Volume 14 — 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.”

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.