Part 2

The House of Commons chooses its Speaker by majority. It may be said, also, that it chooses the Ministers of the Crown in the same way, because the fate of a cabinet depends upon a majority. In short, whatever it does, unless it be the nomination of committees, is by majority. It is only through majority that it can act. The House of Commons itself is found in the majority of its members,--never in a minority.

On the other hand, members of Parliament are chosen by plurality. No reason is assigned for the difference; but it may be found, perhaps, in two considerations: first, the superior convenience, amounting almost to necessity, of choosing members of Parliament in this way; and, secondly, the fact that popular bodies were not embraced by the Law of Corporations, which establishes the rule of the majority.

Here I adduce the authority of Mr. Cushing, in his Parliamentary Law, in the very passage cited by the Senator from Illinois:--

“At the time of the first settlement and colonization of the United States, the elections of members of Parliament in England were conducted upon the principle of plurality, which also prevailed in all other elections in which the electors were at liberty to select their candidates from an indefinite number of qualified persons. Such has been, and still continues to be, the Common Law of England; and such is the present practice in that country in all elections.”[3]

It will be perceived that this statement is with reference to popular elections, and not elections by corporate or legislative bodies. So far as it goes, it is explicit. But pardon me, if I say that the Senator from Illinois has misunderstood it. Had he examined it carefully, he would have seen that it had no bearing on the present case. Nobody questions the plurality rule in the election of members of Congress, although few, perhaps, have considered how it came into existence. Mr. Cushing, whom the Senator cites, explains it, and in a way to furnish no authority for a minority instead of a majority in a legislative body. The rule prevailed in England. The colonies of Virginia and New York adopted it. From these, as they became States, it gradually extended throughout the country. A different rule was carried to New England by the Puritan Fathers. Even popular elections were by the rule of the majority, as is explained by the same learned authority.

“The charter of the Colony of the Massachusetts Bay being that of a trading company, and not municipal in its character, the officers of the Colony were originally chosen at general meetings of the whole body of freemen, precisely as at the present day the directors of a business corporation, a bank, for example, are chosen by the stockholders at a general meeting. In the choice of Assistants, who were to be eighteen in number, at these meetings of the Company, or, as they were called, Courts of Election, the practice seems to have been for the names of the candidates to be regularly moved and seconded, and put to the question, one by one, in the same manner with all other motions. This was then, as it is now, the mode of proceeding in England, in the election of the Speaker of the House of Commons, and in the appointment of committees of the House, when they are not chosen by ballot. Probably, also, it was the usual mode of proceeding in electing the officers of a private corporation or company. In voting upon the names thus proposed, it was ordered--with a view, doubtless, to secure the independence and impartiality of the electors--that the freemen, instead of giving an affirmative or negative voice in the usual open and visible manner, should give their suffrages by ballot, and for that purpose should ‘use Indian corn and beans: the Indian corn to manifest election, the beans contrary.’ The names of the candidates being thus moved and voted upon, each by itself, it followed, of course, that no person could be elected but by an absolute majority.”[4]

The rule, thus curiously explained, continued in Massachusetts down to a recent day; at last it yielded to the exigency of public convenience, so that at this moment, I believe, popular elections throughout the United States are by the plurality rule. But I repeat, that this is no authority for overturning the rule of the majority in a legislative body, having in its favor so many reasons of law and tradition.

I have only alluded to the Law of Corporations; but this law is of weight in determining the present case. According to this law, the rule of the majority must prevail. Indeed, an eminent jurist says that this rule is according to the Law of Nature, as it is unquestionably according to the Roman Law, and the modern law of civilized states.[5] But what is a legislative body but a political corporation? Therefore, when asked if a Legislature, even by legislative act, may set aside the rule of the majority in the election of Senators, I must candidly express a doubt. The Constitution confides this power to the “Legislature”; but the “Legislature” consists of a majority. _Ubi major pars est, ibi totum_: “Where the greater part is, there is the whole.” Such is an approved maxim of the law; and this maxim has in its support, first, the Law of Nature, secondly, the Law of Corporations, thirdly, the Parliamentary Law, and, fourthly, the principles of republican government. Who ever thought of saying, Where the minority is, there is the whole?

But we are not asked now to decide the question, whether the Legislature, by legislative act, may substitute the rule of a minority for the majority. That question is not necessarily before us. In the present case there has been no legislative act; and the question is, whether the rule of the minority may be substituted for the majority by the abnormal body known as joint meeting. On this point the conclusion is clear. Even assuming that this substitution may be made by legislative act, it does not follow that it may be made in joint meeting.

