Part 7

But it was not for the purpose of noticing this little discrepancy that the passage was quoted. It was for 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 representation. That the agent should conform to the express 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 {626} have recorded evidence of the exercise of this power many times, and from remote periods, in the British Parliament. Many of these instances of command and obedience are collected by MR. LEIGH in his Report to the Virginia Legislature in 1812. The British Parliament was the great model upon which our statesmen framed our constitutions, and with its principles and history they always evinced an astonishing familiarity. We cannot suppose them ignorant of this great and obvious principle—a principle, beyond all question, of much more doubtful propriety in England then, and even now, than it can ever be in this country; because in England a few places elect representatives for the whole body of the people. But even there the true theory prevails, and the wisdom to which the constitution looks as governing the whole country, is that of 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 elective 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 themselves. Abundant evidence may be adduced to show that those great men were familiar with the importance, and obligation, and frequent exercise of this right. To prove this, we need go no farther than the Debates of the Virginia Convention which adopted the federal constitution. That constitution was no where more thoroughly discussed, or more warmly opposed, or opposed by men of more ability, than in that convention. Yet in their debates we find the right asserted both by opponents and advocates of the constitution; the one party contending that the right was not sufficiently secured by power to enforce its obligation—the other that the nature of the office, and the character of the men, would be a sufficient guarantee of their obedience. Instructions are frequently mentioned as a regular, legitimate, unquestionable mode of _controlling_ the will of the representative. And the idea of disobedience is never suggested except in connection with other possible gross moral and official misconduct. Disobedience 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.

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 asserted rejection of the constitution by certain states, says, “New Hampshire and Rhode Island have rejected it, he tells us. New Hampshire, if my information be right, will certainly adopt it. The report spread in this country, of which I have heard, is that the representatives of that state having, on meeting, found they were INSTRUCTED TO VOTE AGAINST IT, RETURNED TO THEIR CONSTITUENTS, without determining the question, to convince them of their being mistaken, and of the propriety of adopting it.” This was a matter of overwhelming importance to the people of New Hampshire, in which their representatives were convinced that they ought to decide in a particular way, but being instructed differently, they would not carry out their own views, though in fact correct; but the whole convention resigned, to endeavor to convince them of their error. MR. MARSHALL quotes this instance of a whole body being prevented by instructions from doing the only work which they assembled to do, as a matter by no means astonishing or culpable, though he himself was of the same opinion with the representatives of New Hampshire. It was an example of good principle worthy of all imitation.

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 without being detected. To this MR. MARSHALL says, “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 impossibility of this. Must they then not trust them to others? To whom are they to trust them but to representatives who are _accountable_ for their conduct?” He then shows that secrecy is allowed in the British government, and proceeds thus. “We are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim, that _those who give may take away_. It is the people who give power and can take it back. What shall restrain them? They are the _masters_ who gave it, and of whom their _servants_ hold it.” We cannot doubt that one holding these sound republican principles, then at least, approved the noble example of resignation on account of instructions, which he had just before quoted.

PATRICK HENRY was the great champion of the opposition in that convention, and so decidedly federal in his construction of its terms after its adoption, that he was afterwards elected to oppose MR. MADISON'S celebrated resolutions of '98. Yet we find him admitting the _right_ of instruction in its fullest extent throughout 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 responsibility is secured by direct taxation. _Responsibility_, instead of being increased, _will be lost_ forever by it. _In our state governments our representatives may be severally instructed by their constituents._ There are no persons to _counteract their operations. They can have no excuse for deviating from our instructions._ In the general government other men have power over the business. When oppressions may take place, our {627} representatives may tell us we contended for your interest, but we could not carry our point, because the representatives from Massachusetts, New Hampshire, Connecticut, &c. were against us. Thus, sir, you may see there is no real responsibility.” Here are instructions referred to as a complete security in the state government against _any_ legislation objected to by the people, and as completely obligatory upon our representatives from the state in Congress, and only failing to be a complete protection there too, because _we_ cannot _instruct_ the representatives of New Hampshire, &c. He places the representative in the attitude of apologizing, not for disobedience, but failure in accomplishing the wishes of the people. Disobedience did not seem to enter his imagination, much less the right to disobey.

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—“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 confederation, yet those articles do not mention a power to instruct, or a punishment for disobedience, any more than the present constitution. The subsequent power to punish by recall is the only difference. If we continue the same sentence, we shall find that he has coupled disobedience with bribery, and complains equally of absence of power to punish either. “If they give away, or sacrifice your most valuable rights, can you _impeach_ or _punish_ them? If you should see the Spanish ambassador bribing one of your Senators with gold, can you punish him? Yes—you can _impeach_ him before the Senate. A majority of the Senate may be sharers in the bribe—will they pronounce him guilty who is in the same predicament with themselves? Where, then, is the security? I ask not this out of triumph, 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 champion of freedom, are still further developed at page 283. 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.

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 {628} of being _recalled_ would impair their independence and firmness.”

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