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ELECTIONS BY PLURALITY, &c.-LORD-MORTON - FRENCH-BIRD-DAVIS.
final passage of the resolves, and on that question the Convention has ordered the main question.
Mr. HUBBABD, of Boston. I call for a division of the question—that is, that the question be taken upon the resolves separately.
The PRESIDENT. The Chair stated on a previous occasion, that the resolves were not divisible; but upon a more accurate examination, he is now of a different opinion.
Mr. LORD. I desire to inquire, whether at any time the yeas and nays have been taken upon these resolves?
The PRESIDENT. The Chair understands that they have not been taken upon the final passage.
Mr. LORD. Have they been taken upon any stage of them? My opinion is, that they were passed last night without a quorum being present, and that the yeas and nays have not been taken in any stage of these resolves.
The PRESIDENT. The yeas and nays have been had on amendments.
Mr. LORD. But I desire to have them on the final passage; and as a division has been asked for, and the question is to be taken upon each resolve separately, I will say, that I merely desire the yeas and nays on the first resolution.
The question being taken on a division, on the demand for the yeas and nays, there were-ayes, 59; noes, 198.
So the yeas and nays were ordered.
Report from a Committee.
Mr. MORTON, of Taunton. There is a matter which was specially referred to the Judiciary Committee, and they were authorized to sit during the sessions of the Convention. They have prepared a Report which is of some length, and it is of a good deal of importance that its purport should be known, so that it may go before the Revising Committee. It is supposed to be necessary to print it, and, I therefore ask the unanimous consent of the Convention, to submit the Report at this time, because it will farther the progress of business very much.
No objection was made, and the Report was read, as follows, and ordered to be printed. :
1. Resolved, That persons holding office by election or appointment under the present Constitution, shall continue to discharge the duties thereof until their term of office shall expire, or officers authorized to perform their duties, or any part thereof, shall be elected and qualified, pursuant to the provisions of this amended Constitution; when all powers not reserved to them by the provisions of this amended Constitution shall cease: provided, however, that Justices of the Peace, Justices of the Peace and of the Quorum, and Commissioners of Insolvency, shall be authorized to finish and complete all proceedings pending before them at the time when their powers and duties shall cease, or be altered as aforesaid.
2. Resolved, That the legislature shall provide, from time to time, the mode in which commissions or certificates of election shall be issued to all officers elected pursuant to the Constitution, except in case where provision shall be made therein.
3. Resolved, That the Governor, by and with the consent of the Council, may at any time, for cause shown, remove from office, Clerks of Courts, Commissioners of Insolvency, Judges and Registers of Probate, District-Attorneys, Registers of Deeds, County Treasurers, County Commissioners, Sheriffs, Trial Justices and Justices of Police Courts: provided, however, a copy of the charges
upon which said removal is made, shall be furnished to the party to be removed, and a reasonable opportunity given him for defence.
4. Resolved, That whenever a vacancy shall occur in any elective office, provided for in this Constitution, except that of Governor, Lieutenant-Governor, Councillor, Senator, member of the House of Representatives, and town and city officers, the Governor for the time being, by and with the advice and consent of the Council, may appoint some suitable person to fill such vacancy, until the next annual election, when the same shall be filled by a new election, in the manner to be provided by law: provided, however, Trial Justices shall not be deemed to be town officers for this purpose.
5. Resolved, That all elections provided to be had under this amended Constitution shall, unless otherwise provided, be first held on the Tuesday next after the first Monday of November, A. D. 1854.
Dispensing with Yeas and Nays.
Mr. FRENCH, of New Bedford. The motion for ordering the yeas and nays was not understood in this part of the Convention, and the number above one-fifth was so small that we think the yeas and nays might be dispensed with. I think that those gentlemen who voted for ordering them will not insist on the demand. I therefore move a reconsideration of the vote by which they were ordered,
The motion was rejected.
Mode of Voting at Elections.
Mr. WILSON, of Natick. I move that the Orders of the Day be laid upon the table, for the purpose of taking up the motion of the gentleman from Walpole, (Mr. Bird,) to reconsider the vote by which the resolves on the subject of elections by plurality, &c., were finally passed.
The motion to lay the Orders of the Day upon the table was agreed to.
