Chapter I: Part 1

Statesman Edition VOL. XIV

Charles Sumner

HIS COMPLETE WORKS

With Introduction
BY
HON. GEORGE FRISBIE HOAR

BOSTON
LEE AND SHEPARD
MCM

COPYRIGHT, 1874 AND 1875,
BY
FRANCIS V. BALCH, EXECUTOR.

COPYRIGHT, 1900,
BY
LEE AND SHEPARD.

Statesman Edition.
LIMITED TO ONE THOUSAND COPIES.
OF WHICH THIS IS
No. 565

Norwood Press:
NORWOOD, MASS., U.S.A.

CONTENTS OF VOLUME XIV.

PAGE

MAJORITY OR PLURALITY IN THE ELECTION OF SENATORS. Speech in
the Senate, on the Contested Election of Hon. John P. Stockton,
of New Jersey, March 23, 1866 1

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 15

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 30

THE LATE SOLOMON FOOT, SENATOR FROM VERMONT. Speech in the
Senate, on his Death, April 12, 1866 33

COMPLETE EQUALITY IN RIGHTS, AND NOT SEMI-EQUALITY. Letter to a
Committee on the Celebration of Emancipation in the District of
Columbia, April 14, 1866 41

JUSTICE TO MECHANICS IN THE WAR. Speech in the Senate, on a
Bill for the Relief of certain Contractors, April 17, 1866 43

POWER OF CONGRESS TO COUNTERACT THE CATTLE-PLAGUE. Remarks
in the Senate, on a Resolution to print a Letter of the
Commissioner of Agriculture on the Cattle-Plague,
April 25, 1866 49

URGENT DUTY OF THE HOUR. Letter to the American Antislavery
Society, May 1, 1866 51

TIME AND RECONSTRUCTION. Remarks in the Senate, on a Resolution
to hasten Reconstruction, May 2, 1866 52

THE EMPEROR OF RUSSIA AND EMANCIPATION. Remarks on a Joint
Resolution relative to Attempted Assassination of the Emperor,
May 8, 1866 56

POWER OF CONGRESS TO PROVIDE AGAINST CHOLERA FROM ABROAD.
Speeches in the Senate, on a Joint Resolution to prevent the
Introduction of Cholera into the Ports of the United States,
May 9, 11, and 15, 1866 59

RANK OF DIPLOMATIC REPRESENTATIVES ABROAD. Speeches in the
Senate, on an Amendment to the Consular and Diplomatic Bill,
authorizing Envoys Extraordinary and Ministers Plenipotentiary
instead of Ministers Resident, May 16 and 17, 1866 74

OFFICE OF ASSISTANT SECRETARY OF STATE, AND MR. HUNTER. Remarks
in the Senate, on an Amendment to the Consular and Diplomatic
Bill, creating the Office of Second Assistant Secretary of
State, May 16 and 17, 1866 82

DELAY IN THE REMOVAL OF DISABILITIES. Letter to an Applicant,
May, 1866 85

INTERRUPTION OF RIGHT OF PETITION. Remarks in the Senate, on
the Withdrawal of a Petition from Citizens of Virginia,
May 24, 1866 86

OFFICIAL HISTORY OF THE REBELLION. Remarks in the Senate, on a
Joint Resolution to provide for the Publication of the Official
History of the Rebellion, May 24, 1866 88

EQUAL RIGHTS A CONDITION OF RECONSTRUCTION. Amendment in the
Senate to a Reconstruction Bill, May 29, 1866 92

INTER-STATE INTERCOURSE BY RAILWAY. Remarks in the Senate,
on the Bill to facilitate Commercial, Postal, and Military
Communication in the several States, May 29, 1866 93

ATTITUDE OF JUSTICE TOWARDS ENGLAND. Remarks in the Senate, on
the Bill for the Relief of the Owners of the British Vessel
Magicienne, June 26, 1866 96

POWER OF CONGRESS TO MAKE A SHIP CANAL AT NIAGARA. Remarks in
the Senate, on a Bill to incorporate the Niagara Ship-Canal,
June 28, 1866 99

HONOR TO A CONSTANT UNION MAN OF SOUTH CAROLINA. Remarks in the
Senate, on a Joint Resolution to authorize the Purchase for
Congress of the Law Library of the Late James L. Pettigru, of
South Carolina, July 3, 1866 103

OPEN VOTING IN THE ELECTION OF SENATORS; SECRET VOTING AT
POPULAR ELECTIONS. Speech in the Senate, on the Bill concerning
the Election of Senators, July 11, 1866 105

MAIL SERVICE BETWEEN THE UNITED STATES AND THE SANDWICH
ISLANDS. Speech in the Senate, on a Joint Resolution releasing
the Pacific Mail Steamships from stopping at the Sandwich
Islands on their Route to Japan and China, July 17, 1866 110

TENNESSEE NOT SUFFICIENTLY RECONSTRUCTED. Speech in the Senate,
on a Joint Resolution declaring Tennessee again entitled to
Senators and Representatives in Congress, July 21, 1866 114

THE SENATE CHAMBER: ITS VENTILATION AND SIZE. Speech in the
Senate, on an Amendment to the Civil Appropriation Bill, July
23, 1866 119

A SHIP-CANAL THROUGH THE ISTHMUS OF DARIEN. Remarks in the
Senate, on an Amendment to the Civil Appropriation Bill, July
25, 1866 124

INQUIRY INTO THE TITLE OF A SENATOR TO HIS SEAT. Remarks in the
Senate, on the Credentials of the Senator from Tennessee, July
26, 1866 126

NO MORE STATES WITH THE WORD “WHITE” IN THE CONSTITUTION.
Speeches in the Senate, on the Admission of Nebraska as a
State, July 27, December 14 and 19, 1866, and January 8, 1867 128

THE METRIC SYSTEM OF WEIGHTS AND MEASURES. Speech in the
Senate, on Two Bills and a Joint Resolution relating to the
Metric System, July 27, 1866 148

ART IN THE NATIONAL CAPITOL. Speech in the Senate, on a Joint
Resolution authorizing a Contract with Vinnie Ream for a Statue
of Abraham Lincoln, July 27, 1866 164

THE ONE MAN POWER _VS._ CONGRESS. THE PRESENT SITUATION.
Address at the Opening of the Annual Lectures of the Parker
Fraternity, at the Music Hall, Boston, October 2, 1866 181

THE OCEAN TELEGRAPH BETWEEN EUROPE AND AMERICA. Answer to
Invitation to attend a Banquet at New York, in Honor of Cyrus
W. Field, November 14, 1866 220

ENCOURAGEMENT TO COLORED FELLOW-CITIZENS. Letter to a
Convention of Colored Citizens, December 2, 1866 222

THE TRUE PRINCIPLES OF RECONSTRUCTION. ILLEGALITY OF EXISTING
GOVERNMENTS IN THE REBEL STATES. Resolutions and Remarks in the
Senate, December 5, 1866 224

FEMALE SUFFRAGE, AND AN EDUCATIONAL TEST OF MALE SUFFRAGE.
Speech in the Senate, on Amendments to the Bill conferring
Suffrage without Distinction of Color in the District of
Columbia, December 13, 1866 228

PROHIBITION OF PEONAGE. Resolution and Remarks in the Senate,
January 3, 1867 232

PRECAUTION AGAINST THE REVIVAL OF SLAVERY. Remarks in the
Senate, on a Resolution and the Report of the Judiciary
Committee, January 3 and February 20, 1867 234

PROTECTION AGAINST THE PRESIDENT. Speeches in the Senate, on an
Amendment to the Tenure-of-Office Bill, January 15, 17, and
18, 1867 239

DENUNCIATION OF THE COOLIE TRADE. Resolution in the Senate,
from the Committee on Foreign Relations, January 16, 1867 262

CHEAP BOOKS AND PUBLIC LIBRARIES. Remarks in the Senate, on
Amendments to the Tariff Bill reducing the Tariff on Books,
January 24, 1867 263

CHEAP COAL. Speech in the Senate, on an Amendment to the Tariff
Bill, January 29, 1867 271

