T. W. WHITE, PROPRIETOR. FIVE DOLLARS PER ANNUM.
RIGHT OF INSTRUCTION1
1 Some months ago a number of the “Richmond Enquirer,” containing an argument in favor of the mandatory right of a State Legislature to instruct a Senator of the United States, was forwarded to the author of this article. That argument was supported by the alleged opinions of Messrs. King, Jay and Hamilton, as expressed in the Convention of New York—and we think this reply well deserves publication. It is from the pen of a ripe scholar and a profound jurist.
The receipt of your letter afforded me much pleasure, not only on account of the interesting subject it treats of, but as a gratifying evidence of your remembrance of me. I fear, however, that you will have reason to repent of your kindness, as I shall presume upon it to task your patience with some observations in defence of my old federal notions upon your doctrine of instructions. I will endeavor to show that the extracts made in the Enquirer from the speeches of Messrs. King, Jay and Hamilton, in the New York Convention, do not sustain (even if we are to take the report of them to be verbally correct) the doctrine or right as it is contended for in Virginia. I understand that doctrine to be, that the instructions of a State Legislature to a Senator of the United States, are an authoritative, constitutional, lawful command, which he is bound implicitly to obey, and which he cannot disobey without a violation of his official duty as a Senator, imposing upon him the obligation to resign his place if he cannot, or will not, conform to the will of his Legislature. I confess that this doctrine appears to me to be absolutely incompatible with the cardinal principles of our Constitution, as a representative government; to break up the foundations which were intended to give it strength and stability, and to impart to it a consistent, uniform and harmonious action; and, virtually, to bring us back to a simple, turbulent democracy, the worst of all governments—or rather, no government at all. I do not mean to enter upon the broad ground of argument of this question, with which you are so well acquainted, but to examine, as briefly as I can, but probably not so much so as your patience would require, the federal authorities which the writer in the Enquirer believes he has brought to the support of his opinions.
I cannot put out of the discussion, although I will not insist upon, the objection to the authority of the reports of the speeches alluded to, especially when it turns upon a question of extreme accuracy in the use of certain precise words and phrases, any departure from which would materially affect the sense of the speaker. We see daily in the reports of congressional debates, the most important mistakes or misrepresentations, unintentionally made, not of expressions merely, but of the very substance and meaning of the speakers; sometimes reporting the very reverse of what they actually said. I have occasion to know the carelessness with which these reports are frequently made, and, indeed, the impossibility of making them with accuracy. What a man writes he must abide by, in its fair and legitimate meaning; but what another writes for him, however honest in the intention, cannot be so strictly imputed to him. There is also an objection to extracts, even truly recited, inasmuch as they are often qualified or modified by other parts of the writing or speech. As I have not, immediately at hand, the debates of the New York Convention, I am unable, just now, to see how far this may have been the case in the speeches from which the quotations are made. I must, therefore, at present, be content to take them as they are given in the Enquirer, and even then it appears to me that they are far from covering the Virginia doctrine of instructions. Let us see. Mr. King is represented to have said, that “the Senators will have a powerful check in those who wish for their seats.” This is most true—and in fact it is to this struggle for place that we owe much of the zeal for doctrines calculated to create vacancies. Mr. King proceeds—“And the State Legislatures, if they find their delegates erring, can and will instruct them. Will this be no check?” The two checks proposed, in the same sentence and put upon the same footing, are the vigilance of those who want the places of the Senators, and the instructions which the State Legislatures can and will give to them. They are said to be, as they truly are, powerful checks, operating with a strong influence on the will and discretion of the Senator, but not as subjecting him, as a matter of duty, either to the reproaches of his rivals or the opinions of the Legislature. To do this, a check must be something more than powerful; it must be irresistible, or, at least, attended by some means of carrying it out to submission—some penalty or remedy for disobedience. I consider the term instruct, as here used, to mean no more than counsel, advise, recommend—because Mr. King does not intimate that any right or power is vested in the Legislature to compel obedience to their instructions, or to punish a refractory Senator as an official delinquent. It is left to his option to obey or not, which is altogether inconsistent with every idea of a right to command. Such a right is at once met and nullified by a right to refuse. They are equal and contrary rights. As we are upon a question of verbal criticism, and it is so treated in the Enquirer, we may look for information to our dictionaries. To instruct, in its primitive or most appropriate meaning, is simply to teach—and instruction is the act of teaching, or information. It is true that Johnson gives, as a more remote meaning, “to inform authoritatively.” Certainly, the Legislature may instruct, may teach, may inform a Senator, and whenever they do so it will be with no small degree of authority from the relation in which they stand to each other; but the great question is, not whether this would be an impertinent or improper interference on the part of the Legislature, but whether the Senator is bound, by his official oath or duty, implicitly to obey such instructions; whether he violates a duty he ought to observe, or usurps a power which does not belong to him, if he declines to submit to these directions, if he cannot receive the lesson thus taught, or adopt the information thus imparted to him. Does the spirit of our Constitution (for clearly in terms it does not) intend to make