President and Vice-President, and they may be prompted to do this by the hope of getting some favorite into the presidential office. Mark you that in case of the removal of both the President and Vice-President, the Senate, under the rule insisted upon on the other side, would elect the President. Is it wise to give to that tribunal which alone has the power under the Constitution of removing the President and Vice-President absolute power to name their successor ? Need it be said, sir, that little checks like the one we advocate in this case might prove sufficient to save the state? This very power of the Senate to elect or remove a President at pleasure might lead to combinations and conspiracies to promote the fortunes of particular men. Why is it that the question now under debate has been brought before us? No complaint has ever been made against the gentleman in the chair on account of the manner in which he has performed his duties. No one sapposes that this subject would now be agitated had we not lost the Vice-President. And what does this show? It shows that the Senate is looking beyond the office of President of the Senate, and, recognizing the uncertainties of life, is anxious about the person who might be called to the first office in the Government. And this, in my opinion, is not what the Constitution intended. It did not mean that the Senate should say who should be President in the exigency stated. If it did, very strange language has been employed to convey this meaning. But the Constitution gave Congress the power to decide this question, and that body has designated the officer. According to our view the President of the Senate, selected without reference to any higher duties than belong to that office, would, in the emergency mentioned, succeed to the presidency. In the other case, the Senate would have the power while complying with the letter of the law, and furnishing an officer for the vacancy filling the description in the statute, to exercise in its choice as to the person who should be placed at the head of the Government. Let the present situation illustrate the question. The present presiding officer was elected at a time when no thought was entertained of the death of the Vice-President. He was liable to be superseded at any moment by the latter officer. If during the absence of the Vice-President he and the President died, were removed, or resigned, Mr. Ferry would have become President. In that case there would have been no opportunity for the Senate to engage in a contest about the succession under one view of the law. But how would the case stand under the other view? Should sickness or accident imperil the life of the Chief Magistrate, then the Senate would have the power to exercise a choice as to the person who might be called to the presidency. The selection of a President pro tempore of the Senate under such circumstances would become a selection of a Presi dent of the United States. And will any man say, or can he say, that with such a momentous issue cast upon this body there would not be much of the feeling, the acrimony, passion, and excitement, and with them much of the danger, attending an ordinary election for that high officer? 66 But, sir, this is not all. As I said a while ago, the Constitution provides that if there be no President pro tempore of the Senate, the Speaker of the House, in the emergency stated, shall act as President. Remember now that while this body may bind its own members by its decision respecting the capacities and powers of its own presiding officer, so far as these relate to his ordinary duties in this body, it cannot claim the right to bind, and it cannot bind by any decision it may make, the other House of Congress in regard to this right of removal, in so far as that right involves the question of title to the presidency. The House of Representatives, being equally interested in this question with the Senate, has a right to decide for itself. And this body may confirm this report, and affirm that the Speaker of the House is removable at the will and pleasure of that body, and that therefore the President of the Senate is removable at the pleasure of this. And I would say here, by way of parenthesis, that the conclusion arrived at is, because the Speaker of the House is removable at the will and pleasure of that body, the President pro tempore is likewise removable by this." Mr. Merrimon: "What authority is there for saying that the Speaker of the House may be reinoved at the will of the House?" Mr. Jones, of Florida: "None. The people's Representatives may possibly come to a different conclusion, and they may say, as they have the right to say, that their Speaker holds his office for two years, and is not removable at pleasure, and that the presiding officer of this body holds his office by a like tenure. It is hardly necessary for me to say what conclusion this reasoning will justify. If the Senate should act upon the theory of this report and displace their President when in the judgment of the House they had no right to do so, and a vacancy occurred in the office of President, the House might be found claiming the office of President of the United States for their Speaker, and the Senate for their President. This condition of things could never result from the law as we understand it; for, although the House might believe in the power of removal as set up in this report, and the Senate in a fixed tenure of office, no harm could come from such a difference. This is all I have to say on this part of the case. "I contend that by the very words of the Constitution the power of removal does not exist. The Constitution gives to the Senate the right to elect a President pro tempore in the absence of the Vice-President. Upon the appearance of the latter officer the right of the former to the chair terminates. The language is: 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. "The language in regard to the Speakership is: The House of Representatives shall choose their Speaker, and other officers. "No one who has studied the Constitution can fail to detect the pointed difference in the language employed in the two cases. The Senate is not to choose their President pro tempore and other officers, but their own officers and a President pro tempore." The Presiding Officer: "A division is called for. The question is on the first resolution, which will be reported." The Chief Clerk read as follows: Resolved, That the tenure of a President pro tempore 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. The question being taken by yeas and nays, resulted-yeas 59, nays none; as follows: YEAS-Messrs. Alcorn, Allison, Anthony, Bayard, Bogy, Booth, Boutwell, Bruce, Burnside, Cameron of Wisconsin, Christiancy, Clayton, Cockrell, Conkling, Conover, Cooper, Cragin, Davis, Dawes, Dennis, Dorsey, Eaton, Edmunds, Frelinghuysen, Goldthwaite, Gordon, Hamilton, Hamlin, Harvey, Howe, Ingalls, Jones of Florida, Kelly, Kernan, Key, McCreery, McDonald, McMillan, Merrimon, Mitchell, Morrill of Vermont, Morton, Norwood, Oglesby, Patterson, Randolph, Ransom, Sargent, Saulsbury, Sherman, Spencer, Stevenson, Thurman, Wadleigh, Wallace, West, Whyte, Withers, and