point of Election, making constitutions and orders or passing sentence in any case of Judicature or the like, if he cannot see reason to give it positively one way or an other, he shall have libertie to be silent, and not pressed to a determined vote." If such liberality continued long in Massachusetts or found favor elsewhere, it must have been generally thought imprudent by the time of the Revolution, for the opposite doctrine appears to have been incorporated as a matter of course in the rules provided for both branches of Congress.

The rule of the House of Representatives directed that "every member who shall be in the House when the question is put shall give his vote, unless the House shall excuse him." John Quincy Adams was the first to deny the binding character of this rule. It was in 1832, when the House was to vote on the question of censuring Representative William Stanberry of Ohio for an improper reference to the Speaker. Adams asked to be excused from voting, presenting his reasons in writing. The House refused, whereupon Adams remained silent when his name was called. A protracted debate followed on a motion to reconsider the vote whereby he had been refused. The ex-President explained that he was impelled by no motive of contumacy or disrespect, but was silent on grounds of conscience. With prophetic instinct Foster pointed out what might follow: If one member could refrain, enough could refrain to break the quorum, and there would be an end to all important legislation. The stubborn Adams persisted. Drayton offered a resolution that in view of the breach of the rules, a committee should report the course to be adopted in a case at once so novel and important. In the end the matter was tabled.

Again, in 1836, Mr. Adams asserted his view. The Speaker had ruled that the House might protract its session after midnight of a Saturday, and with an appeal pending, it was moved to adjourn. When the Yeas and Nays were called, Wise of Virginia stated he declined to vote until Mr. Adams and other members, whose names came before his, had voted, they having remained silent. Beardsley of New York moved that Adams be excused from voting. Adams declined this, saying that he had no conscientious scruples against voting or transacting business on Sunday, but he held the House had no right to sit there at that hour without first passing an express order setting forth that the public business demanded it. The debate has not been recorded, but it is stated

that it was "of an angry and painfully personal character." This is not surprising in view of the course that was making the Massachusetts stickler for rights so obnoxious to the slaveholders from the South. Frequently in the course of his congressional service he refused to vote, and though at first from conscientious motives, an entry in his "Diary" shows he would not have hesitated to use the same means to prevent action on any measure. The House completely failed in its persistent attempts to coerce him, and the result was the establishment of the refusal to vote as a common method of blocking business.

The first rules adopted in the Senate provided that every member present should vote unless excused for special reasons, but there were few attempts to enforce this. In 1881 the presiding officer, reading from the compilation, was justified in saying: "The practice of the Senate in permitting its members, without question, or challenge, to withhold their votes, whenever they have thought fit to do so, has been so uniform and unbroken, that, so far as precedents can make it so, it has become an absolute parliamentary right, and cannot be questioned without reversing the steady practice upon which the members of the body have a right to rely as their protection in the exercise of their discretion in giving or withholding their votes." No attempt to break up this practice has succeeded. The Senate prefers to assume that it is without power in the matter. For instance, in 1893 Senator Vilas called the attention of the Chair to the fact that Senator Dubois had failed to vote, and asked that under the rule he give his reasons. After they had been given, the Senate voted not to excuse him, but when his name was again called, he still refused to vote and the Senate did nothing about it. Rulings have gone to the extent of holding that though when a Senator declines to vote on the call of his name, a standing order says he shall be required to give his reasons, yet the Chair has no authority on his own motion to make the requirement.

In the Senates of New York, Pennsylvania, Colorado, and possibly other States, if a Senator refuses to vote when a quorum is present, he is to be deemed in contempt, and, unless purged, is to be brought before the bar for public reprimand by the President. Two Wisconsin Senators in 1907 sought to break the quorum by refusing to vote on the two-cent-passenger-rate bill. Lieutenant-Governor Connor, presiding, declined to apply the Cong. Record, 3d Sess., 46th Congress, 2423.

Reed rule of counting by sight, holding that the best evidence of a quorum was a roll-call. He overcame the difficulty, however, by directing the obstinate Senators to vote under the rule requiring it, and they complied rather than be in contempt of the Senate.

