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Two opinions are prevalent with Again, as in all other cases we respect to the duties of representa. are bound to decide questions of tives in legislative assemblies. One duty according to the best evidence is, that they are bound to carry out within our reach, and though that the will of their constituents, so far evidence may be slight, are still at least as not to break any oath bound to make up our minds in acwhich they may take on entering cordance with it; so the representaupon office. The other is, that they tive must be guided by the light be. are bound to do that, which after due fore him, though that light be feeble. deliberation seems to them likely to It is of no use to say that he is inpromote the general welfare, wheth- structed in one case and not in er they follow the will of their con- another. The only effect of in. stituents in so doing or not. These structions is to make it plainer to opinions, it is plain, relate to some. him how his constituents wish him thing which is to bind the conscience to act. If these wishes should be the of the representative, and to be the rule of his conduct as a representalaw of his conduct while acting for tive, he has in such cases no doubt those in whose place he stands. As what he must do, and is relieved laws of action, then, the two opin- from every uncomfortable appreions are opposite, and must drive hension that he is going wrong. one another from the throne of the But is he allowed, because no exsoul. If the representative is bound press orders have been sent him, to to do the will of his constituents, follow his own judgment, or to make and if this obligation must guide his the public good the rule of his vote? vote; he ought not to ask himself No, certainly, if his supreme law when he gives his vote whether this must be his constituents' good pleaor that measure will promote the sure. The only difference between general welfare ; for in this way he one case and another lies in the debrings up before his mind foreign gree of assurance which he posconsiderations, which may tempt sesses, that he has found what that him aside from the path of duty. good pleasure is. When, indeed, Nay, in his deliberations before vo- after due inquiries, he is in a state ting, he has nothing to do with the of suspense concerning that point, question of the general welfare; un. he may perhaps take it for granted less we suppose that he deliberates that the best measures will be apto move the will of his constituents, proved by his fellow citizens at and through them to move himself. home. But he ought, if this theory And on the other hand, if his aim be true, to anticipate such cases, and in discussing and voting be to pro- sound their minds as far as possible. mote the common good; he ought We have still further to observe, not to heed the wishes of his con- that these rules of duty must be apstituents except so far as they are plicable to all representatives emconformed to right reason. Or at ployed in legislation who deliberate least, if it be morally certain that and vote ; whatever the body be what he regards as the best measure which they represent. Men somewill not be carried or will soon be times talk as if the United States given up; his part is to gain all that Senate was peculiar in this respect. for the public good, which can be But no reason can be given why one gained from 'men's obstinacy or ig. legislative body should be bound to norance.

obey one of the rules of duty pro. Vol. I.


posed above, and another the other. democratic body. For in a govern. Can such a reason be found in any ment of the former kind, the present peculiarity in the mode of election? and the ultimate will of the conSuppose the choice is made by an stituents will more regularly coin. intervening body, as for instance the cide, and will better agree also with state legislature. That surely does their interests—we do not say

with not destroy or even modify the re- the interests of the entire populalation between the senator and the tion, but with that of the aristocratic state. He is still the representative voters—than in a democracy, where of the state, employed to debate and the ignorant as well as the intellidecree in its stead; and his relation gent are called to cast their votes. to the state is no more affected by It is therefore, to say the least, eathe manner of choosing him, than is sier in the former case for the repa governor's when he happens to be resentative to ascertain the wishes elected by the legislative houses. of those whom he must on the supNor can the reason for a difference position obey; and he may be more be found in the greater power and sure for the most part, that while he importance of one representative is at the seat of government those body than of another. If the will wishes continue steady in one direcof the constituents must be the law, tion. it is impossible to draw a line be- Nor is the question of duty affecttween different bodies or between ed by the degree of light and intelmeasures of unlike importance ligence on the part of the constitubrought before the same body. All ents. If it is, it must be so because cases must be subject to the same their greater insight into public afsweeping rule.

