the word, would make the Legislatures mere petitioners, and their _instructions_ to Senators have precisely the force of their _requests_ to the members of the House of Representatives. But none of our writers, old or modern, ever {625} considered these _requests_ as any sort of check upon the House of Representatives; but all look to the Senate as a check upon that body, and to check the Senate they say the State Legislatures may instruct. If requests will be of any avail as a check, why go around Robin Hood's barn, to bring them to bear?—why not have said at once, the State Legislatures may instruct their members 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.

The idea advanced by JUDGE HOPKINSON, of the impropriety of the Senator's acting upon the _dictation_ of others, and his _own responsibility_, seems a little disingenuous. The agent must be considered as released from all responsibility, when he is ordered by his principal 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 resignation defeat his constituents. Be it so—the responsibility 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 therefore not _to resign_, he admits that the will of the constituent ought to prevail, and of course that instructions ought to be obeyed.

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 Senatorial career, and when his place is resigned his oath is expunged. If construed with the strictness required by the Judge, it would prevent his ever leaving his seat, or resigning, or declining a re-election. He would be bound always to be a Senator, if he possibly could, for fear his successor should violate the constitution. He has no more right to believe that his successor of the next month will violate the constitution, than his successor ten years hence. And if his oath requires him to hold on to defeat the one, it is equally obligatory with regard to the other, as far as any exertions on his part 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 answer to it, or any thing that implies it, can be found in any of the writings or speeches of any of the distinguished men at that time. The doctrine is of a later date; it is not coeval with the constitution, nor with the men who formed it.”

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 mockery to talk of respect and influence. It would be 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.”