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• And therefore he (the representative) is not bound, like a deputy of the United provinces, to consult with, or take the ad• vice, of his constituents upon any particular point, unless he himself thinks it proper or prudent so to do." 1 Bl. Com. 161,
"The person chosen seems to be strictly the delegate of 6those by whom he is chosen, and bound by their instructions whenever they think proper to exercise the right. If the maxim be true that all power is derived from the people; that magistrates are their trustees and servants, and at all times amenable to them for their conduct, it seems impossible to withhold our assent from the proposition, that in a popular government the representative is bound to speak the sense of his constituents upon every subject, • where he is informed of it. The difficulty of collecting the
sense of the people upon any question, forms no argument against the right to express that sense when they shall thing 'proper so to do. Tucker. vol. 1. app. 193.
In a democracy where the whole people convene for the purpose of deliberating with regard to a general law, or public measure, no one is supposed to come forward with an opinion already formed, and not to be altered; for that would be inconsistent with the advantage to be derived from a unita ed deliberation. The principle remains the same where the whole do not actually convene; but the number is reduced by representation. For it is equally inconsistent with the advantage of united deliberation that any of the representatives come forward but with a mind open to the observations of others. It is inconsistent with the rights of all for any one not to be free to listen to the consideration of the interest of the whole. It is from a communication of sentiments in a convention of the whole, that what shall be considered to be the interest of the whole, can alone be collected. In this case, have the constituents who are not convened a right to foreclose the ear and understanding of the representative? In that case the deliberation is supposed to be by the constituent; and the expression by the representative.
But taking it that the deliberation is at home, how is the information of this to be communicated to the representa
tive ; what means are provided to collect the sense of the community; or to express it. There are laws securing free and equal proceedings in the election of the representative ; but no provision for the taking the sense of the people, and sending it forward. The truth is the doctrine is a fallacy in theory : it takes for granted what does not exist, that the whole people have convened at home, and deliberated; for in that case, doubtless, the representatives of the whole would be bound by the whole.
For if this is not taken for granted, it will follow, that it must be contended, that the district sending a particular representative has a right to determine on a matter of geperal interest, independent of all conference with the other districts; and that this is expedient and com; atible with the public safety. But it can only be in the represen- . tative body that the sense of one district can be supposed to be known to another. For as to what can be collected otherwise, there is no certain medium of communication. Of the right of the constituent to communicate, to instruct, to remonstrate there is no question. It is the right to controul, even supposing the sense of the district to be known, that is to be controverted. Under the constitutions of these states, where elections are for so short a period; it is not of so much moment what may be considered the abstract principle; as, in practice, the sense of the particular portion of the community from whence the representative is chosen, will govern him, so far as he is able to collect it; and it will require more fortitude ; perhaps I might say more virtue, than falls to the share of most individuals, to resist the popular and temporary impulse. He will be a knave or a hero that can do it; that is, he will have bartered his duty for his profit; or, he will be a patriot, of self-denial, willing to sacrifice himself for the people. But I do not think that the danger of such possible bartering, is such as will warrant the denying a representative the right to think for those at home on a question which respects the general interest, freely and unembarrassedly as he would for himself, subject only to instructions as infuencing his delibe
rations, but not as absolutely controlling his vote. But in dependent of the expediency I rest the argument on the ground, that it is the republican principle of representative government, that every individual is presumed to advise with another before he makes up an opinion on what con cerns the whole; for, “in a multitude of counsellors there i safety;" and as every individual constituent cannot be suppos ed to advise with another in a large community, it must be ir that body where the number is reduced by representation that this advisement can be presumed to take place. It is therefore contrary to all principle of right or expedience that the constitutent out of doors should undertake to control the deliberations of those who constitute the represen tative body.
This principle, if correct, in the case of a representative to the legislature of a state, equally applies in the case of a representative to the general government; and a fortiori where the election is not in the primary assemblies of the people, but by the representatives of the state ; as, in the election of a senator of the United States. For these having elected the senator are functi oficio; and he is not the representative of this secondary body, but of the people; and it is from that source that instructions must come if they are to bind. For it would be incongruous, that instructions should come from the primary assemblies to the representative in one house of congress, and from the secondary body to the representative in another, which might be discordant and draw a different way. But still I recur te the principle which is at the bottom of all this, that the deliberative body above has an interest in the free judgment of all the members, who ought not to be supposed to come there; not with their ears in their feet, it is true to use the language of Aristippus speaking of Dionysius, but with their ears in their pockets ; or with the papers in their desks. It is better that even the interest of the whole should be mistaken in a particular case, than that the advantage of a free and united deliberation should be lost; the combined
wisdom of the whole being controlled by the ideas of a part, having no opportunity of taking a near view of the question; and accompanied with such assistance as must be presumed to be derived from the reason and deduction of others. And such is the self-love of man, and the desire of present ease or convenience, that the danger does not arise from resisting, but from yielding to the wishes of the part by whom the representative is immediately elected : under the American constitutions particularly, where the individual can seldom find a temptation of honour or profit to swerve from the popular inclination of the moment; but in most cases must be actuated by what he considers as the salus populi or good of the whole. Where such sacrifice of popularity is made, the prima facie evidence always is, that of virtue, if not of wisdom.
Provisions against the possibility of a representative consulting self-interest contrary to his sense of the general good, in subservience to partial views, must be found, not in the restraint of instructions, but in the shortness of the period of his delegation, and the being incapable of receiving appointments under the government, for a period after the expiration of his term. These provisions if not in the constitution can be made by law.
“ As to the qualifications of the electors." 1 Bl. Com. 172.
I am an advocate for the principle of universal suifrage ; for I can see no consistency in any limitation, but what is personal and respects age, and residence. But this delightful principle of equality cannot be tolerated without endangering liberty, unless the stays or restraints upon public volition are proportionably powerful ; for the mind of man like, the water of the ocean is subject to sudden and great agitation. The breath of opinion like the atmosphere blows upon it, not with an equable and steady breeze; but, in flaws and strong winds. In proportion as the whole mass is acted ou
and can be put in motion, the waves are the more tremendous The stays, or restraints are
1. The acting by representation ; for, even in a small state, where the whole can convene, this is found a great help and contributes to the wisdom of deliberation. For though “ in a multitude of consellors there is safety,” yet this is not in the ratio of the number of heads, that consult, but of the number out of which to select, and which gives the greater chance of selecting men of understanding.
2. The division of power in the representation; the law-making, the law-expounding, and the law-executing power. This we have under our Constitution, in the legislative bodies, the judiciary, and the governor.
3. The subdivison of the law-making power, immediately emanating from the whole, and a representation emanating from the parts. This we have in the qualified negative of the governor, and in the district delegates.
4. A subdivision of the representation from the parts, in order to produce deliberation, and obstruct combination : and, under this subdivision, a shorter period of revocation in one body with a view to secure fidelity to the voice of the constituent; in the other a longer period, in order to lessen fear in the delegate of acting according to his own judgment in opposition to temporary impulse, and popular paroxism : this we have in the two branches, the annual branch, and the quadrennial senate.
I am not about to write a comment on our constitution ; but it will be seen that it possesses all these restraints and stays; and venture to assert that with the principle of universal suffrage, its date would be short without them. For even where a qualification of property is introduced as a stay, and citizens of a certain real estate only have the rights of suffrage, yet a government founded on opinion, is subject to internal commotion, and is with great difficulty preserved in a state of freedom : It tends to anarchy or monarchy with alternate heel until it goes down in despotism.
Our executive springs wholly from the stock; it rises olt the basis of the whole people. Universal suffrage raises it: