3 See fifteenth article of Virginia bill of rights, passed unanimously in the Virginia convention, June 12th, 1776, in these words. “XV. That the people have a right peaceably to assemble together, to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition, or apply to the legislature for redress of grievances.”
In Virginia convention on the federal constitution, Friday, 27th June, 1788, Mr. Wythe, from the committee on amendments, reported the Virginia bill of rights, with this preamble, “That there be a bill of rights asserting and securing from encroachment the essential and unalienable rights of the people, in some such manner as the following.” (Here follows the bill, including the fifteenth article.) The same clause, with others, was carried in the North Carolina convention, by a vote of 184 to 84, the minority objecting to other clauses. This proves that the right was known and valued, as a natural and unalienable right of the people, and of course the states when constituents, and considered a different thing from consultation, petition, advice or remonstrance. Every freeman may petition or remonstrate, but the people must instruct.
JUDGE HOPKINSON “has not referred to the opinions of MR. BURKE, because the argument stands here on a different and stronger ground.” Yes, stronger—on our side. First, because states are represented as such, in their sovereign capacity; and apart from general representative principles, their ambassadorial character requires obedience. Secondly, because small districts elect for vast regions in England, and here power is equally distributed, for the avowed purpose of equal representation and protection. And thirdly, because in England a member of the House of Commons has no constitutional right of resignation; it is prohibited; and by our rule, he must there obey in all cases.
As to the first, even Blackstone admits that members of Parliament ought to obey if they represented separate communities, and did not serve for the whole realm. He says, “every member is chosen for the whole, and hence is not bound, like a deputy in the United Provinces, to consult his particular constituents.” But here they are elected for states, by analogy to the old congress and the diet of the United Provinces.4 MR. HAMILTON says in the Federalist, (No. 9,) “The proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves to their possession certain exclusive and very important portions of sovereign power.” MR. MADISON says, in No. 45, “The state governments may be regarded as constituent and essential parts of the federal government.” MR. LANSING, who had been a member of the federal convention, said in the New York convention, “I believe it was undoubtedly the intention of the framers of this constitution to make the lower house the proper, peculiar representative of the interests of the people—the senate of the sovereignty of the states.” For this reason he wished a power of recall to make them more dependent upon their states, “of whose independence it was designed by the plan that they should be the bulwark, and check to the encroachments of the general government.” MR. SMITH, in the same convention, was also very apprehensive of senatorial disobedience, and advocated Mr. Lansing's amendment. He says, “with respect to the second part of the amendment, I would observe, that as the senators are the representatives of the state legislatures, it is reasonable and proper that they should be under their control. When a state sends an agent commissioned to transact any business, or perform any service, it certainly ought to have a power to recall him.” I presume this authority, with that in a previous note, will sufficiently establish this point.
4 “In Switzerland and Holland the different parties (states) send deputies, commissioned and instructed by themselves, who debate, but have no other power than what is conferred only by the people, or may be subsequently given.” (Harrington, Oceana, 51.) This bears a close resemblance to the powers of the old congress.
II. As to the second reason, it received sufficient consideration in my former number.5
5 Judge Hopkinson is against all instructions, but thinks his reasoning stronger in the case of senators, because the right is not reserved. I am for all instructions, and especially those to senators, because of their character as ambassadors, representing sovereignty, and because it is a reserved state right, secured by our international compact, in which all is reserved which is not given, and in which a representation of sovereignties, as such, was insisted upon and yielded. But even as to popular instructions, the case is much stronger here than in England, for reasons intimated in my last. Lee us see how it has stood there, long before the reform bill, and long before the American revolution brought up all the questions of representation and taxation for discussion and decision. In the most ancient times, when the connection between vassal and lord was very close, and the vassal had little to which the lord could not lay claim, the commons were considered as represented in the commune concilium, by the lords and great barons under whom they held; but the king's tenants in capite, holding immediately from the crown, could not be considered, by the most liberal construction, as thus represented, and they were therefore admitted into parliament, in propria persona, in their own right. When these became too numerous thus to be admitted, they of their own accord, to avoid inconvenience, appeared by proxy. As the towns, cities, and boroughs began to receive incorporations, to grow in importance and wealth, especially personal property, an aliquot part of which was always granted, they too being unrepresented by the lords, were required to send proxies; and it was subsequently extended to knights for the shires, as the feudal fetters wore away. These proxies had no power but that conferred by their constituents. (See Pettyt's Antient Right of the Commons of England, p. 14; 1 Gordon's History of Parliament, 215)—(Lex Parliamentaria, 113 and 117.) “And Note, If any new project was proposed in Parliament for raising subsidies or supplies, the commons usually replied thereto that they were not instructed by their principals in that matter, or that they durst not consent to such tax, &c. without conference with their countries.” “And Note, Blackstone (Book I, 168) says, a member of the house of commons cannot vote by proxy, because ‘he is himself but a proxy of a multitude of other people.’” Representation in the Parliament of Scotland went through a similar process. (See Lord Somers' Tracts, vol. 12, p. 610.) In the seventh parliament of the reign of James the First of Scotland, (1427) “the small barons were allowed to send commissioners, and were charged with the fees of their deputies,” and this was the first instance of elective members to the Scottish parliament.
In Burgh's Political Disquisitions, (London, 1774) the American doctrine in its most rigorous extent is found applied in full vigor to members of parliament, and sustained by an abundant series of precedents from the earliest times, and quotations of the strongest language from members of Parliament in sustaining the duty of obedience, and the advice and opinions of the best English authors, to the same purport. (See vol. I, from p. 180 to 205—many instances of instruction and obedience against the sentiments of the representative, a few of which are in Mr. Leigh's report of 1812.)
In the Irish parliament, which met in November 1767, there was scarcely a town or county which had not instructed its representative to vote in favor of a limitation of their parliaments to seven years; and so eager were they, that all required the most positive assurances, and some even exacted an oath from their members to vote for the bill. The bill was passed, and its subsequent history affords a curious instance of legislative cunning and popular firmness. (See London Magazine, 1768, p. 131.)
In the session of 1733-4, (An. 7, Geo. II) Sir William Wyndham, in the house of commons, in a speech on Mr. Bromley's motion for repealing the septennial act, said of an opinion of Mr. Willes, (afterwards chief justice) of a character very similar to that advanced by Judge Hopkinson, (to wit: “After we are chosen, and have taken our seats in this house, we have no longer any dependance upon our electors, at least so far as regards our behavior here; their whole power is then devolved upon us, and we are in every question to regard only the public good in general, and to determine according to our own judgment. If we do not—if we are to depend upon our representatives, and to follow blindly the instructions they send us, we cannot be said to act freely, nor can such parliaments be called free parliaments. Such a dependance would be more dangerous than a dependance upon the crown”)—that it was “not only a new doctrine, but it was the most monstrous, the most slavish doctrine that ever was heard, and such a doctrine as he hoped no man would ever dare to support within those walls. He was persuaded that the learned gentleman did not mean what the words he happened to use seemed to import—for though the people of a county, city or borough may be misled, and may be induced to give instructions which are contrary to the true interest of their country, yet he hoped he would allow that in times past the crown has oftener been misled; and we must conclude that it was more apt to be misled in future, than we can suppose the people to be.” (See Com. Debates VIII, pp. 172, 188. The whole debate might be read with advantage by many modern republicans.) Here, whatever right the crown had to control parliament, is vested in the legislatures as to senators, and the people as to legislatures, as they are sovereigns; hence, whether whig or tory rule prevails, we ought to have the right of instruction.