Hulc legi nec abrogari fas est, neque derogari ex hac aliquid licet,
neque tota abrogari potest: nec vero aut per senatum aut per populum
solui hac lege possumus: neque est quaerendus explanator aut interpres
eius alias; nec erit alia lex Romae, alia Athenis; alia nunc, alia
posthac; sed et omnes gentes (nostri Reipublicæ) et omni tempore una
lex et sempiterna et immutabilis continebit.
_De Republica_.
Si a jure decedus, vagus eris, et erunt omnia omnibus incerta.
_Coke_.
Rerum ordo confunditur si unicuique jurisdictio non servetur.
_Id: Proem 4th Institute_.
A disposition to conclude my side of this subject in a single essay,
caused me to obtrude myself at an unreasonable length upon the readers
of the Messenger, in the last number. Nothing could have induced me to
trespass again, but the introduction of new matter by JUDGE HOPKINSON,
which requires consideration even more imperiously than his first
letter, both from its intrinsic importance, and the respect due to his
more deliberate investigation; and the belief that, though but the
ghost of a champion against an accomplished knight, my previous
occupancy may keep more worthy combatants from the field.
The Judge reiterates again and again his singular idea of the
_novelty_ of our doctrines. He says “politicians of a later date are
its authors. It was unknown to those who made the Constitution—as well
as to those writers and speakers who afterwards attacked and defended
it.” To support this idea, he refers freely to _the secret proceedings
and debates of the Convention_ by CHIEF JUSTICE YATES, and LUTHER
MARTIN'S communication to the Maryland Legislature.
After the long digression in his first article against the impropriety
of inferring opinions from the, comparatively, elaborate debates of
the State Conventions, it is a little surprising to find such vast
premises sustained only by scraps and fibres torn from MR. YATES'S
maimed and meagre skeleton of debates. But to answer we must follow
him.
No body of men ever encountered successfully greater difficulties than
the Federal Convention. Nothing but a stern conviction of the
necessity of doing _something_ prevented a dissolution without
effecting _anything_. Federalism and Nationalism, Democracy and
Aristocracy, Monarchy and Republicanism, and every combination, of
all, had to be reconciled in one uniform system. The fears entertained
by the small states of the large ones had to be allayed, and the fears
of all the ultra-state-rights-men, had to be satisfied of their safety
from the strangling grasp of the federal arm. At the same time the
party had to be satisfied which demanded more of their due weight for
the large states than they possessed under the confederation, and the
national government-men who demanded sufficient strength and
perfection in the form of the federal government to enable it to act
independently of state action, and even in spite of it. Our government
is a happy compromise of these conflicting interests. MR. MADISON was
in favor of a national government, perfect within its own sphere,
leaving the state governments only to manage their local concerns, but
with no power to interfere with the operations of the United States'
government. LUTHER MARTIN was in favor of equality and mere federation
of the states, and conducting the federal government by _states_, and
not its _independent_ action.
The principles of the first set of resolutions, appear to have met MR.
MADISON'S views, and were probably written by him, or with him, though
offered by GOVERNOR RANDOLPH, who “candidly confessed that they were
not intended for a _federal_ government,—he meant a strong
_consolidated_ union, in which the idea of states should be nearly
annihilated.”
This is the system of government to which the Judge refers us, as
containing the idea, in the fourth resolution, that senators ought “to
hold their offices for a term sufficient to insure their independence,
namely, seven years,” and that they ought to be “ineligible to state
or federal office _during their term of service_.” This resolution was
written with the avowed object of {685} keeping the state governments
from interfering in any way,—even by the allurements of office,—with
an officer who was designed to be an intrinsic part of an entirely
separate consolidated general government; and the _rejection_ of that
very system and the reasons assigned for it in the debates, prove,
beyond doubt, that the objection to it was because it left the states,
_as states_, and their governments and sovereignty, without
representation, and of course without protection. The Judge quotes a
_rejected_ clause, to prove the _adoption_ of its principles!
MR. MADISON was opposed to the amendment. He did not wish to leave the
state legislatures this modicum of federal power, because he wished a
distinct and _independent_ government. He must have foreseen the
exercise of instructions and recognized the right; or he could not
have used the expressions which fell from him when the right of
election was given to state legislatures. All who knew MR. MADISON, or
are at all familiar with his history, and his writings on the
formation of the constitution, must remember that he was haunted and
hag-ridden by a terror of disunion; and federal weakness, which, to
us, at the present day, would seem almost a monomania, if recent
startling events had not fearfully proven that this phantom is ever
armed and ready to assume a tangible shape, and realize, in practice,
those terrible consequences which his second-sighted sagacity could so
manifestly mark in the dim picture of the future. His fear of the
state legislatures led him to favor GOVERNOR RANDOLPH'S
proposition,—which was to have the senators selected by the house of
representatives, out of a certain number of persons nominated by the
state legislatures. This would have adroitly used the best possible
body for judicious nomination, without giving it the power of
appointment. Without representation, they would have been without the
right of instruction, and the election being made by the house of
representatives, the constitution of the senate would have had another
_national_ feature, and its members been removed as far as practicable
from state influence.
When the first and fatal blow was stricken at this system by giving
the election to the Legislatures, MR. MADISON'S hopes of a national
government, entirely distinct and independent of state governments,
were at once prostrated. Then he used the language quoted by Judge H.
“We are proceeding in the same manner that was done when the
confederation was first formed. Its original draft was excellent, but
in its progress to completion it became so insufficient as to give
rise to the present convention. By the vote already taken, will not
the temper of the state legislatures transfuse itself into the senate?
Do we create a free government?”
Our distinguished opponent asks what would he have said, had he known
that a right of instruction would be claimed? He could have said no
more—indeed he could not have used so much force without knowing it.
How else can the _temper_ transfuse itself? Is it only by an election
every _six years_, leaving the senators independent in the interval?
Would not the legislative _nominations_ have _transfused the temper_
quite as effectually? The legislatures would only have nominated those
who concurred in sentiment with a majority of their members; and all
that the house of representatives would have done would have been to
elect the most moderate, if they differed, and the most violent if
they agreed with the state legislature. The difference between the two
modes, as to the transfusion of temper, was almost nothing without
instructions, but very great with it; and as Mr. M. seemed to think
the amendment almost annihilated his scheme, we must suppose he
objected more to the incidental right of instruction given by the
vote, than the principal right of election from which it flowed.
