Two opinions are prevalent with respect to the duties of representatives in legislative assemblies. One is, that they are bound to carry out the will of their constituents, so far at least as not to break any oath which they may take on entering upon office. The other is, that they are bound to do that, which after due deliberation seems to them likely to promote the general welfare, whether they follow the will of their constituents in so doing or not. These opinions, it is plain, relate to some thing which is to bind the conscience of the representative, and to be the law of his conduct while acting for those in whose place he stands. As laws of action, then, the two opinions are opposite, and must drive one another from the throne of the soul. If the representative is bound to do the will of his constituents, and if this obligation must guide his vote; he ought not to ask himself when he gives his vote whether this or that measure will promote the general welfare; for in this way he brings up before his mind foreign considerations, which may tempt him aside from the path of duty. Nay, in his deliberations before voting, he has nothing to do with the question of the general welfare; unless we suppose that he deliberates to move the will of his constituents, and through them to move himself. And on the other hand, if his aim in discussing and voting be to promote the common good; he ought not to heed the wishes of his constituents except so far as they are conformed to right reason. Or at least, if it be morally certain that what he regards as the best measure will not be carried or will soon be given up; his part is to gain all that for the public good, which can be gained from 'men's obstinacy or ig

Again, as in all other cases we are bound to decide questions of duty according to the best evidence within our reach, and though that evidence may be slight, are still bound to make up our minds in accordance with it; so the representative must be guided by the light be fore him, though that light be feeble. It is of no use to say that he is instructed in one case and not in another. The only effect of instructions is to make it plainer to him how his constituents wish him to act. If these wishes should be the rule of his conduct as a representative, he has in such cases no doubt what he must do, and is relieved from every uncomfortable apprehension that he is going wrong. But is he allowed, because no express orders have been sent him, to follow his own judgment, or to make the public good the rule of his vote? No, certainly, if his supreme law must be his constituents' good pleasure. The only difference between one case and another lies in the degree of assurance which he possesses, that he has found what that good pleasure is. When, indeed, after due inquiries, he is in a state of suspense concerning that point, he may perhaps take it for granted that the best measures will be approved by his fellow citizens at home. But he ought, if this theory be true, to anticipate such cases, and sound their minds as far as possible.

We have still further to observe, that these rules of duty must be applicable to all representatives employed in legislation who deliberate and vote; whatever the body be which they represent. Men sometimes talk as if the United States Senate was peculiar in this respect. But no reason can be given why one legislative body should be bound to obey one of the rules of duty pro

posed above, and another the other. Can such a reason be found in any peculiarity in the mode of election? Suppose the choice is made by an intervening body, as for instance the state legislature. That surely does not destroy or even modify the relation between the senator and the state. He is still the representative of the state, employed to debate and decree in its stead; and his relation to the state is no more affected by the manner of choosing him, than is a governor's when he happens to be elected by the legislative houses. Nor can the reason for a difference be found in the greater power and importance of one representative body than of another. If the will of the constituents must be the law, it is impossible to draw a line between different bodies or between measures of unlike importance brought before the same body. All cases must be subject to the same sweeping rule. The senator of New York, and the representative "of some town in the western climes," only "to those who dwell therein well known"-the extremes in regard to legislative dignity and importance-are here on one level.

Nor will the nature of the government change the duties of the representative. It is often asserted to be peculiarly a democratic thing that the representative should feel himself to be the servant of the people, and should execute their will in all respects. But there seems to be no reason why it should not be thought to be just as much an aristocratic thing for the representative to obey his constituents, in a country where political power is confided to a small part of the people. In the one case, the will of the grown up males, say of from a quarter to a seventh of the community, is obeyed; and in the other, the will of some smaller fraction. Nay, if this be the end of legislation, such obedience may be said to be more fitting in the aristocratic than in the

democratic body. For in a government of the former kind, the present and the ultimate will of the constituents will more regularly coincide, and will better agree also with their interests-we do not say with the interests of the entire population, but with that of the aristocratic voters-than in a democracy, where the ignorant as well as the intelligent are called to cast their votes. It is therefore, to say the least, easier in the former case for the representative to ascertain the wishes of those whom he must on the supposition obey; and he may be more sure for the most part, that while he is at the seat of government those wishes continue steady in one direction.

Nor is the question of duty affected by the degree of light and intelligence on the part of the constitu

ents.