A SINGLE TERM FOR THE PRESIDENT, AND CHOICE BY DIRECT VOTE
OF THE PEOPLE. Remarks in the Senate, on an Amendment of the
National Constitution, February 11, 1867 278

RECONSTRUCTION AT LAST WITH COLORED SUFFRAGE AND PROTECTION
AGAINST REBEL INFLUENCE. Speeches in the Senate, on the Bill to
provide for the more Efficient Government of the Rebel States,
February 14, 19, and 20, 1867 282

THE DEPARTMENT OF EDUCATION. Remarks in the Senate, on the Bill
to establish a Department of Education, February 26, 1867 297

MONUMENTS TO DECEASED SENATORS. Remarks in the Senate, on a
Resolution directing the Erection of such Monuments, February
27, 1867 299

A VICTORY OF PEACE. Speech in the Senate, on a Joint Resolution
giving the Thanks of Congress to Cyrus W. Field, March 2, 1867 301

FURTHER GUARANTIES IN RECONSTRUCTION. LOYALTY, EDUCATION, AND A
HOMESTEAD FOR FREEDMEN; MEASURES OF RECONSTRUCTION NOT A BURDEN
OR PENALTY. Resolutions and Speeches in the Senate, March 7 and
11, 1867 304

GENEROSITY FOR EDUCATION. Speech in the Senate, on a Joint
Resolution giving the Thanks of Congress to George Peabody,
March 8, 1867 317

RECONSTRUCTION AGAIN. THE BALLOT AND PUBLIC SCHOOLS OPEN
TO ALL. Speeches in the Senate, on the Supplementary
Reconstruction Bill, March 15 and 16, 1867 321

PROHIBITION OF DIPLOMATIC UNIFORM. Speech in the Senate, on
a Joint Resolution concerning the Uniform of Persons in the
Diplomatic Service of the United States, March 20, 1867 344

VIGILANCE AGAINST THE PRESIDENT. Remarks in the Senate, on
Resolutions adjourning Congress, March 23, 26, 28, and 29, 1867 348

LOYALTY AND REPUBLICAN GOVERNMENT CONDITIONS OF ASSISTANCE TO
THE REBEL STATES. Remarks in the Senate, on a Joint Resolution
authorizing Surveys for the Reconstruction of the Levees of the
Mississippi, March 29, 1867 358

MAJORITY OR PLURALITY IN THE ELECTION OF SENATORS.

SPEECH IN THE SENATE, ON THE CONTESTED ELECTION OF HON. JOHN P. STOCKTON, OF NEW JERSEY, MARCH 23, 1866.

The seat of Hon. John P. Stockton, as Senator from New Jersey,
was contested at this session of the Senate, on the ground of
irregularity in the election. The Judiciary Committee, by their
Chairman, Mr. Trumbull, reported that he “was duly elected, and
is entitled to his seat,” and in their report stated the case:--

“The only question involved in the decision of Mr.
Stockton’s right to a seat is, whether an election by a
plurality of votes of the members of the Legislature of
New Jersey, in joint meeting assembled, in pursuance of
a rule adopted by the joint meeting itself, is valid.
The protestants insist that it is not; and they deny Mr.
Stockton’s right to a seat, because, as they say, he was
not appointed by a majority of the votes of the joint
meeting of the Legislature.”

The debate on this question showed earnestness and feeling. Mr.
Fessenden, of Maine, used strong language: “I was exceedingly
surprised--more so, I will say, than I ever was before, at a
judicial decision, in my life--at the opinion to which the
Committee on the Judiciary arrived in relation to this matter.”
Mr. Trumbull defended the report. Mr. Sumner followed.

MR. PRESIDENT,--When the Senator from Illinois rose to speak, I had made up my mind to say nothing in this debate; but topics have been introduced by him which I am unwilling should pass without notice.

