Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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INSTRUCTIONS

II.188.1

INSTRUCTIONS. This word, in politics, refers to the right in a government or in any portion of the people to direct or control the conduct of its or their agents, delegates or representatives. The existence of the right is determined by the nature of the agency or trust, and no more general rule can be laid down than this, that in all cases where the relations between the parties are essentially those of principal and agent a right to prescribe what the agent may or may not do is unquestioned, and that in the case of other relations, such as those arising from a trust, the right is uncertain. A distinction may be made between cases in which instructions are given to a person who is merely delegated to express in any assembly, such as a nominating convention, the predetermined wishes of his principals, in which case the instructions when given by the actual principals are properly controlling, and other cases in which the right of instruction is asserted over persons sent to a deliberative body, as a legislature, in which case they are not, since a legislator is not an agent, but a representative. But no invariable rule can be laid down in any case. In the diplomatic service instructions are specific and obligatory, but our diplomatic officers are strictly agents. The United States has never sent out a diplomatic officer with the representative character of an ambassador; our highest officers have been envoys, with full power for particular purposes, and their instructions have become more specific as the means of communication between states have been facilitated, and as the necessity of depending upon their discretion has thereby been lessened. In the last century a much wider latitude was allowed to all diplomatic officers than now, and their instructions were then more general, although defining their limits and manner of negotiations. The first of our own diplomatic officers, Commissioners Adams, Jay, Laurens and Franklin, accompanied the preliminary articles of peace transmitted to congress in 1783, some of which they had signed, without, as they had been directed to do, communicating them to the French government through Count Vergennes, with excuses for having "so far deviated from the spirit of our instructions"; and their disobedience seems to have been very kindly acquiesced in. At a much later day, however, the deviation from instructions was the reason alleged by the administration at Washington for the recall of Mr. Motley from his post as minister to England, although so far as can be ascertained from the publications relating to this particular case, Mr. Motley's deviations from the instructions of the state department were scarcely perceptible.

II.188.2

—The instruction of members of constitutional conventions has been claimed as a right, but principally through the limitations of the powers of the convention by the legislature which called the convention. Thus, it seems to be decided that a legislature may call a convention to amend certain articles of the constitution, and the convention so called can not propose amendments to other parts of the constitution not specified. (Mass. Sup Ct., 6 Cushing. 573; N. C. Convention, 1835.) In the Ohio constitutional convention of 1850 there was also some attempt to instruct delegates by the constituencies, and one delegate, who had been called upon to adhere to the instructions given him "strictly, or to resign," chose the latter course, without, however, expressly admitting the validity of such instructions. A conspicuous instance of the disobedience of all such instructions is afforded by the federal convention of 1787. All of the delegates to that convention, excepting those from New Jersey, were by their credentials restricted to the task of revising and amending the articles of confederation, and all of them disregarded that limitation on the plea of necessity.

