The southern literary messenger, Vol. II., No. 7, June, 1836

MESSENGER, VOL. II., NO. 7, JUNE, 1836 ***

THE SOUTHERN LITERARY MESSENGER:

DEVOTED TO EVERY DEPARTMENT OF LITERATURE AND THE FINE ARTS.

Au gré de nos desirs bien plus qu'au gré des vents. _Crebillon's Electre_.

As _we_ will, and not as the winds will.

RICHMOND: T. W. WHITE, PUBLISHER AND PROPRIETOR. 1835-6.

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SOUTHERN LITERARY MESSENGER.

VOL. II. RICHMOND, JUNE, 1836. NO. VII.

T. W. WHITE, PROPRIETOR. FIVE DOLLARS PER ANNUM.

RIGHT OF INSTRUCTION[1]

[Footnote 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 {406} 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.”

In these reported debates, _Hamilton_ is represented to have said—that “it would be a _standing instruction_ of the larger States to increase the representation.” Observe, this is not applied to the _Senators_ only, but to the delegates or representatives of the States in {407} Congress, in both Houses, and has no reference to any right of instruction by the State Legislatures to their Senators; _that_ was not the subject of the debate; nor is it intimated _by whom_ or in what manner these standing instructions are to be given. The meaning of General Hamilton, I think, is obvious, and has no bearing on our question. The phrase, _standing instruction_, means that it is so clearly the interest of the larger States to increase their representation, that their delegates will always consider themselves to be bound, to be _instructed_ by that _interest_, by their duty to their States, to vote for such increase. They will so _stand instructed_, at all times and without any particular direction from their States; they will always take it for granted, that it is their duty to increase the representation. The very phrase distinguishes it from the case of _specific instructions_ made, from time to time, on particular measures as they shall arise for deliberation and decision in the national legislature. But General Hamilton, as quoted, proceeds to say—“The _people_ have it in their power to _instruct_ their representatives, and the State Legislatures which appoint their Senators may enjoin _it_ (that is the increase of the representation) also upon them.” I may here repeat that all this is true; but by no means reaches the point to which this right of instruction is now carried. The people may instruct, and the legislatures may enjoin, and both will always, doubtless, be attended to with a deep respect and a powerful influence; but if with all this respect and under this influence, the representative or the Senator cannot, in his honest and conscientious judgment, submit himself to them, does he violate his official duty, and is he bound to relinquish his office? This is the question, and no affirmative answer to it, or any thing that implies it, can be found in any of the writings or speeches of the gentleman alluded to; nor, as I believe, in any of the writings or speeches of any of the distinguished men at that time. The doctrine is of a later date; it is not coeval with the Constitution, nor with the men who formed it. Much reliance is placed, by the writer in the Enquirer, on the strict meaning of the word _enjoin_; it is thought to be peculiarly imperative. Conceding, for the argument, that this precise word was really used by the speaker, it is certain that in speaking, and even in writing, this word is not always used in the strict sense attributed to it. Cases of common parlance are familiar and of daily occurrence, in which it is used only to mean a strong, emphatic recommendation or advice—or a forcible expression of a wish, and not an absolute right to command. If, however, we turn to the dictionary, Johnson tells us that to enjoin is “to direct—to order—to prescribe; it is more authoritative than direct, and _less imperious than command_.” Not one of his illustrations or examples employ it in the strong sense of power now contended for.

“To satisfy the good old man, I would bend under any heavy weight That he'll _enjoin_ me to.”

Here the submission or obedience is altogether voluntary; with no right or power in the “good old man” to require or compel it. Again,

“Monks and philosophers, and such as do continually _enjoin_ themselves.”

The extracts from the speeches in the New York Convention, even if accurately reported, and strictly construed, do not seem to me to maintain the present Virginia doctrine of instructions. Allow me to repeat it, for it is _that_, and not something which may approach it, which is our subject of difference and argument. It is—whether a Senator of the United States is under any moral or constitutional obligation—whether he is bound as a faithful and true officer, or as a good citizen of the _Republic of the United States_, to obey the instructions of the Legislature of _his State_, when they require him to do an act which in his deliberate judgment and conscientious conviction, is contrary to his duty to his country, to all the States, and to _his own State_; to the Constitution, under and by which he holds his office and his power, and to the oath he has taken to support that Constitution? This is the question truly stated—can the power or authority of a changing, irresponsible body, which directs one thing this year (as we have repeatedly seen) and another the next, or, if it were not this changeling—force him to violate his oath, or absolve him from the responsibility, if he do so? If a Senator of Virginia or Delaware were to receive instructions to give a vote which he truly believed would be a violation of the rights, and injurious to the interests, of every other state of the confederacy, as secured to them by the Constitution, although it might be of some local advantage to Virginia or Delaware, should that Senator, acting as he does as a Senator, not for his particular State only, but for the States also whose rights he violates, obey such instructions? Can there be a doubt of the reply to this question? Will you say he should obey or resign—that another may come who will obey? I deny that his duty imposes any such alternative upon him. On the contrary, it is particularly his duty _not to resign_ for such a reason or such an object. It would be to abandon the duty he owes to the Constitution and the other States, at the very moment when they need his services in their defence; and not only to abandon them, but to surrender his post and his power to one who, in his estimation, is so far their enemy as to take the post for the very purpose of violating them. It would be to desert “the general welfare” which he has sworn to defend and promote, in order to give his place and power to one who will sacrifice the general welfare to some local and particular interest or object. To desert it in such circumstances, may produce the same evils and consequences, as if he were to remain and obey his instructions. His vote or his absence may turn the question.