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After the year 1876, the President and Vice-President of the United States shall be elected by a direct vote of the people of the several States, and the electors in each State shall have the same qualification as the electors of the most numerous branch of the State Legislature. The person receiving the greatest number of votes for President shall be the President, and the person receiving the greatest number of votes for VicePresident shals be the Vice-President; but if two or more persons shall each receive an equal and the fi." number of votes for President, then the House of Representatives shall from such persons immediately choose the President; and if two or more persons shall each receive an equal and the greatest number of votes for Vice-President, then the Senate shall from such persons immediate choose the Vice-President. In such elections eac House shall vote viva voce, and each member shall have one vote, and the person receiving a majority of the votes cast shall be elected; and in case of a tie, the presiding officer shall determine it. the section for President and Vice-President shall be held at the time ..". by law for choosing the electors of such officers, but Congress may prescribe a different time, which haji to the same in all the States; and Congress shall prescribe the manner of holding and conducting such elections, and making the returns thereof; and in case of failure so to do, that duty shall devolve in the order named, first, on the President of the United States; second, on the Legislature of each State within that State; and, third, upon the chief Executive of each State within that State. The returns shall be canvassed at the time and in the manner now provided, or which may be hereafter provided by the joint rules of the two Houses or by law, by and in the presence of both Houses of Congress, who shall be the judges (each House voting o of the returns and election; but in case the two Houses shall not agree, then the matter of disagreement shall be referred to the Supreme Court of the United States, which shall forth with decide the same; and such decision shall be final.
At the same time Mr. Oliver introduced the following joint resolution, which was likewise referred:
The Senate of the United States shall be composed of two members from each State, who shall hereafter be elected by a direct vote of the people for six years; and the electors in each State shals have the same qualifications as the electors of the most numerous branch of the State Legislature; but the Congress, may by law provide for conducting and holding the election and canvassing the vote.
On January 17th, Mr. O'Brien, of Maryland, introduced the following joint resolution to amend the Constitution, which was referred to the Judiciary Committee.
ARTICLE XVI. Section 1. No State shall make any law. .."; an establishment of religion or prohibiting the free exercise thereof; and no minister or preacher of the Fo or of any religious creed or denomination shall hold any office of trust or emolument under the United States or under any State; nor shall any religious test be required as a qualification for any office or public trust in any State, or under the United States. Sec. 2. No money received by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised, nor lands so devoted, be divided between religious sects or denominations; nor shall any minister or reacher of the gospel, or of any religious creed or enomination, hold any office in connection with the
public schools in any State, nor be eligible to any position of trust or emolument in connection with any institution, public or private, in any State or under the United States, which shall be supported in whole or in part from any public fund.
On the same day Mr. New, of Indiana, introduced the following joint resolution to amend the Constitution, which was referred to the Judiciary Committee:
ARTICLE XVI. From and after the next election for the President of the United States the President shall hold his office during the term of ... . and, together with the Vice-President chosen for the same term, be elected in the manner now provided by law, or as may hereafter be provided. But neither the President, the Vice-President, nor any other Fo in the office of President, as devolved upon
im by law, shall be eligible to the office of President a third time.
On January 18th Mr. Williams, of Wisconsin, introduced the following joint resolution to amend the Constitution, which was referred to the Judiciary Committee:
ARTICLE XVI. No State shall make any law reo an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of #. schools, or derived from any public fund therefor, or any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations; neithershall money raised by taxation in any State be .. ated for the maintenance of any sectarian school or sectarian institution.
Several other amendments of less interest
were proposed and referred. It is not necessary to notice them here.
In the Senate, on January 10th, Mr. Morton, of Indiana, said: “Mr. President, it has been suggested to me by several Senators that the report of the Committee on Privileges and Elections in regard to the tenure of office of the President pro tempore of the Senate should properly have been accompanied by a resolution or resolutions embracing the conclusions of the committee. I now, therefore, offer the following resolutions:
Resolved, That the tenure of office of the President pro ore of the Senate elected at one session does not expire at the meeting of Congress after the first recess, the Vice-President not having appeared to take the chair.
Resolved. That the death of the Vice-President does not have the effect to vacate the office of President pro e of the Senate.
Resolved, That the office of President pro tempore of the Senate is held at the pleasure of the Senate.
