CONTENTS OF VOLUME II, NUMBER 10 (continued 2)

If this reasoning be just, why is it that a course of moral and religious instruction is either entirely omitted, or so little regarded in nearly all our schools, except such as are theological? Could it possibly be the case, if religious and moral principles were deemed just as essential among all orders of men, as in the clerical order? Yet if these principles be equally necessary to all, why is a matter so highly important—so indispensable to the well being and happiness of society—left in a great measure, to chance? Why are young persons at school, suffered to infer from the silence of their instructers, that no particular attention to this subject need be given, unless by those who design to become professional teachers of religion? Is it denied, even by infidels, that the principles and motives of conduct, so far as they can possibly be imparted by human means, are matters of infinitely more importance among the things to be taught, than any others which can be imagined under the name of knowledge? So far then, both believers and unbelievers agree. Both concur in the necessity of first instructing every child in that system of ethics which is to serve them through life as a rule of action; because all other information without this must be stock that they know not how to apply. Yet, neither infidels nor christians generally, if at all, give this vital instruction in any such manner, as to prove to their children, that they estimate it very far above all other, in the scale of real value. The necessity of imparting it being equally admitted by the adherents of the worldly system of morals, and by the believers in that system left to us by our blessed Saviour himself, as the only sure guide to happiness, either here or hereafter, neither party can find any justification for their most shameful neglect. By this, they leave those whom it is their sacred duty to guide, without either chart or compass to steer their course through all the difficulties and dangers of life. Some religious parents and teachers there are, who express such a mortal dread of what they please to call sectarianism, that they will not venture to teach even the great fundamental truths of religion, in which all christians, at least, entirely agree; and thus, religious instruction of every kind is excluded from the course of these marvellously scrupulous persons. Others again, who, without believing one word of the Holy Scriptures, are yet willing, as a matter of prudence, to treat both them and their doctrines with external respect—say, that they teach nothing which is contrary to christian morality and religion. Although it would be easy to prove that silence in such a cause is little, if any better than open hostility, I will meet the assertion in a more direct way, by denying its truth. The fact is, that in every school in the United States, wherein moral and religious instruction is neglected, many things are taught which are contrary to the principles of christianity. To prove this, look at the direction given to the conduct of the pupils—the motives by which they are actuated, and the objects at which they are taught to aim. Are not these all worldly? Are not many of them absolutely forbid by the plainest precepts of christianity? And what more need be asked to demonstrate the truth of my accusation? Numerous exemplifications have already been given of the false morality, and consequently false religion imbibed, if not actually taught, both under the parental roof, and in our schools. In fact, the instances are so abundant, that I have scarcely ever attempted to trace the immoral and irreligious opinions of any persons whatever to their primitive source, without discovering that these opinions were derived chiefly from the precepts and examples of their early instructers. Motives being the source of all actions, and principles their regulators, both must be made what they ought to be, or the actions themselves can never be morally good: yet most teachers appear to think that the principles and motives of their pupils are matters with which they have little or no concern. If their heads be filled with what is called scholastic learning—if they can be made punctually to obey scholastic rules, the instructers generally deem their part of the business of teaching accomplished, and the hearts of their scholars are left to form themselves. But what, in reality, can avail all the scholastic learning in the world, unless the possessors are first inspired with the only true and proper motive for acquiring it, at the same time that they are taught its only justifiable use? This motive is social, philanthropic, heavenly; it is the love of God and his creatures. It impels to unceasing beneficence on earth, and leads us to look to heaven for our final reward. But the motives encouraged at least, if not openly taught in a great majority of schools, as well as by most parents, are essentially selfish and exclusive: for their objects are personal fame and personal aggrandizement, to be gained at any expense whatever, of mortification and suffering to others, which successful rivalry can inflict, or eager, insatiate competition can procure. Such motives and such morality interpose no effectual bar to the indulgence of any strong passion which happens to seize upon the individual governed by them, provided only such indulgence be openly tolerated by fashion, or silently permitted. For example, they never prevent our sons from drunkenness, gambling, or blowing out each other's brains for the most trivial causes imaginable, while they almost encourage, by failing to mark with utter reprobation, a species of profligacy too revolting to be mentioned. In regard to our daughters, the prevalent system of instruction cherishes a passion for dress—for public amusements of all kinds in which females are permitted to join—for company keeping—for general admiration—which unfits them for domestic life, and leaves their hearts a prey to all the tormenting distractions of envy, jealousy, and disappointed pride and vanity. Against these vices so destructive to the happiness of both sexes, I know of no regular course whatever of religious and moral instruction in our schools generally, especially of the preparatory kind. Recitations in languages, and elementary books of science, with a little writing and cyphering, comprise the sum total of the matters taught; and whether the children are Mohammedans, heathens, infidels or christians, is an affair which seems to be thought not properly cognizable by teachers at all. Here let me once more repeat, that I never would make, even had I the power, any alteration whatever in our systems of instruction, which would tend, in the slightest degree, to prevent the youth of our country from reaching the highest attainable excellence in all the justifiable pursuits of life. But I would have it thoroughly and deeply impressed on their hearts, under all circumstances—at every period of their pupilage, and at all times, that truly moral conduct resulting from genuine religious principles, is “the one thing needful,” first and far above all, both for time and eternity. Nothing should ever be taught in any school, high or low, great or small, but in complete subordination to this most momentous, most vital truth: nor should any teacher whatever be suffered to neglect making this the chief object of pursuit for every scholar under his or her care.

