following from the pen of JUDGE HOPKINSON. “The people may instruct
and the Legislatures may enjoin, and both will always, doubtless, be
attended to with a deep respect and a powerful influence; but if with
all this respect and under this influence, the representative or the
Senator cannot, in his honest and conscientious judgment, submit
himself to them, does he violate his official duty, and is he bound to
relinquish his office? This is the question, and no affirmative answer
to it, or any thing that implies it, can be found in any of the
writings or speeches of any of the distinguished men at that time. The
doctrine is of a later date; it is not coeval with the constitution,
nor with the men who formed it.”
The Judge seems to me here to shift his ground in some degree. He
evidently considers the instructions as doing something more than
giving information, for the Senator could not _be convinced_ either by
_respect_ or _influence_. To instruct a representative, generally
supposes a difference of opinion between the agent and principal. If
this difference does not exist, the instructions will of course be
obeyed, and no question arises. If it does exist, the Senator is bound
to obey or resign, or he is not. If the latter is the correct
doctrine, he must disobey, because his conscientious conviction
requires him not to obey. Instructions then must either convince his
reason, or be entirely inoperative. It is mockery to talk of respect
and influence. It would be criminal in a Senator to be swerved from
the conscientious conviction of his mind as to his duty, by respect
for any men or their influence, however exalted they might be. To say
that a Senator is not bound to obey or resign, because his conscience
requires him to retain his seat and disobey—but that he will in fact
sometimes obey from respect or influence, is reasoning about as
correctly as it would be to say, “That he ought not to be held
responsible because he is honest, but that he may be trusted because
he is corrupt, or will at least stretch his conscience from respect to
us.”
But it was not for the purpose of noticing this little discrepancy
that the passage was quoted. It was for the purpose of noticing the
charge, that our “doctrine is of a later date; not coeval with the
constitution or the men who formed it,” which is indeed a startling
opinion to come from a gentleman of the acknowledged candor and
learning of JUDGE HOPKINSON. The opinion was expressed in the haste of
private correspondence, and upon investigation will not be adhered to.
The doctrine was not only existing and well understood prior to our
constitution, but was coeval with representation. That the agent
should conform to the express will of his principal, is so natural,
that we cannot doubt its establishment at once, wherever the valuable
representative principle has been introduced into government. It is
one of its chief recommendations. We {626} have recorded evidence of
the exercise of this power many times, and from remote periods, in the
British Parliament. Many of these instances of command and obedience
are collected by MR. LEIGH in his Report to the Virginia Legislature
in 1812. The British Parliament was the great model upon which our
statesmen framed our constitutions, and with its principles and
history they always evinced an astonishing familiarity. We cannot
suppose them ignorant of this great and obvious principle—a principle,
beyond all question, of much more doubtful propriety in England then,
and even now, than it can ever be in this country; because in England
a few places elect representatives for the whole body of the people.
But even there the true theory prevails, and the wisdom to which the
constitution looks as governing the whole country, is that of the
electors, and not the delegates. However small, ignorant, or obscure
the place may be which sends a member, in that place the constitution
supposes the wisdom to reside which is necessary to give one vote in
Parliament, and not in the _individual_ through whom the vote is
given. If the constitution is in error, reform that, but do not usurp
powers for the representatives. Hence the fate of the eloquent Burke
before the electors of Bristol. In distributing more equally the
elective power, our ancestors evinced both their justice and their
wisdom. They saw no reason for supposing one portion of the country
possessed of much more wisdom than another, whilst all alike required
protection. The power of instructions and short terms they supposed a
sufficient check to enable the people to protect themselves. Abundant
evidence may be adduced to show that those great men were familiar
with the importance, and obligation, and frequent exercise of this
right. To prove this, we need go no farther than the Debates of the
Virginia Convention which adopted the federal constitution. That
constitution was no where more thoroughly discussed, or more warmly
opposed, or opposed by men of more ability, than in that convention.
Yet in their debates we find the right asserted both by opponents and
advocates of the constitution; the one party contending that the right
was not sufficiently secured by power to enforce its obligation—the
other that the nature of the office, and the character of the men,
would be a sufficient guarantee of their obedience. Instructions are
frequently mentioned as a regular, legitimate, unquestionable mode of
_controlling_ the will of the representative. And the idea of
disobedience is never suggested except in connection with other
possible gross moral and official misconduct. Disobedience seemed to
be considered as treachery to the constituent. As my authority is not
accessible to all of your readers, you must allow me to quote
liberally to sustain my opinions, at the hazard of encumbering your
pages.
At page 69, MR. JOHN MARSHALL, so happily characterized by JUDGE
HOPKINSON as “that great and pure man, that true and fearless
patriot,” in answer to an argument of PATRICK HENRY, founded on the
asserted rejection of the constitution by certain states, says, “New
Hampshire and Rhode Island have rejected it, he tells us. New
Hampshire, if my information be right, will certainly adopt it. The
report spread in this country, of which I have heard, is that the
representatives of that state having, on meeting, found they were
INSTRUCTED TO VOTE AGAINST IT, RETURNED TO THEIR CONSTITUENTS, without
determining the question, to convince them of their being mistaken,
and of the propriety of adopting it.” This was a matter of
overwhelming importance to the people of New Hampshire, in which their
representatives were convinced that they ought to decide in a
particular way, but being instructed differently, they would not carry
out their own views, though in fact correct; but the whole convention
resigned, to endeavor to convince them of their error. MR. MARSHALL
quotes this instance of a whole body being prevented by instructions
from doing the only work which they assembled to do, as a matter by no
means astonishing or culpable, though he himself was of the same
opinion with the representatives of New Hampshire. It was an example
of good principle worthy of all imitation.
There are a few more remarks in the same speech which we cannot
forbear from quoting. PATRICK HENRY was afraid to trust the power over
both the sword and the purse to Congress, and was very jealous of the
clause allowing Congress the power to keep secret certain matters,
supposing that under the mantle of public necessity they would conceal
their votes, and would violate the rights and instructions of their
constituents without being detected. To this MR. MARSHALL says, “The
honorable gentleman has asked, if there be any safety or freedom when
we give away the sword and the purse? Shall the people at large hold
the sword and the purse, without the _interposition_ of their
representatives? I apprehend that every gentleman will see the
impossibility of this. Must they then not trust them to others? To
whom are they to trust them but to representatives who are
_accountable_ for their conduct?” He then shows that secrecy is
allowed in the British government, and proceeds thus. “We are
threatened with the loss of our liberties by the possible abuse of
power, notwithstanding the maxim, that _those who give may take away_.
It is the people who give power and can take it back. What shall
restrain them? They are the _masters_ who gave it, and of whom their
_servants_ hold it.” We cannot doubt that one holding these sound
republican principles, then at least, approved the noble example of
resignation on account of instructions, which he had just before
quoted.
PATRICK HENRY was the great champion of the opposition in that
convention, and so decidedly federal in his construction of its terms
after its adoption, that he was afterwards elected to oppose MR.
MADISON'S celebrated resolutions of '98. Yet we find him admitting the
_right_ of instruction in its fullest extent throughout the state and
federal governments, and never seeming to suppose that the obligation
would be doubted, but at the same time contending with a wonderful
forecaste that the responsibility of our representatives would be no
protection to us, because though instructed, they would be out-voted
by other delegates who could not be instructed by us. He says at page
230, “He tells us responsibility is secured by direct taxation.
_Responsibility_, instead of being increased, _will be lost_ forever
by it. _In our state governments our representatives may be severally
instructed by their constituents._ There are no persons to _counteract
their operations. They can have no excuse for deviating from our
instructions._ In the general government other men have power over the
business. When oppressions may take place, our {627} representatives
may tell us we contended for your interest, but we could not carry our
point, because the representatives from Massachusetts, New Hampshire,
Connecticut, &c. were against us. Thus, sir, you may see there is no
real responsibility.” Here are instructions referred to as a complete
security in the state government against _any_ legislation objected to
by the people, and as completely obligatory upon our representatives
from the state in Congress, and only failing to be a complete
protection there too, because _we_ cannot _instruct_ the
representatives of New Hampshire, &c. He places the representative in
the attitude of apologizing, not for disobedience, but failure in
accomplishing the wishes of the people. Disobedience did not seem to
enter his imagination, much less the right to disobey.
In another place we find the same great orator plainly referring to
the exercise of this right, as one of the greatest bulwarks of
freedom; and inveighing against the constitution because it gives the
Senators the _power_ (not the _right_) to disobey with impunity. He
would have the legislature to possess the power to _recall_ in cases
of disobedience. Look to his remarks at pages 252 and 253. He says,
speaking of the project to barter away the navigation of the
Mississippi to Spain, and the right of the United States to that
navigation—“American interest was fully understood—New Jersey _called_
her delegates for having voted against this right. Delegates may be
called and _instructed_ under the present system, but not by the new
constitution. The measure of the Jersey delegates was averse to the
interest of the state, and they were recalled for their conduct.” In
this paragraph he did not mean to say that instructions would not be
given, or ought not to be obligatory, but that bad men would have it
in their _power_ to disobey without fear, _because_ they could not be
_recalled_. This at least is the only construction which will make his
language consistent with that previously quoted, and that which now
follows, from the same speech and the same page. “At present you may
appeal to the voice of the people, and send men to Congress
_positively instructed_ to obey your direction. You can recall them if
their system of policy be ruinous. But can you, in this government,
recall your Senators? or can you _instruct_ them? YOU MAY INSTRUCT
THEM, and offer your opinions; but if they think them improper, _they
may_ disregard them.” Here he thinks it would be a breach of duty to
disregard them, and he objects to leave the _power_ of disobedience in
the hands of Senators, without the power to recall them, which he
thinks made the control over them complete under the confederation,
and would make it so under the constitution. But surely the power of
subsequent punishment, or of providing against future mischief, from
the hands of the same individual, does not create an antecedent duty
either moral or official. The suggestion of punishment or prevention,
implies the previous or possible violation of an existing duty. And
the absence of a power to punish or prevent, cannot diminish the
obligation of such duty, if admitted to exist. HENRY considered the
force of instructions complete, by the mere power to recall, which
certainly could not undo or invalidate the act done in violation of
instructions; he therefore considered this recalling power necessary
to make bad men perform the duty of obedience. He was satisfied with
the articles of confederation, yet those articles do not mention a
power to instruct, or a punishment for disobedience, any more than the
present constitution. The subsequent power to punish by recall is the
only difference. If we continue the same sentence, we shall find that
he has coupled disobedience with bribery, and complains equally of
absence of power to punish either. “If they give away, or sacrifice
your most valuable rights, can you _impeach_ or _punish_ them? If you
should see the Spanish ambassador bribing one of your Senators with
gold, can you punish him? Yes—you can _impeach_ him before the Senate.
A majority of the Senate may be sharers in the bribe—will they
pronounce him guilty who is in the same predicament with themselves?
Where, then, is the security? I ask not this out of triumph, but
anxiously to know if there be any real security.” It would seem from
this that the old patriarch was not thoroughly convinced of the
incorruptibility of Senators, and wished to provide some mode of
punishment for their offences, from the high moral crime of
disobedience, to the petit larceny business of taking a bribe—and he
even supposed a majority of the Senate might be guilty of the latter
offence!
The views of this illustrious man, and zealous champion of freedom,
are still further developed at page 283. He is there again expressing
his fears that the transactions in the Houses of Congress will be kept
secret, and clearly thinks there would be no danger, if our
representatives were all good men and would obey instructions, except
that of being overruled by a majority. “But it will be told that I am
suspicious. I am answered to every question, that they will be _good
men_. In England they see daily what is going on in Parliament. They
will hear from their Parliament in one thirty-ninth part of the time
that we will hear from Congress in this scattered country. Let it be
proposed in England to lay a poll tax, or enter into any measure that
will _injure one part and produce emoluments to another_; intelligence
will fly quickly as the rays of light to the people. They will
INSTRUCT their representatives to oppose it, _and_ will petition
against it, _and_ get it prevented or redressed instantly.
_Impeachment_ follows quickly a violation of _duty_. Will it be so
here? You must _detect_ the offence and punish the _defaulter_. How
will this be done when you know not the _offender_, even though he had
a previous design to commit the _misdemeanor_? Your Parliament will
consist of sixty-five. Your share will be ten out of the sixty-five.