If it is, it must be so because their greater insight into public affairs enables them to know better what will promote their true interests. All the light that they can ever obtain will not increase the certainty to themselves or to others of what their will is a child may know and make known to others what it wants as well as a philosopher. If I am bound to obey the enlightened will of others and not the unenlightened, I am so bound, clear. ly, not because it is their will, but because their will decides in favor of that which is for the best. And if so, their will is of worth only so far as it is an index of the best course; an evidence of the judg ment of enlightened minds concerning what ought to be done and accordingly it is to be placed by the side of other evidence before my mind affecting the same question, being, as it may happen, the most important or the least important evidence within my reach. They, then, who would establish any such distinction between one sort of constituents and another, must abandon the doctrine of instruction.

Once more; the question of duty is not affected by an express or tacit permission, given to the representative, to follow in certain cases or always his own independent convictions as to the utility of measures proposed in the legislature. For if he may do so because he has received such permission, the reason why he may, lies in the permission, that is, in the will of those who granted it; so that the ground of duty remains the same in every instance. Moreover, an intelligent man will be apt to suspect that the duty of the representative must be the result of his relations, which are invariable. If this be so, as we shall hereafter see that it is, the constituents can not alter his duties without altering his relations, and thus making him either not a legislative representative, or one only in a new and qualified sense.

What has been said thus far goes to show that the last and highest rule for the representative is in all cases the same; unchanged by express instructions, by the importance of his office or of the measures before him; unaffected by the form of government; and not capable of being altered by his constituents. So long as his relations continue uniform, and he remains a representative in a legislative body, with power to deliberate and to establish something by his vote; so long must he in all cases alike—where a constitutional oath at least is not in his way-either be guided solely in the last instance by the will of his electors, or solely by his own persuasions in regard to the public good.

Which then of these unlike, and it may be divergent, paths must he take? An answer to this question is often found in the mischiefs to which servile obedience on the part of the representative is thought to lead. But it is plain that this answer does not go deep enough; nor will it of itself, until after long experience, convince those, who have

ion.

been led, by something which they call principle, to the other opinAnother answer must be drawn from the invariable nature of legislative representation. And this will be best seen by determining what would be the duties of the constituents, if they could meet together for the purposes of legislation, and how far the representative steps into their place.

With respect to the first of these points, there can be but little difference of opinion. If the citizens of any state or country were assembled together for public purposes, as in ancient Athens, the aim of each ought to be, not to secure his own private good simply, but the good of the whole body. The means employed would be deliberation, by which the best course is found out; and voting, by which a choice between measures is expressed. In each mind judgment, conscience, and the power of choice, should be active; judgment in weighing the reasons for whatever is proposed; conscience in keeping unworthy considerations from affecting its decisions; and the power of choice in giving the vote as judgment and conscience had decided. And in thus exhibiting the offices of the citizen, we are far from intending to exhaust the subject of his duties as a legislator, or to make precise divisions of the faculties of the mind. All we seek is to furnish a statement, at once so true and simple, as to meet with general acceptance.

Now, then, does the representative take the place of his fellow citizens in such a sense, that his judgment, conscience, and power of choice, take the place of theirs ; or is he merely their creature to carry out their will? The answer must be gathered from his functions and his powers. If, on the one hand, they are such that he can not exercise his judgment, then it is certain that he is not entirely in the place of his constituents. And the

same thing is equally certain if he might use his judgment in ascertain ing what were the best measures, but had no power to give them a legal form. If for instance men were sent to the legislature to talk merely; no one would suppose that they took the place in legislation which the citizens might have occupied before, or would now occupy, but for this expedient to save them the trouble. Or if men were sent to vote merely without deliberation; it would be evident that they were delegated to give the finishing stroke to measures already settled, without having any voice or will of their own. And if we may so argue from the absence of these functions, we may with equal certainty from their presence. If a man is a member of an assembly where discussion of public matters goes on from day to day, and where at the end of the discussion a vote is cast; it needs no arguing to show, that by the very nature of the body, the discussion is intended to affect the vote; or, in other words, the vote to express the result of the discussion upon the judgments of the members. So far then as his functions are concerned, he is precisely in the place which his constituents would take if they met together. If they would be members of a deliberative body, so is he; if they would discuss public measures or hear them discussed, he does the same; if they would vote, so can he with the same unrestricted power. Hence, then, it seems to be certain, that if they would be bound in conscience to prefer those propositions which should seem to them most conducive to the public good, he also must choose those which seem so to him. In other words, he is not sent-we argue it from the essential nature of legislative bodies, as they have hitherto existed-to execute the will of the community, but to perform those duties which they can not perform, by reason of their inability to

assemble for deliberation in one place.