This plan alone, with God's blessing to aid it, can ever achieve the so much needed scholastic reforms and amendments in the modes and general scope of parental instruction. This alone can ever materially diminish that enormous mass of vice and crime, with all their soul-sickening consequences, which renders this world a scene of such constant, indescribable wretchedness in so many of its aspects. And who are they, my friends, that make it so? Who are the poor, forlorn, outcast wretches, that have brought disgrace upon their sex, shame on their families, and endless woe upon themselves? Are they not, in almost every case, the miserable victims of infidel opinions imbibed in early youth, under parents and teachers who have incurred the deep and deadly guilt of neglecting to take care of their precious souls, until the critical hours for correcting their evil propensities had forever passed away? Who compose that motley, most pitiable group of both sexes, and of almost all ages, with which our jails and penitentiaries are filled? Who are the shedders of their brother's blood? Who the robbers and murderers for gold, for revenge, for lust? Who the hellish destroyers of female honor, purity and peace—the perpetrators of crimes that carry ruin, misery and death into the peaceful abodes of domestic life, tearing asunder the nearest and dearest ties of our existence, and outraging alike all laws, both human and divine? Are they persons who have been morally and religiously educated from infancy, or such as have been most shamefully, most guiltily neglected in these all important respects—such as have hardly so much as heard of any other bonds—any other fetters to restrain their criminal passions—to prevent their atrocious deeds, than the gossamer filaments of a mere worldly morality? Alas! my friends, the bare contemplation of such heart-rending results, from the neglect or perversion of education, is enough to make every mother of an infant yet guiltless of actual sin, press the little innocent still closer to her bosom than she would do from the ordinary impulse of maternal love, in shuddering apprehension of what may be its future fate. It is enough to make every father tremble in considering the future destiny of his child, lest some neglect of duty, some false instruction, some vicious example on his part, should bring this child of his heart to misery and destruction. Will you then, my dear hearers, do nothing to prevent such consummation, either as regards your own offspring or that of others? Can you, who have so much power—so deep an interest too in this momentous matter—can you deliberately and seriously contemplate these crying evils, this enormous aggregate of human guilt and woe, without ascribing it principally to our defective systems of education, and without some secret dread lest you yourselves individually may have, in some way or other, either directly or indirectly, contributed to augment it? Will you not add to your power of establishing, patronizing and regulating schools, the still more effectual influence of your example in the early instruction of your children, to make education what it should be, in all its branches? Can there be any thing that concerns us in the present life—is there any thing in the whole compass of thought, which should excite half such deep, heart-felt, all absorbing anxiety, as to remove this deadly curse of ignorance and vice from our land and nation? That it is removable—at least in a degree beyond all calculation, greater than we can judge from beholding its present widely spread mischief, none can doubt who believe in the scripture assurance, that if we train up our children in the way they shall go, they will not depart from it; or who confide in the extent to which, by the blessing of God, all human beings may be improved, both in knowledge and virtue, by means of education. Not only our own happiness, but that of our children and children's children, to the latest generation, are at stake; and it depends upon you, my friends, you, who, in full proportion to your numbers, can direct and control the education of the present race, whether this happiness shall be increased or destroyed to a degree which it has never yet reached. Upon your precepts and examples, while your children are under your own care, and upon your choice of preceptors, when you confide them to the care of others, it depends—whether these children shall prove curses or blessings to themselves, to their parents, and to their country. Let all our resources then, both mental and physical—all our available means, both of talent and wealth, be applied to the requisite extent, for the attainment of so glorious a purpose. The individuals who achieve it—if it ever is to be achieved, will merit the highest honors—the richest rewards that this world can bestow, and will enjoy all the happiness promised in the next, to the greatest benefactors of the human race.

And now, my friends, in bidding you farewell, permit me freely, but respectfully, to address my few concluding remarks still more personally to yourselves. Ye parents, who are conscious of faults that obstruct the education of your own offspring and are anxious to mend them—ye who still have children to be instructed, and cherish that deep solicitude for their continual improvement in knowledge and virtue, which it is your most sacred duty to cherish—ye teachers, who justly estimate the nature and extent of the momentous trusts confided to your honor, and the fatal consequences of neglecting to fulfil them—ye young men and maidens, who are still under pupilage—behold, I beseech you, the moral mirror which I have held up to your view. Search it again and again, and if you discern therein any similitude to your own defects, let it not be seen in vain. Oh! suffer it not to pass away “like the morning cloud or the early dew,” but set instantly, earnestly, perseveringly, about the vital work of extirpation, as your only hope for happiness either here or hereafter. Learn to consider—nay, never for a moment to forget, that nothing called education can have a shadow of pretence to be pronounced complete, but that which has for its basis the Gospel of Christ as well as its divine morality—that to act on every occasion as this directs, is true wisdom—and that to gain the power of doing so, you must cherish in your hearts, through all the vicissitudes of life, the same heavenly dispositions and sentiments which the pious Cowper has so feelingly expressed in the following admirable lines.

