Now what remains of MR. BURKE'S great defence of disobedience? His arguments all go to expediency in particular cases, and not the right, when stript of the difficulties he throws around its exercise. Take him from his position, and strip him of his gorgeous and dazzling armor, and he must stand a pigmy confessed before all, as he was before the electors of BRISTOL.
JUDGE HOPKINSON finds fault with MR. TYLER for resignation. “He had sworn to support and defend the constitution against wrong from any quarter,” and he violated his duty and his oath, it seems, by resigning. “Where is the difference,” he indignantly exclaims, “between the sentinel who turns his own arms upon the citadel he was bound to defend, and one who gives up his trust to the enemy, that he may do the work of ruin which the conscience of the latter forbids.” The difference is rather between the sentinel who, being ordered to shoot a traitor brother from the battlements, turns and kills his commander—and one who, with the same orders, retires with leave from the service, and suffers another to do what affection for a brother, or perhaps participation in his designs, will not permit him to accomplish.
This new theory makes every resigning senator responsible for all (or none) of the unconstitutional acts of his successor. MR. TYLER must bear MR. RIVES' expunging sins, to avoid which he resigned; MR. LEIGH must suffer if his successor establishes a bank or other form of monarchy; MR. TAZEWELL is responsible for MR. RIVES' vote on the force bill, and MR. RIVES for MR. LEIGH'S vote censuring the President, to escape which he resigned. Political parties have been censuring the wrong men. This new light, like an ignis fatuus, will lead them into a direction opposite to the one they wish to pursue. The incumbent is never responsible when his predecessor has resigned. Resignation in a senator is at all times as criminal as desertion of his post by a sentinel, and when he is succeeded by a senator of different opinions (which he cannot prevent) it is equivalent to treason. To what a labyrinth of error are we led, by forcing reason to follow a foregone conclusion?
Let us examine it. Because senators are sworn to protect and defend the constitution, if they quit their posts and thus make room for another who may, or certainly will violate it, they themselves violate their oaths, their duty and the constitution. These are Judge H.'s premises. But Mr. Tyler's resignation was of such a character, therefore he violated the constitution. But any senator who will ever violate that instrument is not a fit guardian for it, and ought instantly to resign. Mr. Tyler did so, therefore he ought to have resigned. Then his resignation was right because it was wrong!
Again. Mr. T. violated the constitution by resigning—not by the act itself, but by enabling Mr. Rives to do it; but the guilt could only be incurred by one person, by one vote, and as Mr. T. had clearly incurred the guilt by a previous act, Mr. R. was innocent. But if Mr. R. did not violate the constitution, and Mr. T.'s guilt depended upon that, he too is innocent, and there was no violation because there was no violation! But any reasoning which makes a man both right and wrong, or the constitution not violated because it is violated, must be intelligible and acceptable to those who make two persons who come to “opposite conclusions upon the same case” both right, and only infer from the difference that some one else is wrong!
Who shall be impeached—who punished under this new doctrine? Resignation is not unconstitutional, but is made criminal by an ex post facto act. As the subsequent acts could not be committed without the resignation, all the guilt attaches to the resigning member. Neither MR. RIVES or MR. LEIGH can thus commit any sin in propria persona. MR. TYLER sins in MR. RIVES, and MR. RIVES is responsible, not for his own acts, but those of MR. LEIGH. This is a roundabout responsibility with a vengeance, which makes no one responsible until he resigns, and is beyond the reach of impeachment.
