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rule of voting in some confederations of States,' where, on accoun of the imperfect fusion of the members, the minority is unwilling to be bound by the act of the mere majority. According to the canon law, the pope is elected by the votes of two-thirds of the cardinals. A similar majority was required, in certain cases, for the votes of the Athenian judges, and is sometimes rendered necessary by our law in the voting of municipal bodies. In the constitution of the United States, this rule of voting occurs several times. Thus, a member of either house of congress may be expelled by the votes of two-thirds of the members; a bill which has been rejected by the president becomes a law, if it is passed, on re-consideration, by two-thirds of each house; the president can make treaties with the consent of two-thirds of the senators present; when two-thirds of both houses concur, a convention for making amendments in the constitution may be called, and these amendments may be made by three-fourths of the States.

In reckoning the majority, the body may be considered as consisting of its entire number of members, as the English grand jury, which is properly composed of twenty-three members, and, therefore, a verdict of less than twelve cannot be received. Or it may be considered as consisting only of the members voting on the particular question. The latter is the ordinary rule; but, in this case, a minimum number, or quorum, whose presence is necessary, is established. Thus it may be laid down that, in the case of a division, one-half, or some other proportion of the entire body, must be present and voting. According to the Roman law, the act of a majority of a collegium was only valid when two-thirds of the entire body were present. In the English House of Commons, there must be at least forty members voting in a division.

Moreover, the votes of the members actually present at the meeting of the body may alone be received, or absent members may be allowed to signify their vote in writing, or to vote by proxy, as in the House of Lords."

1 For example, the German and Swiss.

2 Walter's Kirchenrecht, § 228.

3 As to the reasons for establishing a quorum, see Story's Commentaries on the Constitution of the U. S. vol. II. §§ 832-3.

Dig. III. 4, § 3; Cod. X. 32, § 46. According to the common law of England, the act of the major part of a corporation is esteemed the act of the whole 1 Blackst. Com. p. 478; and by 33 Hen. VIII. c. 27, the act of the 'more part' of every college or other corporation is valid, notwithstanding that the local statutes may have given power to a single member to prevent such act.


Concerning the votes of absent members, see Grotius, ib. § 20; Rutherforth, ib. § 5.

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§ 9. Decision by a majority places all the members of the body upon the same footing, and gives an equal value to the opinion of each. It makes no distinction between them as to competency, but allows the same weight to the vote of the persons most able, and of those least able to form a correct judgment upon the ques- tion to be decided. It therefore proceeds upon a principle directly opposed to the principle adopted voluntarily by those who are not restrained by legal rules—in guiding their practical conduct by the opinions of others, they look not to numbers, but to special fitness.1

The necessity, however, of having recourse to this principle arises from the nature of political government, and the expediency of a coercive supreme power which it implies. Whenever the ultimate decision is vested in a body, there is, by the supposition, no ulterior authority which can, in case of difference of opinion, determine who are competent judges and who are not. There is, therefore, no other alternative than to count the numbers, and to abide by the opinion of the majority. The contrivance may be rude, but it is the least bad which can be devised.2

A decision by the majority of a political body is, in some respects, analogous to a battle between the armies of two independent nations. It settles a question which must be settled, and which cannot be settled in any other manner. The one is an appeal to physical force-the other is an appeal to moral force; it

1 Anacharsis is reported to have expressed his wonder that, in the legislative assemblies of the Greeks, the wise spoke and the ignorant decided.—PLUTARCH, Solon. c. 5.

Referring to a decision of the Roman senate, of which he did not approve, Pliny the Younger says: Sed hoc pluribus visum est. Numerantur enim sententiæ, non ponderantur: nec aliud in publico consilio potest fieri: in quo nihil est tam inæquale quam æqualitas ipsa. Nam quum sit impar prudentia, par omnium jus est.'-Epist. II. 12.

Cicero lays it down, not with reference to votes, that citizens must be weighed, and not counted. In dissensione civili, quum boni plus quam multi valent, expendendos cives, non numerandos puto.'-De Rep. VI. 4. There is no reason for limiting this remark to times of civil war.

Bodinus is of opinion, that the principle of decision by a majority is incurably defective. Arguing against the probability that the voices of the better citizens will predominate, either in an aristocracy or a democracy, he says: Utrumque imperio inutile est, propterea quod in omni cœtu ac universitate, seu optimatum, seu populi totius, suffragia non ad pondus exiguntur, sed ad numerum; ac optimorum bona pars semper a deteriore superatur: quo fit ut optimorum paucitas in magnâ multitudine, perinde ut salis scriptulus in lacu, nullam vim exserere possit.'-De Rep. VI. 4, (p. 1103.)

2 See Note E at the end of the chapter.


is the right of the stronger reduced to a legal expression. This view is implied in the verses of Prudentius, quoted by Grotius:

Infirma minoris

Vox cedat numeri, parvâque in parte silescat.

Contra Symmach. I. 606-7.

Nobody, however, supposes that such a decision does more than determine the legal question; nobody imagines that it concludes the moral question of what ought to have been the decision, more than a battle decides the question as to the righteousness of the cause of the victorious army: it hardly raises a presumption in favour of the winning side. No historian, in discussing the justice or propriety of any decision of a legislative body, or of a court of justice, thinks of defending the decision of the majority by saying that it was the decision of the majority.

Hence, too, in the management of a popular assembly, there is a tactic which is beyond the mere argumentative defence or attack of a legislative measure, or course of policy. There is a skill analogous to that of the military commander; and there is a triumph in success, which is not always dependent on the mere goodness of the cause. The same remark applies, though in a minor degree, to the arguments of advocates addressed to a judicial tribunal deciding by plurality of votes.