THE RAINBOW.

“The Rainbow,” by Campbell, “Triumphal Arch,” &c. is indeed a glorious piece, and worthy at once of the subject and the poet. Nor does it derogate much from his genius, though it does a little perhaps from his honesty, that he has borrowed (without acknowledgment) two or three of the finest thoughts and phrases in it from an older bard, a certain Henry Vaughan, who flourished about two centuries ago, and whose poems, says Montgomery, “amidst much harshness and obscurity, show gleams of rare excellence.” Thus these lines of Vaughan,

evidently suggested that fine stanza of Campbell—

But the verse which follows is an admirable addition of his own.

This finishes the picture, and makes it perfect. And Vaughan's two first lines,

together with his two last,

obviously kindled Campbell's two closing stanzas—

A splendid improvement indeed! In short, Campbell's Rainbow (or the best part of it, from the fifth verse to the end,) is but a sort of secondary of Vaughan's, though it is not in this case, as in nature, fainter, but triumphantly brighter and more beautiful than the first.¹

¹ Perhaps the reader may like to see Vaughan's piece entire. Here it is.

THE RAINBOW.—By Henry Vaughan.

RIGHT OF INSTRUCTION.

Quare quoniam de re publica quærimus, hoc primum videamus quid sit id ipsum quod quærimus.

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Est igitur, inquit Africanus, res publica res populi; populus autem non omnis hominum coetus quoquo modo congregatus, sed coetus multitudinis juris consensu et utilitatis communione sociatus.

* * * * *

Quare cum penes unum est omnium summa rerum, regem illum unum vocamus, et regnum eius rei publicae statum.

* * * * *

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.

* * * * *

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.”

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.

There are a few more remarks in the same speech which we cannot forbear from quoting. PATRICK HENRY was afraid to trust the power over both the sword and the purse to Congress, and was very jealous of the clause allowing Congress the power to keep secret certain matters, supposing that under the mantle of public necessity they would conceal their votes, and would violate the rights and instructions of their constituents without being detected. To this MR. MARSHALL says, “The honorable gentleman has asked, if there be any safety or freedom when we give away the sword and the purse? Shall the people at large hold the sword and the purse, without the interposition of their representatives? I apprehend that every gentleman will see the impossibility of this. Must they then not trust them to others? To whom are they to trust them but to representatives who are accountable for their conduct?” He then shows that secrecy is allowed in the British government, and proceeds thus. “We are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim, that those who give may take away. It is the people who give power and can take it back. What shall restrain them? They are the masters who gave it, and of whom their servants hold it.” We cannot doubt that one holding these sound republican principles, then at least, approved the noble example of resignation on account of instructions, which he had just before quoted.

PATRICK HENRY was the great champion of the opposition in that convention, and so decidedly federal in his construction of its terms after its adoption, that he was afterwards elected to oppose MR. MADISON'S celebrated resolutions of '98. Yet we find him admitting the right of instruction in its fullest extent throughout the state and federal governments, and never seeming to suppose that the obligation would be doubted, but at the same time contending with a wonderful forecaste that the responsibility of our representatives would be no protection to us, because though instructed, they would be out-voted by other delegates who could not be instructed by us. He says at page 230, “He tells us responsibility is secured by direct taxation. Responsibility, instead of being increased, will be lost forever by it. In our state governments our representatives may be severally instructed by their constituents. There are no persons to counteract their operations. They can have no excuse for deviating from our instructions. In the general government other men have power over the business. When oppressions may take place, our representatives may tell us we contended for your interest, but we could not carry our point, because the representatives from Massachusetts, New Hampshire, Connecticut, &c. were against us. Thus, sir, you may see there is no real responsibility.” Here are instructions referred to as a complete security in the state government against any legislation objected to by the people, and as completely obligatory upon our representatives from the state in Congress, and only failing to be a complete protection there too, because we cannot instruct the representatives of New Hampshire, &c. He places the representative in the attitude of apologizing, not for disobedience, but failure in accomplishing the wishes of the people. Disobedience did not seem to enter his imagination, much less the right to disobey.