Mr. BIRD, of Walpole. I made this motion, Mr. President, in the hope that if the reconsideration is accorded, either myself or some one else might propose some amendments which would make the resolves more acceptable to the Convention. I believe that that can be done, and for the purpose of indicating what the amendments I propose to offer are, if the motion to reconsider should be carried, I will, with the permission of the Convention, read what I propose to do. I shall move to amend the first and fourth resolves, so as to read as follows:
1. Resolved, That it is expedient to provide in the Constitution that a majority of all the votes given shall be necessary to the election of a Governor, Lieutenant-Governor, Secretary, Treasurer, Auditor, and Attorney-General of the Commonwealth, until otherwise provided by law, but no such law providing that the Governor, Lieutenant-Governor, Secretary, Treasurer, Auditor, Attorney-General, and Representatives to the General Court, or either of them, shall be elected by plurality, instead of a majority of votes given in, shall take effect until one year after its passage; and if at any time after the enactment of any such law, and the same shall have taken effect, such law shall be repealed, such repeal shall not become a law until one year after the passage of the repealing act; and in default of any such law, if at any election of either of the above named officers, except the Representatives to the General Court, no person shall have a majority of the votes given, the House of Representatives shall, by a majority of viva voce votes, elect two out of three persons who had the highest, if so many shall have been voted for, and return the
persons so elected to the Senate, from which the Senate shall, by viva voce vote, elect one who shall be Governor, or other officer to be elected.
4. Resolved, That in the election of all city or town officers such rule of election shall govern as the legislature may by law prescribe.
Without saying anything farther in relation to this matter, I will only express the hope that the vote carrying these resolves to their final passage may be reconsidered, and then I will present these amendments in their order, and say a very few words explanatory of the object of each amendment.
The question being taken on the motion to reconsider, it was, on a division, decided in the negative-ayes, 112; noes, 118.
So the motion to reconsider was rejected.
Mr. DAVIS, of Plymouth. I believe that the question on the last vote was not properly understood-I mean on the motion to reconsider. I think some gentlemen near me did not understand it.
The PRESIDENT. The attention of the Chair has been called to the result of the vote. The gentleman from Plymouth will pardon the Chair till the vote is again announced. Several gentlemen have expressed the opinion that the announcement of the Chair was incorrect; but on a second examination of the figures, the Chair finds that the vote was correctly announced.
Mr. DAVIS, of Plymouth. I understand from several gentlemen in this quarter, that the question on the motion to reconsider was not distinctly understood, the gentleman from Walpole (Mr. Bird) not being distinctly heard. If it is in order, I would like to move that the question be taken again.
The PRESIDENT. It can only be done by general consent.
Mr. LORD, of Salem. I object.
Mr. DAVIS. Then I call for the yeas and nays.
The PRESIDENT. The yeas and nays may be taken, if they are ordered by the Convention, Mr. LORD. Do I understand the President to decide, that the yeas and nays may be taken after a formal announcement of the vote on a division of the House?
The PRESIDENT. They may. The yeas and nays are for a verification of the vote taken by count. The Chair has no doubt whatever, that in this state of the question, before proceeding to the consideration of any other business, the yeas and nays may be ordered. This has been repeatedly done during the session of the Convention, and the recollection of the Chair is, that it has been done on the demand of the gentleman from Salem himself.
Mr. LORD. Never upon any motion of mine. The PRESIDENT. The Chair may be in error as to that, but such is the impression of the Chair at this moment.
Mr. LORD. I may have called for the yeas and nays before the vote was verified by a count, or I should say before the result of the count was announced, but never after the announcement; for I did not conceive it at all possible that it could be done according to parliamentary usage. I suppose it is not competent for any member who has voted affirmatively or negatively in a count, to change his vote when taken by yeas and nays, for the purpose of changing the result. With such a practice, we might go on, ad libitum, and
QUESTION OF ORDER, &c.— ASPINWALL — GRAY — BUCK — STEVENSON.
results might be changed in this way, at any time.
Mr. ASPINWALL, of Brookline. I understand that there is no motion before the Convention. The question has been taken on the motion to reconsider, and, on a division, was rejected. That, if I understand anything, entirely disposes of that matter.
The PRESIDENT. The gentleman from Brookline overlooks the fact, that when the question was first taken on the motion to reconsider, the Chair declared the vote to be in the affirmative. A division was then demanded, and, a count being taken, the vote was declared in the negative there being a majority of six against the reconsideration. And now the gentleman from Plymouth desires that that vote may be verified by the yeas and nays, which the Chair decides to be clearly in order.
Mr. GRAY, of Boston. I dislike to dissent from any opinion entertained by the Chair on a question of order, but I beg leave to suggest to the Chair, that when a vote has been declared on a division, by the Chair, and that vote is not questioned before—
Mr. WILSON, of Natick. I rise to a point of order.
The PRESIDENT. The gentleman from Natick will state his point of order.
Mr. WILSON. It is that the Chair has already decided the point of order, and that it is not farther debatable unless upon an appeal.
The PRESIDENT. The Chair asks the advice of the gentleman from Boston, (Mr. Gray,) and he can accordingly proceed with his remarks.
Mr. GRAY. What I have to say, is, that when a vote is declared, and that declaration is not questioned, the matter is placed on a different ground. I am satisfied, however, with the declaration of the Chair.
The PRESIDENT. The question is on ordering the yeas and nays.
Mr. DAVIS, of Plymouth. Before the yeas and nays are ordered, I should like the gentleman from Walpole to restate the object of his amendments, so that they may be understood by the Convention.
