The immortal Sidney, in his discourses on government, goes to the full extent of our present doctrines. “Many in all ages, and sometimes the whole body of the commons, have refused to give their opinion in some cases till they had consulted with those that sent them; the houses have been often adjourned to give them time to do it; and if this were done more frequently, or that the towns, cities and counties had on some occasions given instructions to their deputies, matters would probably have gone better in parliament than they have often done.” He seems satisfied with subsequent rejection as sufficient punishment for violation of duty, but does not hence infer that there are no duties. “Whensoever any of them has the misfortune not to satisfy the major part of those that chose him, he is sure to be rejected with disgrace the next time he shall desire to be chosen. This is not only a sufficient punishment of such faults, as he who is one of five hundred may probably commit, but as much as the greatest and freest people of the world did ever inflict upon their commanders that brought the greatest losses upon them.” (Discourses on Government, section 38.) This rejection from office is the only punishment provided by our constitution in cases of impeachment of the highest officers.
Quotations might be multiplied, but “this little taste shall suffice.” It must be remembered that these doctrines prevailed under a constitution which allowed of no resignation, and where fifty-six members (or about a ninth part of the English representation) were elected by only three hundred and sixty-four votes—where one man sent a representative from Sarum, and one from Newton, and two sent one from Marlborough—and the elective franchise was so unequally and unjustly distributed, that parliament never truly represented the wealth, population, or wishes of all England, or any section, or even a single election district, or any class of persons or property, unless the representatives of the single freeholders of Newton and Sarum constituted an exception! When our “novel doctrine, conjured up for party purposes,” has prevailed there time out of mind, who shall deny its propriety here? Lords have proxies, and may instruct them, though the absent principals may be gambling in Brussels, or revelling in Parisian debauchery, and neither hear or read the debates; shall that be denied to the majesty of the people which is yielded to the dignity of a half fledged lordling, sunk in vices which disgrace the human character?
III. If any thing could render a relaxation of our rule tolerable in England, it would be that feature of their constitution which will not permit resignation. As that constitution “will not intend a wrong,” it must suppose constituents utterly incapable of giving instructions “which no honest man can obey”—and it must hold a member entirely irresponsible, morally and legally, for a vote in obedience to them. Such is the fact, and this arrangement prevents that possibility of the defeat of their wishes by resignation, which the judge so much deprecates, and which he sets up as a reason or excuse for wilful disobedience. This absence of a constitutional privilege of resignation renders members, when once elected, indebted entirely to the courtesy of the crown for their escape from their seats when disagreeable. Another feature of their constitution makes the acceptance of office under the crown, (except a few offices of state) ipso facto vacate a seat in parliament. Hence we often hear of gentlemen's accepting the Chiltern Hundreds.6
6 “A member when duly elected, is not only compelled to serve in parliament, but he cannot at any future period either resign his seat or be expelled from the house except by some legal disqualification. In order, therefore, to meet the views of those members who may wish to resign their seats, it has been the practice, ever since the year 1750, for such members to accept the office of steward of the Chiltern Hundreds, which being an appointment under the crown, their seats are of necessity vacated. The office, however, is a merely nominal one. The stewards who accept it desire neither honor nor emolument from it, the only salary attached to the appointment being twenty shillings a year. The Chiltern Hundreds are districts in Buckinghamshire belonging to the crown. The appointment to the office of the steward of these Hundreds is vested in the Chancellor of the Exchequer, who, as a matter of course, grants it to every member who applies for it.”—Random Recollections of the House of Commons.
“On the 2d of March, 1623, (!) it is agreed, That a man, after he is duly chosen, cannot relinquish.”
See this and other precedents, and the reasons for the principle on which this part of the parliamentary constitution stands, collected in “Volume II of Hatsell's Proceedings and Precedents in the House of Commons.” The rule is firmly established, but thus easily evaded when inconvenient.
In England no one seems to have objected to this right, that it cannot be enforced, or disobedient delegates punished, although there, delegates may alter or refuse to alter the constitution itself, in despite of their constituents—still less is the want of power to recall, or the length of term urged against it. If this last was a sound reason, then it would follow that members of the old parliaments were bound to obey, but not those elected since the septennial act! That is, the stronger the reason for the right the weaker it becomes, which militates against every principle of British law.
The sublime and eloquent BURKE appeared before the electors of Bristol in all the proud consciousness of lofty virtue and commanding intellect. But strip his arguments of the gilded cloud of drapery flung around them by the magic of his fancy, and his sophistry, naked, unadorned, loses half its force by losing all its beauty.7 The most powerful and legitimate argument he uses, applies only to the expediency of disobedience in that particular case, and if his facts were correct, ought to have excused him, if such an offence can ever be excused. “Was I not to foresee, or foreseeing, was I not to endeavor to save you from all these multiplied mischiefs and disgraces.” He then artfully asks, if the “little, silly canvass prattle of obedience to instructions would save them from the ‘pelting of the pitiless storm.’” Thus presenting them only the awful alternatives of destruction or disobedience, and appealing to subsequent developements to prove that disobedience was their preservation. By placing it in this position, he ventures to ridicule instructions. His next best argument also applied only to special cases. He appeals to “near two years tranquillity” to prove that “the late horrible spirit was in a great measure the effect of insidious art, and perverse industry, and gross misrepresentation.” In a word, any thing but the deliberate sense of the people. From this it seems the people ought not to be tranquil under insult, or their deliberate will may be mistaken for a “fashionable gale.” After thus fortifying himself by all the strength which his ingenuity and eloquence could give to his own peculiar position, he ventures to fire his gilded shot at the sacred citadel. He contends that if the “dislike had been much more deliberate, and much more general than it was,” he ought not to make the “opinions of the greatest multitudes the masters of his conscience,” unless they “were the standard of rectitude,” which was not expected of him. All they asked was, in a question of expediency, that he would substitute their judgment for his own. He doubts if “Omnipotence itself can alter the essential constitution of right and wrong,” much less such things as his constituents and himself. This was pretty gilding for their chains merely. They never attempted to alter the constitution of right and wrong, but to judge the one from the other; and the question was not between them and Omnipotence, but the electors of Bristol and the “sublime and beautiful” BURKE.
7 “And vice itself loses half its evil by losing all its grossness.”—[Reflections on the French Revolution.]
He next contends that the delegate owes his judgment as well as his exertions to his constituents—which is true—and the debt is paid when they ask to set aside his judgment for theirs. He admits the delegate should sacrifice his will to his constituents, but that government is a matter of judgment and of reason—not of inclination; and asks, “What sort of reason is that in which the determination precedes the discussion—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?” I might ask what sort of a will is this conceded, which is never to prevail? Can there be no reason or judgment—no discussion—no deliberation—no arguments out of parliament? Can the people neither talk, or think, or read? This argument wholly falls, when the instructions are given, after both popular and parliamentary discussion has spread all the light upon the subject through the country.