The senator of fairs enables them to know better New York, and the representative what will promote their true inter" of some town in the western ests. All the light that they can climes,” only “to those who dwell ever obtain will not increase the therein well known”—the extremes certainty to themselves or to others in regard to legislative dignity and of what their will is : a child may importance-are here on one level. know and make known to others

Nor will the nature of the gove what it wants as well as a philosoernment change the duties of the pher. If I am bound to obey the representative. It is often asserted enlightened will of others and not the to be peculiarly a democratic thing unenlightened, I am so bound, clear. that the representative should feel ly, not because it is their will, but himself to be the servant of the because their will decides in favor people, and should execute their of that which is for the best. And will in all respects. But there seems if so, their will is of worth only so to be no reason why it should not be far as it is an index of the best thought to be just as much an aris- course ; an evidence of the judgtocratic thing for the representative ment of enlightened minds concern. to obey his constituents, in a coun- ing what ought to be done : and try where political power is confided accordingly it is to be placed by the to a small part of the people. In side of other evidence before my the one case, the will of the grown mind affecting the same question, up males, say of from a quarter to being, as it may happen, the most a seventh of the community, is important or the least important obeyed; and in the other, the will evidence within my reach. They, of some smaller fraction. Nay, if then, who would establish any such this be the end of legislation, such distinction between one sort of conobedience may be said to be more stituents and another, must abandon fitting in the aristocratic than in the -the doctrine of instruction.

Once more; the question of duty been led, by something which they is not affected by an express or tacit call principle, to the other opinpermission, given to the representa- ion. Another answer must be tive, to follow in certain cases or drawn from the invariable nature of always his own independent con- legislative representation. And this victions as to the utility of measures

will be best seen by determining proposed in the legislature. For if what would be the duties of the he may do so because he has re- constituents, if they could meet toceived such permission, the reason gether for the purposes of legislawhy he may, lies in the permission, tion, and how far the representative that is, in the will of those who steps into their place. granted it; so that the ground of With respect to the first of these duty remains the same in every in- points, there can be but little differstance. Moreover, an intelligent ence of opinion. If the citizens of man will be apt to suspect that the any state or country were assembled duty of the representative must be together for public purposes, as in the result of his relations, which are ancient Athens, the aim of each invariable. If this be so, as we ought to be, not to secure his own shall hereafter see that it is, the private good simply, but the good constituents can not alter his duties of the whole body. The means without altering his relations, and employed would be deliberation, by thus making him either not a legis. which the best course is found out; lative representative, or one only in and voting, by which a choice bea new and qualified sense.

tween measures is expressed. In What has been said thus far goes each mind judgment, conscience, to show that the last and highest and the power of choice, should be rule for the representative is in all active ; judgment in weighing the cases the same; unchanged by ex- reasons for whatever is proposed ; press instructions, by the importance conscience in keeping unworthy of his office or of the measures be considerations from affecting its defore him; unaffected by the form cisions; and the power of choice in of government; and not capable of giving the vote as judgment and being altered by his constituents. conscience had decided. And in So long as his relations continue thus exhibiting the offices of the uniform, and he remains a repre. citizen, we are far from intending sentative in a legislative body, with to exhaust the subject of his duties power to deliberate and to establish as a legislator, or to make precise disomething by his vote; so long must visions of the faculties of the mind. he in all cases alike-where a con- All we seek is to furnish a statement, stitutional oath at least is not in his at once so true and simple, as to way-either be guided solely in the meet with general acceptance. last instance by the will of his elec- Now, then, does the representators, or solely by his own persua- tive 'take the place of his fellow sions in regard to the public good. citizens in such a sense, that his

Which then of these unlike, and judgment, conscience, and power of it may be divergent, paths must he choice, take the place of theirs ; take ? An answer to this question or is he merely their creature to is often found in the mischiefs to carry out their will ? The answer which servile obedience on the part must be gathered from his functions of the representative is thought to and his powers. If, on the one lead. But it is plain that this an- hand, they are such that he can not swer does not go deep enough; nor exercise his judgment, then it is will it of itself, until after long ex- certain that he is not entirely in the perience, convince those, who have place of his constituents. And the other way

same thing is equally certain if he assemble for deliberation in one might use his judgment in ascertain place. ing what were the best measures,

Let it be remembered also, that but had no power to give them a the representative system is not a legal form. If for instance men new wheel added to the old machine. were sent to the legislature to talk ry, but a new machine altogether. merely; no one would suppose that The people, under their ground-law they took the place in legislation or constitution, have withdrawn from which the citizens might have occu- the habit of deliberation in common, pied before, or would now occupy, if they ever had it, and from the but for this expedient to save them right to pass laws in

any the trouble. Or if men were sent than through their representatives ; to vote merely without delibera. reserving, it may be, to themselves, tion; it would be evident that they or to part of themselves only, the were delegated to give the finishing right to give advice or to petition for stroke to measures already settled, redress of grievances. If any num. without having any voice or will of ber of citizens, even reaching to the their own.

And if we may so argue whole body, should meet and ordain from the absence of these functions, something; this would be mere adwe may with equal certainty from vice, unless a change of constitution their presence.

