THE RIGHT OF INSTRUCTION.
BY JUDGE JOSEPH HOPKINSON.
Dear Sir—I am well aware that my letter on the Right of Instruction, published in your June number, will encounter, in Virginia and elsewhere, names of high and deserved authority, and talents of great power, if it shall be thought worthy of any attention. I must therefore beg you to allow me to explain my views of this interesting subject, a little more fully than was necessary or proper in a letter to a friend. The additions, however, will be briefly made. I am particularly desirous to sustain myself by the countenance of our distinguished patriots and jurists, especially those who, having assisted in framing the government, may be presumed to understand its mechanism at least as well as the politicians of a later date; who are, as I have suggested, the authors of the doctrine of instructions. It was unknown to those who made the constitution—as well as to those writers and speakers who afterwards attacked and defended it.
It is a matter of familiar history that from the commencement of this government, there has been a party, particularly in the South, powerful by its talents, its character and the public confidence, who have cherished and propagated, with unwearied efforts, a jealous fear of the power of the general government. They have taught and, I may not doubt, truly believed that this power would swallow the independence of the states, or so depress their influence and strip them of their rights, that they would finally become mere subordinate corporations, living and acting by the will of a master. I do not stop to examine the justice of this apprehension, nor to show that the federal government, constitutionally administered, (and no fair argument can be drawn from usurpation and violence,) has more to fear from the power of the states than the states from it. This is not my present purpose. I would show how the doctrine of instructions was introduced among us. It was one of the devices and means resorted to—and invented by the party I have alluded to, to cripple the federal power, and, in this way, to give the states a control over the action of the general government, which they could not exercise directly under any power or rights given or reserved to them in the constitution they had adopted. Thus by binding their representatives in Congress by the obligation of obedience to their instructions, and by limiting and fettering the powers of the federal body by their doctrines of constitutional construction, they would acquire an ascendancy over the federal operations which would reduce that body to a bloodless, fleshless skeleton.
In looking for a support for my opinions upon this subject, I was naturally led to open the volume of the “Secret Proceedings and Debates of the Convention,” published from the notes of Chief Justice Yates. In this volume we find also the information communicated, by Luther Martin, Esq. a delegate to the federal convention from the state of Maryland, to the legislature of Maryland, relative to the proceedings of the convention. This communication occupies about ninety pages of the book, and contains a string of resolutions, amounting to nineteen, reported to the convention by a committee of the whole house. The fourth of these resolutions proposed “That the members of the second branch of the legislature ought to be chosen by the individual legislatures, to be of the age of thirty years at least, to hold their offices for a term sufficient to insure their independence, namely, seven years,” &c. There is another provision in this resolution which shows an intention to make the senators equally independent of the several states and of the United States. It is that they are “to be ineligible to any office by a particular state—or under the authority of the United States—except those peculiarly belonging to the functions of the second branch, during the term of service, and under the national government for the space of one year after its expiration.”
Mr. Martin was a decided opponent to the adoption of the constitution; he was opposed to federal power—a friend of state power—and seeking every means by which he could restrain the first and strengthen and enlarge the latter. He especially feared the senate; but he never thought of this controlling right of instructions by which the states might direct the federal legislation at their will, and make their senators, in the language of Mr. Tyler, “mere automata to move only when they are bidden—and to sit in their places like statues, to record such edicts as may come to them.” Mr. Martin's objection to the construction of the second branch of the federal legislature is, that the senators are independent of the states appointing them. He objects that they are chosen for six years; that they are not paid by the respective states, but from the treasury of the United States; that they are not liable to be recalled during the period for which they are chosen. This very able and ingenious lawyer could not have made this objection if he had conceived the cunning device of making it the constitutional duty of a senator to resign his place at the will of the legislature of his state.—After stating these objections, Mr. Martin proceeds: “Thus, sir, for six years the senators are rendered totally and absolutely independent of their states, of whom they ought to be the representatives, without any bond or tie between them. During that time, they may join in measures ruinous and destructive to their states, even such as should totally annihilate the state governments; and their states cannot recall them, nor exercise any control over them.” Such was his understanding of the constitution, and of the rights of senators and state legislatures, under it. His objection was that they are not precisely what the advocates for instructions say they are. He saw nothing in the instrument that gives the state legislatures any right to instruct their senators, accompanied by a duty on the part of the senators to obey or resign. This is practically to give the legislatures a power to recall their senators, as instructions may always be given which must be disobeyed by an honest man.