Notwithstanding Mr. M.'s strenuous opposition, the change was made by
a vote of _nine states to two_—thus evincing a decided determination
in that body to enable the states to defend themselves, and _transfuse
their temper_ if necessary. Judge H. tortures Mr. M.'s objections to
the new system into an evidence of ignorance of one of the most
important consequences of that system, without a knowledge of which,
his reasons would have been of little force, and his fears utterly
without foundation.
The clauses which the Judge quotes in the fourth resolution, were left
in their original form by the advocates of state power, in the first
consideration in committee, being satisfied with their great gain in
the mode of election; but they were afterwards stricken out, being a
part of the scheme which had been rejected, and inconsistent with the
spirit of the amended resolution. The proposal and subsequent
rejection of the express terms of senatorial _independence_, prove
that the convention disapproved of the idea; but Judge H. quotes it as
evidence of “an intention to make the senators equally independent of
the several states and of the United States.”
The objections of LUTHER MARTIN to the _possibility_ of senators doing
their own will instead of that of their states, modern times have
proven to be too well founded, but his opinions upon that subject
being analogous to those of PATRICK HENRY, I refer to my last number
for the answer. He does not yield the right, but complains of the
power of senators to disobey, without being punished. He does not say,
as the Judge supposes, “that senators are _not_, precisely what the
advocates of instructions say they _are_,” but that they _may do_,
precisely what we say they _ought not_. He is directly opposed to MR.
MADISON, and fears the senators may stop that transfusion of temper,
which the latter thought they could not legitimately stop. MR. MARTIN
would not have objected to this system, if senators had been elected
for shorter terms, and paid by the states, and subject to recall,
because then he would have thought them sufficiently dependent on
their states. But none of these would have given the state any control
over them except by _instructions_.
MR. WILSON was with MR. MADISON and GOVERNOR RANDOLPH, opposed to the
election of Senators by state legislatures. Because he thought they
ought “_to lay aside their state connections and act for the general
good of the whole,_” and that the general government ought not “to be
comprised of an assemblage of different state governments.” Mr. W.
wished senators elected by _districts_. He wanted an _independent_
national government, and thought the laying aside state connections
incompatible with legislative elections, and that this mode would make
the general government an assemblage of different state governments.
He wished the senators to be by a DIFFERENT CONSTITUTION, precisely
what Judge H. contends they NOW ARE, and Mr. W. contended that they
could not be by our present {686} system. Yet he is quoted to prove
that under this constitution “the senators for each become the
senators of all,” and that “the senators from Virginia become as
independent of her as those of Massachusetts.” If Mr. W. thought so,
he was arguing against himself. Nothing but instructions could
possibly make the senate an assemblage of different state governments;
and the doctrine of the senators from each state loosing their
connection and becoming senators for all, made it the reverse, and a
senate as strictly national and independent as Mr. W. could wish. The
defeat of MR. WILSON proves that the convention did _not_ wish
senators to lay aside state connections, and _did_ wish the senate to
be an assemblage of state governments; and the reasoning of himself
and his party proves that they thought such would be the operation of
the present system if adopted. Thus we have the evidence of both
majority and minority—the whole convention—against the opinions of
JUDGE HOPKINSON, and his coadjutors of the present day.
MR. ELSWORTH wished the senate to have “_wisdom_ and _firmness_, as a
protection against the hasty and inconsiderate proceedings of the
_first branch_;” and yet he wished an election by the legislatures.
This speech was in opposition to MR. WILSON'S motion for the people to
elect by districts. If he had wished the wisdom and firmness as a
protection from the “wild and inconsiderate democracy of the state
legislatures,” as the modern doctrines contend, would he have
preferred that body as electors?
MR. MASON said, on the same proposition, “It is equally necessary to
preserve the state governments, as they ought to have the _means of
self defence_. On the motion of MR. WILSON _the only means they ought
to have would be destroyed_.” On the debate as to _equality_ of votes
in the senate, a similar contest arose, with a similar result. In that
debate JUDGE ELSWORTH remarks, “If the larger states seek security,
they have it fully in the first branch of the general government.
Small states must possess the power of _self-defence or be ruined_.
Will any one say there is _no diversity of interests in the states_?
And if there is, should not those interests be _guarded_ and
_secured_? But if there is none, then the large states have nothing to
_apprehend_ from an equality of rights.” This is all utterly
inconsistent with the idea of the “senator for one being the senator
for all,” so far as to set the interests and wishes of his own state
at defiance. The states-rights-men, and the small states obtained this
protection and security after an arduous and manly struggle—are they
to lose it by construction and recreancy of representatives? It may be
to the interest, perhaps, of the large states for a time, to establish
this doctrine, but it would speedily swallow all in the federal
Maelstrom. If, for instance, Pennsylvania should ever wish a national
bank, it might be agreeable to turn the voices of New Jersey, Delaware
and Rhode Island in opposition to the deliberate will of those states,
by persuading their senators that they were senators for the union and
not of those little states, and that the interest of Pennsylvania
ought to be considered before that of their diminutive states. But it
would be very unpleasant for her own senators to tell Pennsylvania, in
spite of instructions, we voted money for a steamboat canal from the
Ohio to Baltimore, because it would benefit all the western country,
and we are senators for all.
After the vote was carried in favor of the legislative elections,
GOVERNOR RANDOLPH moved to strike out the term of _seven years_, and
make the senators go out in classes, as that body might possibly
always sit, “perhaps, to aid the executive.” “The state governments
will always attempt to counteract the general government.” Requiring
that _body_, as a body, to act with _firmness_, does not imply the
duty of a senator to resist his own state. The arrangement of
_classes_ shows what is meant. That arrangement gave no facilities for
disobedience to instructions, and hence could not contribute to their
_firmness_ in that sense. But the arrangement in classes leaves the
senate always ready to act—“it might possibly always sit”—“to aid the
executive”—to act perhaps against a state which was attempting to
counteract the general government, and the term of whose senators had
expired, and which had refused to elect others. If all the senators
had gone out at the same time there would have been none to act.