The Senator did not disguise that the case is without a precedent in the history of the Senate. Never before has a Senator appeared in this Chamber with the credentials of a minority. And I venture to say further, that the rule of a majority has the constant consecration of history in the proceedings of parliamentary or electoral bodies. It is the rule of the House of Commons in the choice of Speaker; and this is the most important precedent for us, for our Parliamentary Law is derived from England. But it antedates the English Parliament. The oldest electoral body in the world is the Conclave of Cardinals; but who has heard that a Pope was ever elected by a minority? I ask your attention to this example, that you may see how the rule of the minority is constantly rejected, notwithstanding temptation, inducement, and pressure to adopt it. There have been many contested elections, during which the Cardinals, separated from the world, each in a small apartment or cell of the Vatican or the Palace of the Quirinal, have been imprisoned like a jury, sometimes for months, waiting for the requisite majority. They did not undertake to change the rule, and set up the will of a minority. There was Lambertini, who shone as Pope Benedict the Fourteenth, conspicuous as statesman and patron of letters, who was not chosen until after six months’ ineffectual efforts. Such instances stand like so many pillars, and I refer to them now as proper to guide your conduct.

The question before us is of law, and nothing else. It is not a question of politics or of sentiment, except so far as these enter into the determination of law. It is a question for reason alone.

It lies in a nutshell. A brief text of the National Constitution, and another brief text of a local statute, are all that need be considered.

The National Constitution provides as follows:--

“The Senate of the United States shall be composed of two
Senators from each State, chosen by the _Legislature_ thereof.”

“The times, places, and _manner of holding elections for
Senators_ and Representatives shall be _prescribed_ in each
State by the _Legislature_ thereof; but the Congress may at any
time by law make or alter such regulations, except as to the
places of choosing Senators.”

In carrying out this provision, the Legislature of New Jersey, by a statute passed April 10, 1846, and copied from a statute passed in 1790, enacted as follows:--

“Senators of the United States on the part of this State shall
be appointed _by the Senate and General Assembly of this State
in joint meeting assembled_.”

In pursuance of these two provisions of National Constitution and of local statute, the Legislature of New Jersey has undertaken to elect a Senator. From the statement of the case, it appears, that, on a certain day, the two Houses assembled “in joint meeting”; that they proceeded to act on a resolution declaring that “any candidate receiving a _plurality_ of votes of the members present shall be declared duly elected”; that this resolution was adopted by forty-one votes out of eighty-one,--eleven Senators, being a majority of the Senate, and thirty members of the House, being less than a majority of that body, voting for it; that, in pursuance of this resolution, Mr. Stockton was declared Senator, although he did not receive a majority of the votes of either House or of the joint meeting. In point of fact, he received forty votes, of which ten were from Senators and thirty from members of the Assembly, while against him were forty-one votes; and the question you are to decide is on the legality of this election.

The National Constitution is the original and highest source of light on the question. Here we find, that, in the absence of any regulations from Congress, the manner of choosing a Senator is referred to the State Legislature. The Senator is to be chosen by the _Legislature_, which is to _prescribe_, among other things, the _manner_ of holding the election. Whatever the State can do must be derived from this source, nor more nor less. The choice is by the Legislature, according to a manner prescribed by the Legislature.

The National Constitution does not undertake to define a State Legislature or its forms of proceeding. This is left to the State itself. Notoriously, these Legislatures were modelled on the Colonial Legislatures preceding them, which had been modelled on the Parliament of the mother country. As a general rule, there were two Chambers, upper and lower; but this was not universal. In Georgia and Pennsylvania there was for a while only a single Chamber, constituting the Legislature. I mention this to show how completely the State itself was left to determine the conditions of its Legislature. But the State speaks through the State Constitution, which fixes these conditions. Where the Constitution is silent, can the Legislature itself venture to speak?

Repairing to the Constitution of New Jersey, we find it providing that “the _legislative power_ shall be vested in a Senate and General Assembly”; that these bodies shall meet and organize separately”; that “all bills and joint resolutions shall be read three times in each House”; and “no bill or joint resolution shall pass, unless there be a _majority_ of all the members of each body personally present and agreeing thereto.” Such is the definition of a Legislature, and such are the forms of legislative proceedings prescribed by the Constitution of New Jersey.