On considering the question whether the second branch of the general legislature should or should not be appointed by the state legislatures, Mr. Wilson (the most democratic of all the members of the convention) said, “It is improper that the state legislatures should have the power contemplated to be given to them. A citizen of America may be considered in two points of view; as a citizen of the general government, and as a citizen of the particular state in which he may reside. We ought to consider in what character he acts, in forming a general government. I am both a citizen of Pennsylvania and of the United States; I must, therefore, lay aside my state connexions and act for the general good of the whole. We must forget our local habits and attachments. There ought to be a leading distinction between the one and the other; nor ought the general government to be comprised of an assemblage of different state governments.” Mr. Wilson was opposed to the election of the senators by the state legislatures.
Mr. Ellsworth was for the state legislatures. He thought the choice by them would be more judicious. “In the second branch we want wisdom and firmness, to check hasty and inconsiderate proceedings of the first branch.”
Gov. Randolph, speaking of the senate, says: “This body must act with firmness. The state governments will always attempt to counteract the general government.” His opinion, of course, was, that it was the duty of the senators to resist these attempts, to protect the general government against them, and not to yield to them as bound and bidden slaves, and abandon to their caprices and will the sacred trust reposed in them.
Mr. Madison says: “We are proceeding in the same manner that was done when the confederation was first formed. Its original draft was excellent, but in its progress and completion it became so insufficient as to give rise to the present convention. By the vote already taken, will not the temper of the state legislatures transfuse itself into the senate? Do we create a free government?” We see then that Mr. Madison was of opinion that the mere power of appointing the senators by the state legislatures, would give those legislatures so much influence in this branch of the federal legislature as to impair its necessary power and independence. He asks: “Do we create a free government?” What would he have said had he supposed that to this power of appointment, there was to be added as flowing from it, an imperative and constitutional right of instruction, under the penalty of a forfeiture of the place by disobedience?
At another period of the debate, on the constitution of the senate, Mr. Madison says: “That great powers are to be given, there is no doubt; and that these powers may be abused, is equally true. It is probable that members may lose their attachments to the states that sent them; yet the first branch will control them in many of these abuses. But we are forming a body on whose wisdom we mean to rely, and their permanency in office secures a proper field in which they may exert their firmness and knowledge. Democratic communities may be unsteady, and be led to action by the impulse of the moment.” After showing the dangers that may arise from popular bodies without some wholesome check and control of another body, he says: “The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability.”
On the debate on the question whether the senators should be paid from the national treasury or by the states, Mr. Wilson said: “The states may say, although I appoint you for six years, yet if you are against the state your table shall be unprovided. Is this the way you are to erect an independent government?” But the doctrine of instructions comes to the same end by a much shorter and more certain operation. Obey or resign. Men might be found who, to render a great service to their country, or from personal motives of inclination or ambition, would continue in their seats, although their compensation were withdrawn. But they have no such choice, when the action of the legislature comes upon them in the shape of instructions.
On the same question, Mr. Madison said: “I do assert that a national senate, elected and paid by the people, will have no more efficiency than congress; for the states will usurp the general government.”
In looking over this column of debates, I have made my selections as few and brief as possible. Not a syllable is found any where, or from any body, which hints at this right of instruction to senators, as a means by which the states may control or interfere with the constitutional action of the federal government, or add to their own power and influence. Every proceeding of the convention, every argument and word having any bearing upon the question, has a contrary tendency. The whole doctrine has been got up at a later date, to serve particular interests and purposes; and, unfortunately, is so palatable to state pride and state politicians, that it has found a reception too favorable for the safety of our government and the preservation of the Union.