Will they not _take shelter_ by saying they were _in the
minority_—that the men from New Hampshire and Kentucky _out-voted_
them? Thus will _responsibility_, that great pillar of free
government, be taken away.” He thus thinks the clause of secrecy will
be used as a shield to conceal the _offenders_ who violate
instructions, or otherwise betray their constituents.
MR. NICHOLAS, in reply to some of these remarks by HENRY, says at page
257, “But we are not to calculate any thing on New Jersey. You are
told she gave INSTRUCTION to her delegates to vote against the cession
of that right (the navigation of the Mississippi.) Will not the _same
principles_ continue to operate upon the minds of the people of that
state?
“We cannot recall our Senators. _We can give them instructions_, and
if they manifestly neglect _our_ interest, we have sufficient security
against them. The dread {628} of being _recalled_ would impair their
independence and firmness.”
MR. NICHOLAS thinks the _dread_ of being _recalled_ would impair
independence and firmness; not the dread of being instructed, as
contended for at the present day. He considers instructions as an
efficient mode of insuring the desired course upon any specific
question, on which it might be necessary to resort to them, but that a
power of recall would produce a vaccillation and weakness in the
course of the Senator, which might be highly mischievous. He clearly
thinks the Senator _must_ follow the wishes of his constituents, when
specially instructed as to their will; but when not instructed, that
he ought firmly and independently to act as he thinks best, and not as
if he was in perpetual dread of losing his seat. He wishes a
preventive remedy and not a punishment. No Senator ought to _fear_
instructions, because they do not punish or injure him; on the
contrary, they remove a fearful responsibility from his shoulders—a
responsibility so great as to make the power of _recall_ a constant
source of terror: because a recall would disgrace him as far as the
Legislature could produce that effect by its displeasure. But if a
Senator either obeys instructions or resigns from conscientious
scruples, he reaps honor instead of disgrace. A Legislature might
recall, from caprice, or faction, or the envy of influential men, and
the stigma could not be avoided by any good conduct on the part of the
Senator; but if he is instructed, whether from any improper cause, or
from the best, he cannot be injured or disgraced unless he wilfully
disobeys. If the instructions are bad, and he either obeys or resigns,
all the odium must fall upon the instructing Legislature, and not upon
him. He will be sustained by their common ultimate masters, the
people, and the Legislature will not.
Can it now be said that this doctrine is a new one, conjured up long
since the formation of the constitution? When we find that instrument
sustained in the convention by one party, on the ground that this very
right existed in sufficient force in the State Legislatures, and would
be regarded by men of sufficiently high standing and integrity to be
elected Senators—and opposed by the other party, at one time, because
the Legislature had no power to punish a violation of the right
admitted to exist, and at another, because though complied with, it
would not afford adequate protection, because our instructed delegates
might be defeated and overruled by a majority coming from other
States. In these debates MR. MADISON had so many objections of a
graver import to answer, that he never seems to have thought it worth
while to answer, specially, arguments based upon the mere possibility
of the violation of an admitted duty by representatives of as high
character as the Senators were likely to be—because all such arguments
were answered specially by his coadjutors, (as in the instance of Mr.
Nicholas) and generally by himself, in frequent asseverations that
objections of that character, founded on the frailty of human nature,
struck at the root of representation, and sapped the foundation of
republican government. If his silence upon this particular subject was
not a direct sanction of the arguments of his coadjutors, it certainly
cannot be construed into disapprobation of their doctrine.
Since we cannot find this illustrious statesman opposed to us in the
debates of the Virginia Convention, let us follow him to the pages of
“The Federalist,” so triumphantly quoted by JUDGE HOPKINSON, and see
if he is there opposed to this sacred principle.
A right so important, so often asserted in his presence as existing,
so frequently exercised in those times, if disapproved, should have
been directly denounced in the letters of Publius. That great work
left little to conjecture in the thorough examination which it gave of
the rights reserved or the powers conferred by the constitution. Every
objection which the talent of its opposers, or the ingenuity of its
friends could imagine, was ably discussed. This right is no where
denied or objected to. The passages on which Judge H. relies, do not
in my opinion sustain him. Nothing can be found in the numbers 62 and
63, specially quoted, unfavorable to the exercise of this right, or
the force of the obligation of instructions. In those numbers, Mr.
Madison is meeting two objections, of a similar character, to the
constitution of the Senate. The one founded on the impossibility of
recall, and the other the protracted duration of the term. The
objections to the power of recall, we have already partially
considered, and shown the wide difference which exists between that
power and the right to instruct, as they affect the course of the
Senator—the one being a power which may benefit a Senator, and cannot
injure him, the other placing him and his character in a great measure
at the mercy of jealous rivals, or the caprice of the factious. To
have a very short term, would manifestly have an effect upon the
Senator analagous to that produced by the power to recall. The fear of
being turned out would operate as injuriously upon his firmness and
independence as the fear of being recalled. Indeed it would be a
source of greater terror, as the Legislatures could be more easily
induced not to re-elect an officer whose term had expired, than to
resort to the harsh measure of recalling one in the midst of his
career. Both these objections were then of a similar character. Either
of the powers demanded, would diminish the firmness and impair the
independence of the Senator—prevent a sufficient continuation in
office to ensure an adequate amount of information in public affairs
to enable him to regulate foreign matters with skill, or pursue any
uniform course of enlightened policy—and either would at the same time
deprive the Senate of one of its principal badges of usefulness, as a
check to the House of Representatives, with which it would have been
too similar in its character and term of office to resist effectually
its impulses to yield to popular opinion, or, as the Judge perhaps
more properly expresses it, popular feeling. But none of these
objections apply to instructions. They do not eject the Senator from
office, unless he differs with his constituents upon some important
question of constitutional law which is about to be practically acted
upon; or unless he has in some manner committed his honor in
opposition to his constituents. In either of these cases, the
mischiefs of ejection sink to insignificance compared with the
mischiefs of continuance. Upon the constitutional point he ought to
presume the united wisdom of the two branches of his Legislature to be
more capable of judging than his own; and if he has committed his
honor, he ought to suffer, and not his constituents. In either case,
the resignation is the privilege {629} of the Senator, to enable him
to remove himself from a delicate situation. It is not produced by the
Legislature—it is no punishment—it is not a legal or official
ejectment from office—it carries no stigma with it—it is an obedience
to the requisitions of delicacy, and lofty honor, and not a compliance
with the mandates of the Legislature. We instruct, and propriety,
reason, and authority say _he_ must obey; but justice says he may
resign, if he cannot obey with honor. As well might it be objected to
us, that we do not compel a Senator never to resign. Resignations for
instructions no more shorten the term than other resignations; and as
long as any are allowed, we must allow those made to save the
conscience or honor. This is the only refuge; for duty requires
obedience, and it would be dishonorable to disobey. The Senator, who
is called a representative, has no right to save his conscience at the
expense of his constituents, and throw their whole political weight in
a direction precisely opposite to their express wishes. Instructions
then neither vary or shorten the term of office. If they are obeyed,
what harm is done? The will of the constituent has prevailed, as it
ought to do, by the theory of our government. What if he resigns? The
State is without a Senator, by his voluntary act to save his honor,
and his successor perhaps carries into effect the will of his
constituents. Where is the breach in the constitution? The same result
might happen, because the Senator did not like his colleagues, or was
in ill health, or embarrassed in circumstances, or accepted a federal
office, or wished to travel, or engage in agriculture. If it is
unconstitutional for a Senator to resign because his conscience or
honor require him not to obey instructions, then is it equally
unconstitutional for him to resign for any of these reasons, or any
others which might occur to him. His failure to resign, or the want of
power to compel resignation, cannot absolve him from the duty of
obedience.
Instructions to Senators are always given by a solemn, deliberate,
recorded act, passed by an organized body of representatives,
responsible themselves to the people. Every delegate must account for
the principles involved in his vote; but this responsibility is not
generally held over him so rigidly when he votes for a Senator, unless
he votes under express instructions, or the candidates represent
opposite political principles. Many excuses may be given for voting
for A in preference to B, though the latter may be most popular with
the immediate constituents of the delegate; but the principles in the
instructions must be fairly met and fully justified, to satisfy the
people. Hence a greater responsibility is secured by instructions than
by frequent elections.
A Senator who loves his country more than his place, can never _fear_
instructions. They cannot, of course, then impair his independence or
his firmness. The most which the fear of them ever could effect, would
be to make him do the will of his constituents, which could surely do
him no special harm. It was never supposed that the duration of office
was to make a Senator firm against his constituents, and independent
of their expressed will. But he was to be firm against his own fears,
and independent of the House of Representatives or popular commotion.
He is surely sufficiently far removed from the latter, when it can
only affect him through the deliberate voice of two separate houses of
the State Legislature. And then in truth it cannot affect _him_—_he_
has nothing to dread: it only affects _the vote_ of which he is the
depository, and cannot remove him from his place. Is there no
difference between a disposition to cater to every temporary whim or
caprice which may sweep over the multitude, for _fear_ of not being
re-elected at the end of a short term, and a voluntary obedience to
their deliberate will, expressed through two branches of their
representatives? The House of Representatives will be sensitive at
once to any commotion among the people. A temporary and dangerous
excitement might lead them into improper acts, for _fear_ of being
turned out at the end of their short term. This house was expected to
be thus sensitive, but the Senator's tenure of six years was given as
a check to prevent this tendency from carrying the other house too
far. That cannot be called a popular commotion which reaches him by
the deliberate voice of two separate legislative bodies, acting under
responsibility; but must be assumed by the Senator to be the
deliberate judgment of all the people: it is, at all events, the
deliberate judgment of all to whom he has a right to look. The
Legislature has power by the constitution to elect him, and this
carries with it the right to instruct him. But they exercise both
these powers vicariously, and if they mistake the will of the people,
they are responsible for their instructions, not the Senator for his
obedience. His responsibility is removed by obedience or resignation.
If he is “the anchor against popular fluctuations,” it is proper that
like all other anchors, he should be hauled up when a favorable and
permanent breeze enables the ship to proceed; and of this—not the
anchor, but—those above it must judge. And if he hooks his fluke too
deeply in the moorings, it is clear that unless there is a “capstan
and cable” somewhere, he transcends the sphere of his utility, and
does more harm than good by making a temporary stay a permanent
fixture. PATRICK HENRY wanted to give the Legislature power in such
cases to _cut_ the cable; and I think it would be well if such a power
could be lodged with the _people_ in cases of disobedience, or other
flagitious offences on the part of Senators.
But to meet the argument of the Judge fully, it is only fair to quote
it:
“Mr. Madison's second reason for having a Senate, or second branch of
the Legislative Assembly, is thus stated: ‘The necessity of a Senate
is not less indicated by the propensity of all single and numerous
assemblies to yield to the impulse of sudden and violent passions, and
to be seduced by factious leaders into intemperate and pernicious
resolutions.’ If this is true of the House of Representatives of the
United States; if their intemperate and pernicious resolutions are to
be guarded against and controlled by the more sedate and permanent
power of the Senate, how much stronger is the reason when applied to
the Legislatures of the States? Having their narrow views of national
questions, and their local designs and interests as the first objects
of their attention, it seems to me to be a strange absurdity to put
the Senate as a guard and control over the House of Representatives,
and then to have that Senate under the direction and control of the
Legislatures of the States—or it may be, on a vital question, under
the direction of the Legislature of the smallest State in the Union.
Are there no local impulses and passions to agitate these
Legislatures? no factious leaders to seduce them into intemperate and
pernicious resolutions—and to induce them to prefer some little, local
advantage, to ‘the general welfare?’ To give to the Senate the power,
the will, and the courage to oppose and control these sudden and
violent passions in the more popular branch of our national
legislature, Mr. Madison says, ‘It ought moreover to possess _great
firmness_, {630} and consequently ought to hold _its authority_ by a
tenure of considerable duration.’ But what can that firmness avail,
how will it be shaken, of what possible use will it be, if the Senator
is bound to follow the dictates of a changing body, subject,
emphatically to sudden impulses and seductions, at a distance from the
scene of his deliberations, and deprived of the sources of information
which he possesses, and acting in a _different sphere of duty_ from
that he moves in? Firmness in an agent who has no will of his own, no
right to act but on the dictation of another, would not only be
superfluous, but a positive evil and disqualification. It would
produce struggles and perhaps refusal, where his duty was to submit.
