_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, {531} 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 {532} 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 {533} 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
{534} 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; {535} 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!_”