“that they ought to have withdrawn from the House.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