The statute of New Jersey, to which I have referred as framed in 1790, was entitled “An Act to _prescribe the manner_ of appointing Senators of the United States and Electors of the President and Vice-President of the United States on the part of this State.” This was in pursuance of the National Constitution. It was the execution, on the part of the State, of the power with which it was invested to prescribe the manner of electing Senators.

I have no purpose of raising any question with regard to the validity of this statute prescribing the election of Senators _in joint meeting_. Constant usage is in its favor; and yet I have no hesitation in saying that it has always seemed to me inconsistent with a just construction of the National Constitution. Senators are to be “chosen by the Legislature”; but the Legislature is composed of two separate bodies, defined by the State Constitution. Senators, therefore, should be chosen by the two bodies separately. So it has always seemed to me, and the practice of my own State is accordingly. In this opinion I am sustained by so eminent an authority as Chancellor Kent, who, after setting forth the usage, proceeds to express his dissent from it as a just construction of the National Constitution. His language is explicit:--

“I should think, if the question was a new one, that, when the
Constitution directed that the Senators should be chosen by
_the Legislature_, it meant, not the members of the Legislature
_per capita_, but the Legislature in the true technical sense,
being the two Houses acting in their separate and organized
capacities, with the ordinary constitutional right of negative
on each other’s proceedings.”[1]

It is difficult to resist this conclusion, especially when it is considered that in any other way the smaller body is actually swamped by the larger. In a joint meeting the Senate loses its relative power. I adduce this, not for criticism, but only for illustration. Even admitting that the received usage of choosing Senators in joint meeting is consistent with the National Constitution, it is clear that it should not be extended; and this is the precise question before us. Contrary to all usage or precedent, and without any direct sanction in the Constitution or statutes of New Jersey, the Legislature has undertaken in joint meeting, not only to choose a Senator, but also to prescribe the manner of choosing him. Finding that it could not choose according to existing usage, it adopted the resolution declaring that the election should be determined by a minority of votes instead of a majority.

In this resolution two questions arise: first, can the Legislature itself, by legislative act, substitute a minority for a majority in the election of Senators, and thus set aside a great and traditional principle? and, secondly, can it do this in a “joint meeting,” without any previous legislative act? It is enough for the present occasion, if I show, that, whatever may be the powers of the Legislature by legislative act, it can have no such extraordinary power in the questionable assembly known as “joint meeting.” But we shall better understand the second question, after considering the first.

To what extent can a Legislature substitute a minority for a majority in any of its proceedings? In most cases the question is controlled by the express language of the State Constitution; but I present the question now independently of any State Constitution.

In considering the power of the Legislature, it is important to put aside any influence that may be attributed to the unquestioned usage of choosing Representatives and other officers by plurality of votes. Because the people choose by plurality, it does not follow that a Legislature may. From time immemorial, the rule in the two cases has been different, unless we except the New England States, where, until recently, even popular elections were by a majority. But the origin of the practice in New England testifies to the rule.

It is proper for us to interrogate the country from which our institutions are derived, for the origin of the rule. Indeed, where a word is used in the Constitution having a previous signification or character in the institutions of England, we cannot err, if we consider its import there. I think we do this habitually. Mr. Wirt, in his masterly argument on the impeachment of Judge Peck, develops this idea.

“The Constitution secures the trial by jury. Where do you get
the meaning of _a trial by jury_? Certainly not from the Civil
or Canon Law, or the Law of Nations. It is peculiar to the
Common Law; and to the Common Law, therefore, the Constitution
itself refers you for a description and explanation of
this high privilege, _the trial by jury_, and _the mode of
proceeding_ in those trials.… The very name by which it is
called into being authorizes it to look at once to the English
archetypes for its government.”[2]

Following this statement, so clearly expressed, the words “Legislature” and “holding elections,” in the National Constitution, which belonged to the political system of England, may be explained by that system,--so, at least, that in case of doubt we shall find light in this quarter.

Now, from the beginning, it appears that in England there have been two different rules with regard to elections by the legislature and elections by the people. Elections by the legislature, like legislative acts, have been by majority; elections by the people for Parliament have been by plurality. This distinction is found throughout English history.

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.

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.”