Resolved, That Hon. Thomas W. Ferry, a Senator from Michigan, who was elected President pro ten
ore of the Senate at the last session, is now the
resident pro tempore of the Senate by virtue of said election.
The Chief Clerk read the resolutions.
Mr. Merrimon, of North Carolina, said: “Mr. President, I entertain the opinion that when the Senate elects a President pro tempore, the Senator so elected may rightfully continue to hold his office, unless his term as Senator shall sooner terminate, or he shall be removed for cause, until the Vice-President shall return to preside over the Senate, and in case he shall fail to so return because of death or other cause, then until a new Vice-President shall be elected and qualified; and I ask the indulgence of the Senate while I state briefly the reasons that have brought me to this conclusion. “The Senate is a perpetual body; it is created, its powers are conferred, defined, and limited by the Constitution. The general laws of parliamentary bodies are applicable to it only so far as the same are not modified by and not inconsistent with the Constitution. It cannot rightfully exercise powers not so conferred; it is not a body possessed of arbitrary |. it must be governed in all things by the spirit of the Constitution. That it has the physical power to remove at will the President pro tempore I do not deny, because there is no tribunal to review its action, but whether it has the right without reasonable cause to make such removal may well be questioned; indeed, I cannot suppose there could exist any disposition to exercise such arbitrary power. It therefore appears that the Senate is thus governed by the Constitution. “The Vice-President is President of the Senate, and he is beyond the control of that body, because the Constitution makes him so. It provides in terms no less definite and no less binding another officer to supply his place in his absence. The clause containing that provision is in these words: The Senate shall choose their other officers, and also a President pro tempore in the absence of the Vice-President, or when he shall exercise the office of President of the United States. “This clause is mandatory; the Senate must choose its officers, other than its President, and a President pro tempore as well and as surely as any other, when the contingency requiring one shall arise. This officer is not at the option of the Senate; he is essential, as absolutely so as any other known to our system of government. If the Wice-President shall be absent, the Senate cannot proceed lawfully with business for one hour without this officer, and plainly because the Constitution commands that in that case such officer shall be elected. The Senate may determine what other officers it will have, but this officer it must have; he is designated. He may be not improperly styled an officer provided by the Constitution. “What, then, is the term of his office? The words “shall choose . . . . also a President pro tempore” plainly and necessarily imply for during the time of the absence of the VicePresident from the Senate for any cause. The term or phrase pro tempore, has a very general meaning. It implies, generally, for the time, the occasion, the exigency; as if the president of the national convention of one of our political parties should be temporarily absent, in that case, by the general law of parliamentary
bodies, a temporary presiding officer would be appointed or elected to supply his place during such absence. Such officer would be styled president or presiding officer pro tempore, and he would continue to preside until the return of the regular president, and an adjournment to a day certain would not displace him unless he should be removed. The time of the absence of the president in that case is the time, the occasion, the exigency, to be supplied. This rule, as thus stated, applies to all deliberative bodies governed by general parliamentary law. But the special meaning of the term pro tempore must be ascertained by its use in a particular case, and so in the case now under consideration. “The Senate is required to have always a presiding officer, and the Constitution provides that “in the absence of the Vice-President, or when he shall exercise the office of President of the United States,' the Senate shall make one which is designated by name as President pro tempore—that is, for the time of such absence. To say that the power conferred to appoint pro tempore may be for one sitting of the Senate, for one hour, a day, a month, a session, or at the will of the Senate, does not meet the case provided for: the purpose is to supply a certain, fixed presiding officer for the time the regular officer shall be absent, whether that be long or short. He may be absent for a day, for a whole session, or for his whole term of office, and that absence is the measure of time to be supplied by the President pro tempore. The term of such an officer could not be fixed by more definite terms; no other words could describe or fix his term more aptly; it is as certain as if it had provided for a year or four years, and nothing is left to discretion. If this view is not correct, then what is the true measure of time? And who shall determine it? If it is said the Senate, then whence the power? The power is expressly given to elect, and the term is fixed as definitely as language can make it: no power is given to limit the term, either in words or by necessary implication. To say that the Senate can determine the term of office thus fixed by the Constitution, and that without cause, is shocking to the legal mind! If the office were one created by the Senate, then it may fix the term and determine it; but that is not the case: here the office is fixed, designated, and the term limited by the Constitution itself. The President pro tempore is an officer in the sense of the Constitution; he is, in the Senate, in the place of the Vice-President. He exercises the same