Senators

are really representative men.

Senators

not mere agents of the state.

and provided for. A century of experience has demonstrated the wisdom of their marvellous plan. But a new school of politicians has now appeared who profess to believe that the Fathers were mistaken in their theory of the surest foundation of our national republic, and that the system they adopted has not, in regard to senators, worked well that the senators have not been the choice of, and have not represented, the great body of the people of the States that elected them and therefore that elections of senators should be had by the suffrage of all the voters in the State acting together.

One test of the truth of the first statement is the fact that of the less than 900 persons who have served as senators since the government was organized in 1789, more than 200 have been members of the House of Representatives - substantially one fourth. Only two States Montana and Nevada - have not thus been represented, while more than one half of the senators from Massachusetts, Connecticut, Indiana, and Maine, have been members of the House of Representatives; and in addition to these, a very large fraction of the senators have been governors and judges elected by the people in their States. These facts show that it has been almost universally true that those chosen as senators have possessed the confidence, not only of the legislative representatives of political divisions of the States, but of the whole body of the people as well.

The second part of the assertion of the persons who have seen a new light, as they think, is that sometimes "senators do not represent their States." This is true; but happily for all the States and their people, a senator, once chosen, becomes a senator of the United States, and is not a mere agent of the State that chose him. And, as to the State itself that chose him, it has happened, and will happen again, that a gust of passion or a misguided opinion has taken temporary possession of a majority of the people of a particular State which the senator, in his bounden duty to all the States, has disregarded. This was one of the very incidents that the patriots of 1787 foresaw and provided against by legislative elections and a long time of service.

charge of

Again, the new school of constitution-makers say that they think The the Senate has become a body of rich men who gained their places corruption by corrupting legislatures in a pecuniary way. But to any one ac- considered. quainted with the personality of the Senate as it has existed for a generation and is now, such a statement is known to be absolutely destitute of foundation. The proportion of rich men in the Senate is not greater than that which exists in every State and community in the whole country where the honors and responsibilities of public office are shared alike by the rich, the comfortable, and the poor. As a perfect millennium has not yet been reached, it is doubtless true that some (but very few) men have secured election as senators by pecuniary persuasions, or, to put it roughly, have "bought their places" with money, a crime of the worst character both in the buyer and in the seller. But alas, this is not a peculiarity belonging to the office of senator alone. It has happened equally or more often in elections to the House of Representatives, as well as in State and municipal elections. A legislative election of senators, therefore, is not the cause of this great evil. In the nature of things, it must be worse in popular elections, for the members of a legislature must, in the choice of the senator, vote openly, so that the constituents know whether or not their representatives have followed the general judgment of the particular communities they represent, a matter of vital importance in all representative government. But in popular elections, where each citizen is acting in his personal character only, it is equally important that he have the right to vote secretly, notwithstanding that he may be bribed in spite of every precaution that the law may adopt to prevent it. And when we go back of the regular act of a government election and reach the "primaries" and the district, the county and State conventions, all barriers and safeguards are left behind, and the corruptions of riches and still more of trading machines and office brokerage, have their easiest and most abundant field of achievement in selecting candidates. To cite examples to the intelligent reader would be a waste of time.

The real people of this republic of States and citizens — those

Arguments for those who believe

in order and property.

who believe in liberty and order as inseparable, who believe in the value of individual endeavor and frugality, and, as a consequence, in the right to save earnings and to have homes and houses and lands and schools and churches - should consider:

First, that the Constitutional provision for the choosing of two senators from each State by its legislature was wisely designed by the States that founded the government, as one of the corner-stones of the structure necessary to secure the rights and safety of the States.

Second, that a legislative instead of a popular election was adopted as necessary to the expression of the deliberate will of the State in its character as such, represented in all its parts in the way in which its own constitution distributed power.