The PRESIDENT. It is not in order. The question is on taking the yeas and nays on the motion to reconsider the resolves.
Mr. BUCK, of Lanesborough. Is it in order to have the resolves read?
The PRESIDENT. It is in order. The motion is on the final passage of certain resolves. The gentleman from Lanesborough asks that the resolves may be read. The gentleman has that right.
The resolves were read accordingly.
Mr. BUCK. My object in asking for the reading of the resolves was, that we might vote understandingly. I would like now to hear the amendments read.
The PRESIDENT. It is not in order to read the amendments, the motion being on reconsidering the vote by which these resolves were ordered to their final passage.
Mr. HATHAWAY, of Freetown. Does not this motion to reconsider, open the whole question involved in the resolves?
The PRESIDENT. If the Convention order a reconsideration of the vote, the whole question is then opened. But at present the question is on ordering the yeas and nays, for the purpose of
verifying the vote as taken upon a division. The Chair will read the third rule of the Convention.
"He [The President] shall declare all votes; but, if any member doubts a vote, the President shall order a return of the number voting in the affirmative, and in the negative, without any farther debate upon the question. When a vote is doubted, the members for or against the question, when called on by the President, shall rise and stand uncovered till they are counted."
Question of Order.
Mr. STEVENSON, of Boston. I am sorry to be under the necessity of stating what I am about to state; but, under the circumstances, I feel it my duty to appeal from the decision of the Chair, as to the power of the Convention again to vote on the motion to reconsider, after that vote has been solemnly declared on a count of the House. The PRESIDENT. With the permission of the gentleman from Boston, the Chair will again state the position of the question. It is this: The gentleman from Walpole moves the reconsideration of a vote. After stating the purpose for which he makes the motion, the question is put to the Convention, and the Chair declares it to be carried affirmatively. A count is demanded, and being taken, the Chair declares the vote to be in the negative; and the gentleman from Plymouth asks for the yeas and nays. The Chair, considering the yeas and nays merely a matter of verification of the vote by count, admits the motion for the yeas and nays, and from that decision the gentleman from Boston (Mr. Stevenson) takes an appeal. The question, therefore, is-shall the decision of the Chair stand, as the judgment of the Convention.
Mr. STEVENSON. The President is certainly aware, if no others in the Convention are, that I would not appeal from any decision of his, unless I felt in duty bound to do so. I understand the rule of the Convention, and of all parliamentary bodies, to be, that it is the right of any member, when the presiding officer has declared, under circumstances under which there can be a doubt -namely, as where the manner in which the voices of members fell upon his ear-as to what the vote is, then it is the right of any member of the Convention, or of any other parliamentary body, to doubt whether the Chair has decided correctly; and when any such member so doubts, then it becomes the duty of the Chair to make it certain whether or not he has announced correctly what the vote was, by calling upon members to stand up and be counted. That when the Chair has proceeded so far, and has called upon members of the assembly to stand up in their places and be counted, as to how they voted, that then that decision is final, and the vote is passed. And I appeal, not only to the assembly, but to the Chair, and ask him, what the record shall be which the Secretary is bound to make of the proceedings of this Convention, if the decision of the Chair shall now stand? What is the record of the Secretary? That Secretary has already made his record; and if he has not yet made it, he has not performed his duty. What is the record? That the question having been put upon the motion of the gentleman from Walpole, (Mr. Bird,) the Chair decided that it was not a vote; that it was doubted; that a division was called for; that a division being had, and a count being takenthe thing being made certain-the Chair had de
cided that it was not a vote, and therefore the motion of the gentleman from Walpole had been rejected. And after that record, what motion is there before the Convention? After that record, what question is there upon which any gentleman upon this floor can get up and ask the yeas and nays of the Convention? If the Orders of the Day be up, I submit, that immediately upon that fact being announced, the next article in the Orders of the Day is before the Convention; and there is no question upon which gentlemen can call for the yeas and nays. Now, let me state a reason why it should be so, if it were not perfectly palpable that it were so. It should be So, if you desire, that in every deliberative assembly, it should be in the power of no man to undertake to alter a vote, under any influence whatever. You desire that each vote which any member shall give, in any deliberative assembly, shall be the honest expression of his own opinions, uncontrolled by the opinion of anybody else. We, four hundred men, have stood up here and given expression, each of us, of our honest opinion, and given that expression upon a motion which our rules declare shall not be reconsidered or reviewed, and then gentlemen ask for the yeas and nays upon the same question. We have each, here in this assembly, voted upon the question, whether or not the motion of the gentleman from Walpole ought to be adopted; and the reason why you have provided in your rules that when an assembly has refused to reconsider a vote, the same motion shall not be presented to them again is, that it operates to prevent your undertaking to take the vote again upon the same question. If it may not be offered again, may it be voted upon again? I ask, if the decision of the Chair stand, what the record is? It will be the duty of your Clerk to declare, upon his record, that this assembly has voted yes and no to the same proposition, and that a proposition, mind you, Mr. President, is completed, which stands as the fact? Will it which your rules declare, when once voted upon, it shall not be reviewed; and, Sir, when that record be the fact, that this assembly have refused to reconsider, according to the record as it stands now, or will it be the fact that they have reconsidered, in case a vote for a different decision be passed? Each of the entries upon the journal of the Secretary states the fact. They cannot both be the fact. Which shall be the record? No, Sir, I do not understand, with yourself-although I am very apt to agree with you in opinion, as you are aware--I do not understand, with yourself, that the purpose of the yeas and nays is to make certain the result of a vote. It has another purpose. The purpose of a division is to make certain the result of a vote. Not only is that so in the understanding of every-body, but it is so according to our rules. When a member doubts, and therefore asks for a division, the rule says, members shall stand in their places and be counted; and when they have done so, and have been counted, that vote is decided. And I ask, whether, under the rule that a motion to reconsider shall not be entertained again, you will entertain it again, after it has been passed upon and decided, and put upon your journal, because it may be stated by the Chair that the yeas and nays are a mode of ascertaining the result of a vote? The yeas and nays are for ascertaining a very different thing. They are not for the purpose of deciding what the result of a vote was;
QUESTION OF ORDER. — STEVENSON — LORD — GRAY.
