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?