prescribed, as there usually is in each assembly, in reference to particular questions, is ordinarily effected by a majority. In those cases where the rules or customs of any assembly allow a vote to remain on an equal division, the decision, as neither side preponderates, is necessarily in the negative. In many cases, it is provided, either by a constitutional requisition, or by rule, that particular questions, in order to prevail, shall require more, or admit of less, than the ordinary majority in their favor. 1827. Where more than the ordinary majority is required, as it is, for example, under most of our constitutions, to take the initiatory steps, by passing resolutions for that purpose, for their amendment, and for the passing of certain classes of bills; all questions for amending such resolutions and bills, except amendments from the other branch, and all incidental or preliminary questions thereon, short of the final question, are determinable by the ordinary majority.1 The same is the case where it is required by rule, that certain classes of questions shall not be adopted, unless a proportion greater than a majority is in their favor. All amendments of such questions require only a major vote.2 1828. According to the practice in our legislative assemblies, therein agreeing with the ancient rule and practice of the house of commons,3 a member may change his vote, after he has once given it, provided he does so, by communicating the change to the tellers, if the vote is taken in that manner, before they announce the result,1 or, if taken by yeas and nays, have his name called again before the decision of the assembly is announced, though the numbers may be declared.5 The same principle seems applicable to oral suffrage and all other forms of voting, except by ballot. 1829. When the numbers on the one side and on the other of the question, are thus ascertained, and the speaker's casting vote given, if necessary, the decision of the assembly is thereupon announced accordingly, by the presiding officer, either in the affirmative or negative as the case may be, of the words of the motion. The decision, thus pronounced, is the judgment of the house, not only upon the proposition itself, but upon its equivalent.8 1 J. of S. III. 314; Lloyd's Deb. II. 179; J. of H. V. 160, 294; Same, VII. 531. 2 Cong. Globe, XVIII, 639; Same, VII. 131; Same, XIII. 503. 3 May, 225; Comm. Jour. I. 303. 4 Cong. Globe, XXI. 186. 5 J. of H. VII. 342; Same, 20th Cong. 2d Sess. 357; Same, 29th Cong. 2d Sess. 494; • Cong. Globe, XXI. 186. 7 J. of H. 20th Cong. 2d Sess. 357. 8 Cong. Globe, XI. 782. 2 1830. Questions are said to be equivalent, when the negative of the one amounts to the affirmative of the other, and leaves no alternative.1 Thus, in amendments, which furnish the most frequent examples of equivalent questions, the negative of striking out certain words amounts to the affirmative of agreeing to the same words.2 So, on a motion to agree or disagree with the other branch in its amendments of a bill, a vote in the affirmative, on either of these motions, inasmuch, as on either the amendments in question may be amended, is exactly the equivalent of a negative of the other, and no alternative remains. So, on a motion to recede from a disagreement with an amendment of the other branch, it has been held, in congress, that a vote in the affirmative is equivalent to an agreement to the amendment; and that a vote in the negative of the same question is equivalent to a vote to insist on the disagreement.5 So, if a motion is made to disagree to or reject an amendment reported by a committee of the whole house, and this motion passes in the negative, the decision is equivalent to an agreement to the amendment. So, where an amendment of the other branch was referred to a committee of the whole house, who reported their disagreement thereto, and on the question to concur in this report it was decided in the negative, the non-concurrence was held to be equivalent to a vote to agree to the amendment.7 8 4 1831. So, if the question, on passing a bill to its next regular stage, is decided in the negative, such vote is equivalent to a rejection, and may be so entered by the clerk; the same effect is produced, when the enacting clause, or the whole bill,10 is struck out; and, on the other hand, if, on a question of rejection a bill is retained, this vote may be considered as equivalent to a vote passing a bill to its next stage.11 1832. In whatever way, and at whatever time, whether by allowance or disallowance of votes as stated in the next chapter, or in some other manner, the apparent numbers of the members, voting on a division, are changed, thereby changing the result of the vote, not only are the changes of the individual votes to be noted on the 1 Jefferson's Manual, Sec. XXXVIII. 2 Jefferson's Manual, Sec. XXXVIII. 3 Jefferson's Manual, Sec. XXXVIII. 4 Reg. of Deb. III. Part 2, 2647. This point has been otherwise decided. J. of H. 20th Cong. 1st Sess. 695; Same, 27th Cong. 1st Sess. 444, 445. 5 Cong. Globe, X. 407. 6 J. of H. 21st Cong. 1st Sess. 292, 610. 7 J. of H. 17th Cong. 2d Sess. 391. 8 See the Journals of the H. of R. generally. 9 J. of H. 21st Cong. 1st Sess. 493. 10 J. of H. VIII. 236, 540. 11 Jefferson's Manual, Sec. XXXVIII. journal, but a change of the decision takes place, as of the day on which the voting occurred, and with the same effect as if it had been correctly announced on that day.1 ́All subsequent proceedings in reference to the vote in question, and predicated upon the idea that it was correctly declared, are, of course, wholly null and ineffectual.2 CHAPTER FOURTH. OF THE DISALLOWANCE OR ADDITION OF VOTES. 