The more pliable the instrument in such a case, the belter would it
answer the purposes it was designed for. To be firm, says Mr. Madison,
the Senator must hold his authority by a tenure of considerable
duration. But how can this be, if he is to hold it from year to year
as the Legislature of his State may change its opinion on the same
subject, and require him to follow these changes or to resign his
place? The tenure of the Constitution, as Mr. Madison understood it,
is essentially changed by this doctrine. These changes of opinions and
measures are, in the opinion of Mr. Madison, a great and dangerous
evil in any government, and show ‘the necessity of some stable
institution’ such as our Senate was intended to be—but such as it
cannot be on this doctrine of instructions.”
I must admit my inability to perceive the propriety of the Judge's
conclusions from Mr. Madison's premises. He is afraid of instructions,
because _single_ and numerous bodies are apt to yield to passion and
faction, and he hence thinks it absurd to place the Senate as a check
upon the House of Representatives, if the State Legislatures are to
remain as a check upon the Senate. There seems to be a double fallacy
in this. Does the Senate possess an exclusive patent of exemption from
faction and passion, and the other frailties of human nature, to which
the House of Representatives and _both_ branches of the State
Legislature, are to be held peculiarly liable? The Senate, as a body,
would not be _checked_ by the State Legislatures, unless a _majority_
was instructed; and if this was the case, we must suppose instructions
sanctioned by so many bodies to be the dictates of true wisdom, and
not the offspring of faction and passion. If only a few Senators are
instructed, we must suppose the object to be deemed important by the
instructing States; and so far from the likelihood of sudden or
violent passion, or the seductions of factious leaders thus affecting
Legislation, we find the securities proposed by Mr. Madison quadrupled
in numbers, increased by the distance of the bodies, and doubled by
the difference in their constitution. If two federal legislative
bodies are likely to ensure the defeat of faction and passion, when
both belong to the same government—the members of both are members of
the same political parties, and both meet at the same place, how much
less likely is passion or faction to succeed _by means of
instructions_, when it has first to encounter the federal House of
Representatives, and then in succession a State House of Delegates,
and a State Senate, and lastly the chance of an uninstructed, or
differently instructed majority in the federal Senate. Surely Judge H.
forgot the dignity and candor of the philosophical inquirer, and in
vindication of a favorite theory, assumed the armor of a partizan,
when he contended, that the faction and passion intended to be
defeated by the constitution of the Senate, would be promoted by
adding additional checks—checks, too, which we cannot doubt were
contemplated as one of the principal means of rendering the check
afforded by the Senate effective. So far from promoting hasty,
passionate, or factious legislation, do not these numerous checks
present almost too many difficulties to the execution of the
deliberate will of the people, which the Judge admits ought to govern?
In doubtful questions, when parties are nicely balanced, a few
recreant representatives, in either of the _four_ bodies, can easily
defeat any measure, however necessary, or earnestly desired by their
constituents. If we suppose with the Judge, that the Senate is to be
entirely controlled by the State Legislatures, then we should have
_fifty-three_ different deliberative bodies, representing the people
in different capacities, and by different ratios, acting upon _one
subject_. No measure could be carried through this ordeal by faction
or passion, and instead of bringing us “back to a simple turbulent
democracy,” we should have the best and the greatest quantity of
checks upon turbulent legislation, of which any country could boast.
If measures thus passed were not wise, it must be because the
intelligence of the country is defective, and not because it is
blinded by passion. The same reasoning applies to the instructions of
any less number than the whole, because the uninstructed Senators must
be presumed to act in accordance with the opinions of their
constituents, and thus whether the instructed members carry their
point, or are overruled by a majority, the deliberate sense of the
community governs. But upon the theory of Judge H., not the sense of
the community, whether deliberate or vaccillating, but the arbitrary
and adverse will of the _individuals_ who happen to be Senators,
disposes of every thing which we hold dear—not only the lives and
fortunes of our people, but the very constitution of our country. If a
_State_ may have “narrow views,” so may an _individual_. If a State
may not wish to be taxed to cut a little inland canal, two thousand
miles off, a Senator may wish an embassy, or a department, or a bank
accommodation, or a federal judgeship. But if the States do have local
views and interests, are they not bound to protect them, and have they
not _equal votes_ in the Senate for this very purpose? Mr. Jay says,
“enlightened policy will soon teach that the interests of the whole
can only be promoted by a proper regard for the interests of the
parts.” If the States wish to oppress others, or advance themselves at
the expense of all, they will be certainly overruled by the majority.
If they wish to protect themselves from oppression, they ought to have
weight, and no human being should have power to throw their own weight
against them.
The people of the states would be peculiarly destitute of protection,
if they could not instruct their Senators, because from the size of
the districts and number of the constituents, it would be extremely
difficult, if not impossible, to instruct a member of the House of
Representatives, and hence PATRICK HENRY'S uneasiness for fear the
Senator should disobey. What if the Senate should be “on a vital
question under the control of the smallest state in the Union?”—Are
the two houses of the Legislature of the smallest state less honest or
less intelligent, than the individual Senator, who by supposition is
about to oppose his own constituents and at least half of his
co-Senators? Where is the evil? The will of the Legislature, which is
responsible, prevails over that of the Senator, who is not
responsible, unless he is for disobedience. Which adjustment of the
question ought, by the theory of our government, to be {631} most
satisfactory? We cannot hold instructions to be an evidence of
_passion_ or _faction_ in the Legislature, but disobedience we must
hold to be a ground for suspecting the Senate. If neither of these
operated, I can conceive no reason for not resigning, when obedience
would be wicked or disgraceful. If Mr. Madison required firmness and
independence in the Senator, against the instructions of his own
constituents, as well as against the acts of the House of
Representatives, as Judge H. supposes, then it is clear that he knew
and understood the right, and its obligation, _and feared it_, and
wished to provide against it, by protecting the Senator from its
force. If such was his purpose, how egregiously has he failed—how
bungling has been his work—how disingenuous his course—how unlike in
all respects, is this to the other works of that great man? The length
of term did not protect from instructions, because a Senator of one
year may be instructed as well as one of six years. Where is the
protection against this awful right? Mr. M. knew that it existed under
the articles of confederation, and was exercised, yet he did not
prohibit it in the constitution. He feared the power to recall, and he
took away that; but it seems he feared this right, and left it. It is
true that he provided no punishment for disobedience, but none existed
under the confederation, and none had ever been found necessary in the
British Parliament, the Convention of New Hampshire, the Congress, or
the State Legislatures. If he feared the right, he must have wished it
uprooted, yet he left it precisely as he found it. He was particularly
cautious in concealing his antipathy in the Virginia Convention and
the Federalist. In the latter he speaks of firmness necessary to
resist the House of Representatives, and transient popular commotions
which might affect that body, and I doubt not he meant to require
firmness in obedience to instructions against the wishes of the House
of Representatives as much as in any thing else. In the Virginia
Convention he heard loud calls for the protection of the right, yet
never denied its existence.
Suppose a question arises in the House of Representatives dangerous to
a state. It is carried in that body by passion or faction against such
manifestations of popular will as can be given. It is believed the
Senators will go the same way. The people have no resource left, but
instructions through their State Legislature. If this has no effect,
our servants are our masters, and we are ruled by an oligarchy the
more odious, because it presents us with a mockery of representation.
But it seems that Mr. Madison thinks the Senate “may be sometimes
necessary as a defence _to the people_ against _their own temporary
errors and delusions_; he justly applauds the _salutary interference_
in critical moments, of some respectable and temperate body of
citizens, to check the misguided career, and to suspend the blow
mediated by _the people against themselves_, until reason, justice,
and truth can regain their authority over the public mind.” This is
correct reasoning, but it cannot apply to the States or their
Legislatures, but must allude to the people of the Union and the House
of Representatives. The Senate cannot defend the people of any state
from their _own temporary delusions_, or afford a _salutary
interference_ with the proceedings of a State Legislature. The latter
body is supposed competent to act for itself, and not to require the
_protection_ of the United States Senate, and still less of an
_individual Senator_. This argument might be urged _in favor_ of a
Senator instructing a State Legislature, with more propriety than
_against_ the reverse operation, because under the present system the
State Legislatures have no connection with the United States Senators
unless they instruct them, and thus if they choose to be wilful and
refuse to instruct them, which by this new construction would be to
ask his advice, they may ruin the people by their temporary errors and
delusions, without ever giving their Senator the power to save them by
the salutary interference of his “respectable and temperate” mandate.
But it is admitted that a _temporary_ delusion may possibly exist
among the people, which may induce the House of Representatives to
pass acts so dangerous that it may be necessary for the Senate to
“_suspend_” them. “But the _deliberate_ sense of the community, ought
and ultimately will prevail.” And yet a Senator has _power_ to defeat
this deliberate sense, as well as the _temporary_ errors and
delusions. He may _suspend_ a good act, or he may fail to _suspend_ a
bad act. He may not only not concur with the House of Representatives
when he ought, but he may concur with it when he ought not. Shall we
have no “capstan and cable” to draw up our anchor in the one case, and
no power to throw it out in the other? Must the temporary delusion
prevail over the people's rights for six years, or the deliberate
sense be delayed its healthy action for six years? Either question may
be of vital and immediate importance. The single vote may saddle us
with an enormous bank, with a controlling capital and an unlimited
charter, or an oppressive tariff, which could not be repealed without
ruin to many, or continued without ruin to ourselves. The temporary
delusion may be a spirit of fanaticism, which may annihilate at a
single blow, and forever, political peace and domestic happiness in
half the Union, and yet the Senator may be infected with the
contagion. A judgeship for life, or boundless wealth, may warp honest
opinions, or buy up bankrupt profligacy. In short, a Senator may be
sometimes wrong as well as the House of Representatives and the two
branches of a State Legislature, and if he is a despot for the time of
his election, he may do infinite mischief:—if he can be controlled by
his State Legislature in particular votes by special instructions, he
cannot do much harm, and may do as much good as the wisdom of his
state, which is wiser than he is, will permit. Mr. Madison, when he
spoke of the _interference_ of the Senate, never could have meant to
characterize the solemn and deliberate acts of a _State Legislature_,
as the _temporary errors and delusions of the people_. Besides being
too accurate in his language for this construction, he could not but
believe that instructions would convey at least the best judgment of a
majority of the Legislature. And he could not suppose it necessary for
the United States Senator to protect the people against the best
judgment of their own Legislature. The State Legislatures, in
practice, possess the sovereign authority of the State; they make
laws, and dispose of our persons and property; shall we appeal from
them to their creature, the Senator, for _protection?_
If MR. MADISON had meant this he would certainly not only have
prohibited State instructions to the Senator, but enforced Senatorial
instructions to the {632} Legislature. Why were we left without this
protection from our temporary errors and delusions in so many
important cases, and only provided with it in those cases in which we
venture to instruct Senators? This doctrine proves too much. Why was
Mr. Madison silent in our Convention, when his coadjutors asserted
this right? When HENRY so often objected a want of power to enforce
it, why did Mr. M. not say at once it did not exist, and end the
objection? If he had said so, and contended for the correctness of his
position on the ground that the Senator must be firm against his own
masters, and independent of his own constituents, to protect the
people of the States from themselves, would this constitution have
been ratified by Virginia? Never. One blast of HENRY'S soul-stirring
bugle would have called all his kindred spirits around him—he whose
keen scent could snuff tyranny in the tainted gale, would have spurned
an elective as haughtily as he had an hereditary tyrant—the debates
would have ended there—the friends of the constitution and of Madison
would have deserted him—the deceptive parchment would have been
trodden under foot, and its noble champion left its only advocate. No
one can read HENRY'S anxious searching after the responsibility of
Senators, and his earnest calls for the power of enforcing obedience,
and believe it would have been otherwise. He laughs to scorn the
argument that they will be good men, from which MR. MADISON wishes him
to infer that they would obey. With what withering contempt then would
he have received a proposition to make them _constitutionally_
independent, as he feared they would be actually? And to have told him
that this was necessary to make them _firm against us_, would have
been only an aggravation of the insult.