II.188.3

—The right to give instructions is of importance in connection with legislative bodies, and with nominating conventions. Blackstone says, that in the British parliament "every member, though chosen by one particular district, when elected and returned, serves for the whole realm, for the end of his coming thither is not particular, but general, * * and therefore he is not bound, like a deputy in the United Provinces, to consult with or take the advice of his constituents upon any particular point, unless he himself thinks it proper or prudent to do so." This principle was first asserted in parliament as early as 1571. It is admirably emphasized by Burke in defining the true relations of a legislator to his constituents, in the speech made by him to the Bristol electors after he had voted to extend the privileges of the Irish trade in opposition to their express instructions. In the United States the same theory of the general character of the duties of the members in both the upper and the lower chambers of a legislature has finally prevailed, although the history of the subject shows some wavering and a distinct tendency in one party toward the narrower view. During the debate on the first proposed amendment to the constitution in the house of representatives, in August, 1879, it was moved by Mr. Tucker, of South Carolina, to add to the clause which prohibits congress from making laws abridging various specified rights, these words, "to instruct their representatives." The proposition was vigorously supported by Elbridge Gerry, who said: "I presume that the gentlemen of this house do not mean to arrogate to themselves more perfection than human nature has as yet been found capable of; if they do not, they will admit an additional check against abuses, which this, like every other government, is subject to. Instruction from the people will furnish this in a considerable degree. * * * Now although I do not believe the amendment would bind the representatives to obey the instructions, yet I think the people have a right both to instruct and bind them." The motion was opposed by Madison, Fisher Ames and Roger Sherman, the latter saying: "It appears to me that the words are calculated to mislead the people by conveying an idea that they have a right to control the debates of the legislature. This can not be admitted to be just, because it would destroy the object of their meeting. I think when the people have chosen a representative it is his duty to meet others from different parts of the Union, and consult and agree with them to such acts as are for the general benefit of the whole community. If they are to be guided by instructions there would be no use in deliberation; all that a man would have to do would be to produce his instructions and lay them on the table and let them speak for him." The amendment was lost by a vote of 10 to 41. The feeling, however, was still very general that the people had some power of instructing their representatives, and of course that disobedience to such instructions entailed some penalty, though no attempt was ever made to specify what it was, John Adams, for instance, says ("Works," vol. x., p. 605), "The right of the people to instruct their representatives is very dear to them and will never be disputed by me." Judge Tucker, speaking of the embodiment of a constituency in its representative, and its consequent right to instruct him, says (1 Black, 193 n ), "However inadmissible this doctrine may be in Great Britain, it seems perfectly adapted to the principle of our government." This feeling found expression in the constitutions of several of the states, in provisions that the people have the right to petition, etc., and "to instruct their representatives." This is found in the constitutions of the following states: Arkansas, 1868 Art. I., Sec. 4; California, Art. I.; Florida, Art. I., Sec. 2; Indiana, Art. I., Sec. 31; Kansas Bill of Rights, Sec. 3; Maine, Art. I., Sec. 15; Massachusetts, Art. XIX.; Michigan, Art. XVIII., Sec. 10; Nevada, Art. I., Sec. 10; New Hampshire, Part I-XXXII.; North Carolina Dec., Art. I., Sec. 25; Ohio, Art. I., Sec. 3; Oregon, Art. I., Sec. 27; Pennsylvania Dec. Rights. Tennessee, Art. I., Sec. 23; Vermont, Chap I.-XX.; West Virginia, Art. III., Sec. 16. The words are substantially the same in the constitutions of each of these states, but they have been omitted in the latest constitutions of Arkansas and of Pennsylvania, and the clause was altered in the last constitution of Illinois so as to read that the people shall be secure in their right to "make known their opinions to their representatives." The same phraseology is also used in the constitution of Iowa, Art. I., Sec. 20, and in that of New Jersey, Art. I., Sec. 19. It is difficult to discover the object of such provisions. The latter is obviously absurd, and if the language used in the greater number of the constitutions is to be construed as protecting the right of the people to give their representatives advice or information, it seems useless and equally absurd. If it is to be construed as meaning anything more than that, it not only does violence to the true and established conception of the function of representatives, that they are to deliberate and to legislate for the general good, but it is also futile. No such provisions could give the instructions any coercive effect unless some penalty was attached to the disobedience of them, and no penalty in such cases has ever been imposed or suggested.