I have not referred to the opinion of Mr. Burke, so often quoted, because I think the argument stands here on a different and a stronger ground. We have a number of sovereign states which have, by their own will, placed themselves under one government; and for this purpose, they have mutually agreed upon the extent and manner in which each shall have a participation in the government of the whole. No one has a right to control or interfere with the government of the whole to any further extent or in any other manner than those which have been thus agreed upon. They may elect their senators by their legislatures respectively; having done this, their power over that body is fulfilled. The senators of each become the senators of all, and the power of each over them is merged in the power of the whole for the period for which they are elected. The senators from Virginia are as independent of Virginia as those from Massachusetts. Any control over, or interference with them, except by their periodical election, would verify the prediction of Mr. Madison, that “states will usurp the general government,” and that “the greatest danger is from the encroachments of the states upon the general government.”
If you will now do me the favor to republish some observations I had printed in the “National Gazette,” on the perusal of Mr. Tyler's letter, by which he resigned his seat in the Senate of the United States, I shall have the satisfaction to see, in your valuable journal, all I have to say upon a question which, in my view, is of vital importance to the existence of our national government, and the continuance of this happy and prosperous Union.
[The following is the article alluded to.]
A man may pertinaciously assert an error in the face of truth and his own better judgment; but the moment he attempts to defend it, be assured that he will seldom fail to destroy the delusion by the very arguments he brings to support it. Like a brilliant bubble, the moment you would test it by the touch, it is gone. This truth is forcibly illustrated in the letter addressed by Mr. Tyler to the Legislature of Virginia, resigning his seat as a Senator of the United States. Let any one examine his reasons for refusing to obey the instructions of his legislature,—for refusing to do what they require of him, for he does refuse, and his reasons for it are absolutely unanswerable,—and then say whether the same reasons do not as decidedly prove that the legislature had no lawful right to give the instructions as that Mr. Tyler had the right to disobey them. There could not be a constitutional right to give an order, the obedience to which would be “to violate the Constitution.” This is a plain absurdity, and it is equally clear that if there was no right to give the order there could be no duty to obey it. Assuredly the pointed and pregnant question put by Mr. Tyler applies to the whole subject of instructions. He asks—“whether the representatives of a sovereign State are such mere automata, as to move only when they are bidden, and to sit in their places like statues to record such edicts as may come to them?” Mr. Tyler implies in his answer, that Senators are not such passive machines, and yet he consents to become one, in a modified way. On this particular case he says to the Legislature, “To obey your instructions would be to violate the Constitution of the United States.” One would suppose that this was a full and definite answer to the demand, and to the right to make it. Of course Mr. Tyler will not do the deed; he will not with his own hand strike the blow which is to wound the sacred body which his country had put under his protection. But does this fulfil his duty? does it discharge the obligations of his oath of office? That oath is not answered by merely abstaining from the wrong himself; it does not stop with this negative duty; he has sworn to support and defend it against violation and wrong from any quarter. Did he not desert this high and solemn duty when he abandoned his post in order that another might take it with the avowed design of violating the Constitution; for that such is the act to be done is the conscientious belief of Mr. Tyler himself. To resign, to surrender his power for such a purpose, is hardly an evasion of the high principles which Mr. Tyler assumes as his rule of duty; it is, in effect, to sacrifice them. Where is the difference between the sentinel who turns his own arms upon the citadel he was bound to defend, and one who gives up his trust to the enemy, that he may do the work of ruin which the conscience of the latter forbids. In my opinion, the very time and occasion where a Senator should not resign, are where his place is wanted for such a purpose. It is then peculiarly his duty to keep his post, because it is always his paramount duty, as a Senator of the United States, to protect the Constitution of the United States. May he put it at the mercy of a State Legislature, issuing, from year to year, or from month to month, its contradictory orders, as party or caprice may prevail? What is the Constitution, under such a dictation, but a fabric built upon the sand; a rag floating in the wind? It has neither permanency nor strength.