It is surprising to hear JUDGE HOPKINSON say, that the hundreds of
individuals who compose the State Legislatures, from all parts of
their respective states, “have no means of knowing the public
sentiments which are not equally open to the Senators; nor are their
inducements to conform to them more persuasive and strong.” If this
was not an error, it would be perhaps best for the legislatures to
delegate their powers to several individuals, and go home. Those wise
men, whose judgment is capable of protecting the state from its own
errors, and at the same time, know so well public sentiment, and have
every inducement to conform to it, would constitute the best
legislature. But so much of an error is the first part of the
proposition deemed, that the usual and most accurate method of
examining into popular sentiment, is by the sentiments of the
representatives. Each is supposed best to know and to represent the
opinions of his own county or district, and their united will is
thought to be as accurate an approximation to the will of the people
as human ingenuity can make. There is nothing else which affords us
even data for estimating that will. The individual Senator has not
probably a better knowledge of the wishes of the people than many of
the single individuals who compose the legislature, especially if he
is sent from a remote state, and has been long absent.
The inducements which the Senator may have to conform to the will of
the people, may be as persuasive and strong as those of the members of
the state legislature; and if they are, he will obey, unless his
inducements to conform to the will of some one else are more
persuasive and stronger. A Senator is a great man, and may expect
executive promotion if this or that man is President, or this or that
measure carried. We must suppose the latter inducements to
preponderate, when he frustrates the will of the people, expressed in
the only form in which it can reach him.
The Judge again quotes MR. MADISON. “MR. MADISON goes so far as to
say, that as our governments are entirely _representative_, there is a
total exclusion of the people, in their collective capacity, _from any
share_ in them.” This is true, and makes it the more iniquitous to
deprive them of any share through their representatives. If they can
neither act themselves, or act by their representatives, they only
elect masters, and it is nonsense to say the will of the people
prevails. Mr. M. could only have meant that no act of the people, in
their collective capacity, was a governmental act; he did not mean to
say that they were slaves, who periodically elected masters, but that
they should never act in person, and only by their servants. The
inference drawn from this remark, viz: that the Senator ought not to
be bound by the will of all the people in his state, must be
fallacious. If all the people of a state came to the Senate chamber,
and wished to give a vote, they could not vote except through their
Senator. It is so ordained in the constitution; but how can it be
thence inferred that the Senator is not bound to obey them? This
however is impracticable, and the Senator can only know the will of
his state through the legislature. That body constitute his
constituency. Whether it properly represents the people or not, is a
question between its members and the people. No Senator would have
thought of looking beyond his own constituents, but from the fact that
_they_ happen to act vicariously. If the same number of individuals,
not being representatives, were selected by the constitution to elect
Senators in the several states, it is clear that the Senators could
not look to the public opinion of any persons except the electors. We
must presume that the constitution meant to place the full power of
instruction (if the right exists) exclusively in that body in which it
had sufficient confidence to place the power of selection, and which
only could practically exercise it. If the Senator does doubt, or is
even sure that the legislature does not conform to the will of its own
constituents, it will afford him no excuse for a similar violation. If
a representative can look at all beyond the opinions of those who have
a right to vote, then there is no limit. Where there are high freehold
qualifications to suffrage, and instructions are given by every voter,
a delegate may say, “The unqualified individuals outnumber you, and I
will assume that they think differently”—nay, he may say, “the women,
the children, the free blacks, paupers, Indians and slaves think
differently, and they are a majority of my constituents.” What then
becomes of those guards and checks in the constitutions, which presume
superior wisdom in a particular class of persons, or that certain
rights require especial protection, if the delegate may thus, by
creating a new and fancied constituency for himself, and one too which
can never act upon him, and the opinions of which can never be known
either by instructions or elections, set aside the sovereignty vested
by the constitutions? This would establish a government of petty
tyrants, under ideal responsibility to a fancied constituency. Why was
the election of Senators not given at once to the {633} people of the
states? I have no doubt one of the principal reasons was the
impossibility of instructing. I do not believe Virginia would have
adopted the constitution, with no means of instructing Senators. If
the people of the states had elected, the legislature would then have
only had power to request them, as it now has over the members of the
House of Representatives. The legislature possessed the double
advantage of facility of action, and a comparison and a discussion of
views from all quarters, in selection and instruction, neither of
which could be possessed by the people. The members of the legislature
are Senatorial electors, chosen for that purpose by the federal
government, and cannot strip themselves of the power and give it to
the people of their state—nor could a state convention take it away
from them. What right, then, has a federal Senator to say the people
of Ohio do not sanction instructions given by her legislature, any
more than to say the people of Maine or Louisiana do not sanction the
same instructions. He has as much to do with the people of one state
as of another.
Let us hear the Judge again.
“_Instruction and resignation_ are not the means proposed by Mr.
Madison to protect us from the corruption or tyranny of the Senate. He
suggests no interference, in any way, on the part of the State
Legislatures with their Senators, nor any control over them, during
their continuance in office; but finds all the safety he thought
necessary, and all that the constitution gives, in the ‘_periodical
change_ of its members.’ In addition to this, much reliance, no doubt,
was placed, and ought to be so, on the expectation that the State
Legislatures would appoint to this high and responsible office, only
men of known and tried character and patriotism, having themselves a
deep stake in the liberties of their country, and bound by all the
ties of integrity and honor to a faithful discharge of their trust.”
Mr. Madison is here again providing against a rottenness in the
Senate, which would not only set instructions at defiance, but every
moral and political duty. He says, in effect, “you are afraid of a six
years tenure, but you need not fear that, because at any given period
only one third can have that duration, one third will hold for four,
and one only for two years. Fear of not being re-elected, or a
decreasing interest in the usurped power, will prevent them from
corruption, tyranny, disobedience, and other iniquities. If all were
at the same time tyrants of six years duration, you would be in
danger; but the shortening term of some, and the hope that others will
stay honest, is your protection. The honest ones will obey you from
principle, the corrupt from fear.” This I conceive to be his opinion
written out. For, says Mr. Nicholas in his presence, “we can instruct
them”—and Patrick Henry says, in effect, “If they are bad men they
will not obey—we ought to have a power of impeachment or recall, to
make them obey; the rotation is not in my opinion sufficient surety of
their obedience.” In those days goodness was thought to ensure
obedience, but now it is thought if they are good men, “bound by all
the ties of integrity and honor to a faithful discharge of their
duty,” they will not obey, or need not, because so intelligent and so
good—as if obedience was not the highest duty, or misrepresentation
was the part of a faithful representative.
But let us look to the Federalist as we did to Dr. Johnson, in behalf
of the other party. We find MR. MADISON, as well as his great
coadjutors, HAMILTON and JAY, speaking of the Senate, not as a little
oligarchy, or Holy Alliance of absolute sovereigns for six years, but
as an assembly of the _States_. Measures, says he, will have to be
approved first by a majority of the people, and then by a majority of
the _States_. The States will be interested in preventing this, or
carrying that. Thus again indicating the necessity of giving the
_States_ an influence over the _people of the Union_. Among the
reasons for giving the elections to the State Legislatures, he says it
not only favored a select appointment, “but gives to the State
_governments_ such an agency in the formation of the federal
government, as _must secure the authority of the former_, and may form
a convenient link between the two systems.” The link is formed by the
election, but if the Senators then become independent and firm against
their constituents, what _secures the authority_? The federal argument
supposes the Senator at the moment of his election, to lose all
connection with his State, and become entirely a federal officer,
representing all the United States. If this is true, how is State
authority secured by his election? Mr. Madison's argument in favor of
the Senate, based upon the assertion that every resolution or law will
have to pass first a majority of the people, and then a majority of
States, is a gross fallacy, if the States have nothing to do with the
matter. He says, this “complicated check on government may prove
injurious,” &c.; but how is it more _complicated_, if the Senators are
independent, than the British Parliament is rendered by the House of
Lords, or any State government by its Senate? He also speaks of the
power of the larger _States_ to defeat small _States_ when
unreasonable, by power over the supplies.
But there is yet better evidence of Mr. Madison's opinion upon this
subject than all this. He has himself as a legislator, exercised the
right. I have not the instructing resolutions before me, but I
discover the fact from my copy of the resolutions of '98, '99, and the
debate of 1800.[1]
[Footnote 1: _House of Delegates, Monday, January 20, 1800._
_Resolved_, That five thousand copies of the Report of the Select
Committee, to whom were referred the answers of several States upon
the Resolutions of the last Legislature, the said answers [and also
the _instructions to the Senators_ of this State in the Congress of
the United States, together with the names of those who voted on each
of these subjects,] be printed without delay; and that the Executive
be requested, as soon as may be, to distribute them equally, in such
manner as they shall think best, among the good people of this
Commonwealth.
Attest,
WILLIAM WIRT, C. H. D.
H. BROOKE, C. S.
_Note by the Publisher_.—The part contained in brackets is not
embraced in the present publication.]
We approach now the last ground taken by the Judge, and that on which
we should have supposed ourselves most impregnable—I mean the
_Constitution_. I should have said there is nothing in that instrument
to forbid, or which is inconsistent with the right to instruct, and
therefore it exists. And for this, with many other authorities, we
might have quoted JOHN MARSHALL, (Virginia Debates, 297-8.) “MR. JOHN
MARSHALL asked if gentlemen were serious, when they asserted that if
the State governments had power to interfere with the militia, it was
by implication? If they were, he asked the committee whether the least
attention would not show that they were mistaken? The State
governments had not derived their powers {634} from the general
government. But each government derived its powers from the people;
and each was to act according to the powers given it. Would any
gentleman deny this? He demanded if powers not given were retained by
implication? Could any man say so? Could any man say that this power
was not retained by the States, as they had not given it away? For,
says he, does not a power remain till it is given away? The _State
Legislatures had power to command and govern their militia before, and
have it still, undoubtedly, unless there be something in this
Constitution that takes it away._”
This power, like that of regulating the militia, was claimed and
exercised by the State Legislatures before this Constitution, and is
not taken away; therefore, by the reasoning of MR. MARSHALL, in whose
presence this right was frequently asserted, it still exists, not _by
implication_, but as an original power not given away. But JUDGE
HOPKINSON pursues a reverse mode of reasoning, and thinks the right
does not exist—first, because not expressly granted by the
Constitution—and secondly, because no form of proceeding is prescribed
by which a refractory Senator could be compelled to obey. We must
answer to the first, that the power is not granted but reserved, and
is always understood to exist where representation exists, unless
expressly prohibited. For the second, we must say, that no human
ingenuity could devise a mode of compelling a refractory Senator to
obey, because he may keep his purpose concealed until he votes; and
that a power of subsequent punishment has never been given to
_constituents_ over their delegates in any representative government,
and would be more objectionable and dangerous in this case than any
other, on account of the peculiar relative situation of the two
governments. The _power_ of disobedience, of giving bad votes, and
voting from corruption instead of conviction, is in the hands of all
representatives, without power of punishment in the hands of
constituents—can it thence be inferred that they have the _right_ thus
to act? The Constitution requires, for wise purposes, an indefinite
and absolute power of attorney irrevocable for six years, and any form
of punishment, to be effective, must interfere with this requisition.
There are legal powers, which it would be a gross violation of moral
duty to execute, and we must hope for some principles of virtue to
actuate our Senators as well as other fiduciaries, without keeping
their limbs always bound in cords, and their necks under the axe.
There was no power to punish for this offence under the confederation.
The power to recall was distinct from it, and though it might punish
offences, could not create duties. Our instructions are private. The
Senate has nothing to do with them. Our Senator may burn them. The
Senate cannot punish him, and we could not, if he took a bribe.
Suppose a legislator is always intoxicated, or spends his nights in
riot, or gaming, and is thus rendered stupid and inefficient, or
careless. This will be admitted to be a violation of duty, but his
constituents cannot prevent it, or punish him. Constituents have no
power even to compel attendance, nor can they recall for
non-attendance, whether produced by wickedness or misfortune; and yet
MR. JAY says—“All the States will have an equal influence in the
Senate, _especially_ while they continue to be careful in appointing
proper persons, and _insist_ on their punctual attendance.” There is
no such power given in the Constitution. If they cannot instruct they
cannot insist upon attendance. The word “_especially_” here shows that
the writers of the Federalist did not consider the influence of the
States and of their Senators as by any means synonimous, but looked to
the former to control the latter, by appointing proper persons, or
such as would obey.