But upon the Judge's own grounds, what better argument could be offered against senatorial infallibility, than this violation of the constitution by Mr. Tazewell, Mr. R. and Mr. T. and the promise to violate it by MR. LEIGH? Four successive guardians of the state have betrayed their trust. They have deserted their posts, and left the constitution at the mercy of the legislatures, as “a rag floating upon the winds.” What can the legislatures do when thus left unchecked, unguarded, and the constitution a prey “to wild democracy?” The high criminality of the senators is enhanced by the fact that he is instructed by “a majority of six or eight out of one or two hundred, and he knows a large proportion of the majority to be men of little knowledge, of strong passions and prejudices, with a servile adherence to party purposes—men whom he would not regard in any concern of his own of the value of a dollar,” and in the minority he knows all to be eminent statesmen. Of what a stupendous violation of duty are these men guilty? They leave the state and the statesmen a prey to these vile demagogues in a new election, which the stupid constitution has put it into their power to make, without the guardian care and saving disobedience of some kind senator to protect us from their rashness. The more the Judge exaggerates the crime, the less worthy he makes the guardian; the more frequent the offence, the less infallible the senatorial wisdom and virtue. If senators commit these high crimes, they ought to be controlled by the ordinary guardians of the state—the legislature. We have now had this crime committed by a senator of each party in each manner, and promised by a third. Mr. R. resigned when first instructed by this wicked majority, and Messrs. Tyler and Leigh obeyed. The second time MR. TYLER resigned, and MR. LEIGH promised to resign, and MR. RIVES obeyed. When senators thus differ, what has become of the firmness and guardian care and infallibility which was to protect us? Which shall we follow? One or other of the two has in every instance, by this theory, violated the constitution. How shall we act? They are right and we are wrong, but how can we avail ourselves of the superior wisdom they have developed? What complexity—what difficulty—what a mass of error and confusion in the legislatures—what a waste of inexplicable and incongruous wisdom on the part of senators! Oh that our short-sighted ancestors had so ordered it that the guardian should instruct the ward, instead of the reverse!
This doctrine of non-resignation for fear a successor should violate the constitution, assumes that immediately after a senatorial election, a majority of each legislature becomes and must continue knaves or fools. It operates with much more force against a new election than instructions. It proves that senators ought to hold office for life; that all legislatures after the first have been incompetent, and all to come will be incompetent, from want of honesty and discretion to elect senators. But as it is admitted by all to be the best body for that purpose, and was selected as such by the convention, it follows that no body, since the first senate perhaps, ever has been or can be competent to elect senators. The state legislatures can only be incompetent because the people want honesty or capacity enough to elect men capable of electing senators. A fortiori are they not sufficiently honest or capable to elect presidential electors, or the house of representatives, which are even more important. The government must lapse into anarchy because there is not sufficient honesty or capacity in it to govern it. And it must continue so, because an ignorant and corrupt people without a government cannot better their condition. Nor can any form of hereditary government be established, because it is absurd to say that chance is a better guide than the simplest reason; and where the wisdom of all combined is not sufficient, it is absurd to look for greater wisdom in a few or in one. Thus it seems to me that a denial of the right of instruction is not only inconsistent with a representative government, but the reasons on which it is founded are inconsistent with any government.
MR. TYLER admits our principle and says he would obey, but for constitutional scruples, but having these he resigns. This seems a simple, intelligible, respectful course; but Judge H. “whose political metaphysics surpass my understanding,” loses himself in a labyrinth of doubt and obscurity. He says in effect “I will do as I please,” makes the matter simple enough. All despotisms are simple, and simple people submit to them. “Obey or resign” is not too complicated to be understood by men as enlightened as senators ought to be, and seems more suitable language between masters and servants. He creates a new difficulty by making senators not enlightened, but simpletons, groping in the dark in each case, to know whether they must obey or resign. All such should resign at once, for Judge H.'s theory is based only upon exalted wisdom, and cannot save him, if he is a “simple novitiate” seeking a rule to guide him in a plain duty. He would be a “simple novitiate” indeed who would inquire “what legislature he should obey.” Common sense would seem to say the question only arises upon the instructions actually before him in all cases, and he could not obey a legislature which did not instruct, or instructed last year, or forty years ago, or may instruct forty years or a month hence. I cannot see where the Judge finds authority for his “playing for the rubber, or taking his chance for a third heat,” (as he facetiously remarks, “especially in Virginia,”) unless the senator has second sight, and then the argument proves that he ought to obey, not only promptly, but a year in advance. But it is better to count out with honors and gain his points, than run the risque of losing by this odd trick.
The strangest perversion runs through these comments upon Mr. Tyler's course. The firmness before required is forgotten. The senator must disobey if he finds great men against his constituents—the opinion of a JAMES MADISON, or even a disappointed minority of his own constituents, if in his opinion, possessed of more intellect than the majority, may be obeyed in preference. A majority of constituents seems to be the only body, to be utterly disregarded.