1833. It has been seen, that, whilst a division is taking place, it is within the functions of the speaker to compel a member to vote, or to prevent him from voting, without debate or delay; his determination, in this respect, being subject to the future revision of the house. So, when a member has actually voted, if exception is taken to his vote at any time before the members on the division have been declared by the speaker, although reported by the tellers to him, the case is in like manner within the speaker's summary jurisdiction, as to all matters and questions arising in the course of a division. When, however, the speaker has declared the respective numbers, which are the result of any division, the question is thereby resolved according to such declaration; and the numbers can only be altered by the house, upon motion and vote, in the ordinary manner of proceeding, resolving that certain votes be allowed or disallowed. Cases are frequent, in which votes received have been disallowed; very rare, in which votes refused have been allowed. 1 J. of H. 20th Cong. 2d Sess. 357; Same, 26th Cong. 2d Sess. 32; Same, 27th Cong. 1st Sess. 447; Same, 30th Cong. 1st Sess. 1079, 1080, 1081; Same, 175, 176; Same, 31st Cong. 1st Sess. 1436; Same, 2d Sess. 171; Reg. of Deb. XI. Part 2, 1521, 1522, 1523; Cong. Globe, IX. 17; Same, XI. 925, 926; Same, 2 J. of H. 30th Cong. 1st Sess. 1079, 1080, 1081; Reg. of Deb. XI. Part 2, 1521, 1522, 1523; Cong. Globe, XXI. 1786. SECTION I. OF THE ALLOWANCE OF VOTES REFUSED. 1834. There seems no good reason, why votes, improperly refused, should not be afterwards allowed on motion, as well as that votes improperly received should be disallowed. One case only, however, has been noticed, in which a proceeding analogous to the allowance of votes improperly refused took place. January 10th, 1647, a division having taken place, and the tellers being unable to agree upon the numbers, the house divided again, and all who were not present at the first telling were required to withdraw. The tellers reported the numbers to be thirty-three on each side; one member, who was present and told on the first division, but did not come in upon the second telling, until the numbers were given in and reported by the speaker, was desired to be counted; a debate arose, whether he should or not, as he did not come in until after the report was made; and the house divided again on this question; but, before it was told, the noes yielded, and that member being added to the yeas, made their number thirty-four.1 1835. In the following case, it seems to be doubtful whether the proceeding was intended for the purpose of compelling members to vote, or of allowing votes not given to be counted if necessary for the decision of the question:- On the 28th of May, 1623, it is entered in the journal of the commons, that the bill for York house being thirdly read, "after a very long debate, the question being put, and the voice doubtful, the house divided," and tellers were appointed. "Seven being returned into the committee chamber, and refusing to give voice one way or the other, were sent for, and their names taken, and the resolution stayed till those which had gone out, returned. With the noes 143, with the yeas, 168, 25 difference." 2 SECTION II. OF THE DISALLOWANCE OF VOTES RECEIVED. 1836. The disallowance of votes usually takes place, when, after the declaration of the numbers by the speaker, it is discovered that certain members who voted were not present when the question was put, or were so interested in the question, that they ought to have withdrawn from the house. 1 Hans. Parl. Hist. III. 48, 49. 2 Comm. Jour. I. 714. 1837. I. It has already been seen, that when it is ascertained that members have improperly voted, on a division, who were not in the house when the question was put, if this takes place, before the numbers are declared by the speaker, such votes are disallowed by him at once, and not included in the numbers declared. If the fact is not ascertained until after the numbers are declared, it is then necessary, that there should be a motion and vote of the house for their disallowance; and this may take place, for any thing that appears to the contrary, at any time during the session, and has in fact taken place after the lapse of several days from the time the votes were given.1 1838. II. Votes have also been disallowed, after the numbers have been declared, on the ground, that the members voting were interested in the question; and, in reference to this proceeding, there is no time limited within which it must take place. 1839. There seems to be very little doubt or difficulty, commonly, in determining what interest disqualifies a member from voting, or would give rise to the disallowing of votes if given. The case of members voting on questions concerning their own pay is an exception from which no principle can properly be derived. It has invariably been decided, of course, that this was not such an interest as would disqualify; either because it was a case of necessity, or because all the members were equally concerned in interest.2 Five leading cases have occurred in the British parliament at different periods, which embody the law on this subject, and deserve to be mentioned accordingly. 1840. The first of these cases occurred on the 12th of June, 1604, and is thus recorded:— A bill for the establishment of divers manors and lands of Edward, late duke of Somerset, being offered to the question of commitment by Mr. Speaker: "Moved, that Mr. Seymour, a member of the house, and a party, might go forth, during the debate: which was conceived to be agreeable with former order and precedent in like cases, and was so ordered." "And Mr. Seymour went presently forth at the door." 3 1841. The second of these cases, which occurred on the 4th of February, 1664, is thus recorded:- A bill for settling the differences between Great and Little Yarmouth, being reported by the committee with amendments which were read and agreed to, the question being put, that the bill with the amendments, be en 1 May, 267, 268. 2 Cong. Globe, IX. 208. 3 Comm. Jour. I. 237. |