of his realm, there was but one source from which that aggregate opinion could lawfully be collected. The same consequence follows from the very style and character of the Lower House. That body is not the House of Representatives but the House of Commons. The Commons of England are themselves in contemplation of law present in Parliament by their duly appointed agents. It is the Commons of England that grant to their King the needful supplies. It is the Commons of England that form one Estate of the Realm.* It is the Commons of England that advise and consent to the enactment of laws, and that are entitled to present themselves before Her Majesty and to address her upon every subject of public interest. The individual members of the House of Commons have no such powers. They are not an Estate of the Realm; but, in the language of the old statutes, are come for such an estate. They are avowedly agents, and act only in their principal's name. But they are agents with full powers. The sentiments, therefore, which they express are the sentiments of their principals; and it is not competent for those principals, while the relation continues, either to disavow those sentiments or to seek other organs of expression. It is, indeed, sometimes found that an existing House of Commons does not adequately express the views of its constituents. It has also happened that the constituent bodies do not adequately express the feelings of the nation. The former case is a mere temporary inconvenience arising from a personal unfitness; and a prompt and sure remedy can easily be applied. The other case, although a much more serious functional derangement, can also when it unfortunately occurs be successfully treated. But the * See Hallam, Middle Ages, iii. 104. proposition that the sense of the nation must be sought in the House of Commons seems never to have been formally denied. Our history, therefore, in assuming this doctrine affords little means for its illustration. Some occasional indications, however, may be noted of a desire on the part of the Crown to escape from the necessity of recognizing the utterances of the House of Commons as conclusive evidence of the national voice. Charles the First sought to find a substitute for Parliament when he revived at York, in 1640, the long disused Great Council of Barons; but his attempt only served more conclusively to establish the rule. In the following year the same unhappy King seems to have formed an analogous design. He denied not so much that the voice of the House of Commons was the voice of the nation, as that the voice of the majority was the voice of the House. He hoped by the aid of the Lords and of a minority of the Commons to reverse the legislation of the preceding year. It was their knowledge of this project that exasperated the leaders of the Opposition, and that gave its fierceness to that famous dispute as to the right of members of the House of Commons to protest, of which an eye-witness has left so vivid a description. As the result of that dispute, it was then settled that no such right exists. The voice of the people of England is but one voice; and, when it is uttered, it must give forth no uncertain sound. In the following reign, when the House of Commons and the Crown were at variance on the subject of the Exclusion Bill, the utmost efforts were made to procure loyal addresses. The country was canvassed in every direction to obtain petitions. hostile to the House of Commons; and the Judges of Assize § were diligently employed in lecturing the grand * * Forster, Hist. Essays, i. 110. Ib., 170. + lb., 112. § Hallam, Const. Hist., ii. 439. juries on the principles of Toryism. Again, in 1784, when many addresses had been presented to the King sympathizing with him in his struggle with the House of Commons and his dismissed ministers, George the Third assigned as a reason for refusing to comply with the desire of that House that he should displace Mr. Pitt "that numbers of his subjects had expressed their satisfaction at the change he had made in his councils." This preference of ex parte addresses to the legitimate organ of public opinion was at the time severely criticised; and it is to it that reference is made in the passage which I have before cited from Mr. Burke's famous Representation, moved as an amendment to the Address on the opening of the new Parliament. Although English precedents on this subject are scarce, there are some American decisions in which the principle we are considering is prominent. In several states of the Union attempts have from time to time been made by the Legislature to transfer the burthen of deciding some particular question to the whole male population. But the courts have always held that such proceedings are invalid. Under the Constitution both of the United States and of each separate state, the majority indeed governs, but only in the prescribed form. Accordingly when such Acts are brought before the courts whose duty it is to administer not only them but the written Constitution to which they ought to conform, the courts have invariably decided that these Acts are, either wholly or certainly to the extent in which they direct an erroneous performance of legislative duties, void. Thus, in Pennsylvania* the court held that a statute authorizing the citizens of certain counties to decide by ballot whether the sale of spirituous liquors 1 Kent's Commentaries, 501, note. should be continued in these counties was unconstitutional, as being a delegation of legislative power not permitted by the Constitution and contrary to the theory of the Government. So, too, when in the state of New York * an Act to establish free schools was by its terms directed to be submitted to the electors of the state, to become law only in the case of a majority of votes being given in its favour, it was held that the whole proceeding was entirely void. "The Legislature," said the Court of Appeals, "had no power to make such submission, nor had the people the power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the Constitution. The government of this state is democratic, but it is a representative democracy; and in passing general laws the people act only through their representatives in the Legislature." These cases, therefore, show† that, even in a country in which popular rights are not viewed with disfavour, the only voice of the people to which the law will listen is that voice which is uttered in accordance with law; and that, although the laws are the people's laws, the people must obey them while they continue, and cannot change them except in the manner in which these laws provide. § 8. It has been sometimes supposed that representation is due to the physical impossibility of collecting at the same time and in the same place all the inhabi- Representatants of a great country. It is assumed that if it were possible for the people to act in their primary capacity they both would so act and ought to do so. Since, however, the requisite conditions of such action *Sedgwick, Stat. and Const. Law, 165. tion a substantive insti tution. + But see, on delegated legislation under English law, the author's Legal Duties and Rights, 49. cannot be obtained, the next best course is representation. Thus the city governments of antiquity would at least in this respect be the type of political perfection. In comparison with them our modern system would on these principles be merely a substitute, although a good and useful substitute, for the natural and complete expression of the popular will. But there is a radical difference between the old market democracy and the representative democracy of the present day. Representation is not a makeshift: it is a substantive institution.* It is essentially distinct from the government of the Agora or the Forum ; and as a political instrument is far superior to that polity. If indeed the primary action of the people were desired, that action could, as the actual practice of both France and America shows, be easily obtained. Nothing more recondite is wanted than some proper arrangements for polling. Our law, however, as I have attempted to prove, distinctly recognizes the original and independent character of representation. The general conviction, too, of its practical superiority is shown by the deliberate adoption of representation in those cases in which, such as our municipal organization and our great commercial companies, the system of the market government might easily be obtained. There are in the representative system many incidental advantages to which this preference of it is in some degree due. But the primary principle on which its value rests is the same principle which regulates the exercise of the Royal will. The people require checks and limitations and enlightenment no less than the King. An aggregate assemblage of individuals must be restrained and informed no less than each individual unit of that aggregate. If a *See Lieber On Civil Liberty, 134: Mommsen, Hist. of Rome, iii. 98. |