A supreme political authority might, after having referred a question to several persons, be guided by the opinion of the most competent judges among them, disregarding the preponderance of numbers. In like manner, a court of appeal would naturally be influenced in its decision by the character of the judges in the inferior court, and not merely by their number, in case those judges were divided in opinion. But this discrimination is only possible, because these are subordinate and not supreme bodies.2

Thou shalt not follow a multitude to do evil,' (Exod. xxiii. 2,) is an ancient maxim, which has never been disputed, however often it has been violated.

Il faut faire comme les autres: maxime suspecte, qui signifie presque toujours, il faut mal faire, dès qu'on l'étend au-delà de ces choses purement extérieures qui n'ont point de suite, qui dépendent de l'usage, de la mode, ou des bienséances.'-LA BRUyère, Caractères, ch. 12. The verse of Juvenal, (II. 46)—

'Defendit numerus, junctæque umbone phalanges'

is the expression of the fact, not its justification.

2 It has been remarked, above, that the Pope is elected by two-thirds of the conclave of cardinals. The canon law, however, adds that this rule does not apply to other churches, where the opinion, not only of the majority, but of those whose judgment is the soundest, is to prevail. Puffendorf, Law of N. and N. VII. 2, § 16,

§ 10. The necessity of decision by a majority in a political body,' whether its power be legislative, judicial, or administrative, is a defect inherent in the nature of corporate action. There is, indeed, no infallible security for the right decision of practical questions in politics, as in other matters. Unfortunately the judgment of the wisest counsellors is very far from infallible. But the decision of competent judges is less likely to be erroneous than that of incompetent ones; and if any means of discriminating between them could exist, it would undoubtedly be desirable that the decision should be confined to those who are most able to form a sound opinion.

§ 11. There are, however, several circumstances, both in legislative and executive bodies, which, in spite of the principle just mentioned, tend to guide the body to a right decision, and to give a considerable degree of weight to the opinions of the more competent judges.

First, in courts of justice, consisting of several judges, and in administrative bodies, joint consultation necessarily exists; by which means the opinions of the ablest, the most experienced, and best informed members, will naturally be brought before the entire body, and will in general produce their effect in gaining the assent of the other members. In any tolerably numerous executive body, however composed, the persons of sound practical judgment, combined with the appropriate knowledge and experience, may be always expected to be in a minority; but their opinion is likely to be voluntarily adopted by the majority. Moreover, the members of a judicial or administrative body generally divide the business among one another, according to their respective qualifications;

properly remarks, that this rule is only possible in cases where there is a superior to decide who are the persons having the soundest judgment. Walter, Kirchenrecht, § 226, states that it is no longer observed, as it would lead to interminable discussions.

The remarks in the text are limited to political bodies; but they apply equally to councils, synods, and other ecclesiastical bodies having the ultimate decision of questions of religious doctrine. Whatever claim they might make to a supernatural guidance, their decision has, in fact, been determined by the numerical majority of votes. See, on this subject, the dictum of Selden, in his Table-talk, Art. Council. They apply likewise to voluntary societies—of a private nature-exercising for themselves the power of decision.

2 'Quanto sieno false molte volte le opinioni de li uomini, l'hanno visto e veggono coloro che si trovano testimoni delle loro deliberazioni, le quali molte volte se non sono deliberate da uomini eccellenti, sono contrarie ad ogni verità.'-MACH. Disc. II. 22. Bayle, Euvres, t. III. p. 205, also has a passage on the erroneous decisions of popular assemblies, and remarks that the liability to err is not confined to those of antiquity.

so that each person is principally occupied about those questions with which he is most conversant.1

Secondly wherever the members of courts of justice and administrative bodies are selected by the government, in a civilised State, the selection is made under circumstances which insure a considerable degree of fitness on the part of the person appointed. The choice, even in the European countries under a despotic government, is influenced by a sense of responsibility to public opinion, and often by a sincere desire to appoint a fit person, even if it is merely for the sake of facilitating the operations of the governing power. In many cases, too, the choice of the government is practically limited to persons having the requisite professional qualifications—as in the appointment of members of military or naval boards, or of courts of justice. Although the person appointed may not be absolutely the best whom the profession might have supplied, yet he has the special qualifications suited to the office. Consequently, in an executive body, the number of persons qualified to form a correct opinion upon the questions submitted to it may be expected to be a large proportion of the whole-the quantity of dross, as compared with that of the purer metal, is likely to be small.

§ 12. In a supreme legislative body, the decisions are always preceded by joint consultation and debate; and therefore (as in executive bodies) the opinions of the ablest and wisest members, particularly if they possess the gift of eloquence, or even of perspicuous and forcible statement, are likely to influence the rest of the assembly. Hence, although each question is decided by the votes of the majority, the votes of the majority are generally determined by the opinions of the minority.2

The manner in which the opinions of the majority of a numerous legislative assembly are influenced by the opinions of the minority, depends upon its constitution and character. In the

This is analogous to the reference, in a legislative assembly, of certain questions to select committees; of which more will be said lower down.

2 Laplace, Essai Philosophique sur les Probabilités, p. 158, ed. 5, admits that the probability of the decisions of an assembly cannot be subjected to calculation; but he lays it down, as a general maxim, that if the question is of such a nature that it is more than an even chance that each member of the assembly will form an erroneous opinion upon it, then the decision of the assembly will probably be wrong. Hence he concludes that numerous assemblies ought to decide only upon questions which are within the comprehension of the multitude. This reasoning entirely overlooks the fact, that members of an assembly who do not understand a subject may place themselves under the guidance of persons on whose judgment they may safely rely.

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