The Judge thinks this power cannot flow, from the circumstance of the
Senators receiving their _appointment_ from the State Legislatures. He
says, the President and Senate _appoint_ Judges—“but are they to obey
them?” Surely not. The Judges do not, either in fact or in theory,
_represent_ the President and Senate. Nor are they appointed to attend
to their interests or _legislate_ for them. The power does not flow
from the faculty of appointing, but from the relation of constituent
and representative. The Judge is elected for the soundness of his
judgment, his knowledge of law, and his nice powers of discrimination
in deciding controversies between the parties before him. He is the
agent of nobody, and represents only the justice of the country, which
requires him to be free from any extraneous influence. The Senator is
elected for the skill and ability and faithfulness with which he will
_represent_ our interests and wishes. He is our attorney, not our
judge. He is under our control, and we are not subject to his
jurisdiction.
Let us suppose with the Judge, the case of a number of attornies, with
powers irrevocable for six years, and indefinite within certain
limits—the acts of a majority of attornies to be binding on all the
principals, but the power of choosing any individual as attorney left
open to the principals. Could they not be instructed? Could not the
principals require a valid bond and security to obey or resign? If the
attornies could judge exclusively of the limitations, and could bind
their principals, might they not be tyrants and absorb all the
fortunes of their principals. If selected to attend to the foreign
trade of a set of merchants, they might control their domestic trade
and interfere in their household matters. What injustice is done to
any principal when the same right is extended to all? Is there not
reciprocity? Is the right not a necessary protection? If a minority
instructs for bad purposes it is overruled; if a majority instructs,
its will ought to prevail. The advocate of the opposite doctrine
supposes a right of the co-principals in the will of the delegate in
opposition to that of his master, to be violated by our doctrine. Is
this a part of the bargain?—a legitimate advantage?—Is the association
not for mutual advantage, but to enable the cunning man to overreach
his copartner by the ignorance or treachery of his agent? What may be
a gain to-day may be a source of ruin to-morrow. Unless this game of
overreaching is played, where is the loss by instructions? They must
be either out-voted, or accord with the will of a majority. Do not
proxies in joint stock companies always vote as directed by their
principals? Would it be thought honorable to hold a proxy and disobey
the will of the principal? What have the co-principals to do with the
reason for the agent's acts? Whether he obeys the will of his
principal, or his own will, they are equally bound, and the question
is between him and his employer. They have still less right to object
to his resignation, because the agent is nothing in the contract, but
the _act_ is every thing. Whether the agent {635} is bound by oaths
and bonds and security to obey, or is left free, he is equally a legal
agent.
But is it fair to judge of rights which appertain to the structure of
our government, and are necessary for its proper administration, and
the safety of the people, by analogy to a private association of
individuals, whose rights, if not regulated by express contract, are
regulated by the arbitrary dictates of positive law? You may suppose a
private association to be regulated by any principles which you may
please to fancy, and hence may suppose the right of instruction to
exist or not at your pleasure. But you cannot infer from what you
suppose to exist in this fancied compact, that an analogous right does
or does not exist in the great positive governmental compact. That
must be tried by its positive terms, and not by fanciful analogies.
Wherever a Constitution rests the power to elect _a representative_,
there lies the power to instruct. A Senator is responsible only for
his own conduct, not that of his constituents; if their instructions
are not approved by the people, they are responsible. Shifting
responsibility destroys responsibility. If a Senator may defeat the
will of his constituents in any case, he may in all, however unanimous
the people and the legislature may be, and however important and
permanent the consequences of his vote. If his firmness and
independence may defeat his constituents, and he call solemn acts of
the legislature temporary delusions, so may he under a delusion,
defeat the deliberate wisdom of the people. Persons now living have
seen Senators disobey and defeat the deliberate judgment of the
people, expressed by several successive legislatures, sanctioned by
repeated State elections, and sustained by the concurrent opinions of
a majority of the States, the House of Representatives, and a vast
majority of the American people. If this is right, then our government
is under the control of a despicable and vexatious aristocracy.
The Judge contends that we must extend our doctrine to cases of
impeachment, or give it up. It must embrace every thing or nothing. If
the State Legislature has the power of exception, it may instruct in
some cases of impeachment, and forbear in others. It may instruct to
condemn or acquit. If the Senator can make the exceptions, then says
the Judge, this power is an _empty name_. This is too true. The
Senator can have no power to make exceptions, and yet under this
assumed right nine-tenths of the disobedience which has ever been
committed has been cloaked. The Judge has never heard whether
impeachments were included in the doctrine, because he is the first
person who ever broached that doctrine. When the Senate sits as a
court of impeachment, or upon executive appointments, they cease to be
our _representatives_, they become ex officio jurors or councillors of
State, and in either capacity we have no more right to instruct them
than we have to instruct the Chief Justice, or the President. They
cease to be Legislators, and belong for the time to the Executive, or
Judicial departments. In both cases private rights are concerned,
character and opinion is involved, and evidence may be taken. Judgment
is to be given and not a law passed. We can instruct to do an act, but
not to form an opinion—to vote, but not to give judgment as to fitness
for office, or the propriety of rejecting an officer. We do not see
the force of the Judge's reasoning which forces our doctrine to apply
to impeachments. The Senator acts in two capacities, as distinct as if
they were held by two individuals. They are held up in the Federalist
as judicious exceptions to the maxims which require the legislative,
executive, and judicial departments to be separate. The Senator takes
a new oath in trying impeachments. We have no more right to instruct
our Senators when made judges or councillors by the constitution, than
when made permanent judges or ministers or heads of department by the
President. And the inability to instruct in the latter cases, had as
well be brought up against us as in the former, as a reason for not
instructing them when acting as _our representatives_. We can _will_
an act to be done, _but not_ that the innocent are guilty, or the
reverse. The Judge's definition ought to have exceptions for these
cases, unless he holds them as all others do, as excluded _of course_
by their nature from the controversy.
In fine, this is a right which the Legislatures can, will and ought to
exercise. They can and ought to demand pledges, which no honorable man
could disregard. Is there not always an implied pledge from the nature
of the office and the understanding upon the subject? Nay, is there
not in Virginia at least a tacit pledge given by all Senators elected
since the adoption of MR. LEIGH'S report and resolutions in 1812?—The
last of those resolutions is in these words—“_Resolved_, That after
this solemn expression of the opinion of the General Assembly, on the
right of instruction, and duty of obedience thereto, _no man ought
henceforth to accept the appointment of a Senator of the United States
from Virginia, who doth not hold himself bound to obey such
instructions._” Is not acceptance of office under this resolution a
tacit pledge, as binding as express words could make it?
I must conclude, having already occupied too much space in your
valuable magazine, but the subject was too interesting and important
to justify one in attempting to vindicate our cherished doctrines from
the attack of so able a champion as JUDGE HOPKINSON, in too cursory an
examination of his views. In conclusion, I must remark, that although
we have to lament the misfortune of differing with that able and
learned gentleman, and the lamented and illustrious MARSHALL, we feel
no doubt of the support of HENRY, JEFFERSON, and
ROANE.[2]
[Footnote 2: One word more. This article was written in great haste
for the August number. Instead of this an addition to his letter was
published by _Judge Hopkinson_, under his own name, in that number. It
requires notice as imperiously as his letter. It _must_ be noticed in
the October Messenger. But _briefly_, very _briefly_. Subsequent
investigation has satisfied the writer, that the Judge's opinions,
both as to the _novelty_ and _weakness_ of our doctrines, are much
less supported, either by _authority_ or _reason_, than he had
supposed, when he was writing this article. He thinks even the Judge
himself may be convinced that “politicians of a later date” than the
adoption of the constitution, are not the “authors of the doctrine of
instructions.” R.]
DEATH OF THE PATRIOT.
BY W. GILMORE SIMMS.
Unembitter'd by hate, and untroubled by strife,
Shall the Patriot we loved, to the dark grave descend,
Whilst the foes of his well-spent, political life,
Have forgot each distinction in the wide term of friend.
Each doubt that had whisper'd against him before,
Each feeling of Envy, of Jealousy, Hate—
Now awed into silence and sorrow, deplore,
Nor seek to detract from the fame of the great! {636}
And great may we call _him_, whose mind in its scope,
No barrier could limit, no danger could tame;
Whose love for his country kept pace with the hope
That prompted her efforts and led her to fame—
Whose eye overlooking the clouds and the coil
That grow with the darkness and din of the hour,
Beheld from afar the reward of his toil,
And hailed the bright promise that told of her power—
Whose soul to its purpose and attributes true,
Sublimed far beyond mere humanity's scan,
Toiled fearlessly still for the glory in view,
The rights, and the triumph, and freedom of man!—
No voice in that cause was more potent or free,—
No spirit more fearless, no feeling more strong,
And its eloquence bold, like a stream from the sea,
Bore down, all resistless, each bulwark of wrong.
Oppression grew humbled—the tyrant grew pale,—
Ancient Error, in fear for her temple and tower,
Arrayed her foul agents, and strove to assail,
But in vain—the brave spirit that grappled her power.
And down went her bulwarks, and snapp'd was her chain,
Her subtle pretences like webs, torn apart,
Left man, as creation first spake him,—again,
Unshackled by Error, by Power, by Art!
And this was his triumph! The first of that band,
The high, the unshaken, unselfish and true,
Who dared in the front of the danger to stand,
Defying its force, and defeating it too.
Make his grave in the rock which the pilgrim may see,
And seek, o'er the fathomless waves of the deep;
But his monument build in the hearts of the free,
The treasure most dear that a freeman can keep.
And shed not a tear when ye think on his name,
And mourn not his loss, who, in dying, has given,
A record of triumphs, the proudest in fame,
A charter of freedom as lovely as Heaven.
BRITISH PARLIAMENT IN 1835.
NO. III.
THE HOUSE OF LORDS.
Exalted as is the situation of the presiding officer of the House of
Lords, particularly when he is at the same time high-chancellor of
England, he has not, as speaker, the authority of the same officer in
the lower House. The Peers address themselves to the House, and not to
the presiding officer, when they rise to speak; this officer has not
the power to decide to whom the floor belongs, or to call a member to
his seat; the House itself regulates all its internal police.
The mode of their election is the evident cause of this difference in
the power of the two speakers; the one is chosen by the Throne, a
power unconnected with the Lords; while the House of Commons elects
its own speaker.
At five o'clock the presiding officer of the House of Lords appears on
the woolsack, escorted by the usher of the black-rod and the
mace-bearer. If three Peers be present the speaker can open the
session; so that three individuals may form a House of Lords. The
votes of two of them may reject a bill that has been passed
unanimously by the six hundred and fifty-four delegates of the people!
It is not very unusual to see the House of Lords reduced to this
legislative trinity. But let us suppose some important question to be
the order of the day—no matter what. The hall will then be full—the
majority of the Peers will be in their seats.
Glancing over the numerous heads of the compact crowd below, your
attention will be attracted by many even in the centre of the Hall, as
it would be by the principal steeples of a great city, of which you
caught a birds-eye-view from some neighboring eminence.
The three round wigs of the three clerks of the House, are among the
first objects that will catch your eye, seated as they are, at their
official table, with their backs turned towards you. Opposite to
these, their faces turned to you, are the three uncovered heads of
Lord Rolle, the Marquis of Wellesley and Lord Holland; farther on, the
two long wigs of the masters in chancery; and beyond, under the golden
hangings of the throne, the official and huge wig of the speaker,
which raises itself up with all the dignity of the tower of a
cathedral, among the belfries of a city.
Let this principal wig, then, be our point of departure; starting from
it we will run over the different quarters of the chambers, as in
exploring London, we would guide ourselves by the dome of St. Paul. At
the present time, the weight of this huge presidential head-dress is
not supported by a Chancellor. The great seal is in commission. The
individual who sits with that air of noble ease on the woolsack is
Lord Denman, the temporary speaker of the chamber, since the overthrow
of the whig ministry preceding that of Sir Robert Peel. His manner
would quickly inform you that the situation is not a novel one to him.