GOVERNOR RANDOLPH had tried to make the _individual senators
independent of their states_. Failing in this, he now tried to make
the _body_ as firm and strongly permanent as he could, by not allowing
all to go out at the same time. If his object had been thus to defeat
the previous vote, and render the senators independent, his amendment
would have been rejected. A similar struggle was again raised upon the
question of paying the senators, the length of their term, and a power
of recall, but the friends of the states, and federative principles
yielded these minor points, believing themselves secure in the
elections and instructions and equality of votes in the senate. The
leaving the pay of senators to depend upon the states, was making the
federal _government_ too degradingly dependent upon the states. Not to
have power to pay its own officers, would have left it almost as
powerless as the old confederation, and it was thought, too, that it
would lead to federal corruption, and thus defeat its own object, by
making senators look exclusively to the federal government for honor
and emolument. This would have been an awkward and humiliating check
upon the body, without giving much control over its members. The
example of unpaid parliaments was quoted with effect. We learn, then,
from the debates, that the convention meant the states to act _as
states_ in the senate, in all respects as they had done under the
confederation, except that the senator had power to make a law instead
of a treaty, and his action was final without a subsequent
ratification by his state. They never meant to change, in any degree,
the state power of directing him.
The national-government-men contended that the states would have too
much power—the states-rights-men that they would have just enough for
protection—the ultra states-rights-men that they would not be
sufficiently protected, because there was no means of controlling a
wilful senator. Without the right of instruction their disputes amount
to nothing. The first class ought to have been satisfied, for they
lost nothing; the second class ought to have seceded as they
threatened, for they gained nothing; and the third class was guilty of
the folly of asking a remedy for the violation of a right which did
not exist. They were all mistaken—all wrong, and ignorant of what they
asked and what they accepted, and we of the present day can see their
errors! There is nothing new under the sun. The {687} question we now
discuss is the same under a new name which was discussed in the
convention. A question of _power_ between states and general
government and large and small states. What was lost in constituting
is to be regained by construction. What _states_ refused to give up,
is to be cozened out of their _agents_. In all the conventions
however, our misguided ancestors considered the senate as the last
remnant of the federative features of the old government, and that
senators represented distinct sovereignties, and were on the footing
of ambassadors or the members of the old congress as to their
constituents, and only legislators as to the general government.[1]
[Footnote 1: Of this, abundant evidence may be adduced. _Mr. Ames_, in
the Massachusetts convention, assigned the ambassadorial character of
senators as a reason for the length of their term.
“The senators represent the _sovereignty_ of the states; in the other
house individuals are represented. The senate may not originate bills.
It need not be said that they are principally to direct the affairs of
war and treaties. They are in the quality of _ambassadors_ of the
states, and it will not be denied that some permanency in their office
is necessary to a discharge of their duty. Now, if they were chosen
yearly, how could they perform their trust? If they would be brought
by that means more immediately under the influence of the people, then
they will represent the _state legislature_ less, and become the
representatives of individuals. This belongs to the other house. The
absurdity of this, and its repugnancy to the federal principles of the
constitution, will appear more fully, by supposing that they are to be
chosen by the people at large. If there is any force in the objection
to this article, this would be proper.
“But whom in that case would they represent? Not the legislatures of
the states, but the people. This would totally obliterate the federal
features of the constitution. What would become of the _state
governments_, and on whom would devolve the duty of defending them
against the encroachments of the federal government? A consolidation
of the states would ensue, which it is conceded would subvert the new
constitution, and against which this very article, so much condemned,
is our best security. Too much provision cannot be made against a
consolidation. The state governments represent the wishes and feelings
and local interests of the people. They are the safeguard and ornament
of the constitution—they will protract the period of our
liberties—they will afford a shelter against the abuse of power, and
will be the natural avengers of our violated rights.
“A very effectual check upon the power of the senate is provided. A
third part is to retire from office every two years. By this means,
while the senators are seated for six years they are admonished of
their _responsibility to the state legislatures_. If one third new
members are introduced, who feel the sentiments of their states, they
will awe that third whose term will be near expiring. This article
seems to be an excellence of the constitution, and affords just ground
to believe that it will be in practice, as in theory, a _federal_
republic.”
The remarks of Mr. King in the _same convention_, upon the same
subject, lead irresistibly to this conclusion, although it was
attempted to be reasoned away by Judge H. in his first letter—“The
senators,” said Mr. K. “will have a _powerful check_, in those men who
wish for their seats, who will _watch_ their whole conduct in the
general government, and will _give the alarm_ in case of misbehavior.”
(This is one distinct check and Mr. K. proceeds.) “And the _state
legislatures_, if they find _their delegates_ erring, can and will
_instruct them. Will not this be a check?_ When they hear the voice of
the people _solemnly dictating_ to them _their duty_, they will be
bold men indeed to act _contrary to it_.” (This makes obedience a
_duty_, and the boldness and hardihood not of that virtuous kind which
the Judge supposes.) “These will not be instructions sent them in a
private letter, which can be put in their pockets; they will be public
instructions, which all the country will see; and they will be hardy
men indeed to violate them.” (This seems to suppose meanness enough to
violate secret instructions, but not audacity enough to violate them
in the face of day.) “The honorable gentleman said, _the power to
control the senate is as great as ever was enjoyed in any government;_
and that the members thereof will be found _not to be chosen for too
long a time_. They are, says he, to assist the executive in the
designation and appointment of officers; and they ought to have time
to mature their judgment. If for a shorter period, how can they be
acquainted with the rights and interests of nations, so as to _form
advantageous treaties_?” If this is not our doctrine in full, we give
it up. Here is length of term advocated, not to strengthen in
disobedience, but to _mature judgment as to officers_, and _acquire
information as to treaties_; but as to legislative proceedings, “if
they are found erring, instruct them.” Instructions are given as the
remedy for a term _too long_ for _legislators_, but necessary to
enable them to execute properly their executive duties.
A similar view was taken by _Mr. Parsons_ of _Newburyport_, who
thought “suitable checks had been provided to prevent an abuse of
power, and to continue _their dependance on their constituents_.” _Mr.
Neal_ asks, “If we should ratify the constitution and _instruct_ our
first members to congress, &c. &c., is there not the highest
probability that every thing which we wish may be effectually
secured?” _Mr. Symmes_ finally withdrew his opposition, and would,
“especially as the amendments were to be a _standing instruction_ to
their _delegates_, until they were obtained, give it his unreserved
assent.”
So in the _New York convention, Mr. Hamilton_ says, “It will be the
interest of the large _states_ to increase the representation. This
will be the _standing instruction_ to their delegates.” He then argues
at length to prove that the will of the people must prevail over that
of the members of congress, and thus speaks: “If the general voice of
the people be for an increase, it undoubtedly must take place. They
have it in their power _to instruct their representatives_; and the
state legislatures, _which appoint the senators_, may _enjoin_ it also
upon them.”
