It is surprising to hear JUDGE HOPKINSON say, that the hundreds of individuals who compose the State Legislatures, from all parts of their respective states, “have no means of knowing the public sentiments which are not equally open to the Senators; nor are their inducements to conform to them more persuasive and strong.” If this was not an error, it would be perhaps best for the legislatures to delegate their powers to several individuals, and go home. Those wise men, whose judgment is capable of protecting the state from its own errors, and at the same time, know so well public sentiment, and have every inducement to conform to it, would constitute the best legislature. But so much of an error is the first part of the proposition deemed, that the usual and most accurate method of examining into popular sentiment, is by the sentiments of the representatives. Each is supposed best to know and to represent the opinions of his own county or district, and their united will is thought to be as accurate an approximation to the will of the people as human ingenuity can make. There is nothing else which affords us even data for estimating that will. The individual Senator has not probably a better knowledge of the wishes of the people than many of the single individuals who compose the legislature, especially if he is sent from a remote state, and has been long absent.
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 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
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.