for, Sir, the yeas and nays are called for before anybody doubts what the result of a vote is. The ordinary fact is, that he who calls for the yeas and nays, in a deliberative assembly, is a man who knows what the result of the vote will probably be, or who thinks he knows, and therefore, before anybody can doubt whether the presiding officer has decided correctly as to the result of the vote. The yeas and nays are for a different purpose. After a vote has been decided and gone, there is nothing pending before an assembly upon which a member can ask for the yeas and nays. Your rule is, when any measure is pending upon which a vote is to be taken, one-fifth may order the yeas and nays upon it. That rule is not, Sir, that after the question has been decided by the Convention, the yeas and nays may be called for, to see if you cannot induce some gentlemen to change their votes.
I submit the question contrary to my own wishes, for I voted for the reconsideration. I am impelled entirely by a sense of duty, for I am in favor of a reconsideration; for I wish this assembly would reconsider the vote by which they passed that strange thing. I desire that they should reconsider, and, if possible, put it in the right shape, before they present it to the people. But, Sir, when the presiding officer of this body says that, after the body itself has, by its vote, decided either with me or against me, that another member may to-day, to-morrow, or next week, ask for the yeas and nays on that question, I shall be under the necessity of appealing from any such decision of the Chair. That question has, under our rules, gone out of our possession as completely as if it were a week hence that we were talking about the yeas and nays. If you may ask them now, why not to-morrow, why not on Saturday, why not on Monday? The purposes of the two things are entirely different, namely: the "division," and the "yeas and nays." A division is a right inhering in each member of the Convention. The yeas and nays are a right inhering in one-fifth of the Convention, and in not less. A division is anything which any man who doubts whether the speaker is incorrect in opinion as to which way men voted, can call for. The yeas and nays are a thing which not less than one-fifth can demand. A division, under the rules, is for the purpose of deciding whether a speaker was right or not in declaring the vote. The yeas and nays are for no such purpose. They are for the purpose of informing the constituents of the members how each man in the assembly may have voted on each question before them. The two have different objects and different purposes. They are under different control. And yet, the decision which you have made, Mr. President, depends entirely upon the suggestion which you made at the same time, that the yeas and nays are called for the same reason that a division is demanded. A division may be demanded by any one member. Each of us, as we sit in our seats, have just as much right to our opinion as to whether the ayes or the noes prevailed, as the presiding officer has. The presiding officer has the power to announce to the assembly what he thinks on that one point. He who doubts whether he thinks correctly has the same power which the presiding officer has, and he may not refuse to make it certain which is correct in that respect-the presumption being that each man in an assembly like this votes in the same way,
whether he votes in his seat unseen, or rises in his place to be counted.
[Here the hammer fell; the gentleman having occupied the fifteen minutes allowed by the rule limiting debate.]
Mr. STEVENSON. I would ask the Chair whether there is any limitation to debate upon a question of appeal ?
The PRESIDENT. The rule of the Convention is as follows:
July 16th. "Resolved, That on and after Monday next, no member of this Convention shall speak more than fifteen minutes on any subject, without leave."
