[Footnote 1: Some months ago a number of the “Richmond Enquirer,”
containing an argument in favor of the mandatory right of a State
Legislature to instruct a Senator of the United States, was forwarded
to the author of this article. That argument was supported by the
alleged opinions of Messrs. King, Jay and Hamilton, as expressed in
the Convention of New York—and we think this reply well deserves
publication. It is from the pen of a ripe scholar and a profound
jurist.]
The receipt of your letter afforded me much pleasure, not only on
account of the interesting subject it treats of, but as a gratifying
evidence of your remembrance of me. I fear, however, that you will
have reason to repent of your kindness, as I shall presume upon it to
task your patience with some observations in defence of my old federal
notions upon your doctrine of instructions. I will endeavor to show
that the extracts made in the Enquirer from the speeches of Messrs.
King, Jay and Hamilton, in the New York Convention, do not sustain
(even if we are to take the report of them to be verbally correct) the
doctrine or right as it is contended for in Virginia. I understand
that doctrine to be, that the instructions of a State Legislature to a
Senator of the United States, are an authoritative, constitutional,
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. I confess that this
doctrine appears to me 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. I do not mean to enter upon the broad ground of argument of this
question, with which you are so well acquainted, but to examine, as
briefly as I can, but probably not so much so as your patience would
require, the _federal_ authorities which the writer in the Enquirer
believes he has brought to the support of his opinions.
I cannot put out of the discussion, although I will not insist upon,
the objection to the authority of the reports of the speeches alluded
to, especially when it turns upon a question of extreme accuracy in
the use of certain precise words and phrases, any departure from which
would materially affect the sense of the speaker. We see daily in the
reports of congressional debates, the most important mistakes or
misrepresentations, unintentionally made, not of expressions merely,
but of the very substance and meaning of the speakers; sometimes
reporting the very reverse of what they actually said. I have occasion
to know the carelessness with which these reports are frequently made,
and, indeed, the impossibility of making them with accuracy. What a
man _writes_ he must abide by, in its fair and legitimate meaning; but
what another writes for him, however honest in the intention, cannot
be so strictly imputed to him. There is also an objection to
_extracts_, even truly recited, inasmuch as they are often qualified
or modified by other parts of the writing or speech. As I have not,
immediately at hand, the debates of the New York Convention, I am
unable, just now, to see how far this may have been the case in the
speeches from which the quotations are made. I must, therefore, at
present, be content to take them as they are given in the Enquirer,
and even then it appears to me that they are far from covering the
Virginia doctrine of instructions. 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. As we are upon a question
of verbal criticism, and it is so treated in the Enquirer, we may look
for information to our dictionaries. To instruct, in its primitive or
most appropriate meaning, is simply to _teach_—and instruction is the
act of _teaching_, or _information_. It is true that Johnson gives, as
a more remote meaning, “to inform authoritatively.” Certainly, the
Legislature may instruct, may teach, may inform a Senator, and
whenever they do so it will be with no small degree of authority from
the relation in which they stand to each other; but the great question
is, not whether this would be an impertinent or improper interference
on the part of the Legislature, but whether the Senator is bound, by
his official oath or duty, implicitly to obey such instructions;
whether he violates a duty he ought to observe, or usurps a power
which does not belong to him, if he declines to submit to these
directions, if he cannot receive the lesson thus taught, or adopt the
information thus imparted to him. Does {406} the spirit of our
Constitution (for clearly in terms it does not) intend to make a
Senator of the _United States_ a mere passive instrument or agent in
the hands of a _State Legislature_. Is he required by any legal or
moral duty or obligation, to surrender into the hands of any man or
body of men, his honest judgment and conscientious convictions of
right? To act on _their_ dictation and _his own_ responsibility;
responsible to his country for the consequences of his vote, and to
his own conscience and his God for the disregard of his oath of
office, which bound him to support that Constitution which his
instructions may call upon him to violate, _as he conscientiously
believes_. It will be a miserable apology for him to say, that he has
done this because he was so ordered by a body of men, who may have
thought or cared very little about it, and may hold a different
opinion the next year without remorse or responsibility. But if he
cannot obey, must he save his conscience by resigning his seat? This
is the most unsound and untenable of all the grounds assumed in this
discussion. If it is the _official duty_ of the Senator to do and
perform the will of his constituents, or rather of those who gave him
his office, then he violates or evades that duty by resigning; and he
may, in this way, not only abandon his duty, but as effectually defeat
the will and intention of his Legislature as by actually voting
against it. To return to Mr. King—how does he propose or expect that
this check of legislative instructions is to act upon the Senator?
