Part 3

Now, Sir, apply that principle to your journal. It has recognized a man as judge in his own case. I insist that the recognition was void. Is not the true remedy by amending the journal so as to strike out his name? The journal discloses the two essential facts,--first, that as Senator he was party to the proceedings, secondly, that as Senator he was judge in the proceedings; and since these two facts appear on the face of the journal, it seems to me that the only substantial remedy is by amending it, so that a precedent of such a character shall not find place hereafter in the records of the Senate.

Sir, this question is not insignificant; it is grave. It belongs to the privileges of the Senate. I might almost say, it is closely associated with the character of the Senate. Can Senators sit here and allow one of their number, on an important occasion, to come forward and play at the same time the two great parts, party and judge? And yet these two great parts have been played, and your journal records the performance. Suppose Jesse D. Bright, some years since expelled from the Senate, after animated debate lasting weeks, and our excellent Judiciary Committee reporting in his favor,--suppose he had undertaken to vote for himself,--is there a Senator who would not have felt it wrong to admit his vote? The defendant showed no want of hardihood, but he did not offer to vote for himself. But, if Mr. Stockton can vote for himself, how can you prevent a Senator from voting to save himself from expulsion? The rule must be the same in the two cases. Therefore I ask that the journal be rectified, in harmony with Parliamentary Law and the principles of Universal Law.

In making this motion, I have no other motive than to protect the rights of the Senate, and to establish those principles of justice which will be a benefit to our country for all time. You cannot lightly see a great principle sacrificed. You abandon your duty, if you allow an elementary principle of justice to be set at nought in this Chamber. Be it, Sir, our pride to uphold those truths and to stand by those principles. I know no way in which we can do it now so completely as in the motion I have made. The vote of Mr. Stockton was null and void. It should be treated as if it had not been given.

I have no doubt that the motion to correct the journal would be in order even at a late day. I believe that at any day any Senator might rise in his place and move to expunge from the journal a record in itself derogatory to the body. I have in my hands a reference to the case of John Wilkes, who, you will remember, just before our Revolution, was excluded from Parliament, while his competitor, Luttrell, was declared duly elected. The decision of Parliament, so the history records, convulsed the whole kingdom for thirteen years, but after that long period it was expunged from the journal,--I now quote the emphatic words,--“as being subversive of the rights of the whole body of electors of this kingdom.” I submit, Sir, the record in your journal is subversive of the great principle of jurisprudence on which the rights of every citizen depend.

Mr. Reverdy Johnson followed, criticizing Mr. Sumner. He concluded by saying: “Even supposing there was the slightest want of delicacy in casting a vote upon such a question by the member whose seat is contested, it was in the particular instance more than justified by the circumstances existing at the time the vote was cast.”

Mr. Trumbull said:--

“I believe, as I said before, that the Senator from New Jersey is entitled to his seat; but I do not believe that he is entitled to hold his seat by his own vote. He would have held his seat without his own vote. The vote upon the resolution was a tie without the vote of the Senator from New Jersey; and that would have left him in his seat, he already having been sworn in as a member. It is not necessary that the resolution should have passed. He is here as a Senator, and it would require an affirmative vote to deprive him of his seat as a Senator.”

He then avowed his willingness to move a reconsideration of the vote by which the resolution was carried, “if that is necessary to accomplish the object.”

Mr. Sumner, after saying, that, when he brought forward his motion, he had no reason to suppose that any Senator would move a reconsideration, proceeded:--

The Senator from Illinois says, Suppose we strike out Mr. Stockton’s name, what will be the effect? I answer, To change all subsequent proceedings, and make them as if he had not voted, so that the whole record must be corrected accordingly. The Senator supposes a bill passed by mistake afterwards discovered, and asks if the bill could be arrested. Clearly, if not too late. A familiar anecdote with regard to the passage of the Act of _Habeas Corpus_ in England will help answer the Senator. According to the story,--it is Bishop Burnet who tells it,[21]--this great act, which gave to the English people what has since been called the palladium of their liberties, passed under a misapprehension created by a jest. It seems that among the affirmative peers walking through the tellers was one especially fat, when it was said, “Count ten,”--and ten was counted for the bill, thus securing its passage. I am not aware that the mistake was divulged until too late for correction. But we have had in the other House two different cases, which answer precisely the inquiry of the Senator.

Here Mr. Sumner read from the House Journal, 29th Congress, 1st Session, July 6, 1846, p. 1032, a motion by Mr. McGaughey with regard to the Journal. He next read from the House Journal, 31st Congress, 1st Session, September 10, 1850, p. 1436, the following entry:--

“The Speaker stated that the result of the vote of the House on yesterday on the passage of the bill of the House (No. 387) to supply a deficiency in the appropriation for pay and mileage of members of Congress for the present session had been erroneously announced, and that the subsequent proceedings upon the said bill would consequently fall.