Mr. LORD, of Salem. I never, that I recollect, took an appeal from the decision of any presiding officer, with one exception, and then merely for the purpose of expressing an opinion on the subject, and not for the purpose of having the decision reversed. In my judgment it is a matter which should be entertained with a great deal of care, and should be entertained and considered not for any temporary purpose, but as a matter of judicial decision and precedent. To that end it is always usual in any case of importance to settle the appeal upon the record by the yeas and nays. I believe that is the universal practice, and before I sit down, I propose to ask the yeas and nays upon this matter of appeal. But I hope the President will reconsider his determination. I understand that this motion has never been entertained in either branch of congress. Several members of congress, now members of this Convention, have stated that within their knowledge, there never has been such a motion entertained, after the decision was announced, and I have yet to hear the first person state a single instance in which, after the vote has been verified by a count, and after it has been declared, in which there has been no mistake, and in which count there has been no mistake, such a motion has been entertained. I know the question was discussed in the last House of Representatives, and it arose upon the question whether the yeas and nays could be called, after the Chair had called upon the House to divide. The entire minority of that body held that after the Chair had called upon the House to divide, the yeas and nays could not be called, but the Speaker, sustained by a majority of the House, ruled that the yeas and nays might be called at any time before the vote had been verified and announced from the Chair.
Now, Sir, if there is any reason for this rule, I desire to hear it. We shall, of course, hear the reasons of the President, and in order that not only that gentleman but the whole assembly may stand exactly right upon this matter of precedent and law, I move that when the question upon this appeal is taken, it be taken by yeas and nays. A division being called for upon the motion, it was, by a vote of-ayes, 60; noes, 161-decided in the affirmative.
So the yeas and nays were ordered.
Mr. WILSON, of Natick, moved that the appeal be laid upon the table.
Mr. GRAY, of Boston. I rise to a question of order. Can that motion be entertained? It appears to me that under the rule of the Convention no other business is in order until the question of appeal has been decided.
The PRESIDENT. The Chair will state the
question. The question of appeal was pending when the gentleman from Natick moved that the appeal lie upon the table; upon that the gentleman from Boston rose to a question of order, whether it is competent to lay the appeal upon the table. There are two usages and principles upon which this question will be decided. It is the practice of the House of Representatives, invariably, where appeals are taken from the decision of the Chair, to entertain the motion to lay the question of appeal upon the table. The practice of the Senate of the United States, however, is different; and several years since-in 1843 or 1844-at least one or two days were expended in debate by the first men of the nation, whether the question of appeal could be laid upon the table, and it was the judgment of that body that the appeal could not be laid upon the table. Since that time and before, however, the practice of the House of Representatives has been different, and inasmuch as the Chair prefers to adhere to the usage of that body contrary to its own inclination, the Chair rules that the motion to lay the appeal upon the table is in order.
Mr. GRAY, of Boston. If I may be allowed the indulgence of the Convention for a few moments, I desire to state that whatever has been the course pursued in congress, it has ever been the ruling of the Chair of this House, that an appeal shall be decided before any other business is transacted. I am sorry to be compelled to dissent from the decision of the Chair, but an experience of twenty years has taught me that in this Commonwealth, at least, the practice is different. If the Chair adheres to its decision, I shall call for the yeas and nays on the motion to lay the appeal on the table.
The PRESIDENT. The Chair does not doubt that the gentleman is correct so far as the usage of this State is concerned. The Chair desires to say, moreover, that confident in the opinion he has given, he would rather that the Convention should decide this matter for itself. And if a motion is made, he will rule upon it as he has stated.
Mr. LORD. I desire to ask, what will be the effect if the appeal is laid upon the table, and whether the decision of the Chair will then be considered as affirmed?
The PRESIDENT. It is for every gentleman to decide for himself in regard to the effect. Mr. LORD asked for the yeas and nays. The PRESIDENT. The yeas and nays have been already demanded.
The question was then taken on ordering the yeas and nays, and it was decided in the affirmaative.
Mr. STEVENSON, of Boston. Before the yeas and nays are taken, if the gentleman will allow me, I desire to read the second rule. It is as follows:
"The President shall preserve decorum and order; may speak to points of order in preference to other members; and shall decide all questions of order subject to an appeal to the Convention on motion regularly seconded; and no other business shall be in order till the question on the appeal shall have been decided."
Would it, under this rule, be in order to proceed to any other business until the appeal has been disposed of?
The PRESIDENT. Certainly not. The laying of the appeal upon the table disposes of it.
QUESTION OF ORDER. - BRIGGS - HALLETT - LORD — BUTLER - BATES-MORTON.
Mr. BRIGGS, of Pittsfield. It always gives me pleasure to sustain the decision of the Chair. According to the practice of the House of Representatives at Washington, I believe that the last decision is correct, though I think the practice of the Senate of the United States is somewhat different. I recollect several instances where appeals have been laid upon the table in the former body. But, I regret to say that I cannot sustain the decision of the Chair in relation to another point, that is, the taking of the yeas and nays after the result of a division has been announced.
The PRESIDENT. The Chair would say, that if the practice of the House of Representatives is different, he is in error.