What is the nature of the obligation he considers to rest upon the
Senator to obey them? He does not pretend that there is any power in
the Legislature to enforce their instructions or cause them to be
respected. He does not suggest that disobedience is a violation of
duty on the part of the Senator, or the assumption of any right that
does not practically and constitutionally belong to him; that he falls
under any just odium or reproach, if after an honest and respectful
consideration of the instructions, he shall believe it to be his duty
to disregard them. Mr. King does not, by the most remote implication,
intimate, that a State Legislature may, through the medium of
instructions, directly or indirectly, put a limitation on the _term of
service_ of a Senator, which they will do if it is his duty to resign
whenever they shall choose to require of him to do what, as an honest
man, a good citizen, and faithful officer, he cannot do. If
instructions have the authority contended for, there is no exception;
it is a perfect right or it is no right. The Senator cannot withdraw
himself from it, however imperious the requisition may be, or however
iniquitous the design in making it. The Senator has a discretion to
judge of it in all cases or in no case. He may take counsel of his own
conscience and judgment in every call upon him—or in none. The check
that Mr. King promises from the State Legislatures upon their
Senators, is nothing more than the natural influence they will have
upon the minds and conduct of the Senators, and this, in my
apprehension, is more likely to be too much than too little. What does
Mr. K. say will be the consequence of a refusal on the part of a
Senator to obey? Not that he is corrupt—or unfaithful—or ought to
resign—but simply that they will be “_hardy men_.” Assuredly they will
be so; I wish we had more of these hardy men, for certainly there are
occasions on which public men, holding the destinies of their country
in their hands, ought to be hardy, and must be so in opposition to the
apparent and immediate, but transient, will of the people; and it is
such hardy men who have deserved and received the gratitude and thanks
of the people they saved by opposing them. The brightest names on the
pages of history are those of such hardy men. The same answer meets
the commentary on the word “dictating”—used, or said to be used, by
Mr. King.
I would here make a remark upon this report of Mr. King's speech,
which shows how carelessly the report was made, or how loose Mr. King
was in his choice of words. In the beginning of the passage quoted, he
refers to the _State Legislatures_, as the bodies who are to check, by
their instructions, the wanderings of the Senators. In the conclusion
he is made to say—“When they (the Senators) hear the voice of the
_people_ dictating to them their duty,” &c. Now, it can hardly be
pretended that the _Legislature_ and the _people_ are identically the
same; or that a vote of the Legislature by a majority of one—or by any
majority, can always be said to be the voice of the people. It is as
probable that they may misrepresent the people, as that the Senators
should misrepresent them. It is not uncommon for the people to
repudiate the acts of their Legislature. It was understood to be so in
Virginia, on the late question on the conduct of her Senators. The
solemn and deliberate opinion upon any subject, of the body from which
an officer derives his appointment, will always be received with great
respect, as coming from a high source and with much authority, but the
Senator, acting on the responsibility he owes to the _whole country_,
must take into his view of the case the effect of his instructions
upon the whole; he must not shut his eyes from examining the occasion
which produced the instructions—the circumstances attending them—the
means by which they were obtained—the errors, or passions, or
prejudices which may have influenced and deceived those who voted for
them; in short, he must carefully and conscientiously examine the
whole ground, and finally decide for himself on the double
responsibility he owes to his _own State_ and to the _United States_;
to those who appointed him to office and to himself, and his own
character. There is no doubt that this examination will be made with a
disposition sufficiently inclined to conform himself to the wishes of
his constituents.