Virginia takes unique ground. The standing orders of the House of Burgesses of 1769 contained a rule to the effect that every member present must be counted on one side or the other. It is now the rule in the House of Delegates that a member present and failing to vote shall, on the demand of any other member, with the usual exception in case of personal interest, be counted on the negative of the question.

CHAPTER XVI

TECHNICAL MATTER

As a detail of procedure the taking of votes has not yet been worked out to the general satisfaction. Common methods have led to an enormous waste of time, and occasionally to error and even fraud. A very notable, and delightful, instance is to be found in the circumstances attending the passage of the famous Habeas Corpus Act, frequently considered, as Blackstone says, another Magna Carta. Bishop Burnet tells the amusing story of how, in the time of Charles II, Englishmen came by this palladium of their liberties: "The former Parliament had passed a very strict act for the due execution of the habeas corpus; which was indeed all they did; it was carried by an odd artifice in the House of Lords. Lord Grey and Lord Norris were named to be the tellers; Lord Norris, being a man subject to vapors, was not at all times attentive to what he was doing; so a very fat lord coming in, Lord Grey counted him for ten, as a jest at first; but seeing Lord Norris had not observed it, he went on with this misreckoning after; so it was reported to the House and declared that they who were for the bill were the majority, though it indeed went on the other side; and by this means the bill passed." Speaker Onslow hunted up the Minute-Book of the House of Lords, and compared the number of Lords that day in the House with the number reported to be in the division, finding it agreed with this story.

For centuries divisions have been taken in Parliament by having all the members go out to the lobby and counting them on their return. Until 1888 that was the only means, apart from voice vote, of taking the sense of the House; and any one member could force a division by challenging the result of a voice vote, or rather any two members could do so, for a division cannot take place unless two tellers can be found for each side. In 1888, however, as a part of the movement to prevent obstruction and waste of time, the Speaker or Chairman was empowered, if he should think a division frivolously or vexatiously claimed, to call upon the Ayes and Noes to rise in their places. By the rule 1 History of His Own Times, 11, 485 (1680).

of 1919 he may then count them and declare the result, or may direct a division.

In the French Chamber each Deputy is provided with two cards bearing his name in print-one white for "Aye" and one blue for "No." Members remain in their places and deposit a blue or white card (as the case may be) in the urns carried around by attendants. The votes are counted by the secretaries with the aid of mechanical appliances. If the apparent majority is more than thirty, the result is announced forthwith. If, however, a smaller majority is shown, the votes are examined and duplicates excluded. The sitting is suspended during this process, which occupies about half an hour. A different method is employed for money bills and some other things. Deputies deposit their votes in an urn placed on the tribune. Before voting, each member receives a "boule de contrôle," which he hands over to one of the secretaries as he places his vote in the urn. This gives an absolute check on the number of votes cast, and prevents any member from voting more than once.

Despite the rule adopted for the Pennsylvania Assembly in 1703 requiring members to stand and say "Yea, or Nay, as they shall see meet," we may be confident that voting by acclaim, the voice vote, was in colonial times, as it is now, the more common practice. Such a supposition is strengthened by the rule of the Provincial Congress of Massachusetts, that "no member shall declare, or question, whether it be a vote or not." This means that the presiding officer, and not some presumptuous, overbearing member, was to pass judgment on the volume of sound. Of course so inexact a process had to be supplemented by methods of verification. One of the possible methods, the show of hands, often used in our small gatherings, appears not to have met with favor for lawmaking bodies. Instead the rising vote has been preferred. Usually this is the second step in the vote-taking process. In Congress it is secured by the cry of "Division," from any member, but in the Legislature with which I am familiar more formal custom prevails, a member addressing to the Speaker a doubt of the vote.

The use of the word "division" in Congress differs from that in Parliament, where it means the passage between tellers. Congress began by requiring that in case of doubt of a voice vote or of a call for a division, those in the affirmative should pass to the right of the Speaker's chair, those in the negative to the left.