In the same convention, _Mr. Jay_ 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_; that there will be a _constant
correspondence_ supported between the senators and the _state
executive_, who will be able, from time to time, to afford them all
that particular information which particular circumstances may
require.” He seems to have considered senators in the light of
_ambassadors_, and never to have contemplated the contingency of a
state executive's refusing to send instructions to senators!
There was an attempt made in this convention to carry an amendment,
making senators ineligible for more than six years in a term of
twelve, and subjecting them to a power of recall, but it was
negatived—its opponents alleging that the _states_ had as much power
of _control_ as any constituents ought to have, or as the _people_ had
in the other house, and that to render senators ineligible a second
term would be highly impolitic—excluding useful and experienced
citizens from office.
In the convention of _North Carolina, Mr. Davie_, in giving the
reasons for the introduction of a vice president, says: “It was owing
with other reasons, to the _jealousy_ of the _states_, and
particularly to the extreme jealousy of the _lesser states_, of the
power and influence of the larger members of the confederacy. It was
in the senate that the several political interests of the _states_
were to be preserved, and where all their powers were to be perfectly
balanced.” Hence, he concludes, the _casting vote_ ought to be in the
hands of a man, possessing the confidence of all the states in a great
degree, and responsible to no particular one.
In the _convention of Pennsylvania, Mr. Wilson_, in answer to the
fears of some as to the _independence of senators_, says: “In the
system before you, the senators, sir, those _tyrants that are to_
devour the legislatures of the states, are to be _chosen by the state
legislatures themselves. Need any thing more be said on this subject?_
So far is the principle of each _state's retaining_ the power of
self-preservation, from being weakened or endangered by the general
government, that the convention went further, perhaps, than was
strictly proper, in order to secure it; for in this second branch of
the legislature, _each state_, without regard to its importance, is
entitled to an _equal vote_.” Further on, he says: “The truth is, and
it is a leading principle in this system, _that not the states only_,
but _the people_ also shall be here represented.” Again: “_States_ now
exist and others will come into existence; it was thought proper that
they should be _represented_ in the general government.”
Such were the opinions of those who “assisted in framing the
government;” but the idea now is, that senators _represent_ and
protect, not their own states, but the whole union, even in opposition
to the interest or safety, and expressed wishes of their states.]
One remark of Judge H. will finish our consideration of this portion
of his letter. “This (right of instruction) {688} is practically to
give the legislatures a power to recall their senators, as
instructions may always be given, which _must be disobeyed by an
honest man_.” Such could not be given by an _honest man_. This
supposes a _majority_ of each legislature always dishonest, and ready
to pass dishonest instructions, not to effect legislation, but merely
to eject an _honest_ senator. What could induce this? only _one_ could
take the place, and the rest must be prostrated, unless the people too
be dishonest. A new election would place honest men in power, _they_
would give honest instructions to the dishonest senator, and by our
rule he must obey and honest measures prevail, or give place to an
honest man. So that the rule is likely to work as much good as harm in
any contingency, unless honest men are necessarily corrupt state
legislators, or a dishonest man an honest senator, or the _people_
thoroughly corrupt. If the latter is true, unless we could find an
honest king, we must be content with a corrupt government.
In his former letter the Judge complained that there was no mention of
this right in the constitution,[2] and now declares that “not a
syllable can be found any where from any body which hints at this
right.” I trust this popular periodical now bears many syllables from
high authority having an “awful squinting” that way, and visible to
the naked eye. But there is still higher evidence, not only of the
knowledge of this right by our ancestors, but of the high value and
sanctity of it in their estimation. It was incorporated into the first
Virginia bill of rights, thence copied _verbatim_ by the Virginia
convention on the federal constitution, in a bill of rights which that
body proposed to attach to the federal constitution, and copied again
_verbatim_ in the recommendations of amendments by the _North
Carolina_ convention on the constitution.[3]
[Footnote 2: _Mr. Bowdoin_. “The whole constitution is a declaration
of rights. The rights of _particular states_ and private citizens not
being the object or subject of the constitution, they are only
incidentally mentioned. In regard to the _former_, it would require _a
volume_ to describe them, as they extend to every subject of
legislation not included in the powers vested in congress.”—_Debates
Massachusetts Convention_.]
[Footnote 3: See fifteenth article of Virginia bill of rights, _passed
unanimously_ in the Virginia convention, _June 12th, 1776_, in these
words. “XV. That _the people_ have a right peaceably to assemble
together, to consult for the common good, _or to instruct their
representatives_; and that _every freeman_ has a right to _petition_,
or _apply_ to the legislature for redress of grievances.”
In Virginia convention on the federal constitution, Friday, 27th June,
1788, _Mr. Wythe_, from the committee on amendments, reported the
Virginia bill of rights, with this preamble, “That there be a bill of
rights asserting and securing from encroachment the essential and
unalienable rights of the people, in some such manner as the
following.” (Here follows the bill, including the fifteenth article.)
The same clause, with others, was carried in the North Carolina
convention, by a vote of 184 to 84, the minority objecting to other
clauses. This proves that the right was _known_ and _valued_, as a
_natural_ and _unalienable_ right of the people, and of course the
states when constituents, and considered a _different thing_ from
_consultation_, _petition_, _advice_ or _remonstrance_. _Every
freeman_ may _petition_ or _remonstrate_, but the _people_ must
_instruct._]
JUDGE HOPKINSON “has not referred to the opinions of MR. BURKE,
because the argument stands here on a different and stronger ground.”
Yes, stronger—on our side. _First_, because states are represented _as
such_, in their _sovereign capacity_; and apart from general
representative principles, their ambassadorial character requires
obedience. _Secondly_, because small districts elect for vast regions
in England, and here power is equally distributed, for the avowed
purpose of equal representation and protection. And _thirdly_, because
in England a member of the House of Commons has no constitutional
right of _resignation_; it is prohibited; and by our rule, he must
there obey in _all cases_.