In another place we find the same great orator plainly referring to the exercise of this right, as one of the greatest bulwarks of freedom; and inveighing against the constitution because it gives the Senators the power (not the right) to disobey with impunity. He would have the legislature to possess the power to recall in cases of disobedience. Look to his remarks at pages 252 and 253. He says, speaking of the project to barter away the navigation of the Mississippi to Spain, and the right of the United States to that navigation—“American interest was fully understood—New Jersey called her delegates for having voted against this right. Delegates may be called and instructed under the present system, but not by the new constitution. The measure of the Jersey delegates was averse to the interest of the state, and they were recalled for their conduct.” In this paragraph he did not mean to say that instructions would not be given, or ought not to be obligatory, but that bad men would have it in their power to disobey without fear, because they could not be recalled. This at least is the only construction which will make his language consistent with that previously quoted, and that which now follows, from the same speech and the same page. “At present you may appeal to the voice of the people, and send men to Congress positively instructed to obey your direction. You can recall them if their system of policy be ruinous. But can you, in this government, recall your Senators? or can you instruct them? YOU MAY INSTRUCT THEM, and offer your opinions; but if they think them improper, they may disregard them.” Here he thinks it would be a breach of duty to disregard them, and he objects to leave the power of disobedience in the hands of Senators, without the power to recall them, which he thinks made the control over them complete under the confederation, and would make it so under the constitution. But surely the power of subsequent punishment, or of providing against future mischief, from the hands of the same individual, does not create an antecedent duty either moral or official. The suggestion of punishment or prevention, implies the previous or possible violation of an existing duty. And the absence of a power to punish or prevent, cannot diminish the obligation of such duty, if admitted to exist. HENRY considered the force of instructions complete, by the mere power to recall, which certainly could not undo or invalidate the act done in violation of instructions; he therefore considered this recalling power necessary to make bad men perform the duty of obedience. He was satisfied with the articles of confederation, yet those articles do not mention a power to instruct, or a punishment for disobedience, any more than the present constitution. The subsequent power to punish by recall is the only difference. If we continue the same sentence, we shall find that he has coupled disobedience with bribery, and complains equally of absence of power to punish either. “If they give away, or sacrifice your most valuable rights, can you impeach or punish them? If you should see the Spanish ambassador bribing one of your Senators with gold, can you punish him? Yes—you can impeach him before the Senate. A majority of the Senate may be sharers in the bribe—will they pronounce him guilty who is in the same predicament with themselves? Where, then, is the security? I ask not this out of triumph, but anxiously to know if there be any real security.” It would seem from this that the old patriarch was not thoroughly convinced of the incorruptibility of Senators, and wished to provide some mode of punishment for their offences, from the high moral crime of disobedience, to the petit larceny business of taking a bribe—and he even supposed a majority of the Senate might be guilty of the latter offence!

The views of this illustrious man, and zealous champion of freedom, are still further developed at page 283. He is there again expressing his fears that the transactions in the Houses of Congress will be kept secret, and clearly thinks there would be no danger, if our representatives were all good men and would obey instructions, except that of being overruled by a majority. “But it will be told that I am suspicious. I am answered to every question, that they will be good men. In England they see daily what is going on in Parliament. They will hear from their Parliament in one thirty-ninth part of the time that we will hear from Congress in this scattered country. Let it be proposed in England to lay a poll tax, or enter into any measure that will injure one part and produce emoluments to another; intelligence will fly quickly as the rays of light to the people. They will INSTRUCT their representatives to oppose it, and will petition against it, and get it prevented or redressed instantly. Impeachment follows quickly a violation of duty. Will it be so here? You must detect the offence and punish the defaulter. How will this be done when you know not the offender, even though he had a previous design to commit the misdemeanor? Your Parliament will consist of sixty-five. Your share will be ten out of the sixty-five. Will they not take shelter by saying they were in the minority—that the men from New Hampshire and Kentucky out-voted them? Thus will responsibility, that great pillar of free government, be taken away.” He thus thinks the clause of secrecy will be used as a shield to conceal the offenders who violate instructions, or otherwise betray their constituents.

MR. NICHOLAS, in reply to some of these remarks by HENRY, says at page 257, “But we are not to calculate any thing on New Jersey. You are told she gave INSTRUCTION to her delegates to vote against the cession of that right (the navigation of the Mississippi.) Will not the same principles continue to operate upon the minds of the people of that state?

“We cannot recall our Senators. We can give them instructions, and if they manifestly neglect our interest, we have sufficient security against them. The dread of being recalled would impair their independence and firmness.”

MR. NICHOLAS thinks the dread of being recalled would impair independence and firmness; not the dread of being instructed, as contended for at the present day. He considers instructions as an efficient mode of insuring the desired course upon any specific question, on which it might be necessary to resort to them, but that a power of recall would produce a vaccillation and weakness in the course of the Senator, which might be highly mischievous. He clearly thinks the Senator must follow the wishes of his constituents, when specially instructed as to their will; but when not instructed, that he ought firmly and independently to act as he thinks best, and not as if he was in perpetual dread of losing his seat. He wishes a preventive remedy and not a punishment. No Senator ought to fear instructions, because they do not punish or injure him; on the contrary, they remove a fearful responsibility from his shoulders—a responsibility so great as to make the power of recall a constant source of terror: because a recall would disgrace him as far as the Legislature could produce that effect by its displeasure. But if a Senator either obeys instructions or resigns from conscientious scruples, he reaps honor instead of disgrace. A Legislature might recall, from caprice, or faction, or the envy of influential men, and the stigma could not be avoided by any good conduct on the part of the Senator; but if he is instructed, whether from any improper cause, or from the best, he cannot be injured or disgraced unless he wilfully disobeys. If the instructions are bad, and he either obeys or resigns, all the odium must fall upon the instructing Legislature, and not upon him. He will be sustained by their common ultimate masters, the people, and the Legislature will not.