Mr. Jay expressed himself with more discrimination and caution than
Mr. King; and no inference can be drawn from what he says, that there
is any right or power in a State Legislature to demand obedience or
resignation from a Senator, to their instructions. He considers their
instructions to be, what in truth and practice they have always been,
nothing more than advice or information coming from a high source and
entitled to great respect. He says, “the Senate is to be composed of
men appointed by the State Legislatures. They will certainly choose
those who are most distinguished for their general knowledge. I
_presume_ they will also instruct them.”
In these reported debates, _Hamilton_ is represented to have said—that
“it would be a _standing instruction_ of the larger States to increase
the representation.” Observe, this is not applied to the _Senators_
only, but to the delegates or representatives of the States in {407}
Congress, in both Houses, and has no reference to any right of
instruction by the State Legislatures to their Senators; _that_ was
not the subject of the debate; nor is it intimated _by whom_ or in
what manner these standing instructions are to be given. The meaning
of General Hamilton, I think, is obvious, and has no bearing on our
question. The phrase, _standing instruction_, means that it is so
clearly the interest of the larger States to increase their
representation, that their delegates will always consider themselves
to be bound, to be _instructed_ by that _interest_, by their duty to
their States, to vote for such increase. They will so _stand
instructed_, at all times and without any particular direction from
their States; they will always take it for granted, that it is their
duty to increase the representation. The very phrase distinguishes it
from the case of _specific instructions_ made, from time to time, on
particular measures as they shall arise for deliberation and decision
in the national legislature. But General Hamilton, as quoted, proceeds
to say—“The _people_ have it in their power to _instruct_ their
representatives, and the State Legislatures which appoint their
Senators may enjoin _it_ (that is the increase of the representation)
also upon them.” I may here repeat that all this is true; but by no
means reaches the point to which this right of instruction is now
carried. 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 the gentleman
alluded to; nor, as I believe, 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. Much reliance is placed, by the writer in the Enquirer, on
the strict meaning of the word _enjoin_; it is thought to be
peculiarly imperative. Conceding, for the argument, that this precise
word was really used by the speaker, it is certain that in speaking,
and even in writing, this word is not always used in the strict sense
attributed to it. Cases of common parlance are familiar and of daily
occurrence, in which it is used only to mean a strong, emphatic
recommendation or advice—or a forcible expression of a wish, and not
an absolute right to command. If, however, we turn to the dictionary,
Johnson tells us that to enjoin is “to direct—to order—to prescribe;
it is more authoritative than direct, and _less imperious than
command_.” Not one of his illustrations or examples employ it in the
strong sense of power now contended for.
“To satisfy the good old man,
I would bend under any heavy weight
That he'll _enjoin_ me to.”
Here the submission or obedience is altogether voluntary; with no
right or power in the “good old man” to require or compel it. Again,
“Monks and philosophers, and such as do continually _enjoin_
themselves.”
The extracts from the speeches in the New York Convention, even if
accurately reported, and strictly construed, do not seem to me to
maintain the present Virginia doctrine of instructions. Allow me to
repeat it, for it is _that_, and not something which may approach it,
which is our subject of difference and argument. It is—whether a
Senator of the United States is under any moral or constitutional
obligation—whether he is bound as a faithful and true officer, or as a
good citizen of the _Republic of the United States_, to obey the
instructions of the Legislature of _his State_, when they require him
to do an act which in his deliberate judgment and conscientious
conviction, is contrary to his duty to his country, to all the States,
and to _his own State_; to the Constitution, under and by which he
holds his office and his power, and to the oath he has taken to
support that Constitution? This is the question truly stated—can the
power or authority of a changing, irresponsible body, which directs
one thing this year (as we have repeatedly seen) and another the next,
or, if it were not this changeling—force him to violate his oath, or
absolve him from the responsibility, if he do so? If a Senator of
Virginia or Delaware were to receive instructions to give a vote which
he truly believed would be a violation of the rights, and injurious to
the interests, of every other state of the confederacy, as secured to
them by the Constitution, although it might be of some local advantage
to Virginia or Delaware, should that Senator, acting as he does as a
Senator, not for his particular State only, but for the States also
whose rights he violates, obey such instructions? Can there be a doubt
of the reply to this question? Will you say he should obey or
resign—that another may come who will obey? I deny that his duty
imposes any such alternative upon him. On the contrary, it is
particularly his duty _not to resign_ for such a reason or such an
object. It would be to abandon the duty he owes to the Constitution
and the other States, at the very moment when they need his services
in their defence; and not only to abandon them, but to surrender his
post and his power to one who, in his estimation, is so far their
enemy as to take the post for the very purpose of violating them. It
would be to desert “the general welfare” which he has sworn to defend
and promote, in order to give his place and power to one who will
sacrifice the general welfare to some local and particular interest or
object. To desert it in such circumstances, may produce the same evils
and consequences, as if he were to remain and obey his instructions.
