tion of Mr. Dawes. He had not voted when his name was called, expecting to vote at the end of the roll-call. He meant to vote against the passage of the bill over the veto. But when he heard my vote for it, he saw that I was bringing down on my head a storm of popular indignation, and made up his mind that he would not throw the weight of his example on the side against me. So, contrary to his opinion of the merits of the bill, he came to my side and voted with me. "I suppose a good many moralists will think that it is a very wicked thing indeed for a man to vote against his convictions on a grave public question, from a motive like this, of personal friendship. But I think on the whole I like better the people who will love Mr. Dawes for such an act, than those who will condemn him. I would not, probably, put what I am about to say in an address to a Sunday-school, or into a sermon to the inmates of a jail or house of correction. I cannot, perhaps, defend it by reason. But somehow or other, I am strongly tempted to say there are occasions in life where the meanest thing a man can do is to do perfectly right. But I do not say it. It would be better to say that there are occasions when the instinct is a better guide than the reason. At any rate, I do not believe the recording angel made any trouble for Mr. Dawes for that vote." 1 PERSONAL INTEREST It is an ancient rule that members of a lawmaking body shall not vote on matters in which they have a personal interest. Jefferson, referring to Hatsell, said: "Where the private interests of a member are concerned in a bill or question, he is to withdraw. And where such an interest has appeared, his voice has been disallowed, even after a division. In a case so contrary, not only to the laws of decency, but to the fundamental principle of the social compact, which denies to any man to be a judge in his own cause, it is for the honor of the House that this rule of immemorial observance should be strictly adhered to." The House of Commons has a distinct rule on the subject, covering direct pecuniary interest, which must be immediate and personal, and not merely of a general or remote description. In 1796 a general resolution was proposed in the Lords, "That no peers shall vote who are interested in a question"; but it was not adopted. Presumably, however, such a resolution was deemed 1 Autobiography of Seventy Years, 11, 8. unnecessary, on the ground that the personal honor of a peer would prevent him from forwarding his own pecuniary interests by his votes in Parliament. By standing order, No. 178, Lords are "exempted from serving on the committee on any private bill wherein they shall have any interest." 1 If any legislative body in the United States lacks a formal rule on the subject (no such lack has come to my notice), it is either because parliamentary law is properly assumed to cover the matter, or else because constitutional provision is held to suffice. In 1873 Pennsylvania put into her Constitution: "A member who has a personal or private interest in any measure or bill proposed or pending before the General Assembly shall disclose the fact to the House of which he is a member, and shall not vote thereon." A dozen Constitutions now say much the same thing. On the face of it the Pennsylvania rule appears simple, clear, and eminently reasonable. Yet a moment's study of it brings trouble. What means the "or"? Does it differentiate "personal" and "private"? Wherein do they differ? The uncertainty led the Pennsylvania Commission on Constitutional Amendment and Revision in 1920 to advise that "personal or" be omitted. "The distinction sought to be made," said the Commission, "is between public and private interests. A personal interest, as, for instance, a personal interest in a particular hospital seeking an appropriation, is not objectionable, and it was not the intent of the section that a member should expose such a personal interest to the House of which he is a member." The cutting out of "personal or" might help, at least to the extent of relieving us from trying to define "personal," but the Commission was far afield if it thought that "private" would present no uncertainty. As a matter of fact with the prospect of the individual interpretation and application of that word begins one of the most difficult and embarrassing struggles that may torment the conscience of a scrupulous lawmaker. He must settle it for himself. With rare exceptions presiding officers have refused to guide or admonish, and assemblies have refused to dictate. Points of order, however, have of late years not been wanting, and in connection with them the subject has been much discussed by presiding officers and on the floor. The matter began to be really troublesome when in the first 1 Sir Thomas Erskine May, Law, Privileges, Proceedings, and Usages of Parlia ment, 281. half of the last century the spread of the corporation system involved large numbers of men in relations going far beyond the narrow limits of activity and interest to which society had been accustomed. The resulting difficulty seems first to have shown itself in 1830, when two members of the National House who were stockholders in the United States Bank were excused from voting on the renewal of its charter. Yet though the question was thus brought to notice, and though in the course of the exciting controversy over the Bank it might have been expected that the strong partisan jealousies aroused would lead to remonstrance against the votes of other members known to be stockholders, it does not appear that any point of order was raised. Speaker Robert C. Winthrop of the Massachusetts House, who had occasion to discuss the subject in an exhaustive ruling made February 19, 1840, said the rule seemed to have been regarded as altogether too odious and arbitrary to be put forcibly into operation. It seemed to have been left to operate upon individual conscience, inducing members to decline voting of their own accord, whenever they felt they were liable to be swayed from the discharge of their duties by their private