Can it now be said that this doctrine is a new one, conjured up long since the formation of the constitution? When we find that instrument sustained in the convention by one party, on the ground that this very right existed in sufficient force in the State Legislatures, and would be regarded by men of sufficiently high standing and integrity to be elected Senators—and opposed by the other party, at one time, because the Legislature had no power to punish a violation of the right admitted to exist, and at another, because though complied with, it would not afford adequate protection, because our instructed delegates might be defeated and overruled by a majority coming from other States. In these debates MR. MADISON had so many objections of a graver import to answer, that he never seems to have thought it worth while to answer, specially, arguments based upon the mere possibility of the violation of an admitted duty by representatives of as high character as the Senators were likely to be—because all such arguments were answered specially by his coadjutors, (as in the instance of Mr. Nicholas) and generally by himself, in frequent asseverations that objections of that character, founded on the frailty of human nature, struck at the root of representation, and sapped the foundation of republican government. If his silence upon this particular subject was not a direct sanction of the arguments of his coadjutors, it certainly cannot be construed into disapprobation of their doctrine.

Since we cannot find this illustrious statesman opposed to us in the debates of the Virginia Convention, let us follow him to the pages of “The Federalist,” so triumphantly quoted by JUDGE HOPKINSON, and see if he is there opposed to this sacred principle.

A right so important, so often asserted in his presence as existing, so frequently exercised in those times, if disapproved, should have been directly denounced in the letters of Publius. That great work left little to conjecture in the thorough examination which it gave of the rights reserved or the powers conferred by the constitution. Every objection which the talent of its opposers, or the ingenuity of its friends could imagine, was ably discussed. This right is no where denied or objected to. The passages on which Judge H. relies, do not in my opinion sustain him. Nothing can be found in the numbers 62 and 63, specially quoted, unfavorable to the exercise of this right, or the force of the obligation of instructions. In those numbers, Mr. Madison is meeting two objections, of a similar character, to the constitution of the Senate. The one founded on the impossibility of recall, and the other the protracted duration of the term. The objections to the power of recall, we have already partially considered, and shown the wide difference which exists between that power and the right to instruct, as they affect the course of the Senator—the one being a power which may benefit a Senator, and cannot injure him, the other placing him and his character in a great measure at the mercy of jealous rivals, or the caprice of the factious. To have a very short term, would manifestly have an effect upon the Senator analagous to that produced by the power to recall. The fear of being turned out would operate as injuriously upon his firmness and independence as the fear of being recalled. Indeed it would be a source of greater terror, as the Legislatures could be more easily induced not to re-elect an officer whose term had expired, than to resort to the harsh measure of recalling one in the midst of his career. Both these objections were then of a similar character. Either of the powers demanded, would diminish the firmness and impair the independence of the Senator—prevent a sufficient continuation in office to ensure an adequate amount of information in public affairs to enable him to regulate foreign matters with skill, or pursue any uniform course of enlightened policy—and either would at the same time deprive the Senate of one of its principal badges of usefulness, as a check to the House of Representatives, with which it would have been too similar in its character and term of office to resist effectually its impulses to yield to popular opinion, or, as the Judge perhaps more properly expresses it, popular feeling. But none of these objections apply to instructions. They do not eject the Senator from office, unless he differs with his constituents upon some important question of constitutional law which is about to be practically acted upon; or unless he has in some manner committed his honor in opposition to his constituents. In either of these cases, the mischiefs of ejection sink to insignificance compared with the mischiefs of continuance. Upon the constitutional point he ought to presume the united wisdom of the two branches of his Legislature to be more capable of judging than his own; and if he has committed his honor, he ought to suffer, and not his constituents. In either case, the resignation is the privilege of the Senator, to enable him to remove himself from a delicate situation. It is not produced by the Legislature—it is no punishment—it is not a legal or official ejectment from office—it carries no stigma with it—it is an obedience to the requisitions of delicacy, and lofty honor, and not a compliance with the mandates of the Legislature. We instruct, and propriety, reason, and authority say he must obey; but justice says he may resign, if he cannot obey with honor. As well might it be objected to us, that we do not compel a Senator never to resign. Resignations for instructions no more shorten the term than other resignations; and as long as any are allowed, we must allow those made to save the conscience or honor. This is the only refuge; for duty requires obedience, and it would be dishonorable to disobey. The Senator, who is called a representative, has no right to save his conscience at the expense of his constituents, and throw their whole political weight in a direction precisely opposite to their express wishes. Instructions then neither vary or shorten the term of office. If they are obeyed, what harm is done? The will of the constituent has prevailed, as it ought to do, by the theory of our government. What if he resigns? The State is without a Senator, by his voluntary act to save his honor, and his successor perhaps carries into effect the will of his constituents. Where is the breach in the constitution? The same result might happen, because the Senator did not like his colleagues, or was in ill health, or embarrassed in circumstances, or accepted a federal office, or wished to travel, or engage in agriculture. If it is unconstitutional for a Senator to resign because his conscience or honor require him not to obey instructions, then is it equally unconstitutional for him to resign for any of these reasons, or any others which might occur to him. His failure to resign, or the want of power to compel resignation, cannot absolve him from the duty of obedience.

