The southern literary messenger, Vol. II., No. 7, June, 1836

As the incidental arguments, not upon the direct question, attributed to Messrs. Jay and Hamilton, are now relied upon to support this doctrine of instructions, I will cheerfully refer to these great men, adding to them the name of Mr. Madison, and endeavor to show, from better evidence than reported debates, what were really their opinions upon this asserted power of the State Legislatures, and in what manner they thought Senators were amenable to their Legislatures for their acts and votes in the National Congress. I shall do this, not on the authority of reported speeches, but by adverting to what they have written and published, as the true spirit and doctrines of the Constitution. To be brief, I will give you the summing up of the argument in the “_Federalist_,” in favor of the powers of the Senate under the Constitution. I refer to the numbers 62 and 63, written by Mr. Madison; but, {408} as it is understood, giving the opinions and views of the illustrious triumvirate. Their whole argument and exposition of the powers, duties, and responsibilities of the Senators, are utterly inconsistent with the control upon them now set up on the part of the State Legislatures. It is not merely that this right of instruction is no where mentioned or alluded to, as one of the means by which the Senators are to be kept to their duty, but such a right cannot be reconciled with the benefits intended by the Constitution to be derived from the permanency of that body—from its independence and its elevation above, or protection from, the caprices and fluctuations of popular feeling, often improperly called popular opinion. Allow me particularly to turn your attention to a few passages from Mr. Madison's examination of the “Constitution of the Senate.” His second reason for having a Senate, or second branch of the Legislative Assembly, is thus stated: “The necessity of a Senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” If this is true of the House of Representatives of the United States; if their intemperate and pernicious resolutions are to be guarded against and controlled by the more sedate and permanent power of the Senate, how much stronger is the reason when applied to the Legislatures of the States? Having their narrow views of national questions, and their local designs and interests as the first objects of their attention, it seems to me to be a strange absurdity to put the Senate as a guard and control over the House of Representatives, and then to have that Senate under the direction and control of the Legislatures of the States—or it may be, on a vital question, under the direction of the Legislature of the smallest State in the Union. Are there no local impulses and passions to agitate these Legislatures? no factious leaders to seduce them into intemperate and pernicious resolutions—and to induce them to prefer some little, local advantage, to “the general welfare.” To give to the Senate the power, the will, and the courage to oppose and control these sudden and violent passions in the more popular branch of our national legislature, Mr. Madison says, “It ought moreover to possess _great firmness_, and consequently ought to hold _its authority_ by a tenure of considerable duration.” But what can that firmness avail, how will it be shaken, of what possible use will it be, if the Senator is bound to follow the dictates of a changing body, subject, emphatically to sudden impulses and seductions, at a distance from the scene of his deliberations, and deprived of the sources of information which he possesses, and acting in a _different sphere of duty_ from that he moves in? Firmness in an agent who has no will of his own, no right to act but on the dictation of another, would not only be superfluous, but a positive evil and disqualification. It would produce struggles and perhaps refusal, where his duty was to submit. The more pliable the instrument in such a case, the better would it answer the purposes it was designed for. To be firm, says Mr. Madison, the Senator must _hold his authority_ by a tenure of considerable duration. But how can this be, if he is to hold it from year to year as the Legislature of his State may change its opinion on the same subject, and require him to follow these changes or to resign his place? The tenure of the Constitution, as Mr. Madison understood it, is essentially changed by this doctrine. These changes of opinions and measures are, in the opinion of Mr. Madison, a great and dangerous evil in any government, and show “the necessity of some stable institution”—such as our Senate was intended to be—but such as it cannot be on this doctrine of instructions.

But this great man and enlightened statesman, jealous enough of the rights and liberties of the people, does not stop here in explaining the uses of the Senate. It is not the passions of Legislatures only that are to be guarded against by the conservative power of that body. He thinks that it “may be sometimes necessary as a defence _to the people_ against _their own temporary errors and delusions_;” he justly applauds the _salutary interference_ in critical moments, of some respectable and temperate body of citizens, “to check the misguided career, and to suspend the blow meditated by _the people against themselves_, until reason, justice, and truth can regain their authority over the public mind.” He considers the Senate as “an anchor against popular fluctuations;” and he certainly never imagined that the capstan and cable were in the hands of the State Legislatures, to remove the anchor at their pleasure. He truly says, that in all free governments, the cool and deliberate sense of the community ought and _ultimately_ will prevail; but he did not believe that this cool and deliberate sense would be found, on the spur of the occasion, in a popular body liable to intemperate and sudden passions and impulses, and the seductions of factious leaders. It was to control and check such movements, and not to be controlled by them, that the Senate was constituted; and to check and suspend them until the deliberate and cool sense of the community can be obtained; which, when fairly ascertained, will be recognized and respected by the Senate as fully and certainly as by the Legislatures of the States. The members of these Legislatures have no means of knowing the public sentiments, which are not equally open to the Senators; nor are their inducements to conform to them more persuasive or strong. Mr. Madison goes so far as to say, that as our governments are entirely _representative_, there is “a total exclusion of the people in their collective capacity, _from any share_ in them.” If then, the will of the people, declared by themselves, should not move a Senator from his own conviction of his duty, when he believes the act required of him is contrary to that duty, and such is the constitutional right and obligation of his office, shall he be driven to a violation of that duty or a relinquishment of that right, by a second-hand, doubtful, equivocal, and, perhaps, false, expression of that will, by and through an intermediate body, no better informed of the cool and deliberate sense of the community than he is himself—no better disposed than he is to satisfy the public sentiment, and not half so well informed as he is of the tendency and consequences of the measure in question?