II.188.4

—These provisions can be considered only as an expression of a feeling prevalent at the time of their adoption, of a vague distrust of any central government, and of the necessity for the fullest protection of individuals against it. Such provisions have, however, in conjunction with the earlier democratic theory of the sovereignty of the states, served to give color of authority to the frequent assertion of the right of a state legislature to instruct its senators in congress. Upon this topic Rawle says: "Some of the state legislatures appear to have viewed the relative duties of the senators whom they have appointed in a more restricted light than it is apprehended the constitution implies. It seems to have been supposed that the senators were bound to obey the directions of the state legislatures, and the language of some resolutions has been, that the senators be 'instructed' and the members of the house of representatives from the particular states 'requested' to make and support certain resolutions. But surely the opinion is erroneous; a senator is no more bound to obey the instructions of the state legislatures in opposition to his own judgment than a representative of the people in the other house is bound by the occasional instructions of his constituents. They are both elected for the purpose of freely and honestly exercising their own judgment according to the best of their capacities." (Rawle on the Constitution, p. 38.) The history of many states furnishes instances of the assertion of the right. John Adams bewailed it in Massachusetts in 1820, and in the same year the New York legislature passed a resolution "instructing the senators and requesting the representatives" from New York to vote against the admission of a slave state to the Union. The legislature of the same state also instructed its senators to vote for the tariff of 1828, and Van Buren, then a senator, obeyed these instructions in opposition to his personal wishes, although Webster insinuates that he procured them to be passed in order that he might, on the ground of a state's right to instruct its senators, excuse his tariff vote to the state's-rights and free-trade wing of his party in the southern states—It would be difficult and unremunerative to ascertain how often this right to instruct senators has been asserted. Benton, speaking of the resignation of senator Hugh L. White of Tennessee, says that it took place "under circumstances not frequent, but sometimes occurring in the senate—that of receiving instructions from the general assembly of his state, which either operate as a censure upon a senator or which require him to do something which either his conscience or his honor forbids." While in the case of such instructions there has never been any attempt to provide means for enforcing them, the acquiescence of senators in the view that states had the right so to instruct, has sometimes given them a binding force. Thus in the case of Mr. White, who had been instructed to reverse his course of voting on certain measures and to support Mr. Van Buren's administration, Benton continues: "He consulted his self-respect, as well as obeyed a democratic principle, and sent in his resignation." A more conspicuous instance occurred in 1840. Messrs. Brown and Strange, both democrats, were at that time senators from North Carolina, and the whigs controlled the state legislature. The whig party had disavowed the doctrine of state instruction, but nevertheless in 1838 this particular whig legislature passed a set of resolutions denouncing the passage of the expunging resolutions by the senate, and also the course of the administration generally, and further resolved "that our senators in congress will represent the wishes of a majority of the people of the state by voting to carry out the foregoing resolutions." To this the two senators responded in a letter, dated Dec. 31, 1838, as follows: "The resolutions do not expressly instruct us to carry into effect the opinions expressed therein, nor are we able to perceive in them impliedly any authoritative command, such as instructions convey. We are therefore left to infer that it was the intention of the general assembly not to assert or to exercise the right of instruction. We have therefore publicly declared that whenever instructions are given us by the legislature we will either obey them or resign. We therefore respectfully ask your honorable bodies if we err in our construction of the resolutions, that we may be set right." The legislature, in reply, resolved that "the resolutions are sufficiently plain and intelligible to be comprehended by any one desirous of understanding them;" and it was insisted by Mr. Clay in the senate, and by whig newspapers, that the resolutions in question were really instructions, and that Messrs. Brown and Strange were, therefore, on their own theory, bound to resign. They presented the resolutions to the senate, but did not at once resign, presumably because that course would have destroyed the democratic majority in the senate. But their failure so to do subjected them to so much criticism at home that, in 1840, they tendered their resignations in such manner as to make the propriety of their course an issue at the ensuing state election, in which, as it resulted, the whigs won a decided victory. The case of the censure of Charles Sumner by the Massachusetts legislature, in 1872, may be referred to in this connection as an illustration of an entirely different and more modern view of a senator's duty under such circumstances.

II.188.5

—The passage of resolutions in state legislatures requesting the representatives and senators from each state to pursue a particular course in congress, is still not infrequent, as, for instance, the resolutions passed by the New York legislature in 1881, urging the confirmation of President Garfield's nominee for collector of the port of New York, which had been vehemently opposed by the New York senators, and the free-trade resolutions passed by the Iowa legislature in 1882.

II.188.6

—The doctrine of instructions has been applied more frequently and more variously to delegates to nominating conventions than to members of legislatures, and perhaps properly, on the theory of the mere agency of such delegates. Without reference to local conventions it will be sufficient to trace the usage in this regard in the national conventions. From that usage it appears that the doctrine of instructions has been applied, first, to the instruction of district delegates by their actual constituents, through the caucus or convention selecting them; second, to the instructions by a state convention of all the delegates from that state, however chosen—but in such cases the instructions have in later years rarely extended to a direction to vote for a particular person, and have not gone further than to instruct the delegation to vote as a unit in accordance with the decision of the majority, thus constituting the well-known "unit rule"; third, the adoption of the unit rule by the delegation itself, and its own instruction to its chairman to cast all the votes of the delegation in one way or for one person. The democratic party has leaned toward the validity of the instructions in each of these cases, while the whig and republican parties have favored the opposite view, and it seems to be now settled in the latter party that delegates are not in any sense agents and bound by their instructions, but that each may vote his own sentiments. The principal instances in which the right of instruction has been asserted in national conventions are as follows: In the democratic convention of 1840 the delegates from most of the states were instructed to vote for Van Buren. In the democratic convention of 1844 the delegates from Massachusetts, Pennsylvania, Ohio, Michigan, Maine, New Hampshire, Vermont, Connecticut, Rhode Island, Louisiana, Alabama, Mississippi, Arkansas, Illinois and New York, were instructed to vote for Van Buren by the conventions which selected them, or else Van Buren had been actually nominated by those conventions. In this convention of 1844, also, the unit rule seems to have been asserted for the first time by Virginia. The delegates from that state were appointed en masse, and it was resolved that the votes of her delegates should be settled by the majority and counted per capita. In reference to this, Mr. Calhoun, in an address to his political friends and supporters, dated February, 1844, after animadverting severely upon the manner in which the convention was being packed, and refusing to allow his name to go before it, says: "I object not less strongly to the mode in which Virginia has resolved her delegates shall vote. With all due respect I must say I can imagine nothing more directly in conflict with the principle of our federal system of government, or, to use a broader expression, the principles upon which all confederate communities have ever been united. I hazard nothing in saying that there is not an instance in our political history, from the meeting of the first revolutionary congress to the present day, of the delegates of any state voting by majority and counting per capita." (Calhoun, "Works." vol. vi.)

