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 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.”
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 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.