Let it be remembered also, that the representative system is not a new wheel added to the old machine. ry, but a new machine altogether. The people, under their ground-law or constitution, have withdrawn from. the habit of deliberation in common, if they ever had it, and from the right to pass laws in any other way than through their representatives; reserving, it may be, to themselves, or to part of themselves only, the right to give advice or to petition for redress of grievances. If any num. ber of citizens, even reaching to the whole body, should meet and ordain something; this would be mere advice, unless a change of constitution had preceded; and could not have the force of law upon the conscience of a judge, a magistrate, or any private man. The people have then restricted themselves in the discharge of a duty which they or others must perform-law making; and they leave these others to do that which is necessary to the performance of this duty to deliberate and decide upon the usefulness of measures. The conclusion then is certain, that this duty, which by its nature is one demanding the exercise of judgment and conscience, must be done by others or not done at all.

It would be difficult for those who take the opposite view, to find a subject of discussion, or a reason for it, in a house of representatives. If the last duty of such a body is to obey the will of their constituents, and if, as we have seen, this is alike a duty when certainly known through instructions, and when less surely inferred from some other source; then, with the exception of constitutional questions, the matter properly in de bate for the purpose of moving the minds of fellow members, is simply whether this or that measure is approved by those whose creatures they are. This is the only consid eration which ought to affect their

judgment and their vote. A very singular spectacle in truth, such a legislature would present. The only point at issue, between a member from Connecticut and one from Tennessee, is regarding the wishes of each other's constituents. Each knows the views and desires of his own state or district infinitely better than the other; and yet each must stoutly contend that on this point, where politicians have almost an unerring instinct, the other is under a mistake; and that he himself, though living a thousand miles off, is better informed with regard to the wishes of a community, than the other, who by the supposition has his office only that he may convey those wishes to Congress. Truly a silent vote is the only fit one for a body such as this. A "gag law" ought to be carried out physically upon their persons; and the "one hour" of speak ing by rule should be shortened six ty minutes.

And it may be fairly doubted, whether even on constitutional questions, there can be an opening for debate in such an assembly. For although its members may be bound by oath" to support the constitution," still they may reasonably ask them selves whether these words intend the constitution as they, or as their constituents understand it. If their main duty is the one supposed, and if the constitution was formed by those who supposed so; it may be presumed that the private judgment of the representatives was not thought of, and that they were considered as mere instruments, like ministers of a sovereign, appointed to express the constitutional interpretations, as well as to carry out the measures of their masters. The oath can have two meanings, and that meaning is to be preferred which takes away the burden of deciding constitutional points from the representa tive, because on the supposition, he is freed under the constitution from following his own judgment

in all other cases where he acts officially.

Our course of argument, if true, overthrows the doctrine of instruc tion in all its forms. The extreme of this doctrine alone wears the look of principle, and will be adopted by right-minded men who are led astray by wrong theories. Its more com. mon shape is that of a mongrel between the two theories which we have been considering. A man must obey explicit instructions, it is said; but when they are not given, may presume that he is allowed to follow the dictates of his own reason. It was with reference to this view that we observed, that the mode by which the popular will is discov. ered makes no difference, provided it is the ground of duty. We now add the more general and fundamen. tal remark, that if a man takes the place of his constituents, he is bound in all cases to do what they would be bound to do, to act according to his best judgment as to the public good; and that thus the doctrine of instruction in all its aspects must be thrown to the winds.

In this way we can hope to have good legislators, men who will see the right and pursue it; but the other theory looks like a device to throw conscience overboard, and to free bad lawgivers and corrupt constituencies from all sense of guilt. It is a scheme to transfer responsibility from those who are qualified to feel it, who have had all sides of a measure held up before them during a debate, to those who can not and should not feel responsible. The two parties are placed in a position something like that of the two thieves in the fable. The representative knows what is for the best, but is not bound to vote for it; the constituents have not the same means of judging, and yet bear all the weight of obligation. A great deal of hu man guilt would be prevented by a like ingenious process applied in other cases.