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:—

In another place, the same learned writer says:—

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:—

And then he says, in memorable language, which has made his name famous:—

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:—

He then explains the principle:—

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:—

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,—

I quote from May’s Parliamentary Law. From another work of authority, Dwarris on Statutes, I now read:—

Then, after citing two different cases, the learned writer proceeds:—

Again the same writer says:—

That is the phrase, only “somewhat concerned,”—

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:—

Again he says:—

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:—

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.

Mark those words, if you please, Sir—

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.

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.

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.

REMODELLING OF THE SUPREME COURT OF THE UNITED STATES.

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.

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.

The office of President pro tempore among us grows out of the anomalous relations of the Vice-President to the Senate. There is no such officer in the other House, nor was there in the House of Commons until very recently, when we read of a “Deputy Speaker,” which is the term by which he is addressed, when in the chair. No ordinary talent can guide and control a legislative assembly, especially if numerous or excited by party differences. A good presiding officer is like Alexander mounted on Bucephalus. The assembly knows its master, “as the horse its rider.” This was preëminently the case with Mr. Foot, who was often in the chair, and for a considerable period our President pro tempore. Here he showed special adaptation and power. He was in person “every inch” a President; so also was he in every sound of the voice. He carried into the chair the most marked individuality that has been seen there during this generation. He was unlike any other presiding officer. “None but himself could be his parallel.” His presence was felt instantly. It filled this Chamber from floor to gallery. It attached itself to everything done. Vigor and despatch prevailed. Questions were stated so as to challenge attention. Impartial justice was manifest at once. Business in every form was handled with equal ease. Order was enforced with no timorous authority. If disturbance came from the gallery, how promptly he launched the fulmination! If it came from the floor, you have often seen him throw himself back, and then with voice of lordship, as if all the Senate were in him, insist that debate should be suspended until order was restored. “The Senate must come to order!” he exclaimed; and, like the god Thor, beat with hammer in unison with voice, until the reverberations rattled like thunder in the mountains.

The late Duc de Morny, who was the accomplished President of the Legislative Assembly of France, in a sitting shortly before his death, after sounding his crier’s bell, which is the substitute for the hammer among us, exclaimed from the chair: “I shall be obliged to mention by name the members whom I find conversing. I declare to you that I shall do so, and I shall have it put in the ‘Moniteur.’ You are here to discuss and to listen, not to converse. I promise you that I will do what I say to the very first I catch talking.” Our President might have found occasion for a similar speech, but his energy in the enforcement of order stopped short of this menace. Certainly he did everything consistent with the temper of the Senate, and he showed always what Sir William Scott, on one occasion, in the House of Commons, placed among the essential qualities of a Speaker, when he said that “to a jealous affection for the privileges of the House” must be added “an awful sense of its duties.”[25]

Accustomed as we have become to the rules which govern legislative proceedings, we are hardly aware of their importance in the development of liberal institutions. Unknown in antiquity, they were unknown also on the European continent until latterly introduced from England, which was their original home. They are among the precious contributions which England has made to modern civilization; and yet they did not assume at once their present perfect form. Mr. Hallam tells us that even as late as Queen Elizabeth “the members called confusedly for the business they wished to have brought forward.”[26] But now, at last, these rules have become a beautiful machine, by which business is conducted, legislation moulded, and debate in all possible freedom secured. From the presentation of a petition or the introduction of a bill, all proceeds by fixed processes, until, without disorder, the final result is reached and a new law takes its place in the statute-book. Hoe’s printing-press or Alden’s type-setter is not more exact in operation. But the rules are more even than a beautiful machine; they are the very temple of Constitutional Liberty. In this temple our departed friend served to the end with pious care. His associates, as they recall his stately form, silvered by time, but beaming with goodness, will not cease to cherish the memory of such service. His image will rise before them as the faithful presiding officer, by whom the dignity of the Senate was maintained, its business advanced, and Parliamentary Law upheld.

He had always looked with delight upon this Capitol,—one of the most remarkable edifices of the world,—beautiful in itself, but more beautiful still as the emblem of that national unity he loved so well. He enjoyed its enlargement and improvement. He watched with pride its marble columns moving into place, and its dome as it ascended to the skies. Even the trials of the war did not make him forget it. His care secured those appropriations by which the work was forwarded to its close, and the statue of Liberty installed on its sublime pedestal. It was natural that in his last moments, as life was failing fast, he should long to rest his eyes upon an object that was to him so dear. The early light of morning had come, and he was lifted in bed that with mortal sight he might once more behold this Capitol; but another Capitol already began to fill his vision, fairer than your marble columns, sublimer than your dome, where Liberty without any statue is glorified in that service which is perfect Freedom.

COMPLETE EQUALITY IN RIGHTS, AND NOT SEMI-EQUALITY.