As to the _first_, even Blackstone admits that members of Parliament
ought to obey if they represented separate communities, and did not
serve for the whole realm. He says, “every member is chosen for the
whole, and hence is not bound, like a deputy in the United Provinces,
to consult his particular constituents.” But here they are elected for
_states_, by analogy to the old congress and the diet of the United
Provinces.[4] MR. HAMILTON says in the Federalist, (No. 9,) “The
proposed constitution, so far from implying an abolition of the state
governments, makes _them constituent parts of the national
sovereignty, by allowing them a direct representation in the Senate_,
and leaves to their possession certain exclusive and very important
portions of sovereign power.” MR. MADISON says, in No. 45, “The _state
governments_ may be regarded as _constituent_ and essential parts of
the federal government.” MR. LANSING, who had been a member of the
federal convention, said in the New York convention, “I believe it was
undoubtedly _the intention of the framers of this constitution_ to
make the lower house the proper, peculiar representative of the
interests of the people—the senate of the _sovereignty of the
states_.” For this reason he wished a power of recall to make them
more dependent upon their states, “of whose independence it was
_designed by the plan_ that they should be the bulwark, and check to
the encroachments of the general government.” MR. SMITH, in the same
convention, was also very apprehensive of senatorial disobedience, and
advocated Mr. Lansing's amendment. He says, “with respect to the
second part of the amendment, I would observe, that as the senators
are the _representatives of the state legislatures_, it is reasonable
and proper that they should be _under their control_. When _a state
sends an agent_ commissioned to transact _any business_, or perform
_any service_, it certainly ought to have a power to recall him.” I
presume this authority, with that in a previous note, will
sufficiently establish this point.
[Footnote 4: “In Switzerland and _Holland_ the different parties
(states) send deputies, commissioned and _instructed_ by themselves,
who debate, but have no other power than what is conferred only by the
people, or may be subsequently given.” (_Harrington_, _Oceana_, 51.)
This bears a close resemblance to the powers of the old congress.]
II. As to the second reason, it received sufficient consideration in
my former number.[5]
[Footnote 5: _Judge Hopkinson_ is against _all instructions_, but
thinks his reasoning stronger in the case of senators, because the
right is not reserved. I am for _all instructions_, and especially
those to senators, because of their character as ambassadors,
representing sovereignty, and because it is a reserved state right,
secured by our international compact, in which all is reserved which
is not _given_, and in which a representation of sovereignties, as
such, was insisted upon and yielded. But even as to popular
instructions, the case is much stronger here than in England, for
reasons intimated in my last. Lee us see how it has stood there, long
before the reform bill, and long before the American {689} revolution
brought up all the questions of representation and taxation for
discussion and decision. In the most ancient times, when the
connection between vassal and lord was very close, and the vassal had
little to which the lord could not lay claim, the commons were
considered as represented in the commune concilium, by the lords and
great barons under whom they held; but the king's tenants _in capite_,
holding _immediately_ from the crown, could not be considered, by the
most liberal construction, as thus represented, and they were
therefore admitted into parliament, in propria persona, in their own
right. When these became too numerous thus to be admitted, they of
their own accord, to avoid inconvenience, appeared by _proxy_. As the
towns, cities, and boroughs began to receive incorporations, to grow
in importance and wealth, especially personal property, an aliquot
part of which was always granted, they too being unrepresented by the
lords, were required to send _proxies_; and it was subsequently
extended to knights for the shires, as the feudal fetters wore away.
These _proxies_ had no power but that conferred by their constituents.
(See Pettyt's Antient Right of the Commons of England, p. 14; 1
Gordon's History of Parliament, 215)—(Lex Parliamentaria, 113 and
117.) “And Note, If any new project was proposed in Parliament for
raising subsidies or supplies, the commons usually replied thereto
that they were not _instructed_ by their principals in that matter, or
that they durst not consent to such tax, &c. without conference with
their countries.” “And Note, Blackstone (Book I, 168) says, a member
of the house of commons cannot vote by proxy, because ‘he is himself
but a _proxy_ of a multitude of other people.’” Representation in the
Parliament of _Scotland_ went through a similar process. (See Lord
Somers' Tracts, vol. 12, p. 610.) In the seventh parliament of the
reign of James the First of Scotland, (1427) “the small barons were
allowed to send commissioners, and were charged with the fees of their
deputies,” and this was the first instance of _elective_ members to
the Scottish parliament.
In Burgh's Political Disquisitions, (London, 1774) the American
doctrine in its most rigorous extent is found applied in full vigor to
members of parliament, and sustained by an abundant series of
precedents from the earliest times, and quotations of the strongest
language from members of Parliament in sustaining the duty of
obedience, and the advice and opinions of the best English authors, to
the same purport. (See vol. I, from p. 180 to 205—many instances of
instruction and obedience against the sentiments of the
representative, a few of which are in _Mr. Leigh's_ report of 1812.)
In the _Irish_ parliament, which met in November 1767, there was
scarcely a town or county which had not instructed its representative
to vote in favor of a limitation of their parliaments to seven years;
and so eager were they, that all required the most positive
assurances, and some even exacted an _oath_ from their members to vote
for the bill. The bill was passed, and its subsequent history affords
a curious instance of legislative cunning and popular firmness. (See
London Magazine, 1768, p. 131.)
In the session of 1733-4, (An. 7, Geo. II) _Sir William Wyndham_, in
the house of commons, in a speech on _Mr. Bromley's_ motion for
repealing the septennial act, said of an opinion of _Mr. Willes_,
(afterwards chief justice) of a character very similar to that
advanced by _Judge Hopkinson_, (to wit: “After we are chosen, and have
taken our seats in this house, we have no longer any dependance upon
our electors, at least so far as regards our behavior here; their
whole power is then devolved upon us, and we are in every question to
regard only the public good in general, and to determine according to
our own judgment. If we do not—if we are to depend upon our
representatives, and to follow blindly the _instructions_ they send
us, we cannot be said to act freely, nor can such parliaments be
called free parliaments. Such a dependance would be more dangerous
than a dependance upon the crown”)—that it was “not only a _new_
doctrine, but it was the _most monstrous_, the _most slavish_ doctrine
that ever was heard, and such a doctrine as he hoped no man would
_ever dare_ to support within those walls. He was persuaded that the
learned gentleman _did not mean_ what the words he happened to use
seemed to import—for though the people of a county, city or borough
may be misled, and may be induced to give instructions which are
contrary to the true interest of their country, yet he hoped he would
allow that in times past the crown has oftener been misled; and we
must conclude that it was more apt to be misled in future, than we can
suppose the people to be.” (See Com. Debates VIII, pp. 172, 188. The
whole debate might be read with advantage by many modern
_republicans_.) Here, whatever right the crown had to control
parliament, is vested in the legislatures as to senators, and the
people as to legislatures, as they are sovereigns; hence, whether whig
or tory rule prevails, we ought to have the right of instruction.