“The Speaker then announced the vote to be, Yeas 78, Nays 76.

“So the bill was passed; and the journal of yesterday was ordered to be amended accordingly.”

In conformity with this precedent, Mr. Sumner did not doubt that by the correction of the journal the vote affirming Mr. Stockton’s seat would fall, and he thought it better to follow this course; but, anxious to avoid a protracted discussion, and to “seek a practical result,” he was willing to withdraw his proposition.

Mr. Sherman, of Ohio, thought that Mr. Sumner would “err in withdrawing the proposition.” Mr. Davis, of Kentucky, maintained “that Mr. Stockton had an undoubted right to vote.” Mr. Stockton followed in vindication of his vote, referring especially to an alleged understanding between Mr. Morrill and Mr. Wright, which he said was violated by the vote of the former.

“I never looked upon this as my case. It was the case of the Senator from New Jersey. And when one gentleman from New Jersey, my colleague, was deprived of his vote by--what shall I term it? I do not propose to violate parliamentary propriety by terming it anything,--but when one Senator from New Jersey by artifice was prevented from recording his vote, as he would have done, the other was not to vote from delicacy.

“Mr. President, there are eleven States out of the Union, and they wanted to put New Jersey out; and I did not mean that they should do it from motives of delicacy on my part.”

Mr. Trumbull said, “Let us settle at this time that a member has no right to vote upon the question.… I think, upon consideration, that perhaps the best way to arrive at it is by the adoption of the resolution offered by the Senator from Massachusetts.” Mr. Lane, of Kansas, who had voted to sustain Mr. Stockton, said, “I was never more surprised in my life than when the Senator from New Jersey asked to vote and did vote.” Soon afterwards, Mr. Stockton said, “I rise to withdraw my vote, with the permission of the Senate,” and proceeded to explain his position. In reply to an inquiry from Mr. Sumner, the presiding officer [Mr. CLARK, of New Hampshire] said, “The Chair is of opinion that he cannot, unless by the unanimous consent of the Senate he wishes to correct the journal.” Mr. Sumner formally withdrew his motion to correct the journal, “with the understanding that the Senator from Vermont [Mr. POLAND] makes the motion for a reconsideration.” Mr. Poland accordingly moved the reconsideration, and this was agreed to, so that the original question was again before the Senate. There was still debate and perplexity as to the proper proceeding in order to repair the error in receiving Mr. Stockton’s vote, when Mr. Sumner moved:--

“That the vote of Mr. Stockton be not received, in determining the question of his seat in the Senate.”

Mr. Sumner remarked:--

I have no personal question with the Senator; I have for him nothing but kindness and respect. I deal with this question simply as a question of principle. The Senator tells us that he will not vote, when the case comes up again. I believe him; he will not vote. But, Sir, he has taken the Constitution in his hand, and, holding it up, he tells us that he finds in that instrument authority for it in his case.…

Since the Senator makes the claim, it is important for us to meet it, in some way or other,--by correcting the journal, or by a resolution declaring that the Senator shall not vote,--fixing the precedent forever, so that hereafter we shall not be left to the uncertain will or opinion of a Senator whose seat may be in question. We must rely, not upon his honor, but upon the Constitution, interpreted by this body and fixed beyond recall. Therefore I think still it would be better, if the Senate had corrected its journal. Being a vote that in itself was null and void, it was to be treated as not having been given.

The Senator asks to withdraw his vote. To withdraw what? Something which has never been done,--that is, legally done. There is no legal vote of the Senator. His name is recorded as having voted, but it is a vote that at the time was null and void. There is nothing, therefore, for him to withdraw, but something for the Senate to annul.

Mr. Sherman moved the reference of Mr. Sumner’s resolution to the Committee on the Judiciary. The Senate refused to refer,--Yeas 18, Nays 22. The resolution was then adopted.

March 27th, the consideration of the resolution declaring Mr. Stockton “duly elected” was resumed, when, after the failure of an effort to postpone it, Mr. Clark moved to amend it by declaring that he “is not entitled to a seat as Senator.” On this amendment Mr. Stockton spoke at length. The amendment was adopted,--Yeas 22, Nays 21,--Mr. Stockton not voting. He said, “I desire to state, in order that it may be a part of the record, that I do not vote on this question, on account of the resolution passed by the Senate yesterday.” The resolution as amended was then adopted,--Yeas 23, Nays 20.