power. He is clothed with important powers; grave duties devolve upon him, and he enjoys privileges which necessarily imply duration; he is amenable to the Senate for the just and proper exercise of these powers, and great responsibility attaches to him as such officer. The Constitution makes him an officer in the full sense of that term; in point of time, power, opportunity, privilege, and, indeed, in every respect pertinent and lawful. He is not a mere occupant of the chair by the courtesy or will of the Senate; he is more than that; he presides not by courtesy, but by right; he exercises high powers, not by the toleration of a majority, but by the sanction of the Constitution; his official character is recognized by the other branch of Congress, by the Executive and Judicial Departments of the Government, and his official acts are good to all intents and purposes whenever or wherever called in question. “The framers of the Constitution well understood that by the general parliamentary law the Senate could make a temporary presiding officer, who would be subject to its will and pleasure. Then the significant question presents itself, why the provision in question? Was it mere surplusage—only in affirmance of the general parliamentary law? By no rule of construction can it be so construed, if it can have another reasonable meaning; indeed, a purpose and different meaning must be assigned, if this can reasonably be done. Can this be done? It is manifest that it can. The plain purpose was to provide a different officer from the one allowed by the general parliamentary law: one not at the will and pleasure of the Senate, but one like the Vice-President, beyond its arbitrary control, one free and independent, one not subject to the whim of the hour, or the caprice and changing intrigues of political par ties. The manifest object was to provide an officer as nearly independent as might be. The same conservative spirit that dictated the nature, character, form, and independence of the Senate suggested the wisdom of making the presiding officer of that body as free and independent as possible. It was deemed unwise to make an officer so dignified and important the mere tool of a party or a majority, by making him subject to their will and pleasure. This view makes the provision of the Constitution in question operative, and answers a wholesome, indeed, a necessary, purpose, in view of the nature and purposes of the Senate. Any other makes it nonsensical and nugatory.” Mr. Saulsbury, of Delaware, said: “Mr. President, I do not propose to occupy more than a few moments of the time of the Senate, but I cannot concur entirely in the views which have just been expressed by the Senator from North Carolina, and I desire to say in the commencement of the remarks which I have to make that I regard this not as a question appertaining at all to the present incumbent of the chair, but as a question purely of a legal character, involving the rights and powers of this body. It rises above any considerations of a private character, because it affects the dignity and powers of the Senate itself. If it were a question involving any personal rights, I should take it on myself to say that so far as I have observed the action of the present incumbent of the office no man could have discharged the duties more satisfactorily to the
body; no one could have acted with greater courtesy and urbanity to all; and he has diso: an impartiality and ability that entitle im to the regard and consideration of every member of the Senate. “But, sir, it is not a question affecting private rights, but a question involving, as I before said, the rights of the Senate—the right of this body to change at its pleasure the presiding officer of the body. “The only provision in the Constitution which refers to it is found in the fifth clause of the third section of the first article, which was quoted by the Senator from North Carolina. The Senator infers, from the fact that there is a specific authority given to elect a President pro tempore, that the Speaker pro tempore is named, that it was intended thereby that he was to be distinguished from other of: ficers in respect to the tenure of his office and the power and authority of the Senate over such officer. I dissent from that view. The reason why he is specifically named in that clause is very apparent from the face of the clause of the Constitution referred to. “The Constitution had provided in the preceding clause for the Senate a presiding officer, the Vice-President of the United States; and unless there had been a special provision of the Constitution as to who should preside over this body in the absence of the Vice-President there would have been no authority whatever in the Senate of the United States to choose its presiding officer. I hold that but for the provision here inserted in the Constitution the death or absence of the Vice-President would have left this body entirely without a presiding officer, and incapable from any inherent power in the Senate as a deliberative body to provide one. It would have been in the precise condition that the House of Commons in England is, which to-day cannot elect a Speaker pro tempore except by the consent and approval of the crown. And so, but for this special provision authorizing the Senate of the United States to provide a President pro tempore in case of the death or absence of the Vice-President, this body would have had no power to select its own presiding officer; and hence it is that that clause is specifically inserted delegating authority to the Senate in case of the absence or death of the Vice-President, or when he shall exercise the office of President of the United States, to provide a presiding officer. For this reason he is specifically named in the Constitution, while the ‘other officers’ are not named. “Now, I differ from the conclusions of the honorable Senator as to the results which would follow provided the Senate had