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“that they ought to have withdrawn from the House.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.