concerns the reader. How far the reviser may also recognize what he ought to have said, how far upon reflection he may alter the spirit and substance of his remarks, is a matter every man must decide for himself. In the House he will get into trouble if as a result of his decision he does an injury to a fellow-member. Barring this he may usually indulge his inclination with impunity.

In the excitement of debate men will sometimes say unjust or even untruthful things that may do others irreparable injury if put into print. Should their publication be permitted? Unfortunately there is no way to prevent it without a greater mischief the hampering of free speech. Censoring is impracticable. The Canadian House was threatened in the session of 1918 with a resolution that would have thrown on the Speaker the duty of censoring before publication. Doubtless this was suggested in view of the conditions attaching to the World War, then not ended. Fortunately the Government did not press for its passage. Under no conditions should there be permitted such an invasion of the rights of representatives. The public welfare demands the fullest opportunity for criticism, however unfair or seemingly dangerous. As for private welfare, every legislator must take his chances, relying upon the opportunities for vindication, or, in their lack, upon the support of a clear conscience. Legislative bodies believe in fair play, and only in extreme cases will it be denied. Parliamentary law guarantees the right to rise to a question of privilege, and this ordinarily ensures the chance to explain or defend, when the attack has been made by one member on another. If it has been made upon an outsider, as for example on some administrative official, there is no adequate recourse for the victim. This is most regrettable, but nobody has ever suggested how it can be helped without a worse evil through interference with the most precious institution of a republic freedom of discussion in popular assemblies.

CHAPTER XV

VOTING

VOTES may be wholly secret, as when taken by writing; or they may be disclosed to those present, as when taken by standing; or they may be made known to the public by the record of what are known as the Yeas and Nays.

There has been singularly little discussion of whether, as concerns a lawmaking body itself, votes should be secret or open. The question has rarely come to the front save in the matter of the election of presiding officers. The Federal House began with electing the Speaker by ballot, and that practice continued up to and including the election of James K. Polk in 1837. James Buchanan had suggested change to voice vote in 1826 and the matter received much discussion in 1829, but not till the long contest of 1839 did the opponents of secrecy prevail. In Massachusetts the ballot was used until within a few years, being discarded on the occasion of a contest when the dominant party had but a narrow margin and feared that if the ballot were secret, enough men would trade with the minority to bring it success. There can be no question that the advocates of election viva voce are gaining ground. More than half the States now direct in their Constitutions that elections by the legislature shall be viva voce, and to that provision Georgia adds a specific injunction in the case of the Speaker. Oklahoma, on the contrary, excepts officers and employees of either House from the general provision. The requirement of the voice vote appears in the rules of a few Legislatures, but most of them are silent on the subject.

Italy goes in the other direction beyond any American requirement by saying in her Constitution (Article 63): "Votes shall be taken by rising and sitting, by division, or by secret ballot. The latter method, however, shall always be employed for the final vote on a law and in all cases of a personal character."

Secret voting on measures would greatly embarrass those lawmakers who are averse to doing their own thinking. Such there have always been in legislative bodies; such there always will be. Dr. Johann David Schoepf, who traveled through several of the States in 1783-84, found in the Pennsylvania Assembly a group of German-born members. He was not complimentary

to his brethren. "When the votes are to be taken," he wrote, "those in the affirmative rise, and those in the negative remain sitting. The members of German descent (if, as is sometimes the case, from a lack of thorough readiness in the English language they either do not properly grasp the matter under discussion or for any other reason cannot reach a conclusion) are excused for sitting doubtful, until they see whether the greater number sits or stands, and they do the same so as always to keep with the largest side." 1

It is to be wished that no worse an explanation than that of unfamiliarity with language were ever possible. On the other hand, it would not be fair to ignore the fact that every wise legislator knows he is not expert in every matter on which he must vote. Often he must rely on the judgment of those in whom he puts confidence. He will be inclined to "follow the committee" unless he has some reason for mistrusting its advice. If the committee is divided, he will look to men either in or out of the committee upon whose wisdom he thinks he can rely. So when he has not heard the debate or the debate has not clarified his mind, he is not to be wholly condemned if he watches to see how some others vote and allows their course to shape his own decision.

