ON REPRESENTATION.
Representation is the vital principle of all free governments, with the exception of those which rule over unusually small territories. A pure democracy infers institutions under which the people, in primary assemblies, enact their own laws; a system of which the good is questionable under any circumstances, and which is evidently impracticable in large communities. The governments of the several states of this Union, with some slight modifications, are representative democracies, and as the federal government receives its distinctive character from the states, themselves, the latter is necessarily a confederated representative democracy. Representation, therefore, lies at the root of the entire American system.
Conflicting opinions exist on the subject of the relations between the representative and his constituent, impracticable notions and contradictory errors being equally maintained. These notions may be divided into those of two schools, equally ultra, one taking its rise in the sophisms and mystifications of English politics, the other arising from the disposition of men to obtain their objects, by flattering popular power. The subject is grave, and all important to a country like this.
With the exception of a few popular boroughs, and a county or two, England has no free representation. In most of the counties, even, the control of the elections is in the hands of the great land-holders; in far the larger number of the boroughs, the power of the landlords is so great, that they name the successful candidate, as openly as the minister himself names to official employments. In the case of contested elections, even, the struggle is really between the power of two or more great families, and not between bodies of the electors, seats for boroughs being bought and sold like any other commodity. Under such circumstances, it is quite apparent that instructions from a constituency, that is itself instructed whom to return, would be a useless mockery. We are not to look at England, therefore, for principles on this subject, the fundamental systems of the two countries being so dissimilar; one giving power to property, the other to numbers.
There is no doubt it is the intention of the American system, that the will of the constitutional majorities, to a certain extent, should be properly regarded by the representative; and that when the latter, who has been elected with the express understanding that he is to support a particular measure, or a particular set of principles, sees reason to change his opinion, he would act most in conformity with the spirit of the institutions, by resigning his trust. All human contracts are made subject to certain predominant moral obligations, which are supposed to emanate from Divine Truth. Thus, a representative, conscientiously entertaining convictions in its favour, may give a pledge to support a particular measure, as a condition of his election, there being no sufficient reason to doubt that the doctrine of specific pledges is sound, the people having a free option to exact them, and the candidate as free an option to withhold them, as each may see fit. These pledges, however, must be in conformity with the spirit and letter of the constitution, and not opposed to good morals; the first being a governing condition of the social compact, and the last a controlling principle of human actions. But, while this much is admitted in favor of the power of the constituency, great care must be had not to extend it too far.
In the first place, no constituency has a right to violate the honest convictions of a representative. These are a matter of conscience, and, if the subject be of sufficient magnitude to involve conscientious scruples, the power of the representative is full and absolute. This freedom of conscience is an implied obligation of the compact between the parties; therefore, in a case of importance, that admits of moral doubts, and one in which the will of the constituency is unequivocally expressed, it becomes the representative to return the trust, and this, too, in season, circumstances allowing, to permit the other party to be represented in the matter, agreeably to its own opinions. As there are so many governing circumstances of great delicacy, in all such cases, it is evident they must be rare, and that the rule exists as an exception, rather than as one of familiar practice.
Great care must be always taken to see that the wishes of the constituency are actually consulted, before the American representative is bound, morally even, to respect their will; for there is no pretence that the obligation to regard the wishes of his constituents is more than implied, under any circumstances; the social compact, in a legal sense, leaving him the entire master of his own just convictions. The instant a citizen is elected he becomes the representative of the minority as well as of the majority, and to create any of the implied responsibility that has been named, the opinion of the first, so far as their numbers go, is just as much entitled to respect, as the opinion of the last. The power to decide, in cases of elections, is given to the majority only from necessity, and as the safest practicable general rule that can be used, but, it is by no means the intention of the institutions to disfranchise all those who prefer another to the successful candidate. The choice depends on a hundred considerations that are quite independent of measures, men judging differently from each other, in matters of character. Any other rule than this might be made the means of putting the government in the hands of the minority, as the following case will show.
A, is elected to congress, by a vote of one thousand and one, against a vote of nine hundred and ninety-nine. He has, consequently, two thousand constituents, supposing all to have voted. The majority meet to instruct their representative, and the instructions are carried by a vote of five hundred and one to five hundred. If these instructions are to be received as binding, the government, so far as the particular measure is concerned, may be in the hands of five hundred and one electors, as opposed to fourteen hundred and ninety-nine. This case may be modified, by all the changes incidental to numbers.
To assume that majorities of caucuses, or of ex parte collections of electors, have a right to instruct, is to pretend that the government is a government of party, and not a government of the people. This notion cannot honestly be maintained for an instant. Recommendations emanating from such a source may be entitled to a respectful consideration, but not more so than a counter-recommendation from an opposing party. In all such cases, the intention of the representative system is to constitute the representative a judge between the conflicting opinions, as judges at law are intended to settle questions of law, both being sworn to act on the recognized principles that control society.