a Senator of the United States a mere passive instrument or agent in the hands of a State Legislature. Is he required by any legal or moral duty or obligation, to surrender into the hands of any man or body of men, his honest judgment and conscientious convictions of right? To act on their dictation and his own responsibility; responsible to his country for the consequences of his vote, and to his own conscience and his God for the disregard of his oath of office, which bound him to support that Constitution which his instructions may call upon him to violate, as he conscientiously believes. It will be a miserable apology for him to say, that he has done this because he was so ordered by a body of men, who may have thought or cared very little about it, and may hold a different opinion the next year without remorse or responsibility. But if he cannot obey, must he save his conscience by resigning his seat? This is the most unsound and untenable of all the grounds assumed in this discussion. If it is the official duty of the Senator to do and perform the will of his constituents, or rather of those who gave him his office, then he violates or evades that duty by resigning; and he may, in this way, not only abandon his duty, but as effectually defeat the will and intention of his Legislature as by actually voting against it. To return to Mr. King—how does he propose or expect that this check of legislative instructions is to act upon the Senator? What is the nature of the obligation he considers to rest upon the Senator to obey them? He does not pretend that there is any power in the Legislature to enforce their instructions or cause them to be respected. He does not suggest that disobedience is a violation of duty on the part of the Senator, or the assumption of any right that does not practically and constitutionally belong to him; that he falls under any just odium or reproach, if after an honest and respectful consideration of the instructions, he shall believe it to be his duty to disregard them. Mr. King does not, by the most remote implication, intimate, that a State Legislature may, through the medium of instructions, directly or indirectly, put a limitation on the term of service of a Senator, which they will do if it is his duty to resign whenever they shall choose to require of him to do what, as an honest man, a good citizen, and faithful officer, he cannot do. If instructions have the authority contended for, there is no exception; it is a perfect right or it is no right. The Senator cannot withdraw himself from it, however imperious the requisition may be, or however iniquitous the design in making it. The Senator has a discretion to judge of it in all cases or in no case. He may take counsel of his own conscience and judgment in every call upon him—or in none. The check that Mr. King promises from the State Legislatures upon their Senators, is nothing more than the natural influence they will have upon the minds and conduct of the Senators, and this, in my apprehension, is more likely to be too much than too little. What does Mr. K. say will be the consequence of a refusal on the part of a Senator to obey? Not that he is corrupt—or unfaithful—or ought to resign—but simply that they will be “hardy men.” Assuredly they will be so; I wish we had more of these hardy men, for certainly there are occasions on which public men, holding the destinies of their country in their hands, ought to be hardy, and must be so in opposition to the apparent and immediate, but transient, will of the people; and it is such hardy men who have deserved and received the gratitude and thanks of the people they saved by opposing them. The brightest names on the pages of history are those of such hardy men. The same answer meets the commentary on the word “dictating”—used, or said to be used, by Mr. King.
I would here make a remark upon this report of Mr. King's speech, which shows how carelessly the report was made, or how loose Mr. King was in his choice of words. In the beginning of the passage quoted, he refers to the State Legislatures, as the bodies who are to check, by their instructions, the wanderings of the Senators. In the conclusion he is made to say—“When they (the Senators) hear the voice of the people dictating to them their duty,” &c. Now, it can hardly be pretended that the Legislature and the people are identically the same; or that a vote of the Legislature by a majority of one—or by any majority, can always be said to be the voice of the people. It is as probable that they may misrepresent the people, as that the Senators should misrepresent them. It is not uncommon for the people to repudiate the acts of their Legislature. It was understood to be so in Virginia, on the late question on the conduct of her Senators. The solemn and deliberate opinion upon any subject, of the body from which an officer derives his appointment, will always be received with great respect, as coming from a high source and with much authority, but the Senator, acting on the responsibility he owes to the whole country, must take into his view of the case the effect of his instructions upon the whole; he must not shut his eyes from examining the occasion which produced the instructions—the circumstances attending them—the means by which they were obtained—the errors, or passions, or prejudices which may have influenced and deceived those who voted for them; in short, he must carefully and conscientiously examine the whole ground, and finally decide for himself on the double responsibility he owes to his own State and to the United States; to those who appointed him to office and to himself, and his own character. There is no doubt that this examination will be made with a disposition sufficiently inclined to conform himself to the wishes of his constituents.
Mr. Jay expressed himself with more discrimination and caution than Mr. King; and no inference can be drawn from what he says, that there is any right or power in a State Legislature to demand obedience or resignation from a Senator, to their instructions. He considers their instructions to be, what in truth and practice they have always been, nothing more than advice or information coming from a high source and entitled to great respect. He says, “the Senate is to be composed of men appointed by the State Legislatures. They will certainly choose those who are most distinguished for their general knowledge. I presume they will also instruct them.”