Part 9

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

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

Let us hear the Judge again.

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

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

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

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

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

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

Attest,

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

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

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

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

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

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

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

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

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

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