In the cases that plainly invade the constitution, the constituents having no power themselves, can dictate none to their representative. Both parties are bound equally to respect that instrument, and neither can evade the obligation, by any direct, or indirect means. This rule covers much of the disputed ground, for they who read the constitution with an honest desire to understand it, can have little difficulty in comprehending most of its important provisions, and no one can claim a right to impose sophistry and selfishness on another, as reason and justice.
As doubtful cases may certainly arise under the constitution, the right of the constituency to influence the representative in instances of that sort, may plausibly be supposed to be greater than in those of constructions plainly proceeding from the excitement and schemes of partisans. Still the power of the constituency to interfere, after an election, beyond the right to urge their own sentiments, as opinions entitled to particular respect from their particular representative, is very questionable. The constitution contains the paramount laws of society. These laws are unchangeable, except as they are altered agreeably to prescribed forms, and until thus altered, no evasion of them is admissible. In the necessity of things, every public functionary must be permitted to interpret this instrument for himself, subject to the liabilities and responsibilities, official and otherwise, of his station. In this respect, the legislator, by the nature of his trust, having full power to enact and to repeal, knows no other control than his conscience. The expressed compact between the representative and the constituent, gives to the first an absolute discretionary power, subject to this great rule, and, by the implied, no instructions can ever weaken this high obligation, since it is clearly a governing condition of the bargain between them.
A judge is representative, in a government like this, in a general sense, since he acts for and through the people. Now, it will not be pretended that the people can instruct the courts how to interpret the constitution, although they can alter it, nor should it be contended that the constituency can instruct a representative how to interpret the constitution, when it involves a matter of conscience. The remedy, in the one case, is to alter the constitution; and in the other, to send a new representative, with pledges given previously to the election, to interpret the constitution according to the conceptions of the right, entertained by the constituency. Of course such a pledge ought not to be given, unless given conscientiously.
The constitution specifically guaranties the right of the citizens to assemble and petition congress, a provision that would be a mockery, did that instrument suppose a right to instruct.
It has been said that the representative, has the same relations to the minority, as to the majority of his constituents, when elected. In a broader and equally binding sense, he has the same relations to the entire country, as to his own immediate constituents, else would legislation be reduced to a mere contest of local interests, without a regard to justice or to general principles. If this be true, and it must be true, or all the fundamental governing rules of the social compact become of no account, the constituents of a particular representative can have no right even to request, much less to instruct him to support their local interests at the expence of others, and least of all can they have a right to violate the constitution, in order to do so. In this particular, the question has been involved in the same sophisms, and, to a degree, is to be settled by the same principles, as those which appertain to the relations between the accused and his legal counsel. Some latitudinarians in morals have contended that the legal adviser of an accused has a right to do in his defence, whatever the accused himself would do; that he is an attorney, with full powers to execute all that the other's feelings, interests and passions might dictate. This is monstrous and untenable doctrine, being destructive of all moral responsibility, to say nothing of the laws. The counsel, has a right to do no more than his client has a right to do, nor can the constituent, in any case, have a right to instruct his representative to do that which he has no right, in a moral or legal sense, to do himself, even admitting the general doctrine of instruction to be sound.
Although the principle that the representative chosen by a few, becomes the representative of all, is sound as a general principle, it is not an unqualified rule any where, and still less so in the federal government. The constitution requires that the representative should reside in the state from which he is sent, expressly to identify him with its particular interests, and in order to prevent that concentration which exists in other countries. Half the French deputies are from Paris, and a large portion of the English members of parliament are virtually from the capital. Their systems are peculiarly systems of concentration, but ours is as peculiarly a system of diffusion. It may be questioned, therefore, how far the American representative ought to sacrifice the good of his particular state, in order to achieve the general good. Cases may certainly occur, in which the sacrifice ought to be made, but the union of these states is founded on an express compromise, and it is not its intention to reach a benefit, however considerable, by extorting undue sacrifices from particular members of the confederacy. All cases to the contrary should be clear, and the necessary relations between the good and evil, beyond cavil.
In identified governments, the principle that a few shall be sacrificed to the general good, must always, in a greater or less degree, prevail; but it is not the intention of the American compact that any one state should ruin itself, or even do itself any great and irreparable injury, that the rest of the Union should become more prosperous. In this sense, then, the member of congress represents his immediate constituents, or perhaps it would be better to say his immediate state, and although he has no right to further its interests at the expense of the interests of other states, he is not called on to sacrifice them for the benefit of the sisters of the Union. This is one of the cases in which the doctrines of English representation do not apply to the American system. The difference arises from the circumstance that, in the one case, government is a compact between persons; in the other, a compact between states.