His vote or his absence may turn the question.
As the incidental arguments, not upon the direct question, attributed
to Messrs. Jay and Hamilton, are now relied upon to support this
doctrine of instructions, I will cheerfully refer to these great men,
adding to them the name of Mr. Madison, and endeavor to show, from
better evidence than reported debates, what were really their opinions
upon this asserted power of the State Legislatures, and in what manner
they thought Senators were amenable to their Legislatures for their
acts and votes in the National Congress. I shall do this, not on the
authority of reported speeches, but by adverting to what they have
written and published, as the true spirit and doctrines of the
Constitution. To be brief, I will give you the summing up of the
argument in the “_Federalist_,” in favor of the powers of the Senate
under the Constitution. I refer to the numbers 62 and 63, written by
Mr. Madison; but, {408} as it is understood, giving the opinions and
views of the illustrious triumvirate. Their whole argument and
exposition of the powers, duties, and responsibilities of the
Senators, are utterly inconsistent with the control upon them now set
up on the part of the State Legislatures. It is not merely that this
right of instruction is no where mentioned or alluded to, as one of
the means by which the Senators are to be kept to their duty, but such
a right cannot be reconciled with the benefits intended by the
Constitution to be derived from the permanency of that body—from its
independence and its elevation above, or protection from, the caprices
and fluctuations of popular feeling, often improperly called popular
opinion. Allow me particularly to turn your attention to a few
passages from Mr. Madison's examination of the “Constitution of the
Senate.” His 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 better 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.
But this great man and enlightened statesman, jealous enough of the
rights and liberties of the people, does not stop here in explaining
the uses of the Senate. It is not the passions of Legislatures only
that are to be guarded against by the conservative power of that body.
He thinks that it “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 meditated by _the people against
themselves_, until reason, justice, and truth can regain their
authority over the public mind.” He considers the Senate as “an anchor
against popular fluctuations;” and he certainly never imagined that
the capstan and cable were in the hands of the State Legislatures, to
remove the anchor at their pleasure. He truly says, that in all free
governments, the cool and deliberate sense of the community ought and
_ultimately_ will prevail; but he did not believe that this cool and
deliberate sense would be found, on the spur of the occasion, in a
popular body liable to intemperate and sudden passions and impulses,
and the seductions of factious leaders. It was to control and check
such movements, and not to be controlled by them, that the Senate was
constituted; and to check and suspend them until the deliberate and
cool sense of the community can be obtained; which, when fairly
ascertained, will be recognized and respected by the Senate as fully
and certainly as by the Legislatures of the States. The members of
these Legislatures 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 or strong. 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.” If then, the will of the people,
declared by themselves, should not move a Senator from his own
conviction of his duty, when he believes the act required of him is
contrary to that duty, and such is the constitutional right and
obligation of his office, shall he be driven to a violation of that
duty or a relinquishment of that right, by a second-hand, doubtful,
equivocal, and, perhaps, false, expression of that will, by and
through an intermediate body, no better informed of the cool and
deliberate sense of the community than he is himself—no better
disposed than he is to satisfy the public sentiment, and not half so
well informed as he is of the tendency and consequences of the measure
in question?