The immortal _Sidney_, in his discourses on government, goes to the
full extent of our present doctrines. “Many in all ages, and sometimes
the whole body of the commons, have refused to give their opinion in
some cases till they had consulted with those that sent them; the
houses have been often adjourned to give them time to do it; and if
this were done more frequently, or that the towns, cities and counties
had on some occasions given _instructions_ to their deputies, matters
would probably have _gone better_ in parliament than they have often
done.” He seems satisfied with subsequent rejection as sufficient
punishment for violation of duty, but does not hence infer that there
are no duties. “Whensoever any of them has the misfortune not to
satisfy the major part of _those that chose him_, he is sure to be
rejected _with disgrace_ the next time he shall desire to be chosen.
This is not only a sufficient punishment of such faults, as he who is
one of five hundred may probably commit, but as much as the greatest
and freest people of the world did ever inflict upon their commanders
that brought the greatest losses upon them.” (Discourses on
Government, section 38.) This rejection from office is the only
punishment provided by our constitution in cases of impeachment of the
highest officers.
Quotations might be multiplied, but “this little taste shall suffice.”
It must be remembered that these doctrines prevailed under a
constitution which allowed of no resignation, and where fifty-six
members (or about a ninth part of the English representation) were
elected by only three hundred and sixty-four votes—where _one man_
sent a representative from _Sarum_, and one from _Newton_, and _two_
sent one from _Marlborough_—and the elective franchise was so
unequally and unjustly distributed, that parliament never truly
represented the wealth, population, or wishes of all England, or any
section, or even a single election district, or any class of persons
or property, unless the representatives of the single freeholders of
Newton and Sarum constituted an exception! When our “_novel doctrine_,
conjured up for party purposes,” has prevailed there _time out of
mind_, who shall deny its propriety here? Lords have proxies, and may
instruct them, though the absent principals may be gambling in
Brussels, or revelling in Parisian debauchery, and neither hear or
read the debates; shall that be denied to the majesty of the people
which is yielded to the dignity of a half fledged lordling, sunk in
vices which disgrace the human character?]
III. If any thing could render a relaxation of our rule tolerable in
England, it would be that feature of their constitution which will not
permit resignation. As that constitution “will not intend a wrong,” it
must suppose constituents utterly incapable of giving instructions
“which no honest man can obey”—and it must hold a member entirely
irresponsible, morally and legally, for a vote in obedience to them.
Such is the fact, and this arrangement prevents that possibility of
the defeat of their wishes by resignation, which the judge so much
deprecates, and which he sets up as a reason or excuse for wilful
disobedience. This absence of a constitutional privilege of
resignation renders members, when once elected, indebted entirely to
the courtesy of the crown for their escape from their seats when
disagreeable. Another feature of their constitution makes the
acceptance of office under the crown, (except a few offices of state)
_ipso facto_ vacate a seat in parliament. Hence we often hear of
gentlemen's accepting the Chiltern Hundreds.[6]
[Footnote 6: “A member when duly elected, is not only compelled to
serve in parliament, but he cannot at any future period either resign
his seat or be expelled from the house except by some legal
disqualification. In order, therefore, to meet the views of those
members who may wish to resign their seats, it has been the practice,
ever since the year 1750, for such members to accept {690} the office
of steward of the Chiltern Hundreds, which being an appointment under
the crown, their seats are of necessity vacated. The office, however,
is a merely nominal one. The stewards who accept it desire neither
honor nor emolument from it, the only salary attached to the
appointment being twenty shillings a year. The Chiltern Hundreds are
districts in Buckinghamshire belonging to the crown. The appointment
to the office of the steward of these Hundreds is vested in the
Chancellor of the Exchequer, who, as a matter of course, grants it to
every member who applies for it.”—_Random Recollections of the House
of Commons_.
“On the 2d of March, 1623, (!) it is agreed, That a man, after he is
duly chosen, cannot relinquish.”
See this and other precedents, and the reasons for the principle on
which this part of the parliamentary constitution stands, collected in
“Volume II of Hatsell's Proceedings and Precedents in the House of
Commons.” The rule is firmly established, but thus easily evaded when
inconvenient.]
In England no one seems to have objected to this right, that it cannot
be enforced, or disobedient delegates punished, although there,
delegates may alter or refuse to alter the constitution itself, in
despite of their constituents—still less is the want of power to
recall, or the length of term urged against it. If this last was a
sound reason, then it would follow that members of the old parliaments
were bound to obey, but not those elected since the septennial act!
That is, the stronger the reason for the right the weaker it becomes,
which militates against every principle of British law.
The sublime and eloquent BURKE appeared before the electors of Bristol
in all the proud consciousness of lofty virtue and commanding
intellect. But strip his arguments of the gilded cloud of drapery
flung around them by the magic of his fancy, and his sophistry, naked,
unadorned, loses half its force by losing all its beauty.[7] The most
powerful and legitimate argument he uses, applies only to the
expediency of disobedience in that particular case, and if his facts
were correct, ought to have excused him, if such an offence can ever
be excused. “Was I not to foresee, or foreseeing, was I not to
endeavor to save you from all these multiplied mischiefs and
disgraces.” He then artfully asks, if the “little, silly canvass
prattle of obedience to instructions would save them from the ‘pelting
of the pitiless storm.’” Thus presenting them only the awful
_alternatives_ of _destruction_ or disobedience, and appealing to
subsequent _developements_ to prove that disobedience was their
preservation. By placing it in this position, he ventures to ridicule
instructions. His next best argument also applied only to special
cases. He appeals to “near two years tranquillity” to prove that “the
late horrible spirit was in a great measure the effect of insidious
art, and perverse industry, and gross misrepresentation.” In a word,
any thing but the deliberate sense of the people. From this it seems
the people ought not to be tranquil under insult, or their deliberate
will may be mistaken for a “fashionable gale.” After thus fortifying
himself by all the strength which his ingenuity and eloquence could
give to his own peculiar position, he ventures to fire his gilded shot
at the sacred citadel. He contends that if the “dislike had been much
more deliberate, and much more general than it was,” he ought not to
make the “opinions of the greatest multitudes the masters of his
conscience,” unless they “were the standard of rectitude,” which was
not expected of him. All they asked was, in a question of expediency,
that he would substitute their judgment for his own. He doubts if
“Omnipotence itself can alter the essential constitution of right and
wrong,” much less such _things_ as his constituents and himself. This
was pretty gilding for their chains merely. They never attempted to
alter the constitution of right and wrong, but to judge the one from
the other; and the question was not between them and Omnipotence, but
the electors of Bristol and the “sublime and beautiful” BURKE.
