that, when did I learn that job? But he would even take it as an insult; and when it is a matter of making laws, the most sublime work of wisdom, everyone considers himself fit, and they would even show themselves offended if one said to them that they are not suitable to be legislators! Will perhaps a bust be more difficult than a good law, or will it require having had greater apprenticeship? Distinguished youth! May the famous social contract of the very profound Genevan not instill its errors in you, but rather its brilliant truths. Read, reread once and many times Book 2, chapter 7. Learn there what a legislator is and what is required to be one; and far from seeking, each one will tremble if the honorable misfortune of being elected deputy falls to him. But let us return to the subject.
The idea of mandatary and of mandate being false and dangerous applied to the representatives of a national congress (on which we could expound, drawing obvious terrible consequences, which perhaps we will do another time), it seems to us that if one wants to take from common jurisprudence some idea as the source of maxims and apply it, with less danger of absurdities, to modern congresses and their members, one should rather have laid one’s hands on that idea of independent arbiters through whose judgment the parties to a lawsuit are obliged to pass than
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that of mandataries and mandates. Nor is this exact, but it is much less dangerous.
Let us listen, in corroboration of everything said, to one of the greatest politicians that a nation fertile with them has had, the immortal Burke, speaking to the electors of Bristol who had named him member of Parliament and wanted to give him instructions for his conduct:
It is his [the representative’s] to sacrifice his repose, his pleasures, his satisfactions, to theirs [constituent]; and above all, ever, and in all cases, to prefer their interests to his own. But, his unbiassed opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you; to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the Law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. . . . If Government were a matter of Will on any side, yours, without question, ought to be superior. But Government and Legislation are matters of reason and judgement, and not of inclination; and, what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?
To deliver an opinion is the right of all men; that of Constituents is a weighty and respectable opinion, which a Representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; Mandates issued, which the Member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgement and conscience—these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenour of our Constitution.
Parliament is not a Congress of Ambassadors from different and hostile interests; which interests each must maintain, as an Agent and Advocate, against other Agents and Advocates; but Parliament is a deliberative Assembly of one Nation, with one Interest, that of the whole; where, not local Purposes, not local Prejudices ought to guide, but the general Good, resulting from the general Reason of the whole. You choose a Member indeed; but when you have chosen
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him, he is not Member of Bristol, but he is a Member of Parliament. If the local Constituent should have an Interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the Community, the Member for that place ought to be as far, as any other, from any endeavour to give it Effect.
These truths assumed, and the pernicious error dismissed, let us proceed to give definite rules that might direct the legislator, whether it is a matter of adopting a bad measure in order to agree with the common opinion and desire, or of rejecting a good measure to go against it.
It is the first and principal rule that, even if it be possible that there is true public opinion on a measure notoriously unjust and contrary to the eternal principles of equity and reason, not only can the representative not submit to such opinion and vote for it, but rather he has a very strict obligation to oppose it, under pain of committing a crime before God and being a traitor to his own seduced constituents, who, sooner or later, will detest him and make him suffer the penalty of his criminal complaisance. This truth does not need much justification: God must be obeyed before men; no unjust command deserves the name of such, nor should it be obeyed. The holy scriptures, the priests, and moral and political philosophers are full of these and similar maxims. Well, if in unjust matters not even he who can mandate must be obeyed, how should public opinion be obeyed, which, as we have shown, must not be the compulsory rule of a representative? The preconceived notion, says Bentham, “can be an excuse for the common people but not for public men: it, at least, will not be justified when it might be the source or occasion for errors,” and now this same profound politician warns what happens in those assertions of public opinion: “It even manages,” he says, “to remove measures from examination; and what begins to demonstrate the bad faith is that they try to support them with all the power and influence of government.”
The second very definite rule is that, if public opinion is for a measure which, although it might not be absolutely contrary to the immutable principles of reason and justice, the representative believes or knows will be detrimental to the nation in some way, he must not approve it but rather oppose it. For this he was elected; his obligation is to examine and decide only what can lead to the common good; he does not have to answer to God or to men for another’s judgment, but only for his own; and he must say to those arguing the contrary public opinion what Valentiano
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said to the army that had just elected him emperor and required him to join with Valente in rule: Vestrum fuit, o milites, cum imperator nullis esset, imperii mihi habens tradere, sed postquam illud suscepi meum deinceps, non vestrum est publicis rebus prospicere.
The third maxim is from the same very profound Bentham: The representative, if he must never vote for a measure that he believes unjust, never for one he considers will cause public misfortunes, neither must he insist on the adoption of a measure that, although in his judgment beneficial, might be contrary to general opinion; in this case he should not give it up completely, but instead defer it to a better time. “Public opinion,” says this learned man, “being only that of the greater number, without other evidence, is an argument without force: for the legislator it is not good reasoning, but rather respectable. It is not a reason to renounce the measure, but rather to defer it in order to enlighten minds, using legitimate means to combat the error, for the truth, daughter of time, secures it all from her father.”8
To these three rules that include everything we will add now, only for light in dark matters of factions, two maxims from the same author repeated also by Paley and various others. “It is always boasting,” he says, “to see veracity in politics as the morality of small minds and proof of simplicity and ignorance of the world; and men fearful of looking like fools adopt, relative to their conduct, public principles that they condemn in the ordinary actions of their life. A faction is, in some respects, a very vigilant and active guard; but if its principal aim is to seize power, it will be in its interest to perpetuate the abuses and will see them in advance as fruits of its victory.”
We have concluded, if not with the dignity that the matter requires, or with the profundity with which we would like to have treated it, giving more than enough points so that true