Surely, such a change is of immense gravity, and should be made only under all possible solemnities and safeguards. If ever there was occasion for the delays and precautions provided by legislative proceedings, with three different readings in each separate House, it must be when such a change is in question. Such surely is the suggestion of reason. But the Constitution itself, which delegates to the “Legislature” of each State the power to _prescribe the manner_ of electing Senators, uses language not open to evasion. This power is to be exercised by the “Legislature,” which may prescribe the manner. It is not to be exercised by any other body than the Legislature; and the manner is to be prescribed by the Legislature. But, assuming that it may be exercised in joint meeting, it is clear that this must be in pursuance of some legislative act, prescribing in advance the manner.

Supposing the case doubtful, then I submit that all presumptions and interpretations must tend to support the rule of a majority. In other words, so important a rule, having its foundation in the Law of Nature, the Law of Corporations, Parliamentary Law, and the principles of republican institutions, cannot be set aside without the plainest and most positive intendment. It cannot be done by inference or construction. If ever there was occasion where every doubt was to be counted against the assumption of power, it is the present. I know very little of cards, but I remember a rule of Hoyle, “When you are in doubt, take the trick.” Just the reverse must be done in a case like the present, involving so important a principle: when you are in doubt, do not take the trick. This is a republican government, and surely you will not abandon the first principle of a republican government without good reason. According to received maxims of law, you must always incline in favor of Liberty. In the same spirit you must always incline in favor of every principle of republican government, and especially of that vital principle which establishes the rule of the majority. Thus inclining, the way at present is easy; and here I quote another authority, very different from Hoyle. Lord Bacon, in his Maxims of the Law, after mentioning a similar presumption, says:--

“It is a rule drawn out of the depths of reason.… It makes an end of many questions and doubts about construction of words: for, if the labor were only to pick out the intention of the parties, every judge would have a several sense; _whereas this rule doth give them a sway to take the law more certainly one way_.”[6]

And now, Sir, I have only to add, in conclusion, let us incline in favor of the rule of the majority. So inclining, you will at once show reverence for the republican principle and will stand on the ancient ways.

The question was then taken on an amendment, moved by Mr. Clark, of New Hampshire, to insert the word “not” before the word “duly” in the resolution of the Committee, and also before the word “entitled,” so that it should read that he “was not duly elected, and is not entitled to his seat.” This amendment was lost,--Yeas 19, Nays 21. The question then recurred on the resolution of the Committee. Upon the conclusion of the calling of the roll, the vote stood, Yeas 21, Nays 20, when Mr. Morrill, of Maine, said, “Call my name.” This was done, and he said, “I vote nay.” Mr. Stockton, who had not voted, rose, and, after stating that his colleague, Mr. Wright, was at home, said, “When he was last in this Chamber, he told me, as he left the Hall, that he would not go home, if it were not for the fact that he had paired off with the Senator from Maine. Mr. President, I ask that my name be called.” His name was then called, and he voted in the affirmative, so that the result was, Yeas 22, Nays 21. Meanwhile Mr. Morrill stated the circumstances with regard to his original pair with Mr. Wright and his withdrawal from it. The result was then declared,--Yeas 22, Nays 21,--making a majority in the affirmative, and the resolution was treated as adopted.

* * * * *

The sequel of these proceedings, ending in the passage of a resolution, moved by Mr. Sumner, “that the vote of Mr. Stockton be not received,” and the adoption of a resolution declaring him “not entitled to a seat as Senator,” will appear under the next article.

A SENATOR CANNOT VOTE FOR HIMSELF.

SPEECH IN THE SENATE, ON THE VOTE OF HON. JOHN P. STOCKTON AFFIRMING HIS SEAT IN THE SENATE, MARCH 26, 1866.

March 26th, immediately after the reading of the Senate journal, Mr. Sumner rose to what he called a question of privilege, and moved “that the journal of Friday, March 23, 1866, be amended by striking out the vote of Mr. Stockton on the question of his right to a seat in the Senate.” The circumstances of this vote appear at the close of the last article. On his motion Mr. Sumner said:--

There are two ways, I believe, if there are not three, but there are certainly two ways of meeting the question presented by the vote of Mr. Stockton. I use his name directly, because it will be plainer and I shall be more easily understood. I say there are two ways in which the case may be met. One is, by motion to disallow the vote; the other, by motion, such as I have made, to amend the journal. Perhaps a third way, though not so satisfactory to my mind, would be by motion to reconsider; but I am not in a condition to make this motion, as I did not vote with the apparent majority. I call your attention, however, at the outset, to two ways,--one by disallowing the vote, and the other by amending the journal. But behind both, or all three, arises the simple question, Had Mr. Stockton a right to vote? To this it is replied, that his name was on the roll of the Senate, and accordingly was called by our Secretary; to which I answer,--and to my mind the answer is complete,--The rule of the Senate must be construed always in subordination to the principles of Natural Law and Parliamentary Law, and therefore you are brought again to the question with which I began, Had Mr. Stockton a right to vote?