Mr. BRIGGS. I would state to the Chair, that in twelve years experience, I have no recollection of a different course being pursued from that to which I have alluded. In the House of Representatives they take questions by standing up and counting, and by tellers. And I have frequently known the call for the yeas and nays, which is a constitutional right, being made, after the House had passed between the tellers, and before the announcement of the result was made, but never after the decision of the tellers has been reported to the Chair. My recollection is that it was always pronounced too late to make a demand for the yeas and nays after such a decision had been announced.
The PRESIDENT. The gentleman from Pittsfield will find, upon examination, that there are frequent cases where, after the vote has been announced, and the result of the division has been placed upon the journal, the yeas and nays have been ordered. The Chair is confident that that is the practice, and upon that it bases its decision. If it is not the practice of the House of Representatives, the Chair is in error. With the leave of the Convention, the Chair will state the principles upon which this decision is made, aside from the practice of the House of Representatives at Washington, to which the Chair has adverted. It is that the yeas and nays are ordered, not only as a method of determining a vote, but for the purpose of a record. One-fifth of the members have a right to order the yeas and nays to be taken upon all questions for the purpose of obtaining a record. There is no record, and can be none, except the yeas and nays be taken, and this is provided for by a rule of the Convention. Chair, regarding this question of reconsideration as a question embracing a principle as vital as any other, believes it to be the right of one-fifth part of the Convention to have the record by yeas and nays upon this question, as upon every other where it is demanded. And the mere fact that it may have been determined by a vote of sound, or by the raising of hands, or by the report of monitors, which it is at the option of the Chair or the Convention to require or not, can produce no record. The record is the responses of members to the call of their names, and, unless the Convention direct the call, there can be no full and perfect record.
But, aside from this theory, the Chair stands of the House of Representatives. upon the usage It is, that when a question has been taken by sound, and declared, and a decision again declared upon the count of the Chair, and another count still, ordered by tellers, and such count is taken and announced to the House, one-fifth of the members present, if a quorum be present, still
have a right to a verification and a record of the vote by yeas and nays. The rule of the Convention is clear and explicit upon this subject, and is substantially the same as the constitutional provision relating to the House of Representatives of the United States.
This is one of those questions upon which onefifth of the members present have a right to have the yeas and nays taken in verification of the record. The Chair has no doubt of the correctness of the decision, upon the well established principles of American parliamentary law; and is impressed with the conviction that it is sustained by the usage of the first and highest deliberative assembly in the world.
Mr. WHITNEY of Conway moved the previous question.
The PRESIDENT. The Chair desires to say, that he would prefer to have this question decided by the Convention at the present time.
Mr. WILSON, of Natick. After the statement which has just been made by the Chair, I will withdraw my motion to lay the appeal upon the table, as it is a matter personal to the Chair.
Mr. HALLETT, for Wilbraham. I renew the motion of the gentleman from Natick, to lay this appeal on the table. I wish to make an explanation myself, for I shall be unable to sustain the decision of the Chair. I do not wish to make a personal issue with that gentleman, however, and I think we can all vote to lay the question upon the table. I see no necessity for any controversy of this kind upon a nice point of order, and I therefore renew the motion of the gentleman from Natick, (Mr. Wilson,) for it seems to me to be the only quiet way of disposing of the subject.
Mr. ASPINWALL, of Brookline. I would inquire of the President, if it is not competent for any member after the present appeal is laid upon the table, to appeal from the decision of the Chair?
The PRESIDENT. If this appeal is laid upon the table, it will be held by the Chair to be finally disposed of.
Mr. LORD. Suppose that it is laid upon the table by a vote of this body, can any gentleman move to take it up again?
The PRESIDENT. Certainly.
Mr. LORD. I would then inquire if a matter which is laid upon the table is permanently decided, and until it is decided, can we go on with any other business under this rule, to which I desire to call the attention of the President? It is the second rule.
Mr. BUTLER, of Lowell. I rise to a point of order.
The PRESIDENT. The gentleman from Salem is addressing the Chair.
Mr. BUTLER. His remarks are in the nature of debate; and I submit that this is not a debatable question.
Mr. LORD. I desire merely to make an inquiry of the Chair, in regard to the disposition of this subject. The second rule requires that :
"The President shall preserve decorum and order; may speak to points of order in preference to other members; and shall decide all questions of order, subject to an appeal to the Convention on motion regularly seconded; and no other business shall be in order until the question on the appeal shall have been decided.”
Although the practice under the rule may be
different, yet if I can move to take a matter from the table when it has been ordered to lie there
Mr. BATES, of Plymouth. I should like to know what question the gentleman from Salem is discussing? I believe there is no question before the House that is debatable.
The PRESIDENT. The gentleman for Wilbraham, (Mr. Hallett,) has moved that the appeal be laid upon the table; and the gentleman from Salem, (Mr. Lord,) rose to a point of order. The Chair has not yet ruled upon that question of order. If the gentleman will indulge him for a moment, the Chair would say, that the motion for the previous question does not cut off the motion to lay upon the table.
Mr. BATES. Is the motion to lay upon the table debatable?
