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 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 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?