To meet the objections to the dangerous power of the Senate, continued
for so long a period as six years, and to quiet the alarm that had
been raised on that subject, Mr. Madison states what he supposed to be
the check or protection provided by the Constitution against their
usurpations, and which he thought amply sufficient. What is that
check? Is it any right in the appointing {409} Legislatures to direct
his conduct and his votes, and to revoke his powers, directly or
indirectly, if he refuse his obedience? If for any cause, justifiable
and honest or not so, they wish to deprive him of his office, to annul
the appointment made by a preceding legislature or by themselves, may
they do so by giving him instructions at their pleasure, desiring
nothing but to accomplish their own objects, and in a total disregard
of his judgment, conscience, and duties, and then say to him, knowing
that he would not and could not obey their mandate, resign your place,
and put it at our disposal, that we may gratify some new favorite, or
promote some design of our own. The next Legislature may choose to
drive out the new favorite and reinstate the old one; and thus this
Senate, instead of being an anchor to the State, a stable and
permanent body to save us from sudden gales and storms, will in
practice, be floating on the surface, fixed to nothing, and driven to
and fro by every change of the wind. _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.
If the Constitution—for that is our _government_, and by that must
this question be decided—intended to reserve this great controlling
power to the State Legislatures, over the Legislature of the United
States, for such it is as now claimed, we should have found some
provision to this effect, some evidence of this intention, either
expressed, or by a fair and clear implication, in the instrument
itself. Nothing of the kind appears. We should have further found some
form of proceeding to compel a refractory Senator to obey the lawful,
authoritative mandate of his State Legislature. It is an anomaly in
any government to give an authority to a man or body of men, without
any power to enforce it, to carry it out into practice and action, to
make it effectual. To give a right to command, and to furnish no means
to compel obedience, no process to punish a disregard to the order, is
indeed like Glendower's power to _call_ spirits, but not to _make them
come_. To say that I have a right to order another to do or not to do
an act, but that it is left to his discretion to obey me or not, is a
contradiction in terms. It is no right, or at least no more than one
of those imperfect rights which create no obligation of respect. If I
give to my agent a command which, by the terms and tenure of his
agency, by the limitations of his authority, he is bound to obey, and
he refuses to do so, I may revoke his power, or rather he had no power
for the act in question; he is not my agent, and cannot bind me beyond
his lawful authority, or in contradiction to my lawful command. On the
other hand, _that I am bound by his acts_ is a full and unquestionable
proof that he has acted _by and within his powers_, and that I had _no
right_ to give the command which he has disobeyed. There cannot be a
lawful command, and a lawful disobedience on the same subject. If by
the terms of the power of attorney, which is the contract between the
principal and his agent, certain matters are left to the judgment and
discretion of the attorney, or are within the scope of his
appointment, without any reservation of control on the part of the
principal; then no such control exists, and this is most especially
the case when the rights and interests of other parties are concerned
in the execution of the power and trust.
Will it be said that the obligation of a Senator to obey the
instructions of his Legislature, although not found in the
Constitution, results from the circumstance that he received his
appointment and power from that body? It is impossible to sustain this
ground. I recur to the case of a common agent to whom a full and
general power is given, irrevocable for six years; and, to make the
case more apposite, in the execution of which power the rights and
interests of other parties are deeply concerned, so that, in fact, the
agent is the attorney of those parties as well as of the one from whom
he receives his appointment. Will any one pretend that an agent so
constituted and thus becoming the attorney of _all_, with the right
and power _to bind all_ by his acts, is afterwards to be subject to
the direction of any one of the parties in any proposed measure
bearing on the general interest, merely because his immediate
appointment came from that party? When he is appointed, his powers and
his duties extend far beyond the source of his authority, and are,
consequently, placed beyond that control. His responsibility is to
_all_ for whom he is the agent, and he is false to his trust if he
surrenders himself to the dictates of any one, or sacrifices the
general to a particular interest. The President and Senate appoint the
judges, but it does not result from this that judges are to be under
the dictation and control of the executive. So of any other officer
acting within the sphere of his authority. The President by his
general power may remove him, for that or for any other cause, or for
no cause, but while he holds the office, he exercises its powers at
his own discretion, and is not bound to obey the appointing power. In
a despotism the master holds the bridle and the lash over every slave
he appoints to _execute his will_, but in a free representative
government it is the _law_ that is to be executed and obeyed, and the
officer, in performing his prescribed duties, is independent of every
power but that of the law. This is indispensable to the harmonious
action of the whole system.