In fact, he has been for many years Chief Justice of England. It was
at the very bar of the House of Lords that he began to play an
important political part; in 1820, he defended, with Lord Brougham,
Caroline, the queen of George IV, against the heavy charges then
brought against her by her royal husband. Could he have flattered
himself at that period with the hope that he should one day become a
Peer himself, and President of that chamber, before which he appeared
as an humble advocate? It was not every ambitious lawyer who dared at
that day to dream of the 400,000 of francs of salary that appertains
to that lordly perruque.
Distinguished as he has been in his profession, it is neither the
profound knowledge, nor the great eloquence of Lord Denman that has
secured his extraordinary good fortune. It should rather be attributed
to an indescribable but harmonious dignity of language, of person, and
manner. You would think the senatorial throne had need of just such a
man; M. Ravez himself was not more formed by nature for the presiding
officer of a deliberative body. But this excellence, a little {637}
theatrical, of a majestic carriage and appearance, is not the chief
merit of the noble Lord; his highest praise is that he remains the
same man under the purple, that he was when dressed in the simple
black gown of an advocate. A supreme magistrate, seated on the steps
of the throne, he is still the affable and liberal counsellor of the
court of chancery.
To the right of the speaker, and on your left, in a recess into which
the glass of those folding doors permits but a doubtful light to
enter, do you not see a confused mass of wax and ruddy faces, of white
robes and black surplices? These are the three crowded benches of
bishops and archbishops. Formerly they were not so eager to make use
of their legislative privileges. At the present time every man is at
his post; the church is supported by all its pillars. The Catholic
emancipation has wakened up these _millionnaire_ prebendaries from the
lethargic sleep into which the gold with which they are stuffed, had
plunged them. They keep strict watch around their heaps of wealth. It
will not be their fault if some crumbs from their splendid banquet be
thrown to starving Ireland.
If you have only seen these prelates in the House of Lords or in the
pulpit in full dress, you have examined but half the picture. You must
observe them in private, in their foppish and gallant city dress. Do
you ask what dashing personage that is, in a frock of the finest black
cloth, his head covered with a hat of the longest beaver fur, with
broad brims fastened up by cords of silk, galloping along the
pavements of Regent street? A singular cavalier, in fact; and one who
will still more astonish you when he leaps from his horse, and enters
his club-house, his riding whip in his hand, affording you a better
opportunity for observing his masonic-like costume, his high black
_guetres_ and black apron. Behold a very noble and very reverend
Bishop of England.
And this other person dressed, after the same fashion, who is leaping
from that open carriage, filled with young women, whose fair skins and
rosy cheeks cannot fail to catch your eye, as we are crossing
Westminster place? This, too, is a bishop, whose wife and daughters
have just accompanied him to the parliament house.
But let us follow these noble Lords spiritual to their seats in the
hall of legislation.
Figure to yourself an old woman with a face yellow and lank; let her
bend under the weight of fourscore years; wrinkle her forehead with as
many furrows as you can; let her voice be sharp and broken; let her
eyes be uncertain, restless and suspicious: would this creature not be
a faithful picture of his grace the Archbishop of Canterbury, the
first prelate of England, now seated alone on the highest bench of the
church? Is it not the very image of superstition itself? Decrepid,
crouching, shivering!
This venerable Archbishop, superannuated and unfit for all service as
he appears to you, has strength enough to speak the moment that any
question in the least touches the revenues of the church. Upon such
occasions his speeches invariably commence with many laudable
reflections on the advantages of tolerance, and as certainly end by
wishing damnation to popery both on earth and in heaven. This is at
least the object of these discourses, for it is no very easy matter to
seize their exact signification. His grace, who holds his
archbishopric of providence, has not however received from the same
divine source, the gift of expressing his religious rancor with much
ease or elegance. It always costs him a world of labor to put together
his anti-Catholic homilies, incoherent and broken as they are. One
would not say that gall flows from the lips of this mild prelate; he
rather spits it out.
Do you not observe behind his grace, that little yellowish man with
the eye of a caged tiger, constantly moving himself about, now leaning
forward, now appearing so impatient, playing and jumping about on his
bench: it is the bishop of Exeter, one of the sturdy pillars of the
fanatic church militant. This man is the most cunning and dangerous
foe to liberty; his evil nature clothes itself with all the seduction
of the most amiable manners. No one among these noble and holy
hypocrites has such exquisite politeness; or such gentle and
insinuating address. Never did a cat better conceal its claws under
the velvet of its feet.
The bishop of Exeter is not distinguished by the same quickness in
replying to an adversary, that he is in attacking him; perhaps, I
should rather say, that in his gentle warfare he never permits himself
to act on the defensive. Listen to him, as he rises with the greatest
humility, his little square black cap in his joined hands; his wallet
is filled with denunciations—it must be emptied. Doubtless it grieves
him, a man of peace, to have to war against temporal power! But why
does temporal power presume to pare down the luxuriant dimensions of
spiritual power? Oh! the charitable prelate, hear him! How his
treachery smiles upon the lips! how ingenuously it scratches! Never
had taunting so much _onction_—never was aggression so timid. Who is
there that would have this trembling modesty in throwing discord in
the midst of such an assembly? So soon as they are once struggling
together, nothing remains for him to say. Whigs and tories tear
yourselves to pieces, the good bishop will not interrupt you; he has
discharged his duty as a protestant pastor. Tear yourselves to pieces.
He sits down quietly, and contemplates the _melée_; tranquilly and at
his ease, he laughs in his sleeve as he counts the blows that fall
upon the minister. God forgive him! I believe his foot keeps time with
the blows!
If I were to describe the thirty Protestant Bishops crowded together
in this place, I would show you perhaps three or four almost whigs,
and who rather more resemble christians, and among these particularly
the brother of Lord Grey, the chief of this almost imperceptible
spiritual minority; but enough of these specimens of the surplice. We
will leave the bishops to our right. The first bench that we encounter
after theirs, going towards the bar of the house, is that of the
ministers. Here we will pause awhile.
Let us stop before this person in a gray hat, and dark brown
riding-coat, carelessly supporting himself on his cane. The heat of
the weather is extreme. To be more at his ease, he has, rather
unceremoniously, taken off his cravat. If you were to meet him in St.
James' Park, his favorite promenade, cantering on horseback, or
walking on foot, his large nostrils snuffing the breeze, his head
thrown back, his eyes sparkling and full of disdain, with his tall
figure, and robust and soldierly appearance, you would take him for
some old colonel on half pay, certainly not for the first Lord of the
Treasury. {638} Nevertheless this person is Lord Melbourne, the leader
of the government.
But examine a little closer and more attentively this physiognomy; the
expression of it is complex; it is a mixture of pride, indolence, and
irritability. In this you have the whole secret of the talent and the
fortune of this minister. It is almost a miracle that his natural
indolence should have allowed him the ambition to aspire to the first
office of the state; at least, I do not believe that he would have had
the energy to have maintained himself long in that position, if it had
not been disputed. It is because he had been once thrown out, that he
is in office now. In throwing him down, they struck the mainspring of
his strength; so he has rebounded, and in consequence has again raised
himself to power, and re-established himself more solidly and more
obstinately than ever. Such are those natures whose dormant energies
require to be awakened by the lash of insult. In 1834, Lord Melbourne
was but an inert and powerless whig; in 1835 he is a radical whig; he
has made the throne capitulate, he has wounded the church, he
threatens the peerage—why is this? Because you have offended him,
because you have chased him from office. You alone can diminish his
power. His eloquence has no other moving power than that which he
derives from obstacles thrown in his way. Suffer him to go on, to
speak as he pleases—his words will grow feeble, and his speech drag
itself laboriously along; cross his path, throw any thing in his way,
he rebels, he is hurried along, he grows heated, he drags you with
him, he is eloquent! His whole person, his whole soul is wrapped in
his discourse. There is nothing studied, nothing solemn; all is
sudden, involuntary. He, who but a moment since, was so grave, so
subdued, now clinches his hands, now throws his arms out with
violence, now leaps almost from the very floor; his angry declamation,
his accents of indignant contempt proceed from the bottom of his
entrails. Now his passion suffocates him: he no longer breathes; his
discourse is interrupted; a profound silence ensues. At this moment he
exhibits the trembling and magnificently impassioned air of Casimir
Perier.
Lord Melbourne is the most original speaker, and the most peculiar in
either house of parliament; perhaps the most impassioned, if not the
greatest and the most perfect. As a statesman I have great respect for
his moderate character; he is a progressive, bold, and thorough whig;
but he is not a whig—an improvident aristocrat, who never inquires to
what extremities the principles which he has inscribed on his banner
may lead.
The member on the left of Lord Melbourne, of smaller stature than the
noble premier, fat, all his limbs well rounded, yet not over large,
with a frank and open countenance, is the Marquis of Lansdowne, the
president of the council. You know that in England this office does
not entitle the person who fills it to any pre-eminence over his
colleagues; he is their speaker, and only presides over their
deliberations. Their true leader and chief is the first lord of the
treasury. The Marquis of Lansdowne plays his part with honor to
himself in the House of Lords, and usefully in the cabinet. In a
discussion he generally follows Lord Melbourne; his language is
masculine and studied, his voice firm and sonorous, but his utterance
is heavy and monotonous; he has evidently more words than ideas; he
says trifling things, _les riens_, with too much solemnity; this
regular and invariable emphasis destroys the effect of his best
efforts. I could wish that he would spare a few of those thundering
gesticulations, during which be strikes the clerks' table with such
furious violence. It is a vulgar practice that should be left to Lord
Londonderry, who sits before him across the table. This style of
argument is much more becoming in a pugilist than an orator. I have
been present, occasionally, when the noble Marquisses replied to each
other with the air of two people trying the strength of their arms, or
hammering together on an anvil.
Those who recollect Mr. Pitt, observe a good deal of resemblance
between the argument of that great statesman and the style of Lord
Lansdowne's speeches. It is from Mr. Pitt that the President of the
Council has acquired the habit of embodying a whole argument in one
immense period, cut up into a thousand parts; but the supreme tact of
Mr. Pitt always enabled him to lead his hearers, with infallible
certainty, to the point he had in view, by cross and apparently
opposite ways. The Marquis of Lansdowne is but too happy if he can
extricate himself in safety from the labyrinths of his own
parentheses.
That other angular figure, hipped, with a long stiff neck buried in a
thick white cravat, not unlike a French provincial notary, is Lord
Duncannon, the first Commissioner of Woods and Forests, and of the
Privy Seal. He sits on the right of Lord Melbourne, and is one of the
most useful members of the cabinet. Stammerer as he is, he speaks
often, and always willingly; he wants words more than thoughts; his
_sang froid_ often serves him in the stead of wit, though he
occasionally strikes an adversary very happily, and gives double
effect to his hits by the air—the most innocent and candid in the
world—with which he administers them.
The other Ministers in the House of Lords hardly deserve any
particular notice; if of any service in council, they certainly are
not on the floor of the House. The long, dark, impassible figure of
Lord Auckland is rarely drawn from its retreat; it is only when some
question touches the affairs of the admiralty, of which he is the
first Lord, that a few bashful words escape him. Lord Glenelg,
recently elevated to the Peerage, as rarely suffers himself to be
drawn into a debate, if the colonies have nothing at stake. Lord
Glenelg has had his days of eloquence, and was much more distinguished
in the Commons when simple Mr. Grant. Assuredly he is no longer a
young man, for his head is covered with gray hairs, though he looks to
be older than he really is. He is completely worn out, both in soul
and body, and is one of those mystic sensualists who sacrifice real
existence to the mysterious dreams of an opium-eater.
An enormous, round, pale bald head, with great black eyes, and huge
white whiskers, resting on broad shoulders, is every thing that
remains of Lord Holland, the nephew of Fox, and once an accomplished
orator of his uncle's school, and a tolerable writer. Of the rest of
his body nothing can be said; the gout has eat him up by little and
little, and he ends, absolutely, like a fish. It is only after much
time and exertion that his two crutches transport him to the end of
the bench on {639} which he sits, opposite Lord Melbourne. Moreover,
his chancellorship of the Duchy of Lancaster is not such a sinecure as
people have said; he supports his colleagues at least with all the
vigor of his lungs, if with no great strength of argument. He assumes
the responsibility of applauding their speeches, and acquits himself
conscientiously of the duty, for he makes more noise with his cheers
and ‘hears’ alone, than all the rest of the Whig party put together.