It is to be lamented that good and talented men, sometimes unadvisedly and without looking far enough to consequences, entangle themselves in theories, which afterwards embarrass and constrain them, in the sound and practical exercise of their understanding, and compel them to participate in acts condemned, at once, by their judgment and conscience. In such cases it is more honest, more safe and noble, to shake off the webs which their own ingenuity has wound around them, and give a free use and exercise to their better knowledge and true convictions. There is a sensible maxim in common life which is equally wise in public affairs—that “the shortest follies are the best.”
Mr. Tyler tells the Legislature that he would have complied with their wishes, if they had put them in another form; indeed it is only a change of form—he would have voted, at their bidding, to rescind or repeal the offensive resolution of the Senate. Why would he do so, unless he thought it ought to be rescinded or repealed? If he did not think so, he was as much bound by a conscientious performance of his duty to vote against the repeal as the expunging. If the latter be a stronger case, the principle is the same. But will he say, that in the one case he is called upon to violate the Constitution, in the other only to give up an opinion upon the conduct of the President? This is altogether an illusion; there is in truth no difference in the cases. In the one case he was of opinion that the President had transcended his constitutional powers; he is of the same opinion still, but his Legislature do not think so, and he yields his opinion to theirs, or rather he votes against his own opinion to give effect to theirs. In the other case he holds the opinion that to expunge a part of the records of the Senate is a violation of the Constitution, but his Legislature are of opinion that it is not so; it is a question of opinion between them, and nothing more. Why, then, should he not give up this opinion to their power or their judgment, as well as the other? Why must he not on this question surrender his judgment and conscience, and become the “mere automaton” of the majority of the members of the Virginia Assembly? He casts off and treads upon the robes of a Senator of the United States, to bind himself in a straight jacket, fashioned by heads and hands which would acknowledge no power but their own. There is no such thing as dividing or modifying this State claim to instruct the Senators of the United States. It is a full, perfect, and universal right, or it is no right. It binds every limb and muscle of the Senator, or none of them. If he may move a finger in opposition to it, his whole body is free. It is an absolute, despotic power in all cases, or it must be reduced to that voluntary respect and serious consideration which a wise representative will always give to the opinions and wishes of those from whom he derives his office. There will always be subserviency enough; the danger is from too much.
I do not see where Mr. Tyler gets his alternative to obey or resign. This is not his instruction, it is “not so nominated in the bond.” He is ordered to vote, to act—not to fly the field. If the command is lawful, he should obey the mandate of his “approved good masters,” as they have issued it. He might equally disappoint their object by leaving his seat, as by voting in opposition to their wishes. How impossible it is to be consistent in the pursuit of a false principle. When a man splits a hair to get a principle or rule of action, he must go on splitting hairs to modify or get rid of it.