If a man is a mem- had preceded; and could not have ber of an assembly where discussion the force of law upon

the conscience of public matters goes on from day of a judge, a magistrate, or any prito day, and where at the end of the vate man. The people have then discussion a vote is cast; it needs no restricted themselves in the discharge arguing to show, that by the very of a duty which they or others must nature of the body, the discussion is perform-law making; and they intended to affect the vote; or, in leave these others to do that which other words, the vote to express the is necessary to the performance of result of the discussion upon the this duty—to deliberate and decide judgments of the members. So far upon the usefulness of measures. then as his functions are concerned, The conclusion then is certain, that he is precisely in the place which this duty, which by its nature is one his constituents would take if they demanding the exercise of judgment met together. If they would be and conscience, must be done by members of a deliberative body, so others or not done at all. is he ; if they would discuss public It would be difficult for those who measures or hear them discussed, take the opposite view, to find a subhe does the same; if they would ject of discussion, or a reason for it, vote, so can he with the same un- in a house of representatives. If the restricted power. Hence, then, it last duty of such a body is to obey seems to be certain, that if they the will of their constituents, and if, would be bound in conscience to as we have seen, this is alike a duty prefer those propositions which when certainly known through inshould seem to them most conducive structions, and when less surely into the public good, he also must ferred from some other source; then, choose those which seem so to him. with the exception of constitutional In other words, he is not sent-we questions, the matter properly in de. argue it from the essential nature of bate for the purpose of moving the legislative bodies, as they have hith- minds of fellow members, is simply erto existed—to execute the will of whether this or that measure is apthe community, but to perform those proved by those whose creatures duties which they can not perform, they are. This is the only consid. by reason of their inability to eration which ought to affect their

A man


judgment and their vote. A very in all other cases where he acts ofsingular spectacle in truth, such a ficially. legislature would present. The on- Our course of argument, if true, ly point at issue, between a member overthrows the doctrine of instruc. from Connecticut and one from Ten- tion in all its forms. The extreme nessee, is regarding the wishes of of this doctrine alone wears the look each other's constituents. Each of principle, and will be adopted by knows the views and desires of his right-minded men who are led astray own state or district infinitely better by wrong theories. Its more comthan the other; and yet each must mon shape is that of a mongrel be. stoutly contend that on this point, tween the two theories which we where politicians have almost an un. have been considering. erring instinct, the other is under a must obey explicit instructions, it is mistake ; and that he himself, though said ; but when they are not given, living a thousand miles off, is better may presume that he is allowed to informed with regard to the wishes follow the dictates of his own reaof a community, than the other, who It was with reference to this by the supposition has his office on. view that we observed, that the mode ly that he may convey those wishes by which the popular will is discov. to Congress. Truly a silent vote is ered makes no difference, provided the only fit one for a body such as it is the ground of duty. We now this. A “gag law” ought to be car- add the more general and fundamen. ried out physically upon their per tal remark, that if a man takes the sons; and the “one hour” of speak place of his constituents, he is bound ing by rule should be shortened six. in all cases to do what they would ty minutes.

be bound to do,—to act according And it may be fairly doubted, to his best judgment as to the public whether even on constitutional ques. good; and that thus the doctrine of tions, there can be an opening for instruction in all its aspects must be debate in such an assembly. For thrown to the winds. although its members may be bound In this way we can hope to have by oath" to support the constitution,” good legislators, men who will see still they may reasonably ask them the right and pursue it; but the othselves whether these words intend er theory looks like a device to throw the constitution as they, or as their conscience overboard, and to free constituents understand it. If their bad lawgivers and corrupt constitumain duty is the one supposed, and encies from all sense of guilt. It is if the constitution was formed by a scheme to transfer responsibility those who supposed so; it may be from those who are qualified to feel presumed that the private judgment it, who have had all sides of a meaof the representatives was not thought sure held up before them during a of, and that they were considered debate, to those who can not and as mere instruments, like ministers should not feel responsible. The of a sovereign, appointed to express two parties are placed in a position the constitutional interpretations, as something like that of the two thieves well as to carry out the measures of in the fable. The representative their masters. The oath can have knows what is for the best, but is two meanings, and that meaning is not bound to vote for it; the constitto be preferred which takes away uents have not the same means of the burden of deciding constitu- judging, and yet bear all the weight tional points from the representa- of obligation. A great deal of hu. tive, because on the supposition, man guilt would be prevented by a he is freed under the constitution like ingenious process applied in othfrom following his own judgment er cases.

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