It is quite an amusing spectacle to see this stump of a man, bawling
out his applauses, looking for all the world like one of those Chinese
toys representing a great fat buffoon, which, loaded at the bottom,
and without legs, constantly resumes its upright position, however
often it may be thrown to one side or the other.
Literary history will remember Lord Holland, on account of his
biography of Lope de Vega. I am reminded by this work of an anecdote
of the noble lord, which does much more honor to his politeness than
to his generosity. In 1832, a poor refugee Spaniard, whose only
property in the world consisted of three unpublished manuscript
comedies of the celebrated Castillian poet, determined to go to London
for the purpose of selling them to the illustrious whig commentator,
whom he thought would naturally give more for them than any other
person. However, in the presence of so great a nobleman, the timid
emigrant did not dare to speak of any price for them; he simply
offered him his three valuable manuscripts. The visit and the present
were very graciously received, and in exchange for the one and the
other, the stranger received the next morning Lord Holland's card and
a copy of the life of Lope de Vega. There are some occasions on which
the English are magnificent; but their liberality never exercises
itself to any great extent but in public. For example, they would
glory in throwing a set of diamonds to an Italian _chanteur_ in a
crowded theatre.
Clearing the table of the ushers, at one leap, we find ourselves in
the very head quarters of the tory opposition. Here are the ministers,
belonging to the House of Lords, of the late conservative
administration. All of them are past middle age, and (like the present
whig ministers) are between fifty and seventy, the greater part being
over sixty.
Let us proceed at once to the generalissimo, seated in the centre, on
the second bench, his arms folded over his breast. He is asleep, I
suppose; he breathes with difficulty, his body being pressed in by the
black coat closely buttoned; but they wake him; he takes off his hat
hurriedly, and exposes his white hair cut close to his head. Observe
that thick chin which protrudes itself and works without ceasing,
those retreating lips, that great crooked nose, those brilliant and
steady blue eyes, that face yellow and bronzed; is it not the very
countenance of Punch, only not quite so rubicund? Does not that lank
and bony body resemble some wooden automaton, some old jointed doll?
Who would not be seized with surprise at the sight of this man? Behold
the man of the most extraordinary good fortune of the age! Behold the
man who conquered Napoleon, and who has lived twenty years on his
laurels! It is not only in war that he has succeeded; peace has not
been less profitable to him; he has ruled in the council as in the
camp; his caprice has, for a long time, governed an intelligent and
free people. He is the king of the last aristocracy in the world.
Happy man! what honors has he failed to obtain that he ever desired to
possess? He finds himself suddenly a learned man, without having ever
studied any thing. Law and theology have decreed him their honors—the
universities have made him their chancellor. Even more, the exclusive
circles of the West End themselves, have recognized his supremacy. He
has seen generations of dandies decay and fall every autumn, while he,
their patriarch, remains as firm as ever. The inconstant winds of
fashion have not torn a single leaf from his crown; he has continued
in fashion for the quarter of a century. If you follow him this
evening to some _rout_ in Grosvenor Square, you will see him throned
on a couch. Around him a swarm of belles and grandams flutter, each
one endeavoring to catch a word, or a smile, or a look from the hero.
You will see, (for the hero is deaf, and there is no familiarity which
is not permitted to him,) you will see the most favored among them in
his arms, his black wrinkled hands resting on their white shoulders.
Happy man! It is true that you may read on the buckle of the garter
that surrounds the leg of the Septuagenarian, in letters of
diamond—“Honi soit qui mal y pense,” the motto of his order. Happy
man! and by what mysterious power have you been thus enabled to
succeed every where and with all persons? Oh! I know not! Perhaps to
the small share of patient prudence and of inert common sense, that a
narrow ball-proof forehead may contain, your success may be due.
Perhaps to the beneficent rays and the partiality of that capricious
star which so mysteriously lights the way of the predestined!
But look—who speaks—it is the Duke of Wellington! What labor! he
tosses about his head! he grasps with his withered fingers the back of
the bench that is before him! he seems as if he would drag from every
place around him ideas which he cannot otherwise possess himself of.
At last he draws from his brain some fragments of incoherent phrases
and unconnected reasoning. All this, good and bad, ends in a sort of
speech not very unreasonable; he enables you to guess for yourself
what he wished to say, though he has not himself said it. He is an
orator and a statesman, as he is a great coxcomb and a great
general,—by destiny.
The tories of the House would be ungrateful if they forgot that it is
the Duke of Wellington alone who has for a long time preserved them,
by the vigorous and almost military discipline by which he has
regulated their intemperate fury. He cannot be disobeyed with
impunity. In the beginning of this very session Lord Londonderry was
severely reprimanded for having engaged in a skirmish which the
general had not authorized. At present, however, the evil spirits of
the party seem to grow weary of the wise moderation of their chief. At
least, if he does not quickly reduce them to obedience, they will, in
spite of him, engage in a conflict with the people. But let his grace
beware; should his soldiers induce him even to head his forces in this
unequal combat, he will not find the same good luck that attended him
at Waterloo.
An expression of silly and impotent ferocity characterizes the face on
the left of the Duke of Wellington; not a hair upon his head, but on
each side enormous whiskers perfectly white. One would say it was some
{640} old Turk of the carnival or the theatre, who had lost his
turban; but you should see this grotesque creature standing erect. It
is so badly placed on its long legs, as to be unable to move without
stumbling. You might upset it by your breath. Very constant in its
attendance at the House, it is always busy when there. You are
incessantly annoyed by the squeaking, scolding voice that proceeds
from this great body: not that he often speaks, but excels all others
in his applauses of tory speeches. He is the counterpart of Lord
Holland, and it is his duty to counteract the ‘hears’ and ‘hurrahs’ of
the latter. You would not have supposed that this was a very
illustrious personage—illustrious at least by birth, as Lord Brougham
once very irreverently remarked: nevertheless, it is a Royal
Highness—it is the eldest brother of the king who plays the part of an
impudent applauder of the incendiary speeches of an unpopular
aristocracy. It is a prince of the blood who degrades his rank in this
impotent farce. Truly, this Duke of Cumberland is badly advised; his
military glory does not entitle him to play the tricks of a bully! and
as his conscience must often recall to his memory certain private and
public peccadilloes, he would be wise not to remind the world of them
quite so often by his bravadoes. The public have not forgotten that
strong suspicions of violent murder, of the basest seduction, and of
incest, have stained an existence, which nothing but its adventitious
rank has, perhaps, saved from the vengeance of the law. The Grand
Master of the Orange Lodges is also sufficiently well known in
Ireland. There is but little chance that he will ever have occasion to
assert his rights to the throne. But would it not be wise to
anticipate the possibility? In these times of popular sovereignty
legitimacy does not always ensure a crown.
That fat Lord, with his chin graciously reposing on his well gloved
hand, and a _bouquet_ of red pinks in his button hole, is the father
of Viscount Castlereagh, and was in his day a distinguished dandy. He
retains all the elegance that is compatible with a large belly and
sixty years. You can still admire his form in spite of his fatness,
which threatens to burst at every point through his riding coat. The
good taste which distinguishes his toilette, and contends even against
the advances of old age, does not unfortunately characterize the
legislative conduct of Lord Londonderry. He is the most indiscreet
speaker in this House, in which all extravagance or violence is rare.
The habit of interrogating ministers, and especially on all matters
connected with Spain, in which country he formerly served as a colonel
of huzzars, is almost a disease with him. Good a tory as he is, he has
too much zeal; and I am entirely of the opinion of M. de Talleyrand,
that nothing can be more unfortunate than too much of that quality.
This rashness of the old huzzar brings down upon him, now and then,
severe rebuffs from the generalissimo. O'Connell has perfectly
described the old marquis, when he called him half-maniac—half-idiot.
He is not a bad man; but nature has rather liberally endowed him with
that sort of broken eloquence which supplies the want both of language
and thought, by the profusion and vehemence of gesture. He is always
too much pleased to display his cambric handkerchief in public. In my
opinion, the whigs would have gained as much as the tories, by
suffering him to have departed on his embassy to St. Petersburg.
We must pass by Lord Aberdeen, Lord Wharncliffe and Lord Ellenborough,
whom you see seated around the Duke of Wellington; they are his
principal aids-de-camp, and were formerly ministers with him. They are
prudent and cunning tories, if not moderate ones, and express
themselves well; but we have not room to give full length portraits of
them. An epic catalogue does not describe every soldier of the two
armies, not even every officer; and our article is more modest than an
Iliad. For the best reasons then, we must content ourselves with
pointing out with the finger the chief heads of our assembly.
To complete the review, we must finish our tour of the Chamber, with
the ranges of benches to our left. Do you observe up there on the
third row of benches, with its back against the wall, that figure of a
monkey dressed in a light colored wig, with its mouth awry, and
looking as if it was employed in cracking nuts? Far as this noble Lord
is seated from the head quarters of the tories, he is nevertheless one
of their most important and redoubtable captains. He has been twice
Lord High Chancellor, and held that office in the late cabinet of Sir
Robert Peel; this person is Lord Lyndhurst. Like Lord Brougham, he
passed from the bar, through the House of Commons, to the woolsack.
His extreme ugliness has nothing about it that can be considered
vulgar; on the contrary, he is the only lawyer I have ever seen who
had the air of a man of the world, and the polished manner of one who
had been a courtier. He is more than a lawyer; he is a most finished
orator, always clear, pithy, skilful, well-disciplined, and never
tedious, but concise and agreeable. His voice is full, grave, and
generally calm, but always capable of raising itself to the occasion;
he only grows warm when some personal but secret vexation disturbs
him. He is not troubled with a conscience; the privilege of dispensing
with which, he retains as a lawyer, though he has in other respects
managed to throw off the peculiarities of his profession. Formerly he
was an ultra whig. At heart he is still only an advocate, though
interested with the aristocracy, and affecting their polished good
breeding. He is a tory just now, because toryism has paid him
liberally for his pleadings. To-day, if the reformers could offer him
higher distinctions, he would discover, I am afraid, in his bag, an
abundance of arguments for reform.
Before turning the corner of the extreme left, let us pause a moment
to observe three personages, who centre in themselves all the ultra
toryism of the House. They are seated by the side of each other, at
the end of the last bench on this side.
The first, with a long, rough body, with a white cravat, dressed in
tawdry clothes, coarsely built, and looking like a clown, is the Duke
of Newcastle. Observe that dull, sottish eye—those long, erect ears.
See with what interest he listens! what attentive stupidity!
Nevertheless, you may rest assured that he does not understand a word
of what he hears. The words of a speaker have to knock a long while at
the door of his dull brain; he never fully comprehends an idea but
after a week's mature deliberation. Generally, at the end of a
session, he begins to understand the speech of the king, pronounced at
its opening. A sort of brutal and furious hatred against every thing
that he conceives to savor of reform, serves him in lieu of any other
{641} understanding. The rough lessons which the indignation of the
people have beaten into him, have not been able to teach any prudence
to his blind instincts. All his recriminations are impressed with the
dullness of his slow mind. The peerage might be killed and buried this
winter—it would not be sooner than the next spring that his Lordship
would order his horses, and drive to the House of Lords to argue
against Catholic emancipation.
The other two persons, are those of two noblemen in great credit with
the church, even more of fanatics than tories. Neither of them is
deficient in a certain oratorical fury, which, however, savors much
more of the pulpit than the Parliament.
In the first place, that fanatical looking figure which is watching
you with a fiery black eye, playing with the ruffles of his shirt,
with the knobs of his umbrella, is Lord Winchelsea; an honest man,
probably, and a furious, but sincere protestant. There is an
appearance of conviction in the intemperate homilies that he
improvises for the House of Lords, or the columns of the Standard,
which in some measure palliates their haughty intolerance. This noble
zealot, even while he is preaching up the persecution of popery,
persuades himself, I am confident, that his own apostleship will
secure him martyrdom.