I have said that I cannot see the distinction taken by Mr. Tyler between a vote to rescind the resolution and one to expunge it. It cannot be replied, that a Senator may properly give up his opinion concerning a matter comparatively insignificant, but should refuse such a compliance on a question of more importance. If the argument be good it cannot help the present case; there is no such difference between the question to rescind and expunge; both refer to constitutional rights and powers, and there is the same obligation on a Senator to give up or not to give his opinion in both cases. They are of equal dignity, but in importance, as to consequences, the advantage is infinitely on the side of the vote to rescind. What is to be rescinded? A resolution of the Senate on the subject of the power of the President over the treasury and revenue of the United States. Can any question under the Constitution arise of more vital importance to the liberties and rights of the people? The other vote relates only to the power of the Senate over its own records. Both are to be decided by the Constitution, and the decision, in the one way or the other, gives an authoritative construction to that instrument, and becomes, while admitted, a part of it. This resolution has declared,—whether right or wrong, is of no importance to our present question—that the Constitution does not vest in the President of the United States the power that he has assumed over the treasure of the United States. This solemn declaration Mr. Tyler is willing to rescind, to take back, to disaffirm, although he believes that the resolution does express the true sense of the Constitution. Had his legislature only required this sacrifice of him, he would have made it, thus indirectly affirming a most dangerous power in the executive, to which Mr. Tyler thinks he is not entitled. He would ratify an usurpation of this alarming magnitude. But this was not enough to satisfy his hard masters; he must not only do the deed of rescision, but he must do it in the manner and form prescribed to him; he must expunge the offensive resolution from the journal of the Senate. Here he takes his stand; he will not do it, and shows by an unanswerable argument that he cannot honestly do it, because it is a violation of the Constitution. Now, was not the act of the President upon the treasury also, in his opinion, a violation of the same Constitution, and yet this opinion he was willing to surrender to his constituents, and record a vote on the same journal, affirming so far as his vote could do it, this violation of the Constitution. I confess there is a perplexity in these political metaphysics which surpasses my understanding, and confounds my notions of right and wrong. Here, then, we have a gentleman of fine talents, a lawyer and a statesman of great experience and eminence, who has often received and well deserved the respect and confidence of his fellow-citizens, brought into a labyrinth of doubt and obscurity; entangled by errors and contradictions, merely by setting out on a false principle. How plain and satisfactory is the duty of a Senator who will steadily and fearlessly say, I am not “an automaton to move only when I am bidden; a statue to record the edicts that may come to me”—I am a Senator of the United States—I am bound by the most sacred obligations to my country and my God, to discharge this high trust with fidelity, firmness and truth, according to my best judgment, and the calm convictions of my conscience. I am bound to support, defend, protect the Constitution of the United States, whose officer I am, as I honestly and truly understand it—this is my first law. And it is my duty to pay a most considerate and respectful attention to the wishes and interests of my immediate constituents—this is my second law.
Contrast this plain, intelligible course, which requires no uncommon sagacity to discover it, no deep casuistry to explain it; which demands no prostration of personal character and independence, and is followed by no misgiving or remorse—with the incomprehensible, tortuous, humiliating doctrines of the school of instructions, as to which the most devoted professors do not agree, and which a novitiate, however docile, cannot comprehend. Let us try him. He would first inquire—am I bound to obey my orders strictly and implicitly to the letter, or is there some alternative left me? must I give the vote required, or may I in any way avoid it? He will be answered, in some cases—You must stand your ground and give your vote as directed; for instance, if you are called upon to rescind and repeal a recorded resolution of the Senate, in which you did or did not concur, you must record your vote for such repeal in the same journal which testifies your approval of it, but if you are instructed to come at this conclusion in another form, that is, by expunging it from the page on which it is written, then you are not bound to a strict obedience, but may make your bow, beg to be excused, raise a high question of honor and conscience about it, and go about your business. So far the scholar might understand that he must always either obey or resign, although it may puzzle him to know how to make the choice. He is, however, altogether mistaken in believing that he has got even this uncertain rule for a guide. He asks another learned Doctor in this science—Must I, in every case, either obey or resign? By no means, is the reply. There are cases in which you may do neither, such as an order to expunge the record of some act or opinion of the Senate; this is not a law, and you may do as you please with it. [See Mr. Leigh's Letter.] The anxious scholar proceeds to inquire, by what rule or sign can I distinguish and decide between these close cases; how may I know when I may act and think for myself, without infringing the sacred right of instruction? Truly there is no defined line or settled rule; it must depend upon the nature of the question and the circumstances of the case, which are very numerous and complicated, and sometimes require half a dozen columns of a newspaper to elucidate and apply them. [See the same letter.] The simple novitiate observes, this then is very like leaving the whole matter to myself after all. He is bewildered and lost in this maze of inexplicable rules and exceptions, principles and qualifying circumstances. Should he pass by these difficulties, he has others scarcely less formidable to encounter. He understands that he must obey the instructions of the Legislature of his State, because he is their agent or representative. What Legislature is he to obey? Not that only which de facto appointed him. But is this allegiance due to the Legislature of the last year or of this year? Certainly, he is told, the latter. But why so? They are equal and contrary weights; they act in opposition upon the same subject, with the same lights and by the same authority. Why not wait for another to decide between them? Why should he not, especially in Virginia, play for the rubber—take his chance for the third heat? There may be another change in the fortune of parties—another will of the State Legislature, to which he may run counter by a hasty submission. Again—must this State agent, miscalled a Senator of the United States, take the vote of the Legislature to be the will of the people, without regard to the state of the vote? may he inquire how the vote was constituted, how it was obtained—by what influence, misrepresentation or mistake? Suppose he should find that his orders came from a majority of the members present, but not a majority of the house, and he should know that the absent members would have turned the vote—may he refuse his obedience to what is, legally speaking, the act and will of the Legislature? If he should obey or resign, and then, in a full house, his instructions are revoked, what is his situation? He has perhaps inflicted a serious wound upon the Constitution of his country, which he cannot heal.