Had he a right to vote, first, according to the principles of Natural Law, or, in other words, the principles of Universal Law? I take it there is no lawyer, there is no man even of the most moderate reading, who is not familiar with the principle of jurisprudence, recognized in all countries and in all ages, that no man can be a judge in his own case. That principle has been reduced to form among the maxims of our Common Law,--_Nemo debet esse judex in propria sua causa_. As such it has been handed down from the earliest days of the mother country. It was brought here by our fathers, and has been cherished sacredly by us as a cardinal rule in every court of justice. No judge, no tribunal, high or low, can undertake to set aside this rule. I have in my hand the most recent work on the Maxims of Law, where, after quoting this rule, the learned writer says:--

“It is a fundamental rule in the administration of justice, that a person cannot be judge in a cause wherein he is interested.”[7]

In another place, the same learned writer says:--

“It is, then, a rule always observed in practice, and of the application of which instances not unfrequently occur that, where a judge is interested in the result of a cause, he cannot, either personally or by deputy, sit in judgment upon it.”[8]

This rule had its earliest and most authoritative judicial statement in an opinion by an eminent judge of England, who has always been quoted for integrity in times when integrity was rare: I mean Chief Justice Hobart, of the Court of Common Pleas. In his own Reports, cited as Hobart’s Reports, I call attention to the case of _Day_ v. _Savadge_, where this learned magistrate said:--

“It was against right and justice, and against natural equity, to allow them [the Mayor and Aldermen of London] their certificate, wherein they are to try and judge their own cause.”

And then he says, in memorable language, which has made his name famous:--

“Even an Act of Parliament, made against natural equity, as, to make a man judge in his own case, is void in itself; for _jura naturæ sunt immutabilia_, and they are _leges legum_.”[9]

Thus strongly and completely did he cover the present case, reaching forward with judgment. According to him, even an Act of Parliament making a man judge in his own case is void. But, Sir, he was not alone. His great contemporary, and our teacher at this hour, Sir Edward Coke, in a very famous case, known as _Bonham’s_, which I have not before me now, but which is referred to in other cases, lays down the same rule,--that a court of justice will not even recognize an Act of Parliament, if it undertakes to make a man judge in his own case.[10]

But another judge, who, as lawyer and authority in courts down to this day, perhaps excels even the two already cited,--I mean Lord Chief Justice Holt,--has explained and developed this principle in masterly language. I refer to what is known as Modern Reports, in the case of _The City of London_ v. _Wood_, where he says:--

“I agree, where the city of London claims any freedom or franchise to itself, there none of London shall be judge or jury; for there they claim an interest to themselves against the rest of mankind.”

He then explains the principle:--

“It is against all laws, that the same person should be party and judge in the same cause, for it is manifest contradiction; for the party is he that is to complain to the judge, and the judge is to hear the party; the party endeavors to have his will, the judge determines against the will of the party, and has authority to enforce him to obey his sentence: and can any man act against his own will, or enforce himself to obey? The judge is agent, the party is patient, and the same person cannot be both agent and patient in the same thing; but it is the same thing to say that the same man may be patient and agent in the same thing as to say that he may be judge and party, and it is manifest contradiction. And what my Lord Coke says in _Dr. Bonham’s Case_, in his 8 Co., is far from any extravagancy; for it is a very reasonable and true saying, that, if an Act of Parliament should ordain that the same person should be party and judge, or, which is the same thing, judge in his own cause, it would be a void Act of Parliament; for it is impossible that one should be judge and party, for the judge is to determine between party and party, or between the Government and the party; and an Act of Parliament can do no wrong, though it may do several things that look pretty odd, for it may discharge one from his allegiance to the Government he lives under and restore him to the state of Nature, but it cannot make one that lives under a government judge and party.”[11]

These are the words of Chief Justice Holt. It will be observed that three eminent judges, Hobart, Coke, and Holt, all found the inevitable conclusion on the immutable principles of Natural Law, that law which is common to all countries. It is the very law of which Cicero spoke in the memorable sentence of his treatise on the Republic, when he said that there was but one law for all countries, now and in all times, the same at Athens as in Rome.[12] It is also that universal law to which the great English writer, Hooker, alluded, when he said that her seat is the bosom of God; all things on earth do her homage,--the least as feeling her care, and the greatest as not exempt from her power. To this Universal Law all your legislation must be brought as to a touchstone; and all your conduct in this Chamber, and all your rules, must be in accordance with it. Therefore I say, as I began, the practice of calling the roll of the Senate must be interpreted in subordination to this commanding rule of Universal Law.