II.188.7

—In the democratic convention of 1848 delegates from North and South Carolina stated that they voted in accordance with their instructions. In 1852 the democratic convention resolved that each state should be entitled to the same number of votes to which it would be entitled in the next electoral college, without reference to the number of delegates in attendance, and "that the manner in which the said vote is to be cast shall be decided by the delegation of each state itself." The whig convention of this year adopted the same resolution excepting the last clause, and the whole of the resolution was readopted by the democratic convention of 1856. In 1860, at the Charleston democratic convention, the Georgia delegation was "requested" to vote as a unit, and Mr. Caleb Cushing, the chairman, decided that this amounted to an instruction which must be obeyed. The New Jersey delegates were "recommended" to vote as a unit, and this Mr. Cushing decided was likewise a binding instruction; but on this point his decision was reversed by the convention, which also decided that in the absence of instructions to a delegation to vote as a unit its members might cast individual votes. There was in this convention much intelligent discussion by the chair and others, of the whole subject upon instruction, and while the right to instruct seemed to be unquestioned, it was not clear what amounted to an instruction.

II.188.8

—In 1860, also, the republican convention granted the right to two delegates from Maryland, after the vote of that state had been cast as a unit, to vote as individuals, and at this convention the unit rule was imposed upon the New York delegation by a vote of the delegates in caucus, under circumstances which are worthy of mention. It was feared that the delegation, which had been expected to vote unanimously for Mr. Seward, might break, and to avoid that contingency a caucus was called, from which all persons not delegates excepting Mr. Thurlow Weed were excluded, and through his instrumentality a resolution was adopted by a large majority instructing Mr. Evarts, the chairman of the delegation, to cast the solid vote of New York for Gov. Seward, and although this resolution was bitterly opposed as a gag law by several delegates, it was acquiesced in by all, and the vote of New York was cast as directed.

II.188.9

—In 1868, in the republican convention, the Pennsylvania delegation presented a candidate for the vice-presidency under instructions, but when one member of that delegation refused to be bound by those instructions, and pleaded "the great principle of individual right to be represented in that convention," he was overwhelmingly sustained by the convention.

II.188.10

—In 1876 a caucus of the New York delegation to the republican convention attempted to instruct its chairman to cast the solid vote of the state for Mr. Conkling, as had been done in 1860 for Mr. Seward; one delegate, however, Mr. George William Curtis, asserted the right of every delegate "to vote his own sentiments," and declined to be bound either by the unit rule or the instructions of his colleagues; and the convention, by a vote of 395 to 353, sustained his position. In the same convention the Pennsylvania delegation was stated to have been instructed by the state convention to vote for Gov. Hartranft, and to vote as a unit under the direction of the majority. Four members of the delegation declined to obey these instructions, on the ground that they held credentials from their own districts and owed no allegiance to the state convention, and after debate they were allowed, by a vote of 395 to 354, to vote as individuals for Mr. Blaine.

II.188.11

—The occurrences in the republican convention of 1880 are too recent to need more than a bare reference. The delegations from New York, Pennsylvania and Illinois were "instructed," and the convention, by a decisive vote, refused to consider them bound by their instructions.

II.188.12

—In democratic conventions the validity of instructions and even their necessity is still recognized. The convention of 1876, for example, resolved "that the states be requested to instruct their delegates to the democratic national convention which is to be held in 1880, whether it is desirable to continue the two-thirds rule longer in conventions," and in democratic conventions the unit rule based on instructions is still in vogue, but it is to be presumed, only because of the lack of desire on the part of the delegates to break or violate it. Considered altogether, instructions for legislators or delegates appear, therefore, to be passing away with the ultra-democratic theory of the rights of states and of constituencies upon which they were founded; and happily, for the doctrine of instructions seems inconsistent with the theory of an intelligent and free representative system, and in practice it had become a mere instrument in the hands of machine politicians for the accomplishment of selfish ends and the perversion or the defeat of the wishes of the actual constituents.

FREDERICK W. WHITRIDGE.

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