I do not know whether the advocates of this doctrine of instructions
extend it to trials or impeachments before the Senate. If they do not,
I would ask on what distinct principle do they exempt such cases from
this legislative right of dictation? The claim is broad and general,
covering all the powers, duties, and acts of a Senator. Who is
authorized to make the exceptions? By what known rule are they to be
made, or do they depend upon an arbitrary will? Is this will or power
lodged in the State Legislatures? Then they make the exception or not,
at their pleasure; they may forbear to interfere in one
impeachment—and they may send in their dictation in another, according
as, in their discretion, it may or may not be a case calling for their
interference. Their power over their Senator, to compel him {410} to
obey or resign, is in their own hands, and they may issue their
mandate to him to condemn or acquit the accused, or they may leave him
to his own judgment and conscience as they may deem it to be
expedient. Such is the state of the case, if the right of
discrimination, of making exceptions from the general power of
control, is vested in the Legislatures themselves. Is it then given to
the other party, that is, to the Senator? Then the power resolves
itself into an empty name; or rather into just what I say it should
be, a recommendation entitled to great deference and respect, but with
no obligation to obedience. If the Senator has an admitted discretion
to obey or not to obey the instructions of his Legislature, _according
to the nature of the case in which they are given_, then the right of
the Legislature to give them is not absolute in any case, but it is
left to the judgment of the Senator to decide for himself whether the
case be one in which he can and ought to follow their instructions or
not. There is no special exception of impeachments, and the right to
exempt them from this legislative control, if it exist at all, must
depend upon the nature of the case, and, of consequence, what is the
nature of a case which entitles it to this exemption must be decided
by the Legislature or by their Senator. We have seen the effect of
either alternative. In truth, this power of control must be
co-extensive with the powers and duties of the Senator, or it is
nothing.
To give you the strongest case against my argument, I will suppose
that the Constitution had said—“The State Legislatures may _instruct_
their Senators,” and had said no more; would this have created an
imperious obligation on the Senator implicitly to obey the
instructions? Would disobedience forfeit his office directly, or
virtually by making it his _duty_ to resign it? I think not. It would
have been no more than a constitutional, perhaps a superfluous,
recognition of the right of the State Legislatures to interfere so far
and in this way, with the measures of the federal government, to give
their opinions, their recommendation, their counsel, to their
Senators; but the Senators would afterwards be at liberty, nay it
would be their duty, to act and vote according to their own judgment
and consciences, on the responsibility which they _constitutionally_
owe to their constituents, which is found, as Mr. Madison says, _in
the periodical change_ of the members of the Senate. The Constitution
knows no other check upon the Senators; no other responsibility to the
State Legislature, while the Senator acts within and by the admitted
powers of his office.
But I am wearying you to death. Let me conclude this interminable
epistle by referring to an authority which no man living holds in
higher reverence than you do. About a week or ten days before the
death of that great and pure man, a true and fearless patriot, _Chief
Justice Marshall_, I called to see him. This question of instructions
was then in high debate in your papers. I said to him that I thought
the Virginia doctrine of instructions was inconsistent with all the
principles of our government, and subversive of the stability of its
foundations. He replied in these words—“It is so; indeed the Virginia
doctrines are incompatible not only with the government of the United
States, but with _any_ government.” These were the last words I heard
from the lips of _John Marshall_.