The PRESIDENT. It is not. The gentleman from Salem rose to a point of order.
Mr. LORD. The point which I was suggesting, and to which I only desire to call the attention of the President, was this
Mr. BATES. I call the gentleman to order. The question is on ordering the appeal to lie upon the table, and that question is not debatable. I therefore insist upon my point of order.
The PRESIDENT. The gentleman from Salem does not state the question of order; the question is on the motion of the gentleman for Wilbraham to lay the appeal upon the table.
Mr. LORD. I propose to state the point of order, if the gentleman will allow me to proceed without interruption; but I cannot do it without using language. My proposition is this: that by a rule of this House, no business is in order after an appeal is taken from this decision of the Chair, until that appeal has been decided; not temporarily disposed of, but decided. Now, the Chair has already ruled, that it is competent to take this subject from the table, after it has been laid there; but I believe there is a parliamentary rule which says, that after a matter has been once disposed of, by laying it upon the table, it is not in order to take it up again, unless there has been an intervention of business in the meantime. So that if this subject is now laid upon the table, we can do no business under the rule, until it has been permanently settled by a decision upon it. Now, I desire to know of the Chair, not by any rule of precedent; not by any rule of the Senate, or House of Representatives of the United States; but, whether under the rules of this body, any business can be done until a question of appeal has been permanently decided, except it be to adjourn. Although a motion to lay upon the table may possibly be in order, yet if we can do nothing but adjourn, after taking that course-because having just laid it down, we cannot take it up again or proceed to other business in the meantime, under the rules of the Convention-shall we make any advance by such a course? I call this fact to the attention of the Chair, not because I have not a great respect for the decision of the Chair, for I have; but because it seems to me, and I think it will strike other gentlemen in the same way, that laying a subject upon the table is not such a final decision of the question, as the rule contemplates.
Mr. MORTON, of Taunton. I rise to a question of order. I desire to call the attention of the Chair to the course of events here. If I understand the state of affairs correctly, the gentleman from Conway (Mr. Whitney) rose and
moved the previous question. Afterwards, the gentleman for Wilbraham (Mr. Hallett) moved to lay the question of appeal upon the table. What, therefore, is the question pending?
The PRESIDENT. The immediate question pending, is the motion to lay the appeal upon the table.
Does that supersede the motion for the previous question ?
The PRESIDENT. It supersedes it for the present. The Chair will read the rule on this point:
"When a question is under debate, the President shall receive no motion but to adjourn, to lay on the table, for the previous question, to postpone to a day certain, to commit, to amend, or to postpone indefinitely; which several motions shall have precedence in the order in which they stand arranged."
Mr. HALLETT, for Wilbraham. If the gentleman from Taunton, (Mr. Morton,) will give way, I desire to say a single word. The previous question, I understand, is superseded by the motion to lay upon the table. I made the motion to lay the appeal upon the table, for the purpose of having an opportunity to express my opinion as to the best mode of getting rid of the question; but as the President has intimated that he is desirous of meeting the question, and as I am ready to meet it and vote upon it honestly and courteously, I will withdraw my motion.
Mr. MORTON, of Taunton. I wish, in a few words, to give the reasons why I shall vote to sustain the Chair in his decision, though they may be somewhat different from those which have been submitted by other gentlemen. I am told, however, that the previous question has been demanded; I do not desire to interfere with that. Mr. WHITNEY, of Conway. I will withdraw my motion for the previous question, if the gentleman will renew it.
Mr. MORTON. I never made a motion for the previous question in my life, and never intend to do so.
Mr. WHITNEY. I will withdraw it if the gentleman desires.
Mr. MORTON. I wish to state a few of the reasons which will influence me in voting to sustain the decision of the Chair. And, in order to understand this question properly, it is necessary we should look for a moment at the course of events which brought it before us. A motion was made to reconsider the resolves on the subject of elections by plurality; it was put to a vote, and the President announced the decision. A division was then called for-the decision first announced, of course not being final in its character-the votes were counted, and the President announced the result. Some gentlemen, however, doubted the correctness of that statement, supposing that an error had arisen either in computing the returns of the monitors or in the monitors themselves. The President listened to the statements made, reexamined his figures, and again announced the result as before. This not being satisfactory to the minds of several individuals, the yeas and nays were then called for, and ordered. These are briefly the facts of the case, as I understand them; and I maintain, Sir, that there never was a final enunciation of the decision. The subject was then under consideration, and if any person in this Convention had demanded another count, I have no doubt that the
President would unhesitatingly have ordered it at once, and every one would have acquiesced. If this was the case, therefore, the question was still undecided, and the motion for the yeas and nays was perfectly in order.
Mr. DAVIS, of Plymouth. If the gentleman will allow me to interrupt him a moment. Objection was made by me before the final announcement of the vote; and having commenced making my statement, the Chair desired me to wait until a new count was had, and in the meantime several gentlemen stated to me that they had not voted, because they did not understand what the question was.