I will present one other difficulty which might distress the unlearned. A Senator may be presumed to know the members of his State Legislature—their general standing and character. He receives instructions passed by a majority of six or eight, on a vote of one or two hundred. He looks at the roll of yeas and nays. He finds in the majority a great proportion of men he knows to be of little knowledge, of strong passions and prejudices, with a servile adherence to party purposes; men, even if honest, on whose judgment he would not place the least reliance in the most common business—whose opinion he would not regard in any concern of his own of the value of a dollar. On the other side, he finds the names of men long distinguished for their learning and experience, of unsuspected integrity, dispassionate in judgment, and pure in their patriotism and purposes;—men to whom all the country has looked for years, with confidence and veneration. In a word, he sees the name of James Madison on the one hand, opposed by that of some violent, ignorant, interested demagogue on the other. Is he to shut his eyes and his understanding to such a state of things, and surrender his duty, his honor, and his conscience, to the dictation of ignorance, passion and prejudice, and turn a deaf ear to the voice of knowledge, virtue, and patriotism? Is he to decide a vital constitutional question by the will of such masters, who would not hold themselves bound by their vote? Mr. Tyler assures us that some of the voters for his last instructions were among those who but the year before gave him contrary orders on the same subject. Such an obedience is to make himself something worse than an automaton—it is to be an active, efficient, self-condemned agent in the consummation of designs he knows to be morally wrong, and deeply injurious to his country, to the whole people he has sworn to defend and protect, by the preservation, inviolate, of the great charter of their rights and liberties. This Mr. Tyler would not, could not do; it would be to contradict and disparage the whole course of an honorable and useful life. He has spurned such degradation. But I lament that he did not do more than this—that he could find an alternative in abandoning his post to the enemy.
I have alluded to Mr. Leigh's letter, but should be tedious were I now to make it a subject of particular comment, but cannot refrain from remarking that these gentlemen (Messrs. Tyler and Leigh) both professing to maintain the true and orthodox doctrines of “Instruction,” and exerting their powerful and cultivated intellects to explain them through many a labored column, at last bring themselves to opposite conclusions on the same case. Is it possible to give a more impressive illustration and evidence of the fallacy of the whole faith than that two such men, both indoctrinated in the same school, should, when brought to the practical application of their principles, so differ about their import and obligation?
This is a subject of vast and growing magnitude. In my judgment, it is of vital importance to the Constitution of the United States, which will be essentially if not fatally changed, if its powers and operations are to be in this way under the dictation and control of State Legislatures. It will no longer be a Government of the United States. The Senate and House of Representatives will be but the agents of the State Legislatures, “to move only when they are bidden, and to record such edicts as may come to them.”
In “Dodsley's Collection” is an old play called “Eastward Hoe!” It was written by Ben Jonson, and published in 1605 by George Chapman and John Marston. This probably suggested to our Paulding the title of his “Westward Ho!”