This is not all. I said that it was forbidden, not only by Natural Law, but also by Parliamentary Law. Of course, Parliamentary Law in itself must be in harmony with Natural Law; but Parliamentary Law has undertaken in advance to deal with this very question. There is no express rule of the Senate on the subject, but here is a rule of the other House:--

“No member shall vote on any question in the event of which he is immediately and particularly interested.”[13]

This is but an expression in parliamentary language of what I have announced as the rule of universal jurisprudence. But, Sir, this rule was borrowed from the rules of the British House of Commons, one of which is,--

“If anything shall come in question touching the _return or election_ of any member, he is to withdraw during the time the matter is in debate.”[14]

I quote from May’s Parliamentary Law. From another work of authority, Dwarris on Statutes, I now read:--

“No member of the House may be present in the House when a bill or any other business concerning himself is debating; while the bill is but reading or opening, he may.”[15]

Then, after citing two different cases, the learned writer proceeds:--

“This rule was always attended to in questions relative to the seat of a member on the hearing of controverted elections, and has been strictly observed in cases of very great moment.”[16]

Again the same writer says:--

“Where a member appeared to be ‘somewhat’ concerned in interest,”--

That is the phrase, only “somewhat concerned,”--

“his voice has been disallowed after a division.”[17]

Then, again, our own eminent countryman, Cushing, who was quoted so frequently the other day, in his elaborate book on the Law and Practice of Legislative Assemblies, expresses himself as follows:--

“Cases are frequent in which votes received have been disallowed.”[18]

Again he says:--

“Votes have also been disallowed after the numbers have been declared, on the ground that the members voting were interested in the question; and, in reference to this proceeding, there is no time limited within which it must take place.”[19]

Thus, Sir, it is apparent that Parliamentary Law is completely in harmony with Natural Law. Indeed, if it were not, it would be our duty to correct it, that it might be made in harmony.

* * * * *

And now, after this statement of the law, which I believe completely applicable to the present case, I am brought to consider the remedy. I said at the outset that there were two modes: one was by disallowing the vote on motion to that effect, and the other by amending the journal. But first let me call attention to the practice in disallowing a vote on motion. I have already read from Dwarris, where the vote was disallowed, and I will read it again:--

“Where a member appeared to be ‘somewhat’ concerned in interest, his voice has been disallowed after a division.”

MR. TRUMBULL. Was that at the same or a subsequent session?

MR. SUMNER. It does not appear whether it was at a subsequent session, but it simply appears that it was after the division. The Senator understands that the division in the British Parliament corresponds with what we call the yeas and nays. They “divide,” as it is called,--the yeas and the nays being counted by tellers as they pass.

The American authority is in harmony with the English already quoted. I read again from Cushing.

“The disallowance of votes usually takes place, when, after the declaration of the numbers by the Speaker, it is discovered that certain members who voted were not present when the question was put, or _were so interested in the question_”--

Mark those words, if you please, Sir--

“that they ought to have withdrawn from the House.

“It has already been seen, that, when it is ascertained that members have improperly voted, on a division, who were not in the House when the question was put, if this takes place before the numbers are declared by the Speaker, such votes are disallowed by him at once, and not included in the numbers declared. If the fact is not ascertained until after the numbers are declared, it is then necessary that there should be a motion and vote of the House for their disallowance; and this may take place, for anything that appears to the contrary, at any time during the session, and has in fact taken place after the lapse of several days from the time the votes were given.”[20]

Thus much for the remedy by disallowance; and this brings me to the proposition by amending the journal. That remedy, from the nature of the case, is applicable to an error apparent on the face of the journal. I ask Senators to note the distinction. It is applicable to an error apparent on the face of the journal. If the interest of a Senator appeared only by evidence _aliunde_, by evidence outside, as, for instance, that he had some private interest in the results of a pending measure by which he was disqualified, his vote could be disallowed only on motion; but if the incapacity of the Senator to vote on a particular occasion appears on the journal itself, I submit that the journal must be amended by striking out his vote. The case is patent. We have already seen, by the opinions of eminent judges, great masters of law in different ages, that what is contrary to the principles of Natural Law must be void; and English judges tell us that even an Act of Parliament must be treated as void, if it undertakes to make a man judge in his own case.