Mr. MORTON. I was arguing upon the state of the facts, as I regard them, and the fact now stated by the gentleman from Plymouth, is additional evidence which very much strengthens the view I took.
If, therefore, it was an open, undecided question at the time the division was called for, no gentleman will deny that it was entirely within the rule; and consequently, it was proper and legitimate to demand the yeas and nays. Gentlemen were entitled to have them taken, for the rule provides that on all questions whatever, the yeas and nays shall be ordered if one-fifth shall demand them. I contend, therefore, that it was perfectly correct to order the yeas and nays, and the argument of the gentleman from Boston, (Mr. Stevenson,) ingenious and able as it was, was based upon the mistaken supposition that they were to be taken upon the final passage of the resolves, instead of being intended, as they were, solely to verify the decision of the Chair. Mr. BUTLER, of Lowell. I wish to say a word in regard to the settlement of this matter in dispute; and in doing so, I shall rely not so much upon precedent, as upon principle and right. As I understood the gentleman from Boston, (Mr. Stevenson,) his argument was, that when a question is once announced as finally determined, there can be no such thing as any farther verification of the same by yeas and nays, but that such determination must forever remain as the decision of the body. That is the ground of his appeal, and of the argument which supported it.
Yeas and nays are simply a method of verification. Now, suppose by accident or design, that a hundred men were crowded into these seats, as was the case once in the French Assembly, who did not belong here, that they stood up and were counted by the monitors, and the final announcement of the vote had been made, when some gentleman should arise in his place and state that he had reason to believe that the vote was incorrect, and in order to verify the vote, and arrive at a more satisfactory conclusion, he should demand the yeas and nays. I want to know, if in such a case as that, when such a demand is made, that the yeas and nays would not be strictly in order. Who is to say that it can be done in one case, and cannot be done in another? Therefore, I am ready to sustain the decision of the Chair upon that point, and shall also vote for the yeas and nays which have been demanded. What are we here for, but to arrive at the deliberate judgment of this assembly; to get at the feelings and wishes of this body? And I submit, if it is not a little like child's play, that we are to be told because the President has announced a vote after a division, that there is no way of getting at the voice of this Convention in a more certain manner; that we
are to be tied hand and foot in our deliberations, to be seized by a sort of snap-judgment from which there is no escape. I ask is that according to parliamentary principle and usage?
The question was asked what is the deliberate voice of this Convention upon a certain question? The vote was taken by a division; a gentleman having some doubt in regard to the result which had been announced, desired to have the vote recounted. It was accordingly done. Still it was unsatisfactory, and the yeas and nays were demanded for the purpose of verifying the vote with greater accuracy. The yeas and nays were ordered, and the gentleman from Boston appealed from the decision of the Chair, and for what reason? Because, forsooth, the Convention had voted once upon the question, and it was not in order to verify that vote in another manner. Upon questions of parliamentary usage, I have many times yielded to him; but on the present occasion, I feel constrained to differ with him, and shall therefore record my vote to sustain the decision of the Chair, relying, as I said in the beginning, more upon principle than precedent.
Mr. BRIGGS, of Pittsfield. I desire to say but a single word upon this matter. I much regret that a question of this character has arisen, but since it has come before us, I trust that we shall proceed to act upon and consider it with deliberation and caution. But above all things, in the last hours of the session, I hope we shall not allow ourselves to be excited or irritated by the introduction of such a subject. As for myself, I shall be compelled, from my construction of the parliamentary law, to vote against the decision of the Chair. The President has stated the true grounds on which the yeas and nays were ordered-that is, that they were for the purpose of making a record of the vote of every member of this Convention, upon one side or the other, and not for the purpose of verification, as some gentlemen have contended. If the Chair is correct in this statement, the whole foundation of the speech of the gentleman from Lowell is removed, but if not correct, his arguments would certainly be very strong.
But let me inquire what is the mode of verifying a vote? The President rises, puts the question, takes the sound of the voice, and makes a decision accordingly. The vote is doubted, and the rule requires him to take a count. What is the object of that? Simply for the purpose of verifying the vote. The division of the House takes place, and the Chair announces the result. But what is the case here? The result of the first vote was questioned. A division was ordered, and the monitors reported; the Chair announced that one hundred and twelve had voted in the affirmative, and one hundred and eighteen in the negative, so that the motion to reconsider was lost. Some gentleman, not being perfectly satisfied as to the correctness of that vote, requested the President to reexamine his figures; he did so, and announced the same result as before. After some little pause, the gentleman from Plymouth, (Mr. Davis,) arose, and said, Mr. President, there is some mistake about this matter.
Mr. DAVIS, of Plymouth. I arose and addressed the Chair before the announcement of the vote was made.
Mr. BRIGGS. Yes, Sir; he certainly did address the Chair, but what did he say? He said