[Footnote 7: “And vice itself loses half its evil by losing all its
grossness.”—[Reflections on the French Revolution.]]
He next contends that the delegate owes his _judgment_ as well as his
exertions to his constituents—which is true—and the debt is paid when
they ask to set aside his judgment for theirs. He admits the delegate
should sacrifice his _will_ to his constituents, but that government
is a matter of judgment and of reason—not of inclination; and asks,
“What sort of reason is that in which the determination precedes the
discussion—one set of men deliberate, and another decide—and where
those who form the conclusion are perhaps three hundred miles distant
from those who hear the arguments?” I might ask what sort of a will is
this conceded, which is never to prevail? Can there be no reason or
judgment—no discussion—no deliberation—no arguments out of parliament?
Can the people neither talk, or think, or read? This argument wholly
falls, when the instructions are given, after both popular and
parliamentary discussion has spread all the light upon the subject
through the country.
Now what remains of MR. BURKE'S great defence of disobedience? His
arguments all go to expediency in particular cases, and not the
_right_, when stript of the difficulties he throws around its
exercise. Take him from his position, and strip him of his gorgeous
and dazzling armor, and he must stand a pigmy confessed before all, as
he was before the electors of BRISTOL.
JUDGE HOPKINSON finds fault with MR. TYLER for resignation. “He had
sworn to support and defend the constitution against _wrong from any
quarter_,” and he violated his duty and his oath, it seems, by
resigning. “Where is the difference,” he indignantly exclaims,
“between the sentinel who turns his own arms upon the citadel he was
bound to defend, and one who gives up his trust to the _enemy_, that
he may do the work of ruin which the conscience of the latter
forbids.” The difference is rather between the sentinel who, being
ordered to shoot a traitor brother from the battlements, turns and
kills his commander—and one who, with the same orders, retires with
leave from the service, and suffers another to do what affection for a
brother, or perhaps participation in his designs, will not permit him
to accomplish.
This new theory makes every resigning senator responsible for _all_
(or none) of the unconstitutional acts of his successor. MR. TYLER
must bear MR. RIVES' expunging sins, to avoid which he resigned; MR.
LEIGH must suffer if his successor establishes a bank or other form of
monarchy; MR. TAZEWELL is responsible for MR. RIVES' vote on the force
bill, and MR. RIVES for MR. LEIGH'S vote censuring the President, to
escape which he resigned. Political parties have been censuring the
wrong men. This new light, like an ignis fatuus, will lead them into a
direction opposite to the one they wish to pursue. The incumbent is
never {691} responsible when his predecessor has resigned. Resignation
in a senator is at all times as criminal as desertion of his post by a
sentinel, and when he is succeeded by a senator of different opinions
(which he cannot prevent) it is equivalent to treason. To what a
labyrinth of error are we led, by forcing reason to follow a foregone
conclusion?
Let us examine it. Because senators are sworn to protect and defend
the constitution, if they quit their posts and thus make room for
another who may, or certainly will violate it, they themselves violate
their oaths, their duty and the constitution. These are Judge H.'s
premises. But Mr. Tyler's resignation was of such a character,
therefore he violated the constitution. But any senator who will ever
violate that instrument is not a fit guardian for it, and ought
instantly to resign. Mr. Tyler did so, therefore he ought to have
resigned. Then his resignation was right because it was wrong!
Again. Mr. T. violated the constitution by resigning—not by the act
itself, but by enabling Mr. Rives to do it; but the guilt could only
be incurred by one person, by one vote, and as Mr. T. had clearly
incurred the guilt by a previous act, Mr. R. was innocent. But if Mr.
R. did not violate the constitution, and Mr. T.'s guilt depended upon
that, he too is innocent, and _there was no violation because there
was no violation!_ But any reasoning which makes a man both right and
wrong, or the constitution not violated because it is violated, must
be intelligible and acceptable to those who make two persons who come
to “opposite conclusions upon the same case” both right, and only
infer from the difference that some one else is wrong!
Who shall be impeached—who punished under this new doctrine?
Resignation is not unconstitutional, but is made criminal by an ex
post facto act. As the subsequent acts could not be committed without
the resignation, all the guilt attaches to the resigning member.
Neither MR. RIVES or MR. LEIGH can thus commit any sin in propria
persona. MR. TYLER sins in MR. RIVES, and MR. RIVES is responsible,
not for his own acts, but those of MR. LEIGH. This is a roundabout
responsibility with a vengeance, which makes no one responsible until
he resigns, and is beyond the reach of impeachment.
But upon the Judge's own grounds, what better argument could be
offered against senatorial infallibility, than this violation of the
constitution by Mr. Tazewell, Mr. R. and Mr. T. and the promise to
violate it by MR. LEIGH? Four successive _guardians_ of the state have
betrayed their trust. They have deserted their posts, and left the
constitution at the mercy of the legislatures, as “a rag floating upon
the winds.” What can the legislatures do when thus left unchecked,
unguarded, and the constitution a prey “to wild democracy?” The high
criminality of the senators is enhanced by the fact that he is
instructed by “a majority of six or eight out of one or two hundred,
and he knows a large proportion of the majority to be men of little
knowledge, of strong passions and prejudices, with a servile adherence
to party purposes—men whom he would not regard in any concern of his
own of the value of a dollar,” and in the minority he knows all to be
eminent statesmen. Of what a stupendous violation of duty are these
men guilty? They leave the state and the statesmen a prey to these
vile demagogues in a new election, which the stupid constitution has
put it into their power to make, without the guardian care and saving
disobedience of some kind senator to protect us from their rashness.
The more the Judge exaggerates the crime, the less worthy he makes the
guardian; the more frequent the offence, the less infallible the
senatorial wisdom and virtue. If senators commit these high crimes,
they ought to be controlled by the ordinary guardians of the state—the
legislature. We have now had this crime committed by a senator of each
party in each manner, and promised by a third. Mr. R. resigned when
first instructed by this wicked majority, and Messrs. Tyler and Leigh
_obeyed_. The second time MR. TYLER resigned, and MR. LEIGH promised
to resign, and MR. RIVES obeyed. When senators thus differ, what has
become of the firmness and guardian care and infallibility which was
to protect us? Which shall we follow? One or other of the two has in
every instance, by this theory, violated the constitution. How shall
we act? They are right and we are wrong, but how can we avail
ourselves of the superior wisdom they have developed? What
complexity—what difficulty—what a mass of error and confusion in the
legislatures—what a waste of inexplicable and incongruous wisdom on
the part of senators! Oh that our short-sighted ancestors had so
ordered it that the guardian should instruct the ward, instead of the
reverse!