As to that other personage—that huge and deformed colossus, whom you
would take for a chosen _cuirassier_ discharged from service in
consequence of excessive fatness—though his protestant mysticism may
be of rather larger calibre, I should be inclined to put less faith in
his relics. This Lord Roden—for it is Lord Roden—was in his youth a
miscreant, who acknowledged neither God nor Devil, and worshipped only
his dinners and his debaucheries. But in the middle of one of those
nights of excess, he had a vision somewhat like that which cried out
to Swedenbourg—_You eat too much._ From that moment, submissive to
supreme advice, the Earl of Roden reformed his diet and his irregular
habits, and he has become by degrees, the evangelical and political
preacher that he is at the present time. In other respects this
conversion has in no degree diminished his _embonpoint_; and his new
piety does not prevent his being a most furious Orangist, ever ready,
if permitted, to sacrifice to his monarch a magnificent hetacomb of
Irish Catholics.
Let us, for the present, cross the chamber, in giving a _coup d'œil_
to the benches ranged before the bar, and facing the throne. These are
called the _independent_ benches. The majority of the peers whom you
observe seated there have been ministers. The greatest, both in
personal appearance and public fame, is Lord Grey. Observe his tall
person, how thin, frail, and bent it seems! After his seventieth year
he was unable to give himself up any longer to public affairs; he
wanted physical strength to continue the arduous labor of reform. He
himself placed the load on shoulders which he had accustomed to bear
it; and finally resigned both power and the active part he formerly
took in parliamentary discussion. Let justice be rendered to him while
still living; he has been a bold and loyal statesman; as soon as he
found the helm entrusted to his hands, he steered the ship of state on
principles that he had for thirty years recommended. He has not proved
a miserable traitor to his promises and his past history, as the
perjured ministers of revolutionary origin in France, the worthless
product of that gloriously useless revolution of July. He is the first
whig who ever dared to carry into practice his own principles.
Assuredly, it required something more than ordinary determination to
open to reform that wide gate, which he knew could never again be
closed.
In addition to this, he was no common speaker. The impression of his
dignified, convincing and penetrating oratory, is still deeply
impressed on the recollection of those who were accustomed to hear
him; the air and manner of a great nobleman, which always
distinguished him, gave additional force to his authority. The noble
affability of his manners would remind you of the old Duke of
Montmorency-Laval. There is this difference between them, that Lord
Grey did not succeed in forming and supporting his ministry alone by
the influence of his fine manners, as the _ci-devant_ plenipotentiary
of Charles X at Vienna, did in respect to his embassies.
The other nobleman of coarse appearance, still fresh and blonde, is
the Earl of Ripon, politically better known by his second title of
Viscount Goderich. He also was raised for a moment to the top of the
ministerial ladder; but it does not appear that he has made up his
mind to remain in private life, into which situation his incapacity
made him so soon fall back. However, if he aspires to reascend, he has
not taken the right road to accomplish his designs; it is no longer
the period when one may balance between two opinions, or feed on two
political parties. It would be a double mistake in him to persist in
his attempts to reseize the reins of supreme authority. The confusion
of his reasoning as well as of his ideas, when he attempts to speak,
proves very clearly that he does not possess the clear and firm head
necessary to manage the furious horses of the chariot of state.
The Duke of Richmond has never raised himself to the same sublime
elevation; he is one of those poor nobles whose liberalism must be
maintained by high and lucrative employments. He is one of those
aristocratic worthies, always ready for any sort of military or civil
work, and all sort of salaries. Lieutenant General and _aid-de-camp_
of the king, his grace has not hesitated to stoop to manage the mails,
and to become a member of a whig cabinet. At the present moment, he
has the bearing of one who flatters himself with the chimerical hope
of a _juste-milieu_ administration, of which he would be a member.
Louis XVIII would have placed him in his upper house. The noble duke,
remarkable for a false air of Parisian elegance, which distinguishes
his carriage from that of our great men, usually so full of stiffness
and formality; yet I do not think that any of the modern great men of
France have ever, as the Duke of Richmond often does, crossed their
legs and raised their feet higher than the level of their heads, in
full session, for the purpose of better viewing themselves in their
polished boots.
Excepting the Duke of Wellington, we have not yet met a single
nobleman who can call himself truly fashionable. Ah! but see here is
Lord Alvanley. Yes, this little man, erect, bloated, swollen,
breathless, careless, ill-dressed, with nothing _recherché_ about him
but his yellow gloves, and looking as if he had just come from a
debauch to which he was anxious to return, is {642} one of the chief
representatives of modern fashion in the House of Lords. Formerly he
was a whig; now he is a tory, or rather he is a _bon convive_, and
belongs to the party which gives the best dinners and suppers. As the
tories are distinguished for their sumptuous entertainments—therefore
he is a tory. He ought not to have waited until he was ruined to have
become a conservative. No matter! having eaten up his own property, he
now helps others to do the same thing; he pays with his company and
his gaiety. He has, in fact, a rich vein of humor; one might make a
large volume of his witticisms. He is always sober at the House. It
was his evil genius which inspired him on one occasion to grapple with
O'Connell; the contest was unequal; the agitator wields the most
deadly _repartee_. Fashionable and witty as Lord Alvanley is, he will
nevertheless retain, during his life, graved on his forehead, the
title of _bloated buffoon_, inflicted on him by the rude adversary
whom he so imprudently attacked.
This young man of a handsome form, gracious in his appearance, and of
striking mien, going out of the House, is the Earl of Errol. He votes
with the ministry, although he is almost a member of the royal family.
He is, in fact, a son-in-law, _sous-officiel_, of William IV, having
married one of the illegitimate daughters of his Majesty. I should be
glad to show you his brother-in-law, the Earl of Munster, the
illegitimate issue of the same illustrious parent; but he rarely
attends the sittings of Parliament. High and profitable sinecures have
been showered upon these noble Earls. You see that in this age of
constitutional governments, calling themselves moral and economical,
sovereigns still shower, after the manner of Louis XIV, wealth and
honors on their bastards.
You would hardly ask the name of that old man, so withered by age,
whose slender legs are pushed into those old fashioned boots, with his
twisted queue leaping about on the shining and powdered collar of an
old blue frock. You would say it was some old French emigrant,
forgotten in 1814 by the Restoration, and left on this side of the
water. Observe how he moves to and fro; it is his constant motion. The
eighty years of the Earl of Westmoreland do not prevent his being the
most stirring and active tory in the House. He has been a member of
the cabinet; and occasionally, at distinct intervals, he will still
raise his old voice in defence of his old cause. Immediately on the
adjournment of the House, you may see him mount an old horse, as lank
as himself, and gallop off. It is perhaps a mere fancy, but it seems
to me that on the day the old Earl and his horse fail to return,
toryism will be no more. In spite of myself I am accustomed to embody
in this old man, all that remains of energy and strength in that dying
party. He looks like the last living and moving form in the midst of
the inanimate skeletons of this aristocracy, so fast crumbling into
dust.
If you have observed that other old man, so nimble and busy, with his
spectacles thrown back on his forehead, and looking in every direction
around him with his large fish-like eyes, you have remarked that he
runs incessantly from bench to bench, finding something to whisper in
every one's ear; and have doubtless taken him for one of the ushers of
the House, for he has on the same dress that they are accustomed to
wear—a black French coat, and a wig-bag of black _taffeta_. That is
Lord Shaftesbury, a descendant of the celebrated earl of that name,
one of the first essayists in the English language; a writer whose
works are distinguished equally for the classical character of their
style, and the wit and spirit that characterize them. The merits of
the present Earl of Shaftesbury are not of the same exalted species;
he is an active and industrious man. When toryism was in power (for he
is a strong tory) he managed to secure the profitable office of
president of the committees, and in that situation he exhibited all
the patient and practical intelligence which the office demanded. He
is also one of the vice-speakers of the House, and occasionally he
exhibits his little black person on the red woolsack; but as he is
only allowed to figure in that situation in his ordinary, unimposing
costume, the honor is a rare one; it is only in the last extremity
that he enjoys it, when there is no other possible speaker. An English
Chamber does not consider that it is presided over with sufficient
dignity, or even legally, unless it be by a wig and gown.
Thanks to St. George, we are now beyond the crowd of tories, and have
doubled the second angle of the bar; returning towards the throne,
passing by the benches on the left, we find ourselves among the whigs,
who will not delay very much our progress, for the ranks are not very
close on this side. Alas! how many vacancies. A glance at some of
these generous, solitary peers, and our tour will be ended: we shall
then have finished our long voyage around the Chamber.
The Earl of Radnor is one of the small number of disinterested whigs,
who advocate reform for itself, and not as a means of securing
themselves a seat at the feast of power; he discharges his duties as a
liberal peer, actively, conscientiously, and with that rectitude and
firmness which you would anticipate from his erect, nervous, and
inflexible bearing. He is not a very flowery speaker; but it is
necessary to listen to him when he rises; he has the tone of hardy and
vigorous honesty, which constrains the attention of an audience.
With more diffidence and timidity in his manner of speaking, the same
virtues of sincere and free devotion to public liberty, distinguish
the Marquis of Clanricarde. There is about this young nobleman a sort
of mental grace, which veils the deformity of his features; his flat
nose, sunken eyes, and cadaverous complexion, do not disgust you; you
have never seen extreme ugliness so becoming; it is a death's head,
smiling and perfectly agreeable. The Parisian world is sufficiently
well acquainted with the Marquis of Clanricarde. Thanks to the caustic
wit of his lady, the daughter of Canning, who amused herself the last
year with so much cruelty, at the expense of its _bourgeois_,
pedantic, and quasi-legitimate aristocracy.
We are now entering the head quarters of the little army of whigs. In
the rear is Lord Plunket, a member of the administration, though
without a seat in the cabinet. Truly, Ireland, of which he is
Chancellor, has more than one cause of bitter complaint against her
unnatural child. The ungrateful wretch! he betrayed his country to
provide for himself and family; he preferred fortune to renown; and
paid his own honor for the honors with which he has clothed himself!
But Cobbett and the patriot Irish have chastised him rudely enough.
Ireland is like all other mothers; she opens {643} her arms to all her
misled children that are disposed to return to her bosom.
Then let there be full pardon for the wealthy old lawyer; let his
faults be forgotten, since he recalls his honorable youth, and once
more volunteers in the service of the holy cause. The assistance of
such an intellect as that of Plunket is not to be despised; age has
not obscured in the least the matchless clearness of his powerful
reason; there is not a dark corner in the most obscure question that
he does not exhibit as clear as noonday; and it is not only by this
power of lucid argument that he is distinguished. Weak and good
natured, and crippled by the gout, as he appears, forced, whenever he
rises to speak, to support himself with one hand on his cane, he has
that fierce and sturdy determination which enables him to throw in the
face of toryism all its humiliating truths, and is never disconcerted
by even the most violent interruptions: his irony wounds and
overwhelms the more that it is always concealed under an air of the
most country-like simplicity.
At the extremity of this bench, which touches that of the ministers,
you have recognized Lord Brougham; he is the very living caricature of
whom the printshops in the Strand have shown you so many portraits.
Observe his long face, his long legs, his long arms, the whole
incoherent mass of his person. The expression of his countenance has
something ferocious about it; there is certainly in this brain a small
grain of madness; his small piercing eyes sparkle from the bottom of
their sockets; a convulsive motion opens and shuts incessantly his
enormous mouth; you would be alarmed did not the good nature of that
thick, cocked-up nose, reassure you.
Do not be alarmed that the learned lord starts and appears so
violently agitated—he is on a gridiron; he is tortured, because others
are speaking, and he is constrained to be silent. To speak is to do an
injury to Lord Brougham.
But the speaker is now seated; Lord Brougham has leapt from his seat;
he is on his feet; he has regained the floor; he retains it, and will
not easily part with it; he has declared that he has but two words to
say; if you have any business to attend to, go about it; at the end of
two hours you may return, you will find him in the midst of his
argument. It is much to be regretted that long experience of the bar
and the parliament have not moderated a mind of this temper. He has
just uttered a most cutting sarcasm—observe how he dulls its effect by
reiterating and expanding it. He has perfectly established the
impregnable strength of an argument; he proceeds to overthrow it
himself, that he may build up others upon its ruins; it is thus his
indiscretion injures the best cause and deforms his ablest discourses.
Like an imprudent æronaut, he bursts his balloon and falls with it to
the earth, in consequence of having filled it too full. We who are
hearers, like well enough to be convinced by an argument, or to smile
at a piece of irony; but we can comprehend an allusion. We are
mortified at having every thing explained so elaborately. The more you
persist in it, the more weary we become. Your obstinacy in doubting
our intelligence—wounds and vexes us.