第77章

SHOULD A member of the legislature be bound by the instructions of his constituents? Should he be the organ of their sentiments, or of his own? their ambassador to a congress, or their professional agent, empowered not only to act for them, but to judge for them what ought to be done? These two theories of the duty of a legislator in a representative government have each its supporters, and each is the recognised doctrine of some representative governments. In the Dutch United Provinces, the members of the States General were mere delegates; and to such a length was the doctrine carried, that when any important question arose which had not been provided for in their instructions, they had to refer back to their constituents, exactly as an ambassador does to the government from which he is accredited. In this and most other countries which possess representative constitutions, law and custom warrant a member of Parliament in voting according to his opinion of right, however different from that of his constituents: but there is a floating notion of the opposite kind, which has considerable practical operation on many minds, even of members of Parliament, and often makes them, independently of desire for popularity, or concern for their re-election, feel bound in conscience to let their conduct, on questions on which their constituents have a decided opinion, be the expression of that opinion rather than of their own. Abstractedly from positive law, and from the historical traditions of any particular people, which of these notions of the duty of a representative is the true one?

Unlike the questions which we have hitherto treated, this is not a question of constitutional legislation, but of what may more properly be called constitutional morality- the ethics of representative government. It does not so much concern institutions, as the temper of mind which the electors ought to bring to the discharge of their functions; the ideas which should prevail as to the moral duties of an elector. For let the system of representation be what it may, it will be converted into one of mere delegation if the electors so choose. As long as they are free not to vote, and free to vote as they like, they cannot be prevented from making their vote depend on any condition they think fit to annex to it. By refusing to elect any one who will not pledge himself to all their opinions, and even, if they please, to consult with them before voting on any important subject not foreseen, they can reduce their representative to their mere mouthpiece, or compel him in honour, when no longer willing to act in that capacity, to resign his seat. And since they have the power of doing this, the theory of the Constitution ought to suppose that they will wish to do it; since the very principle of constitutional government requires it to be assumed that political power will be abused to promote the particular purposes of the holder; not because it always is so, but because such is the natural tendency of things, to guard against which is the especial use of free institutions. However wrong, therefore, or however foolish, we may think it in the electors to convert their representative into a delegate, that stretch of the electoral privilege being a natural and not improbable one, the same precautions ought to be taken as if it were certain. We may hope that the electors will not act on this notion of the use of the suffrage; but a representative government needs to be so framed that, even if they do, they shall not be able to effect what ought not to be in the power of any body of persons- class legislation for their own benefit.

When it is said that the question is only one of political morality, this does not extenuate its importance. Questions of constitutional morality are of no less practical moment than those relating to the constitution itself. The very existence of some governments, and all that renders others endurable, rests on the practical observance of doctrines of constitutional morality; traditional notions in the minds of the several constituted authorities, which modify the use that might otherwise be made of their powers. In unbalanced governments- pure monarchy, pure aristocracy, pure democracy- such maxims are the only barrier which restrains the government from the utmost excesses in the direction of its characteristic tendency. In imperfectly balanced governments, where some attempt is made to set constitutional limits to the impulses of the strongest power, but where that power is strong enough to overstep them with at least temporary impunity, it is only by doctrines of constitutional morality, recognised and sustained by opinion, that any regard at all is preserved for the checks and limitations of the constitution.

In well-balanced governments, in which the supreme power is divided, and each sharer is protected against the usurpations of the others in the only manner possible- namely, by being armed for defence with weapons as strong as the others can wield for attack- the government can only be carried on by forbearance on all sides to exercise those extreme powers, unless provoked by conduct equally extreme on the part of some other sharer of power: and in this case we may truly say that only by the regard paid to maxims of constitutional morality is the constitution kept in existence. The question of pledges is not one of those which vitally concern the existence of representative governments; but it is very material to their beneficial operation.

The laws cannot prescribe to the electors the principles by which they shall direct their choice; but it makes a great practical difference by what principles they think they ought to direct it. And the whole of that great question is involved in the inquiry whether they should make it a condition that the representative shall adhere to certain opinions laid down for him by his constituents.