Third, that the people of the several political divisions of the State should have the right to express their choice separately through their legal representatives, as they do in making laws, and not be overwhelmed by a mere weight of numbers that might occupy only a corner of the State and possess interests and cherish ambitions quite unlike those of all the other sections of the commonwealth.

Fourth, that the Senate as it has existed for a century has demonstrated the wisdom of the mode of its constitution.

Fifth, that its members have been as free from any just accusation of corruption, either in their election or in their course as senators, as any equal number of men connected with public affairs on the face of the earth, or connected with all the employments of private life.

Sixth, that as the election of senators by the State legislatures must be by open public voting, the danger of bribery, or the misrepresentation of constituents for other causes, is reduced to a minimum, and stands in strong contrast with the election of senators by the direct vote of the whole mass of voters in the several States, and especially in States where political parties are nearly equal in numbers.

Seventh, that, whatever evils now and then happen under the present system, they do not arise from any fault in the system itself,

but from the fault of the body of citizens themselves, - non-attendance at caucuses and primaries; non-attendance at registration and at the polls; slavish fidelity to party organizations and party names; a contributing to and winking at the corrupt use of money at nominating conventions and elections; and the encouragement or tolerance of individual self-seeking in respect of getting possession of offices, all of which are truly public trusts.

Eighth, that in ninety-five instances out of a hundred, if there be an evil or inadequate senator or other officer in the public service, it is because the power that elected or appointed him his State or community has been either grievously negligent or else is fairly represented. We must believe that the people's government is a failure and a delusion, to think otherwise.

Ninth, and finally, there is neither reasonable nor plausible ground then, for taking the grave step of disturbing the exact and solid balance of the powers and functions of our national Constitution, which has in these respects given us a century of security, of State representation, and of State rights, as well as a wonderful national progress as a people.

95. The Instruction of Representatives in Congress

It is a principle of our constitutional law that Senators and Representatives are not to be instructed by their constituents, but this principle is constantly violated in practice by state legislatures in passing resolutions similar in form to this resolution adopted by Missouri in 1885.

Joint and concurrent resolution instructing our Senators and requesting our Representatives in Congress to procure legislation authorising receivers of railroad companies appointed by Federal courts to be sued in local State courts, and preserve the right of trial by jury in such suits.

Whereas the circuit courts of the United States, in the exercise of their powers as courts of equity jurisdiction, have, of late,

1 Burgess, Political Science and Constitutional Law, II, p. 50.

The

Senator

should obey

or resign.

adopted the extraordinary practice of taking charge of and for years operating and managing railroads, oftentimes embracing a system of roads hundreds of miles in length and extending into different and distinct States. . . .

Be it resolved by the house of representatives (the senate concurring therein), That our Senators in Congress be instructed and our Representatives requested, to procure such legislation as shall be necessary to secure to all persons the right to sue receivers of railroad companies appointed by Federal courts in places and courts of the States, and to prosecute to judgment, under the same form of law as is provided by State laws for suits against the companies, and for such further legislation therein as will properly regulate and limit the powers of the Federal courts in their equitable interference with and control over railroad companies, so as to preserve to the people their common law and constitutional rights. Approved March 19, 1885.

Henry Clay thus committed himself to the doctrine that representatives were ordinarily bound by instructions from their constituents.

What is the basis, and what the principle of the doctrine of instruction? Sir, to a certain extent, I have always believed in this doctrine, and have been ever ready to conform to it. But I hold to the doctrine as it stood in 1789; that, in general, on questions of expediency, the representative should conform to his instructions, and so gratify the wishes, and obey the will, of his constituents, though on questions of constitutionality his course might be different; and, therefore, when the senator last up (Mr. Strange) declared that he would rather submit to a certain operation, than to give his vote declaring that there had been a violation of the Constitution, I felt some alarm, lest the true doctrine of instruction should itself be subverted. And it did not appear to occur to him at the time, that there was another alternative besides obeying, that is, to resign.

And what is the doctrine of instruction, as it is held by all?