Instructions to Senators are always given by a solemn, deliberate, recorded act, passed by an organized body of representatives, responsible themselves to the people. Every delegate must account for the principles involved in his vote; but this responsibility is not generally held over him so rigidly when he votes for a Senator, unless he votes under express instructions, or the candidates represent opposite political principles. Many excuses may be given for voting for A in preference to B, though the latter may be most popular with the immediate constituents of the delegate; but the principles in the instructions must be fairly met and fully justified, to satisfy the people. Hence a greater responsibility is secured by instructions than by frequent elections.

A Senator who loves his country more than his place, can never fear instructions. They cannot, of course, then impair his independence or his firmness. The most which the fear of them ever could effect, would be to make him do the will of his constituents, which could surely do him no special harm. It was never supposed that the duration of office was to make a Senator firm against his constituents, and independent of their expressed will. But he was to be firm against his own fears, and independent of the House of Representatives or popular commotion. He is surely sufficiently far removed from the latter, when it can only affect him through the deliberate voice of two separate houses of the State Legislature. And then in truth it cannot affect him—he has nothing to dread: it only affects the vote of which he is the depository, and cannot remove him from his place. Is there no difference between a disposition to cater to every temporary whim or caprice which may sweep over the multitude, for fear of not being re-elected at the end of a short term, and a voluntary obedience to their deliberate will, expressed through two branches of their representatives? The House of Representatives will be sensitive at once to any commotion among the people. A temporary and dangerous excitement might lead them into improper acts, for fear of being turned out at the end of their short term. This house was expected to be thus sensitive, but the Senator's tenure of six years was given as a check to prevent this tendency from carrying the other house too far. That cannot be called a popular commotion which reaches him by the deliberate voice of two separate legislative bodies, acting under responsibility; but must be assumed by the Senator to be the deliberate judgment of all the people: it is, at all events, the deliberate judgment of all to whom he has a right to look. The Legislature has power by the constitution to elect him, and this carries with it the right to instruct him. But they exercise both these powers vicariously, and if they mistake the will of the people, they are responsible for their instructions, not the Senator for his obedience. His responsibility is removed by obedience or resignation. If he is “the anchor against popular fluctuations,” it is proper that like all other anchors, he should be hauled up when a favorable and permanent breeze enables the ship to proceed; and of this—not the anchor, but—those above it must judge. And if he hooks his fluke too deeply in the moorings, it is clear that unless there is a “capstan and cable” somewhere, he transcends the sphere of his utility, and does more harm than good by making a temporary stay a permanent fixture. PATRICK HENRY wanted to give the Legislature power in such cases to cut the cable; and I think it would be well if such a power could be lodged with the people in cases of disobedience, or other flagitious offences on the part of Senators.

But to meet the argument of the Judge fully, it is only fair to quote it:

“Mr. Madison's second reason for having a Senate, or second branch of the Legislative Assembly, is thus stated: ‘The necessity of a Senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.’ If this is true of the House of Representatives of the United States; if their intemperate and pernicious resolutions are to be guarded against and controlled by the more sedate and permanent power of the Senate, how much stronger is the reason when applied to the Legislatures of the States? Having their narrow views of national questions, and their local designs and interests as the first objects of their attention, it seems to me to be a strange absurdity to put the Senate as a guard and control over the House of Representatives, and then to have that Senate under the direction and control of the Legislatures of the States—or it may be, on a vital question, under the direction of the Legislature of the smallest State in the Union. Are there no local impulses and passions to agitate these Legislatures? no factious leaders to seduce them into intemperate and pernicious resolutions—and to induce them to prefer some little, local advantage, to ‘the general welfare?’ To give to the Senate the power, the will, and the courage to oppose and control these sudden and violent passions in the more popular branch of our national legislature, Mr. Madison says, ‘It ought moreover to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.’ But what can that firmness avail, how will it be shaken, of what possible use will it be, if the Senator is bound to follow the dictates of a changing body, subject, emphatically to sudden impulses and seductions, at a distance from the scene of his deliberations, and deprived of the sources of information which he possesses, and acting in a different sphere of duty from that he moves in? Firmness in an agent who has no will of his own, no right to act but on the dictation of another, would not only be superfluous, but a positive evil and disqualification. It would produce struggles and perhaps refusal, where his duty was to submit. The more pliable the instrument in such a case, the belter would it answer the purposes it was designed for. To be firm, says Mr. Madison, the Senator must hold his authority by a tenure of considerable duration. But how can this be, if he is to hold it from year to year as the Legislature of his State may change its opinion on the same subject, and require him to follow these changes or to resign his place? The tenure of the Constitution, as Mr. Madison understood it, is essentially changed by this doctrine. These changes of opinions and measures are, in the opinion of Mr. Madison, a great and dangerous evil in any government, and show ‘the necessity of some stable institution’ such as our Senate was intended to be—but such as it cannot be on this doctrine of instructions.”