interests, or whenever, perhaps, they were unwilling to incur the suspicion of being thus swayed. Mr. Winthrop believed it to be a rule of doubtful constitutional justice, in derogation of the rights of the members, adverse to the equality of the representative system, and one which, unless carefully limited, was capable of being wrested to the worst of purposes. His own disposition would be never in any case to apply the rule to a case of corporate interest. Corporations had been so multiplied of late years, and their interests had become so closely interwoven with those of the whole people of the Commonwealth, that it was difficult to imagine cases in which they were entirely distinct. The interests of individual corporations, even, partook largely of the character of public interests. To how large a number of persons must an interest be common, to be entitled to the designation of a public interest. The Western Railroad Corporation had some thousands of stockholders. Was the interest which a member held in common with thousands of others, to be regarded as a private interest? What, then, should be the numerical limit at which an interest should cease to be private, and be acknowledged as public? The members whose votes were in question in the present case were interested in common with at least a hundred stockholders, and there were frequently more than three hundred operatives employed in the establishment. The Speaker said that if, in any case, he was to be compelled to regard interests like these as grounds for exclusion under the rule, it would only be where the authority for so doing was plain, precise, and unavoidable.1 When the matter came up in the National House in 1873 on a question relating to the Central Pacific Railroad, the Speaker, James G. Blaine, said it would be his duty to hold that Samuel Hooper of Massachusetts, a stockholder, had no right to vote, and upon Mr. Blaine's delicate suggestion that he be relieved from embarrassment, Mr. Hooper withdrew his vote. In the following year Mr. Blaine took the opposite position when a point of order was raised against the votes of certain members who were stockholders in national banks, the question before the House relating to acts providing for a national currency and free banking. He held that this was legislation affecting a class as distinct from individuals. He referred to a recent refusal of the House of Commons to exclude the votes of army officer members on a bill to abolish the right to sell commissions in the army. He cited the matter of bounty bills, pension bills, the tariff. "And so," he said, "you can go through the whole round of business and find upon this floor gentlemen who, in common with many citizens outside of this House, have an interest in questions before the House. But they do not have that interest separate and distinct from a class. The decision of the Chair was sustained. The Senate had gone even farther, though not in a matter relating to stockholders. In 1868, on a resolution to pay compensation to Senators from five Southern States, the point of order that some of those directly interested had improperly voted, was not sustained. De A. S. Alexander thinks that members of Congress have never shown any disposition to confuse direct and remote private interests. With all due respect to his views and the rulings of Mr. Blaine, I hazard the opinion that the distinction is hard to draw and dubious at best. It is a matter of degree, with a twilight zone of no small breadth between right and wrong. Who shall say that a father with an only son very dear to him has in draft legislation no such distinct interest as to warp his judgment? If 1 R. C. Winthrop, Addresses and Speeches, 1, 283. I may not vote because a stockholder in a railroad corporation, how about it if my wife is a stockholder, my brother, my nephew, and where shall the line be drawn? My livelihood may be dependent on the continuance of certain postal rates, if I publish a periodical; or the maintenance of a navy yard; or certain tariff schedules. How does the fact that I am but one of a class touch the principle involved? As a matter of fact, however apparently clear and sharp any line drawn on paper, it fails when you come to apply it in actual voting. Furthermore, it is not beyond question that any line whatever should be drawn. No doubt a man should not be a judge in his own cause. Yet after centuries of dispute we have at last decided that a man accused of crime may testify, even though there be fear that his testimony will be prejudiced, if not untruthful. To be sure, though we began with only jurors who knew something of the matter, we now demand just the contrary in important cases, but it is not clear how far the reversal of attitude has been of benefit. May it not be argued that the daily affairs of life justify us on the whole in thinking that knowledge outweighs interest, and that though selfishness may distort the judgments of some men, yet most men will do their duty, and do it the better because they know the facts? THE RIGHT TO SILENCE ALTHOUGH the question of compelling a legislator to vote rises usually in connection with the matter of a quorum, of course the two things are not necessarily connected. Members may wish to refrain from voting because of reasons quite independent of the parliamentary situation. There was a notable instance of this as far back as Queen Mary's time, when thirty-three members of Parliament went on strike because they found the majority "inclined to sacrifice everything to the Ministry." They were indicted, and six of them submitted to the payment of fines, the Queen's death stopping the proceedings against the rest. It became established in the House of Commons that, as Jefferson quotes it in his "Manual," "every member must give his vote the one way or the other." That principle was not at the outset universally accepted for American assemblies. One paragraph of the Body of Liberties adopted by the colony of the Massachusetts Bay in 1641 read: "In all cases wherein any freeman is to give his vote, be it in |