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The Nature of Political Representation, II

Published online by Cambridge University Press:  02 September 2013

John A. Fairlie
John A. Fairlie
Affiliation:
University of Illinois
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Extract

In the literature of law, there has been comparatively little discussion as to the nature of political representation. A representative democracy has been defined as “a form of government where the powers of the sovereignty are delegated to a body of men, elected from time to time, who exercise them for the benefit of the whole nation.” And a representative form of government has been defined as “a government conducted and constituted by the agency of delegates, or deputies, chosen by the people.”

Judge Thomas M. Cooley, speaking for the Michigan supreme court, said: “A representative is one chosen by a principal to exercise for him a power or perform for him a trust. In that sense, the mayor of a city is a representative for some purposes, the members of the common council for others, and the members of the board of education for still others … the right to be represented implies a right, not merely to name the person, but also to designate the trust that shall be confided to him.” On this basis, it was held that a board of park commissioners established by the state legislature with certain powers, and recognized by the common council of the city, could not be vested afterwards by the legislature with additional powers previously exercised by the council.

Somewhat similar is the position of an English judge as to the authority of a representative in a legal proceeding. “A solicitor is the representative of his client, but counsel is not, for counsel has the whole conduct of the case, and can act even against the instructions of his client.” It was accordingly held that a solicitor is a representative within S. 17(4) Bankry Act, 1883, and must be “authorized in writing” to entitle him to question a debtor at a public hearing.

Type
Research Article
Information
American Political Science Review , Volume 34 , Issue 3 , June 1940 , pp. 456 - 466
Copyright
Copyright © American Political Science Association 1940

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References

26 1 Bouvier, Inst. No. 31; 28 Corpus Juris (1922) 752; 54 Corpus Juris (1931) 685; Lange v. Royal Highlanders, 75 Neb. 188 (1905), 106 N.W. 224; following State v. Bankers' Union of the World, 71 Neb. 620 (1909), 99 N.W. 531.

27 People v. Common Council of Detroit, 28 Mich. 228, 245 (1873); 15 American Reports, 202.

28 Per Brett, M.R., R. v. Greenwich Co. Registrar, 54 L.J.Q., 392; 15 Q.B.D. 54; 33 W.R. 671. Quoted in Stroud, F., The Judicial Dictionary (London, 1903), p. 1724.Google Scholar

29 Briggs v. Royal Highlanders, 84 Neb. 834 (1909), 132 N.W. 69; Meyer v. Supreme Lodge K.P. 104 Neb. 505 (1920), 177 N.W. 828, 180 N.W. 579; Widmer v. Sharp, 111 Neb. 526 (1924); 196 N.W. 918. Judicial and Statutory Definitions of Words and Phrases.

30 Stroud, F., The Judicial Dictionary (London, 1903), p. 1724.Google Scholar

31 Duff, P. W. and Whiteside, Horace E., “Delegata Potestas non Potest Delegari,” Cornell Law Quarterly, Vol. 14, p. 168 (1929)Google Scholar; Selected Essays on Constitutional Law (1938), Book IV, Administrative Law, pp. 291, 311–312.

32 Suggested by Holmes, J., in Opinion of the Justices, 160 Mass. (1894) 586, 594, 595; 36 N.E. 488; 23 L.R.A. 113. Cf. People v. Collins, 3 Mich. (1854) 343, in which Green, P. J., said: Legislative power “is not a mere delegation of power to an agent to act for and in the name of the principal, which the principal may exercise concurrently with his agent, and which the agent may at any time surrender into the hands of his principal at his discretion. It is an agency, but it is something more. It is an authority to exercise all that judgment and discretion which the principal might have exercised, without consultation with or in opposition to the will of such principal, and without being subject to any direct control by the granter of the power. It is an incident to inherent legislative power that it may be delegated; that incident adheres to the power in the hands of the legislative department of the government, qualified and limited only by the express provisions of the organic law, and the nature of constitutional organization…. The Constitution vests the power of legislation in a select body of men, and there it must remain until the Constitution itself is changed or abrogated. They have no authority to delegate their powers and exclude themselves from the right to their exercise. But it does not follow that they cannot create subordinate bodies with certain powers of legislation…. It would seem to be sufficiently clear, then, that it is in the very nature of legislative power, that it may, to some extent at least, be delegated, and that the maxim, delegata potestas non potest delegari, has no application.”

Martin, J., admitted “that the legislature cannot delegate its general legislative authority; still, it may authorize many things to be done by others which it might properly do itself.”

On this basis Green and Martin held that the statute under consideration, which provided that it should become effective if approved at a popular referendum, was constitutional. Two other judges (Douglas and Pratt) held that this provision was an unconstitutional delegation of legislative power.

33 Constitutional History of England (1908).

34 The Political Thought of Plato and Aristotle (1906), p. 89 n.

35 Ibid., pp. 193–194, 296, 461–462.

36 Greek Political Theory (1913), p. 35.

37 The Party System (1911).

38 Political Science and Constitutional Law (1913), II, pp. 1–3.

39 Ibid., II, p. 116.

40 Coker, F. W., in this Review, Vol. 15, p. 200 (1915).Google Scholar

41 Social Theory (1920).

42 “Some Neglected Factors in Lawmaking,” in this Review, Vol. 8, p. 222 ff. (1919).

43 Droit Constitutionnel (5th ed., 1921), pp. 263, 386.

44 Popular Government (1921), Chap. 3.

45 Modern Democracies (1921), Chap. 59.

46 Legislative Assemblies (1924), p. 342.

47 Legislative Principles (1930), Chap. 9.

48 The Modem State (1926), Chap. 6.

49 Quantitative Methods in Politics (1928), pp. 193–194.

50 Responsible Government in the Dominions (2d ed., 1928).

51 P. 359.

52 See this Review, Vol. 26, p. 228 (1932).

53 Chap. 13.

54 In Mathews, and Mabry, , Essays in Political Science (1937).Google Scholar Cf. Jennings, W. Ivor, Parliament (1940).Google Scholar In chapter 7, “Who Makes the Laws,” this author notes the numerous factors behind the formal process of legislation. In the concluding chapter, he remarks (p. 499) that “the main task of the member is to forward the interests and support the policies of as many of his constituents as he can”; and (p. 503) that “public opinion is often merely the sum of the opinions of minority groups, that members represent such groups as well as their constituents, and that matters of general concern are comparatively few.”

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