not the power to choose. I cannot concur in the view entertained by some, that when we have once elected a President pro tempore we have exhausted the power which is conferred by the provision of the Constitution authorizing the selection of a President pro tempore. If that view is correct, what is the consequence? Then, if your President pro tempore should die, you have no inherent power to select a successor to him, and you have no authority in the Constitution, and you see at once that the consequence would be that the business of the Senate must stop. Or, to trace that doctrine out to its logical consequences: suppose you elect a President pro tempore and he fails to discharge the functions of his office—it is not probable that he would do so, but it is within the possibilities—suppose he should refuse to receive any communication from the House of Representatives; suppose he should refuse to receive any message from the President of the United States; suppose he should refuse to sign the bills that were passed by Congress, you have no power of removal by electing another President pro tempore to supersede him, because according to this doctrine, having executed the power granted, the power is exhausted and you can go no further.' Mr. Merrimon : “I beg to interrupt my friend. He misapprehends my position entirely. I said that the Senate had power to remove him for cause—lawful cause. The case put would be a case where there would be cause. I maintain that his office as Senator while he is a member of the Senate remains intact, and for any act that he might commit he might be dealt with as a Senator though he be the presiding officer.” r. Saulsbury: “My answer to that is that, so far as I read the Constitution, it was not absolutely necessary that the Senate should have chosen a President from its own body. There may be a provision of law to that effect somewhere, but the Constitution is silent as to who may be chosen. It distinctly says that the Senate may choose a President pro tempore; but it does not say that it shall select him out of its own body. Suppose the President pro tempore should not be also a Senator, how, then, would you reach him for failure to perform the duties of his office? But suppose it to be true that there is a provision which requires that the President pro tempore shall be selected from among the šo suppose that the Senator presiding as President pro tempore should discharge every duty incumbent on him as a Senator; suppose he votes and discharges his duties as a Senator, but fails to discharge his duties as President pro tempore, how would you reach him? The only manner in which you could affect him, according to the doctrine that I think is here contended for, is by his removal from this body as a Senator, by expelling him, and in that way reaching him as President pro tempore. “Well, sir, if he had discharged his duties faithfully as a Senator, conducted himself with Perfect propriety, performed the duties and sometions pertaining to his office as a Senator, I see not how you are to reach him, because it is not to be presumed that the Senate would set unjustly, and for the purpose of removing
a President pro tempore, whose office is entirely distinct and separate from his office as Senator. It is not to be supposed that in order to reach him in that capacity you would be unjust and turn him out of the Senate if he had discharged his duties as a Senator; for let it be observed that the function of his office as President pro tempore is not a function pertaining to his office as a Senator of the State he represents.” Mr. Merrimon: “I will interrupt my friend a moment to explain further my dissent from that view, and will do it in aid of the view I submitted a while ago. I insist that a part of the duty of a Senator under the Constitution is that if he shall be designated by the Senate to preside as President pro tempore he shall so act; it is one of the duties that devolve upon him as a Senator, and therefore, if any Senator on this floor were designated to-day to preside in the chair, and should obstinately refuse to do it, that would be ground for dealing with him as a Senator. The Constitution devolves the obligation on him to discharge that duty as much as any other, if the Senate shall assign it to him.” Mr. Saulsbury; “I differ entirely from the view of the Senator from North Carolina. I was proceeding to say that you have no power, according to the argument of the Senator, traced to its logical results, to reach him for any cause whatever; for, according to his argument, the Senate having exercised the grant of power contained in the Constitution to choose a President pro tempore, your power becomes exhausted, and you cannot again exercise that power in any respect. “But let us trace this still further in its consequences. He is an officer of the Senate. He is not a civil officer; and for the proper discharge of his duties you cannot reach him except as an officer of the Senate. You cannot reach him by impeachment. The House of Representatives has no right to prefer articles of impeachment against a Senator, and you cannot try him, therefore, upon any articles of impeachment. He is, therefore, not a civil officer of the Government in the ordinary and usual acceptation of that term, but his office is one purely as an officer of the Senate, elected by its votes, exercising his functions alone for the orderly transaction of the business of the Senate, responsible to the Senate, removable at the will and pleasure of the Senate. Being an officer of the Senate alone, his relation to the Senate differs from that of the other officers of this body only in its greater dignity and the nature of the duties it enjoins. “Now, sir, in submitting these remarks, which have been very hastily thrown out, and I am sure are very crude, I only want to maintain and uphold the authority of the body, so that, when it shall have either an inefficient officer, or one who fails to