To meet the objections to the dangerous power of the Senate, continued for so long a period as six years, and to quiet the alarm that had been raised on that subject, Mr. Madison states what he supposed to be the check or protection provided by the Constitution against their usurpations, and which he thought amply sufficient. What is that check? Is it any right in the appointing {409} Legislatures to direct his conduct and his votes, and to revoke his powers, directly or indirectly, if he refuse his obedience? If for any cause, justifiable and honest or not so, they wish to deprive him of his office, to annul the appointment made by a preceding legislature or by themselves, may they do so by giving him instructions at their pleasure, desiring nothing but to accomplish their own objects, and in a total disregard of his judgment, conscience, and duties, and then say to him, knowing that he would not and could not obey their mandate, resign your place, and put it at our disposal, that we may gratify some new favorite, or promote some design of our own. The next Legislature may choose to drive out the new favorite and reinstate the old one; and thus this Senate, instead of being an anchor to the State, a stable and permanent body to save us from sudden gales and storms, will in practice, be floating on the surface, fixed to nothing, and driven to and fro by every change of the wind. _Instruction and resignation_ are not the means proposed by Mr. Madison to protect us from the corruption or tyranny of the Senate. He suggests no interference, in any way, on the part of the State Legislatures with their Senators, nor any control over them, during their continuance in office; but finds all the safety he thought necessary, and all that the Constitution gives, in the “_periodical change_ of its members.” In addition to this, much reliance, no doubt, was placed, and ought to be so, on the expectation, that the State Legislatures would appoint to this high and responsible office, only men of known and tried character and patriotism, having themselves a deep stake in the liberties of their country, and bound by all the ties of integrity and honor to a faithful discharge of their trust.

If the Constitution—for that is our _government_, and by that must this question be decided—intended to reserve this great controlling power to the State Legislatures, over the Legislature of the United States, for such it is as now claimed, we should have found some provision to this effect, some evidence of this intention, either expressed, or by a fair and clear implication, in the instrument itself. Nothing of the kind appears. We should have further found some form of proceeding to compel a refractory Senator to obey the lawful, authoritative mandate of his State Legislature. It is an anomaly in any government to give an authority to a man or body of men, without any power to enforce it, to carry it out into practice and action, to make it effectual. To give a right to command, and to furnish no means to compel obedience, no process to punish a disregard to the order, is indeed like Glendower's power to _call_ spirits, but not to _make them come_. To say that I have a right to order another to do or not to do an act, but that it is left to his discretion to obey me or not, is a contradiction in terms. It is no right, or at least no more than one of those imperfect rights which create no obligation of respect. If I give to my agent a command which, by the terms and tenure of his agency, by the limitations of his authority, he is bound to obey, and he refuses to do so, I may revoke his power, or rather he had no power for the act in question; he is not my agent, and cannot bind me beyond his lawful authority, or in contradiction to my lawful command. On the other hand, _that I am bound by his acts_ is a full and unquestionable proof that he has acted _by and within his powers_, and that I had _no right_ to give the command which he has disobeyed. There cannot be a lawful command, and a lawful disobedience on the same subject. If by the terms of the power of attorney, which is the contract between the principal and his agent, certain matters are left to the judgment and discretion of the attorney, or are within the scope of his appointment, without any reservation of control on the part of the principal; then no such control exists, and this is most especially the case when the rights and interests of other parties are concerned in the execution of the power and trust.

Will it be said that the obligation of a Senator to obey the instructions of his Legislature, although not found in the Constitution, results from the circumstance that he received his appointment and power from that body? It is impossible to sustain this ground. I recur to the case of a common agent to whom a full and general power is given, irrevocable for six years; and, to make the case more apposite, in the execution of which power the rights and interests of other parties are deeply concerned, so that, in fact, the agent is the attorney of those parties as well as of the one from whom he receives his appointment. Will any one pretend that an agent so constituted and thus becoming the attorney of _all_, with the right and power _to bind all_ by his acts, is afterwards to be subject to the direction of any one of the parties in any proposed measure bearing on the general interest, merely because his immediate appointment came from that party? When he is appointed, his powers and his duties extend far beyond the source of his authority, and are, consequently, placed beyond that control. His responsibility is to _all_ for whom he is the agent, and he is false to his trust if he surrenders himself to the dictates of any one, or sacrifices the general to a particular interest. The President and Senate appoint the judges, but it does not result from this that judges are to be under the dictation and control of the executive. So of any other officer acting within the sphere of his authority. The President by his general power may remove him, for that or for any other cause, or for no cause, but while he holds the office, he exercises its powers at his own discretion, and is not bound to obey the appointing power. In a despotism the master holds the bridle and the lash over every slave he appoints to _execute his will_, but in a free representative government it is the _law_ that is to be executed and obeyed, and the officer, in performing his prescribed duties, is independent of every power but that of the law. This is indispensable to the harmonious action of the whole system.