This doctrine of non-resignation for fear a successor should violate
the constitution, assumes that immediately after a senatorial
election, a majority of each legislature becomes and must continue
knaves or fools. It operates with much more force against a new
election than instructions. It proves that senators ought to hold
office for life; that all legislatures after the first have been
incompetent, and all to come will be incompetent, from want of honesty
and discretion to elect senators. But as it is admitted by all to be
the best body for that purpose, and was selected as such by the
convention, it follows that no body, since the first senate perhaps,
ever has been or can be competent to elect senators. The state
legislatures can only be incompetent because the _people_ want honesty
or capacity enough to elect men capable of electing senators. _A
fortiori_ are they not sufficiently honest or capable to elect
presidential electors, or the house of representatives, which are even
more important. The government must lapse into anarchy because there
is not sufficient honesty or capacity in it to govern it. And it must
continue so, because an ignorant and corrupt people without a
government cannot better their condition. Nor can any form of
hereditary government be established, because it is absurd to say that
_chance_ is a better guide than the simplest reason; and where the
wisdom of all combined is not sufficient, it is absurd to look for
greater wisdom in a _few_ or in _one_. Thus it seems to me that a
denial of the right of instruction is not only inconsistent with a
representative government, but the reasons on which it is founded are
inconsistent with any government.
MR. TYLER admits our principle and says he would obey, but for
constitutional scruples, but having these he resigns. This seems a
simple, intelligible, respectful course; but Judge H. “whose political
metaphysics surpass my understanding,” loses himself in a labyrinth of
doubt and obscurity. He says in effect “I will do as I please,” makes
the matter simple enough. All {692} despotisms are simple, and simple
people submit to them. “Obey or resign” is not too complicated to be
understood by men as enlightened as senators ought to be, and seems
more suitable language between masters and servants. He creates a new
difficulty by making senators not enlightened, but simpletons, groping
in the dark in each case, to know whether they must obey _or_ resign.
All such should resign at once, for Judge H.'s theory is based only
upon exalted wisdom, and cannot save him, if he is a “simple
novitiate” seeking a _rule_ to guide him in a plain duty. He would be
a “simple novitiate” indeed who would inquire “what legislature he
should obey.” Common sense would seem to say the question only arises
upon the instructions actually before him in all cases, and he could
not obey a legislature which did not instruct, or instructed last
year, or forty years ago, or may instruct forty years or a month
hence. I cannot see where the Judge finds authority for his “playing
for the rubber, or taking his chance for a third heat,” (as he
facetiously remarks, “_especially in Virginia_,”) unless the senator
has second sight, and then the argument proves that he ought to obey,
not only promptly, but _a year in advance_. But it is better to _count
out with honors_ and gain _his points_, than run the risque of losing
by this _odd trick_.
The strangest perversion runs through these comments upon Mr. Tyler's
course. The firmness before required is forgotten. The senator must
disobey if he finds great men against his constituents—the opinion of
a JAMES MADISON, or even a disappointed minority of his own
constituents, if _in his opinion_, possessed of more intellect than
the majority, may be obeyed in preference. A majority of constituents
seems to be the only body, to be utterly disregarded.
But the leaning on authority is not yet sufficient; we are to be
defeated not only by _concurrence_, but _difference of opinion_, as
the following paragraph proves:
“I cannot refrain from remarking that these gentlemen, (Messrs. Tyler
and Leigh,) both professing to maintain the true and orthodox
doctrines of ‘Instruction,’ and exerting their powerful and cultivated
intellects to explain them through many a labored column, at last
bring themselves to opposite conclusions on the same case. Is it
possible to give a more impressive illustration and evidence of the
fallacy of the whole faith than that two such men, both indoctrinated
in the same school, should, when brought to the practical application
of their principles, so differ about their import and obligation?”
I should humbly conceive it proved the fallacy of that faith which
holds that a senator cannot be wrong. Two senators “come to opposite
conclusions upon the same case,” and it proves not as simple mortals
would suppose, that _one_ must be wrong, but that the _legislature_ is
wrong. If _their difference_ only proves error in some one else, we
cannot wonder at the vast estimation in which senators are held by
their admirers. But their difference is not so great as supposed. One
says I cannot obey, and, therefore, I resign now; the other says you
want me to resign, but I will not now, but at the beginning of next
session. Here is the same conclusion from the same case. Mr. Leigh
postponed, but why will he resign at last? He gives no reason, but the
instructions, and no one has suggested any other. He must resign on
account of the disagreeable feelings produced by the peculiar position
of being a misrepresenting representative. Those feelings are required
and expected by our theory in the bosoms of all conscientious
senators. So even the difference which was to destroy us, is one of
_time_—not of _principle_. As to the argument that some of the voters
of last year gave contrary instructions the year before, if true,—it
does not prove them less worthy of respect now than then,—indeed, the
last being the more deliberate, is the more worthy opinion; and as Mr.
Tyler obeyed the first, _a fortiori_ he was bound to obey the last, or
resign.
I have done. Long as I have been with you, I have only touched the
most striking points. There are two documents which would have shed
light upon the obscurest part of this subject, I mean the letter of
ELDRIDGE GERRY to the Massachusetts convention, on the constitution of
the senate, and JAMES MADISON'S history of the constitution, and
debates of the convention. These were inaccessible, but whenever
examined they must confirm the views taken here. Though the Sun of
Montpelier has sunk in glory, below the horizon, it will thence shed a
brilliant but mellowed light upon its noon-day track, and mystic
truths so long hidden by its dazzling brilliancy, may be read by its
milder rays, engraven in letters of gold upon the imperishable arch of
Heaven. We must abide the coming of that time in mute faith, confiding
in what we have already learned from Moses and the prophets; but, if
it be no profanity to quote the sacred founder of our religious faith
in defence of our hallowed constitution, I would say, “If they hear
not Moses and the prophets, neither will they be persuaded, though one
rose from the dead.”