I must admit my inability to perceive the propriety of the Judge's conclusions from Mr. Madison's premises. He is afraid of instructions, because single and numerous bodies are apt to yield to passion and faction, and he hence thinks it absurd to place the Senate as a check upon the House of Representatives, if the State Legislatures are to remain as a check upon the Senate. There seems to be a double fallacy in this. Does the Senate possess an exclusive patent of exemption from faction and passion, and the other frailties of human nature, to which the House of Representatives and both branches of the State Legislature, are to be held peculiarly liable? The Senate, as a body, would not be checked by the State Legislatures, unless a majority was instructed; and if this was the case, we must suppose instructions sanctioned by so many bodies to be the dictates of true wisdom, and not the offspring of faction and passion. If only a few Senators are instructed, we must suppose the object to be deemed important by the instructing States; and so far from the likelihood of sudden or violent passion, or the seductions of factious leaders thus affecting Legislation, we find the securities proposed by Mr. Madison quadrupled in numbers, increased by the distance of the bodies, and doubled by the difference in their constitution. If two federal legislative bodies are likely to ensure the defeat of faction and passion, when both belong to the same government—the members of both are members of the same political parties, and both meet at the same place, how much less likely is passion or faction to succeed by means of instructions, when it has first to encounter the federal House of Representatives, and then in succession a State House of Delegates, and a State Senate, and lastly the chance of an uninstructed, or differently instructed majority in the federal Senate. Surely Judge H. forgot the dignity and candor of the philosophical inquirer, and in vindication of a favorite theory, assumed the armor of a partizan, when he contended, that the faction and passion intended to be defeated by the constitution of the Senate, would be promoted by adding additional checks—checks, too, which we cannot doubt were contemplated as one of the principal means of rendering the check afforded by the Senate effective. So far from promoting hasty, passionate, or factious legislation, do not these numerous checks present almost too many difficulties to the execution of the deliberate will of the people, which the Judge admits ought to govern? In doubtful questions, when parties are nicely balanced, a few recreant representatives, in either of the four bodies, can easily defeat any measure, however necessary, or earnestly desired by their constituents. If we suppose with the Judge, that the Senate is to be entirely controlled by the State Legislatures, then we should have fifty-three different deliberative bodies, representing the people in different capacities, and by different ratios, acting upon one subject. No measure could be carried through this ordeal by faction or passion, and instead of bringing us “back to a simple turbulent democracy,” we should have the best and the greatest quantity of checks upon turbulent legislation, of which any country could boast. If measures thus passed were not wise, it must be because the intelligence of the country is defective, and not because it is blinded by passion. The same reasoning applies to the instructions of any less number than the whole, because the uninstructed Senators must be presumed to act in accordance with the opinions of their constituents, and thus whether the instructed members carry their point, or are overruled by a majority, the deliberate sense of the community governs. But upon the theory of Judge H., not the sense of the community, whether deliberate or vaccillating, but the arbitrary and adverse will of the individuals who happen to be Senators, disposes of every thing which we hold dear—not only the lives and fortunes of our people, but the very constitution of our country. If a State may have “narrow views,” so may an individual. If a State may not wish to be taxed to cut a little inland canal, two thousand miles off, a Senator may wish an embassy, or a department, or a bank accommodation, or a federal judgeship. But if the States do have local views and interests, are they not bound to protect them, and have they not equal votes in the Senate for this very purpose? Mr. Jay says, “enlightened policy will soon teach that the interests of the whole can only be promoted by a proper regard for the interests of the parts.” If the States wish to oppress others, or advance themselves at the expense of all, they will be certainly overruled by the majority. If they wish to protect themselves from oppression, they ought to have weight, and no human being should have power to throw their own weight against them.

The people of the states would be peculiarly destitute of protection, if they could not instruct their Senators, because from the size of the districts and number of the constituents, it would be extremely difficult, if not impossible, to instruct a member of the House of Representatives, and hence PATRICK HENRY'S uneasiness for fear the Senator should disobey. What if the Senate should be “on a vital question under the control of the smallest state in the Union?”—Are the two houses of the Legislature of the smallest state less honest or less intelligent, than the individual Senator, who by supposition is about to oppose his own constituents and at least half of his co-Senators? Where is the evil? The will of the Legislature, which is responsible, prevails over that of the Senator, who is not responsible, unless he is for disobedience. Which adjustment of the question ought, by the theory of our government, to be most satisfactory? We cannot hold instructions to be an evidence of passion or faction in the Legislature, but disobedience we must hold to be a ground for suspecting the Senate. If neither of these operated, I can conceive no reason for not resigning, when obedience would be wicked or disgraceful. If Mr. Madison required firmness and independence in the Senator, against the instructions of his own constituents, as well as against the acts of the House of Representatives, as Judge H. supposes, then it is clear that he knew and understood the right, and its obligation, and feared it, and wished to provide against it, by protecting the Senator from its force. If such was his purpose, how egregiously has he failed—how bungling has been his work—how disingenuous his course—how unlike in all respects, is this to the other works of that great man? The length of term did not protect from instructions, because a Senator of one year may be instructed as well as one of six years. Where is the protection against this awful right? Mr. M. knew that it existed under the articles of confederation, and was exercised, yet he did not prohibit it in the constitution. He feared the power to recall, and he took away that; but it seems he feared this right, and left it. It is true that he provided no punishment for disobedience, but none existed under the confederation, and none had ever been found necessary in the British Parliament, the Convention of New Hampshire, the Congress, or the State Legislatures. If he feared the right, he must have wished it uprooted, yet he left it precisely as he found it. He was particularly cautious in concealing his antipathy in the Virginia Convention and the Federalist. In the latter he speaks of firmness necessary to resist the House of Representatives, and transient popular commotions which might affect that body, and I doubt not he meant to require firmness in obedience to instructions against the wishes of the House of Representatives as much as in any thing else. In the Virginia Convention he heard loud calls for the protection of the right, yet never denied its existence.