discharge properly the function of his office in the chair, the power may be asserted in this body to provide another officer who will discharge his duties; and I am sure that no one who i. me will attribute any remarks which I utter as being intended to apply to the present very efficient and very able presiding officer of this body. My sole purpose is to maintain what I conceive to be indispensably and absolutely necessary: the right of this body to change its officers whenever in its pleasure it becomes proper to do so.” Mr. Jones, of Florida, said: “Mr. President, I agree in all that has been said by the committee in the report except what is stated in their last conclusion, and I concur entirely with the Senator from North Carolina (Mr.Merrimon) in the views he has . in regard to this case. “Whatever might have been the construction of the Constitution before the act of March 1, 1792, was passed, it is very clear that that act must have great weight in the consideration of the question before us. It is not enough to show, therefore, by the terms of the Constitution, that the President pro tempore of the Senate is an officer of the Senate, and under those provisions alone would be removable at the pleasure of the Senate. It is possible that such a construction would have been warranted before the act of 1792 was passed; but the Constitution gave to Congress the right to say, and that body has said, what officers shall succeed to the office of President in the event of the death of the President and Vice-President. While it may be true, therefore, that the Constitution intended to place the Frei. dent of the Senate under the control of this body and make him removable at its pleasure, if no legislation was had under the first section of the second article of the Constitution, which empowers Congress to provide for filling the office of President when the first two officers in the Government are dead or are removed, still, the last provision in the Constitution gives Congress the power to change the tenure of the office of the President of the Senate when it gives it authority to say that the person who fills it in a certain exigency shall be President of the United States. “If the power conferred upon Congress touching the filling of the office of President of the United States be in conflict with that which is supposed to exist on the part of this body to remove its presiding officer, then reasonable construction must decide the question at issue. It is not enough to say that the President pro tempore of the Senate, like the Sergeant-at-Arms of the Senate, is an officer of this body, and because the Sergeant-at-Arms may be removed by the Senate, so may the President pro tempore be removed. This mode of reasoning would be admissible if Congress under the Constitution had not pointed out duties beyond the Senate for the one officer in a certain contingency which it has not prescribed for the other. “This is the great point, in my opinion, upon which this debate must turn.
“If Congress has the right (which no one will deny) to cast upon the President pro tempore of the Senate the office of President of the United States when the President and VicePresident are dead, and, in order to guard against doubts and uncertainties in a matter of so much importance, it becomes necessary that the tenure of office of the President of the Senate should be fixed, can it be said that the right to remove such officer on the part of the Senate should supersede the right of Congress to designate him as heir-expectant of the presidency? Or, to put the proposition in another shape, if Congress under an express provision of the Constitution has the right to cast upon the President of the Senate duties and powers, either in presenti or in expectancy, which are in conflict, or which may come in conflict, with the right of the Senate to remove such officer, derived by implication, which powers shall prevail? The right of this body to remove this officer is a right derived by implication, while the other right exercised by Congress is in virtue of an express power given by the Constitution. The Constitution made it the duty of Congress to declare by law what officer shall exercise the executive office of the nation when left vacant by both the President and Vice-President. Congress accordingly has provided that in such a contingency the office shall be filled by the President of the Senate or the Speaker of the House for the time being. Congress was not invested with the general power to fill the office; but the Constitution requires that it shall provide by law what officer shall act as President in such an exigency.
“The law then designates the President pro tempore of the Senate as the officer who shall succeed to the presidency in the contingency mentioned. How will this law operate with the right asserted in behalf of this body to remove that officer at its pleasure? Remember that the law provides that if there be no President pro tempore of the Senate the Speaker of the House shall act as President. All experience teaches us that nothing is more dangerous to the peace and security of nations than those conflicts which arise out of disputes about the right to the chief office in the state.
“With the absolute power of removal over the officer who is designated by law to fill the office of President, if the occasion should arise, which I pray it may not, for putting in practice this part of our Constitution, to what intrigue and political excitement would not this power lead in the Senate when it was within its competency to designate the man who should oc. cupy the first place in the nation! The power given in the Constitution to the Senate to choose its own President would in that event be converted into a power to elect a President of the United States. But, sir, this is the body which has the power to remove from office by impeachment. A large partisan majority here and in the other House may remove both the