REMODELLING OF THE SUPREME COURT OF THE UNITED STATES.

REMARKS IN THE SENATE, ON THE BILL TO REORGANIZE THE JUDICIARY OF THE UNITED STATES, APRIL 2, 1866.

This bill, reported from the Judiciary Committee by Mr. Harris, of New York, was considered for several days in the Senate, and finally passed that body. It failed in the House of Representatives. Another bill, having a similar object, afterwards became a law.[22]

On the present bill Mr. Sumner remarked:--

We all know that the Supreme Court is now some three years behind in its business, and the practical question is, How are we to bring relief? There are two different ways. One is by limiting appeals, so that hereafter it shall have less business. Another, and to my mind the better way, would be to allow appeals substantially as now, but to limit the court to the exclusive hearing of those appeals. Of course that raises the question, whether the judges of the Supreme Court sitting here in Washington should have duties elsewhere. That is a question of practice, and also of theory. Since I have been in the Senate, it has been very often discussed, formally or informally, and there have been differences of opinion upon it. I believe the inclination has always been that judges are better in the discharge of their duties from experience at _Nisi Prius_. That opinion, I take it, is derived from England; and yet I need not remind the Senator from New York that the two highest courts in England are held by judges who at the time do nothing at _Nisi Prius_, and do not go the circuit: I refer to the court of the Privy Council, and to the highest court of all, the court of the House of Lords. If you pass over to France, where certainly the judicature is admirably arranged on principles of science, where I believe justice is assured, you have the highest court, known as the Court of Cassation, composed of persons set apart exclusively for appeals,--never leaving Paris, and never hearing any other business except that which comes before them on appeal.

I refer to these instances for illustration. The Senate is also aware, that, in the beginning of our Government, when Washington invited his first Chief Justice and his Associates to communicate their views on the subject of the Judiciary system, the answer, prepared by John Jay, assigned strong reasons why the Supreme Court should be exclusively for the consideration of appeals.[23] The other business was by circuit judges. This recommendation was put aside, and the existing system prevailed. Justice has been administered to the satisfaction of the country, reasonably at least, under this system.

But now we are driven to a pass: justice threatens to fail in the Supreme Court, unless we provide relief. Is the bill of the Senator from New York adequate? Speaking frankly, I fear that it is not; and I fear that the proposition of my friend from Wisconsin [Mr. HOWE], if adopted, will still further limit the relief which my friend from New York proposes. I am disposed to believe that the only real relief will be found in setting apart the judges of our highest court exclusively for the consideration of appeals. They would then sit as many months in the year as they could reasonably give to judicial labor. They might, perhaps, hear every case that could reach the tribunal, while they had a vacation to themselves in which to review the science of their profession and add undoubtedly to their attainments. I remember that one of the ablest lawyers in England, in testimony some years ago before a Committee of the House of Commons on the value of what is known as the vacation,--I refer to Sir James Scarlett, afterward Lord Abinger, Lord Chief Baron,--testified that for one, as an old lawyer, he regarded the vacation as important, because it gave him an opportunity to review his studies and to read books that he could not read in the urgency of practice. I have heard our own judges make similar remarks.

Now the question is, whether the present bill meets the case. Does it supply the needed relief? I fear it does not; and I really should be much better satisfied, if my friend from New York had dealt more boldly with the whole question by providing a court of appeal, composed of the eminent judges of the land, devoted exclusively to appeals, and leaving to other judges the hearing of cases at _Nisi Prius_.

THE LATE SOLOMON FOOT, SENATOR FROM VERMONT.

SPEECH IN THE SENATE, ON HIS DEATH, APRIL 12, 1866.

MR. PRESIDENT,--There is a truce in this Chamber. The antagonism of debate is hushed. The sounds of conflict have died away. The white flag is flying. From opposite camps we meet to bury the dead. It is a Senator we bury, not a soldier.

This is the second time during the present session that we have been called to mourn a distinguished Senator from Vermont. It was much to bear the loss once. Its renewal now, after so brief a period, is a calamity without precedent in the history of the Senate. No State before has ever lost two Senators so near together.

Mr. Foot, at his death, was the oldest Senator in continuous service. He entered the Senate in the same Congress with the Senator from Ohio [Mr. WADE] and myself; but he was sworn at the executive session in March, while the two others were not sworn till the opening of Congress at the succeeding December. During this considerable space of time I have been the constant witness to his life and conversation. With a sentiment of gratitude I look back upon our relations, never from the beginning impaired or darkened by difference. For one brief moment he seemed disturbed by something that fell from me in the unconscious intensity of my convictions; but it was for a brief moment only, and he took my hand with a genial grasp. I make haste also to declare my sense of his personal purity and his incorruptible nature. Such elements of character, exhibited and proved throughout a long service, render him an example for all. He is gone; but these virtues “smell sweet and blossom in the dust.”