Suppose a question arises in the House of Representatives dangerous to a state. It is carried in that body by passion or faction against such manifestations of popular will as can be given. It is believed the Senators will go the same way. The people have no resource left, but instructions through their State Legislature. If this has no effect, our servants are our masters, and we are ruled by an oligarchy the more odious, because it presents us with a mockery of representation.

But it seems that Mr. Madison thinks the Senate “may be sometimes necessary as a defence to the people against their own temporary errors and delusions; he justly applauds the salutary interference in critical moments, of some respectable and temperate body of citizens, to check the misguided career, and to suspend the blow mediated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind.” This is correct reasoning, but it cannot apply to the States or their Legislatures, but must allude to the people of the Union and the House of Representatives. The Senate cannot defend the people of any state from their own temporary delusions, or afford a salutary interference with the proceedings of a State Legislature. The latter body is supposed competent to act for itself, and not to require the protection of the United States Senate, and still less of an individual Senator. This argument might be urged in favor of a Senator instructing a State Legislature, with more propriety than against the reverse operation, because under the present system the State Legislatures have no connection with the United States Senators unless they instruct them, and thus if they choose to be wilful and refuse to instruct them, which by this new construction would be to ask his advice, they may ruin the people by their temporary errors and delusions, without ever giving their Senator the power to save them by the salutary interference of his “respectable and temperate” mandate.

But it is admitted that a temporary delusion may possibly exist among the people, which may induce the House of Representatives to pass acts so dangerous that it may be necessary for the Senate to “suspend” them. “But the deliberate sense of the community, ought and ultimately will prevail.” And yet a Senator has power to defeat this deliberate sense, as well as the temporary errors and delusions. He may suspend a good act, or he may fail to suspend a bad act. He may not only not concur with the House of Representatives when he ought, but he may concur with it when he ought not. Shall we have no “capstan and cable” to draw up our anchor in the one case, and no power to throw it out in the other? Must the temporary delusion prevail over the people's rights for six years, or the deliberate sense be delayed its healthy action for six years? Either question may be of vital and immediate importance. The single vote may saddle us with an enormous bank, with a controlling capital and an unlimited charter, or an oppressive tariff, which could not be repealed without ruin to many, or continued without ruin to ourselves. The temporary delusion may be a spirit of fanaticism, which may annihilate at a single blow, and forever, political peace and domestic happiness in half the Union, and yet the Senator may be infected with the contagion. A judgeship for life, or boundless wealth, may warp honest opinions, or buy up bankrupt profligacy. In short, a Senator may be sometimes wrong as well as the House of Representatives and the two branches of a State Legislature, and if he is a despot for the time of his election, he may do infinite mischief:—if he can be controlled by his State Legislature in particular votes by special instructions, he cannot do much harm, and may do as much good as the wisdom of his state, which is wiser than he is, will permit. Mr. Madison, when he spoke of the interference of the Senate, never could have meant to characterize the solemn and deliberate acts of a State Legislature, as the temporary errors and delusions of the people. Besides being too accurate in his language for this construction, he could not but believe that instructions would convey at least the best judgment of a majority of the Legislature. And he could not suppose it necessary for the United States Senator to protect the people against the best judgment of their own Legislature. The State Legislatures, in practice, possess the sovereign authority of the State; they make laws, and dispose of our persons and property; shall we appeal from them to their creature, the Senator, for protection?

If MR. MADISON had meant this he would certainly not only have prohibited State instructions to the Senator, but enforced Senatorial instructions to the Legislature. Why were we left without this protection from our temporary errors and delusions in so many important cases, and only provided with it in those cases in which we venture to instruct Senators? This doctrine proves too much. Why was Mr. Madison silent in our Convention, when his coadjutors asserted this right? When HENRY so often objected a want of power to enforce it, why did Mr. M. not say at once it did not exist, and end the objection? If he had said so, and contended for the correctness of his position on the ground that the Senator must be firm against his own masters, and independent of his own constituents, to protect the people of the States from themselves, would this constitution have been ratified by Virginia? Never. One blast of HENRY'S soul-stirring bugle would have called all his kindred spirits around him—he whose keen scent could snuff tyranny in the tainted gale, would have spurned an elective as haughtily as he had an hereditary tyrant—the debates would have ended there—the friends of the constitution and of Madison would have deserted him—the deceptive parchment would have been trodden under foot, and its noble champion left its only advocate. No one can read HENRY'S anxious searching after the responsibility of Senators, and his earnest calls for the power of enforcing obedience, and believe it would have been otherwise. He laughs to scorn the argument that they will be good men, from which MR. MADISON wishes him to infer that they would obey. With what withering contempt then would he have received a proposition to make them constitutionally independent, as he feared they would be actually? And to have told him that this was necessary to make them firm against us, would have been only an aggravation of the insult.

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.