In a government like that of the United States, the executive is as much representative as the legislature. Will it therefore be pretended that the president is also bound to respect the instructions of the people? Is he to appoint those whom the people will, remove those whom the people denounce, pardon those whom the people order, and approve of such bills as the people dictate? Is he to command the army and navy, see that the laws are executed, and conduct the negotiations of the country according to the opinions and intimations of a majority of his constituents, or according to his own conceptions of duty, and the light of his own knowledge and experience? If the representative is bound to obey the will of his constituents, all this must the president do, or prove false to the institutions. As the commander in chief, his own soldiers would have a right to instruct him in the mode of performing his military functions, as, indeed, they would have a right to tell congress, when and against whom to declare war!
If the representative of the executive functions is thus bound to respect instructions, a majority of the people might virtually repeal an unpopular law, by instructing the president not to see it enforced, and thus destroy the rights of third parties. Such a doctrine would throw society into confusion, leave nothing stable, and set up a dangerous and irresponsible power, that would be stronger than the institutions themselves.
A principle reason for sending representatives to congress, is the impossibility of masses of men meeting to legislate with due knowledge and deliberation, and it can scarcely be contended that the results which cannot be obtained by any expedient of law, method and arrangement, are to be expected from extra-legal, voluntary and immethodical means. We ought not, consequently, to give an authority to those opinions of the people informally expressed, that the constitution would seem to show cannot be rendered available, when formally expressed.
The term representative implies full power to act, or, at least, full power to act under the limitations that environ the trust. A delegate is less gifted with authority, and is understood to act under instructions. These are ancient distinctions, and, existing as they did at the time the constitution was framed, they are entitled to respect, as explaining its intention. A representative is a substitute; a delegate an ambassador. It is, moreover, an admission of imbecility to suppose that the institutions infer a right to instruct, when no such right is expressed. All the machinery of the state is opposed to it, while in other countries, as in Switzerland, where the delegate acts under instructions, the machinery of the state is framed to meet such an end.
Upon the whole, when we take into consideration the received signification of terms, as they were understood when the constitution was framed; the legal effect of legislative acts, which are binding, though the entire constituency instruct to the contrary; the omission in the constitution to point out any legal means of instructing, and the practical difficulties in obtaining instructions that shall be above the reproach of being ex parte and insufficient; the permanent obligations of the constitution; the doubt and indecision instructions would introduce into a government, that was expressly framed to obviate these weaknesses; the dangers that constantly arise from the activity of the designing, and the supineness of the well-meaning; the want of unity, and of fixed principles, it might give to a legislation that controls peace and war, and the foreign relations; as well as the exposure to forign influence directly exercised over irresponsible men; and the general character of deliberation and examination which is secured to congress, which may be called on to act on information known only to itself; we are led to conclude that the doctrine of instruction is unconstitutional, whether as applied to the senate, or to the house of representatives, and that so far from being a doctrine that is adapted to secure the domination of real majorities, it is rather an invention of intriguing politicians to effect their own wishes, in opposition to those of the nation. Exceptions may occur, but governing principles are to be settled on general rules, and by general effects.
It being established that the representative is placed beyond the control of instructions, as beyond doubt is, at least, his legal position, the importance of making careful selections, becomes apparent. There is no safer rule in selecting a representative, than that already named; or that of choosing the man for public confidence, who may be relied on, in private. Most of all is the time-server and demagogue to be avoided, for such a man is certain to use power as an instrument of his private good. It is a mistake to suppose, on correct principles, that the representative is the obliged party. The man who faithfully does his duty in congress, is a servant to whom a difficult task is assigned, with a very insufficient compensation; and such a man should always be selected with care, and rewarded with a frank gratitude.
It is a painful admission, extorted by truth, that in human institutions, the intention is never long respected. Representation may not be in practice, what it was intended for, in theory, but, still, it might be drawn much nearer to what it ought to be, than it actually is. If party be not necessary to this government as a good, it is, perhaps, unnvoidable as an evil. But no elector should ever submit himself so implicitly to party as to support a man whose private acts prove him to be unfit for a public trust. The basis of the representative system is character, and without character, no man should be confided in. In discriminating between candidates, however, it should be remembered that there are "wolves in sheep's clothing," in character, as well as in other things. Personal vanity induces ordinary men to confide most in those who most flatter their frailties, but, it is a tolerably safe rule that he who is not afraid to speak the truth, is not afraid to act the truth; and truths, moral, political and social, are peculiarly the aim of this government.