I do not know whether the advocates of this doctrine of instructions extend it to trials or impeachments before the Senate. If they do not, I would ask on what distinct principle do they exempt such cases from this legislative right of dictation? The claim is broad and general, covering all the powers, duties, and acts of a Senator. Who is authorized to make the exceptions? By what known rule are they to be made, or do they depend upon an arbitrary will? Is this will or power lodged in the State Legislatures? Then they make the exception or not, at their pleasure; they may forbear to interfere in one impeachment—and they may send in their dictation in another, according as, in their discretion, it may or may not be a case calling for their interference. Their power over their Senator, to compel him {410} to obey or resign, is in their own hands, and they may issue their mandate to him to condemn or acquit the accused, or they may leave him to his own judgment and conscience as they may deem it to be expedient. Such is the state of the case, if the right of discrimination, of making exceptions from the general power of control, is vested in the Legislatures themselves. Is it then given to the other party, that is, to the Senator? Then the power resolves itself into an empty name; or rather into just what I say it should be, a recommendation entitled to great deference and respect, but with no obligation to obedience. If the Senator has an admitted discretion to obey or not to obey the instructions of his Legislature, _according to the nature of the case in which they are given_, then the right of the Legislature to give them is not absolute in any case, but it is left to the judgment of the Senator to decide for himself whether the case be one in which he can and ought to follow their instructions or not. There is no special exception of impeachments, and the right to exempt them from this legislative control, if it exist at all, must depend upon the nature of the case, and, of consequence, what is the nature of a case which entitles it to this exemption must be decided by the Legislature or by their Senator. We have seen the effect of either alternative. In truth, this power of control must be co-extensive with the powers and duties of the Senator, or it is nothing.

To give you the strongest case against my argument, I will suppose that the Constitution had said—“The State Legislatures may _instruct_ their Senators,” and had said no more; would this have created an imperious obligation on the Senator implicitly to obey the instructions? Would disobedience forfeit his office directly, or virtually by making it his _duty_ to resign it? I think not. It would have been no more than a constitutional, perhaps a superfluous, recognition of the right of the State Legislatures to interfere so far and in this way, with the measures of the federal government, to give their opinions, their recommendation, their counsel, to their Senators; but the Senators would afterwards be at liberty, nay it would be their duty, to act and vote according to their own judgment and consciences, on the responsibility which they _constitutionally_ owe to their constituents, which is found, as Mr. Madison says, _in the periodical change_ of the members of the Senate. The Constitution knows no other check upon the Senators; no other responsibility to the State Legislature, while the Senator acts within and by the admitted powers of his office.

But I am wearying you to death. Let me conclude this interminable epistle by referring to an authority which no man living holds in higher reverence than you do. About a week or ten days before the death of that great and pure man, a true and fearless patriot, _Chief Justice Marshall_, I called to see him. This question of instructions was then in high debate in your papers. I said to him that I thought the Virginia doctrine of instructions was inconsistent with all the principles of our government, and subversive of the stability of its foundations. He replied in these words—“It is so; indeed the Virginia doctrines are incompatible not only with the government of the United States, but with _any_ government.” These were the last words I heard from the lips of _John Marshall_.

H.

PERDICARIS.

_Mr. Editor_,—In introducing the following pieces to your notice, permit me to say a few words of the gentleman whose lectures on the condition and prospects of his native Greece have occasioned them to be offered to you. Perdicaris is a native of Berea in Macedonia, a place memorable not only for classic but for sacred associations. He left his country while a youth, about the commencement of the Greek revolution; and after travelling for some time in Syria and Egypt, was brought off by an American vessel of war, from Smyrna, where his situation as a Greek was extremely perilous. His education having been completed in this country, he engaged as a teacher of the Greek language, first at the Mount Pleasant Institution, Amherst, Massachusetts, and subsequently at Washington College, Hartford, Connecticut. Being now about to return to his native country, he is perfecting his acquaintance with the United States and their institutions, by travel; while at the same time he aims by lectures delivered in the various cities, to excite an interest in the public mind in the prospects and condition of his own country. It appears to be his most earnest wish, to remove some false ideas with respect to his native land, which have been too generally prevalent, and which even the tone of Byron's poetry—friend of Greece as he was—has tended to confirm. In the accounts of Perdicaris, we discover that his country is still worthy of her ancient fame, that she possesses, and has possessed for years, numerous and eminent scholars, noble institutions of learning, a national poetry of no ordinary merit, an active and intelligent population, and a general diffusion of enlightened public spirit, of which it is as gratifying as it is unexpected, to be informed.