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 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.”