He was excellent in judgment. He was excellent also in speech; so that, whenever he spoke, the wonder was that he who spoke so well should speak so seldom. He was full, clear, direct, emphatic, and never was diverted from the thread of his argument. Had he been moved to mingle actively in debate, he must have exerted a commanding influence over opinion in the Senate and in the country. How often we have watched him tranquil in his seat, while others without his experience or weight occupied attention! The reticence which was part of his nature formed a contrast to that prevailing effusion where sometimes the facility of speech is less remarkable than the inability to keep silence; and, again, it formed a contrast to that controversial spirit which too often, like an unwelcome wind, puts out the lights while it fans a flame. And yet in his treatment of questions he was never incomplete or perfunctory. If he did not say, with the orator and parliamentarian of France, the famous founder of the “Doctrinaire” school of politics, M. Royer-Collard, that respect for his audience would not permit him to ask attention until he had reduced his thoughts to writing, it was evident that he never spoke in the Senate without careful preparation. You remember well his commemoration of his late colleague, only a few short weeks ago, when he delivered a funeral oration not unworthy of the French school from which this form of eloquence is derived. Alas! as we listened to that most elaborate eulogy, shaped by study and penetrated by feeling, how little did we think that it was so soon to be echoed back from his own tomb!

Not in our debates only did this self-abnegation show itself. He quietly withdrew from places of importance on committees to which he was entitled, and which he would have filled with honor. More than once I have known him insist that another should take the position assigned to himself. He was far from that nature which Lord Bacon exposes in pungent humor, when he speaks of “extreme self-lovers,” that “will set an house on fire and it were but to roast their eggs.”[24] And yet it must not be disguised that he was happy in the office of Senator. It was to him as much as his “dukedom” to Prospero. He felt its honors and confessed its duties. But he was content. He desired nothing more. Perhaps no person appreciated so thoroughly what it was to bear the commission of a State in this Chamber. Surely no person appreciated so thoroughly all the dignities belonging to the Senate. Of its ceremonial he was the admitted arbiter.

There was no jealousy, envy, or uncharitableness in him. He enjoyed what others did, and praised generously. He knew that his own just position could not be disturbed by the success of another. Whatever another may be, whether more or less, a man must always be himself. A true man is a positive, and not a relative quantity. Properly inspired, he will know that in a just sense nobody can stand in the way of another. And here let me add, that, in proportion as this truth enters into practical life, we shall all become associates and coadjutors rather than rivals. How plain, that, in the infinite diversity of character and talent, there is place for every one! This world is wide enough for all its inhabitants; this republic is grand enough for all its people. Let every one serve in his place according to his allotted faculties.

In the long warfare with Slavery, Mr. Foot was from the beginning firmly and constantly on the side of Freedom. He was against the deadly compromises of 1850. He linked his shield in the small, but solid, phalanx of the Senate which opposed the Nebraska Bill. He was faithful in the defence of Kansas, menaced by Slavery; and when at last this barbarous rebel took up arms, he accepted the issue, and did all he could for his country. But even the cause which for years he had so much at heart did not lead him into debate, except rarely. His opinions appeared in votes, rather than in speeches. But his sympathies were easily known. I call to mind, that, on first coming into the Senate, and not yet personally familiar with him, I was assured by Mr. Giddings, who knew him well, that he belonged to the small circle who would stand by Freedom, and the Antislavery patriarch related pleasantly, how Mr. Foot, on his earliest visit to the House of Representatives after he became Senator, drew attention by coming directly to his seat and sitting by his side in friendly conversation. Solomon Foot by the side of Joshua R. Giddings, in those days, when Slavery still tyrannized, is a picture not to be forgotten. If our departed friend is not to be named among those who have borne the burden of this great controversy, he cannot be forgotten among those whose sympathies with Liberty never failed. Would that he had done more! Let us be thankful that he did so much.

There is a part on the stage known as “the walking gentleman,” who has very little to say, but always appears well. Mr. Foot might seem, at times, to have adopted this part, if we were not constantly reminded of his watchfulness in everything concerning the course of business and the administration of Parliamentary Law. Here he excelled, and was master of us all. The division of labor, which is the lesson of political economy, is also the lesson of public life. All cannot do all things. Some do one, others do another,--each according to his gifts. This diversity produces harmony.