As for the public, if it were best to delegate authority in full to representatives, and to hold them responsible only for results, then there would be no occasion to know anything about the details of their work. The ideal illustration of this is the Federal Convention of 1787, which sought to be judged solely on its product. The people of its time were not permitted to know either what any of its members said or how they voted. Yet that very Convention recommended the following paragraph for governing the Congress it proposed and this has ever since been the constitutional provision: "Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the Yeas and Nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal."

At the start of the Convention, when the committee to prepare standing rules and orders made its report, Rufus King objected to that rule which would have authorized any member to call for the Yeas and Nays, and have them entered on the minutes. "He 1 Travels in the Confederation, 1, 383.

urged," Madison tells us, "that, as the acts of the Convention were not to bind the constituents, it was unnecessary to exhibit this evidence of the votes; and improper, as changes of opinion would be frequent in the course of the business, and would fill the minutes with contradictions." Colonel Mason seconded the objection, adding that "such a record of the opinion of members would be an obstacle to a change of them on conviction; and in case of its being hereafter promulged, must furnish handles to the adversaries of the result of the meeting." 1

2

The next day Charles Pinckney presented his Plan. It provided for the Yeas and Nays in Congress, leaving blank the number of members who might get them. Nothing more appears on the subject until the report of the Committee on Detail, August 6, which provided for the Yeas and Nays at the desire of one fifth of the members present. When this was reached in the course of debate, Gouverneur Morris urged that if the Yeas and Nays were proper at all, any individual ought to be authorized to call for them. He made a motion to that effect and Edmund Randolph seconded it. Roger Sherman had rather strike out the Yeas and Nays altogether. "They have never done any good, and have done much mischief. They are not proper, as the reasons governing the voter never appear along with them." Oliver Ellsworth was of the same opinion. Nathaniel Gorham was opposed to allowing a single member to call for the Yeas and Nays, and recited the abuses in Massachusetts: first, in stuffing the Journals with them on frivolous occasions; secondly, in misleading the people, who never know the reasons determining votes. The motion of Morris to amend was disagreed to, nem. con., and the next day the provision was agreed to, also nem. con.

With such little controversy was established a practice that has come to play a most important part in the lawmaking machinery of the land.

It will be observed that the debate proceeded as if the practice was already familiar. So it may have been, but the evidence to that effect is strangely scanty. Little is known of its origin. It has been called an American practice rightly enough, for it reached maturity here long before it gained strength elsewhere. Not until 1836 was it accepted by the British Parliament. Yet there are traces of it in England long before. R. Palgrave says that the first publication of division lists of Parliament occurred 1 Elliot's Debates, v, 124. 2 Ibid., 407.

in April, 1641, when the names of those who had voted against Strafford's attainder were posted up as "betrayers of their country," and a like document emanated from the other side. Porritt says it was at the dissolution of 1679 that division lists were for the first time published as electioneering literature, unofficially.' Macaulay says it was at the election of 1690, when the Whigs circulated a list of Tories who had voted against declaring the House vacant, and the Tories a list of Whigs who had supported the Sacheverell clause.2 In 1696 the Commons declared the printing of the names of a minority a breach of privilege, as destructive of the freedom and liberties of Parliament. Burke in 1770 advocated the official publication of division lists. In 1782 they were again published unofficially as electioneering literature.

It was not, however, until 1836-four years after the passing of the Reform Act that the House of Commons adopted what May calls the wise and popular plan of recording the votes of every member; and publishing them, day by day, as part of the proceedings of the House. "So stringent a test had never been applied to the conduct of members; and if free constituencies have since failed in their duty of sending able and conscientious representatives, the fault has been entirely their own." And Bryce says that until 1836 one party remained in the House while the other retired into the lobby, and only the numbers were recorded. Much dislike was at first evinced to the new plan, and the tellers sometimes found it difficult to ascertain the names of members as they walked past them. At present the tellers merely count the numbers, and the names are taken by four division clerks.1

In some Parliaments the divisions waste an inordinate amount of the time of the House. For instance in 1909 their number reached a total of 920. That this was an abuse of partisanship may be inferred from the fact that in the war period the total went as low as thirty-four. For the last twenty years the average has been about 350.

In Belgium "the vote on a law as a whole shall always be by roll-call and viva voce vote."

The origin of the practice in America might usefully busy some candidate for a doctorate with time and patience enough to

1 The Unreformed House of Commons, 1, 587. History of England, chap. xv.

May, Const. Hist. of England, 1, 407.

The American Commonwealth, 1, 45, note.