Wright-59. ABSENT-Messrs. Cameron of Pennsylvania, Caperton, English, Ferry, Hitchcock, Johnston, Jones of Nevada, Logan, Maxey, Morrill of Maine, Paddock, Robertson, and Windom-13. So the resolution was adopted unanimously. The Presiding Officer: "The next question is on the second resolution; which will be read." The Chief Clerk read as follows: Resolved, That the death of the Vice-President does not have the effect to vacate the office of President pro tempore of the Senate. The yeas and nays were ordered; and being taken, resulted-yeas, 62; nays, none; as follows: YEAS-Messrs. Alcorn, Allison, Anthony, Bayard, Bogy, Booth, Boutwell, Bruce, Burnside, Cameron of Wisconsin, Caperton, Christiancy, Clayton, Cockrell, Conkling, Conover, Cooper, Cragin, Davis, Dawes, Dennis, Dorsey, Eaton, Edmunds, English, Frelinghuysen, Goldthwaite, Gordon, Hamilton, Hamlin, Harvey, Howe, Ingalls, Jones of Florida, Kelly, Kernan, Key, McCreery, McDonald, MeMillan, Merrimon, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Norwood, Oglesby, Patterson, Randolph, Ransom, Sargent, Saulsbury, Sherman, Stevenson, Thurman, Wadleigh, Wallace, West, Whyte, Windom, Withers, and Wright-62. So the resolution was adopted unanimously. The Presiding Officer: "The question is now on the third resolution." The Chief Clerk read as follows: Resolved, That the office of President pro tempore of the Senate is held at the pleasure of the Senate. Mr. Thurman, of Ohio, said: "The solution of this question is perhaps somewhat difficult, although it is within a narrow compass; and it depends, I imagine, upon the inquiry whether Constitution that has been read, are used in the words 'pro tempore,' in the clause of the that instrument in a technical parliamentary context of the clause in which they occur. If sense, or whether their meaning is fixed by the they are used in a technical parliamentary sense. then it seems to be admitted on all hands that the President pro tempore is subject to removal like the Speaker pro tempore of the House, in case there should be such an officer there, or any other pro tempore official. In other words, according to the technical parliamentary sense of the words 'pro tempore' in relation to the tenure of an officer, they mean the same as 'durante bene placito'-during our good pleas ure. "But it is said, and argued with great force by the Senator from North Carolina (Mr. Merrimon) and the Senator from Florida (Mr. Jones), that these words are not used in a mere technical parliamentary sense, but that their meaning is fixed by the context of the clause in which they occur; and that is: '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.' It is argued with force, that it is not said that the Senate shall choose a President pro tempore, to hold his office during the good pleasure of the Senate; that there is no such limitation as that during the pleasure of the Senate;' and it is said, further, that the tempus' that is contemplated here is the absence of the VicePresident, or his discharge of the duties of President, which necessitates his absence, or is another case of absence; and it must be admitted that, looking at the clause, giving it a natural construction, there is great force in that argument. They shall choose also a President pro tempore in the absence of the Vice-. of President of the United States. Whenever President, or when he shall exercise the office the Vice-President shall exercise the office of the President of the United States, the Senate shall choose a President pro tempore,' not a President to-day, and another to-morrow, and another the day after, to hold merely during the pleasure of the Senate, but a President pro tempore for that occasion, for that time. There certainly is very great force in this view of the Constitution, and there is also very great force in the reasons that have been suggested of a more enlarged and general nature. Nevertheless, Mr. President, I cannot say that I am perfectly clear in my own mind which con struction ought to prevail; and, inasmuch as the question as now before us is a mere abstract question, as it is not necessary for us to determine it at all, and it cannot become necessary for us to determine it after the passage of the first and second resolutions unless somebody shall move to proceed to the election of a President pro tempore, and thus to displace the present incumbent; as we have unanimously voted that he is rightfully President pro tempore now, and nobody has yet moved to displace him by proceeding to another election, it is very obvious that any decision we might make upon this third resolution at this time would be what lawyers call obiter dictum. I, therefore, in order that the matter may undergo further reflection and consideration before we decide upon it, move that the resolution be postponed indefinitely." The Presiding Officer: "The Senator from Ohio moves to postpone the resolution now under consideration, indefinitely." Mr. Edmunds, of Vermont, said: "Mr. President, the Senator from Ohio has so much surprised me by his expression of a doubt upon this subject, that, in order that I may reflect upon the matter, I move that the Senate adjourn." The motion was agreed to. In the Senate, on January 12th, the President pro tempore said: "The question is on the motion of the Senator from Ohio (Mr. Thurman) to postpone indefinitely the third resolution." Mr. Edmunds: "Mr. President, I am so much surprised at the doubt my friend from Ohio (Mr. Thurman) expressed about this thing that I think it necessary for me to say a few words upon the subject for my own satisfaction, if not for that of anybody else. "The power of the Senate to elect a President pro tempore is one which is named in the Constitution. It is there provided— The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. 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. "I think it obvious, from the well-known course of law existing at the time the Constitution was formed, that this clause empowering the Senate to choose a President pro tempore was inserted merely to rebut an implication that would arise from the statement that the Vice-President shall be President of the Senate. If that clause had not been put into the Constitution there would have been no need to insert the other, that the Senate should have power to choose a President pro tempore, any more than there would have been to insert in the powers of the House of Representatives a power on the part of that body to choose a Speaker pro tempore; and no such clause is introduced into it because, as I say, it was well known, from the constitution of all VOL. XVI.-10 A parliamentary or other deliberative bodies, that it is one of their inherent powers, in order that they may act at all, in order that they may exist in any active sense, that they shall select some person to preside over their deliberations. "Therefore it appears to me plain, in the first place, that this clause touching the power of the Senate to elect a President pro tempore was merely put in to exclude the presumption which might otherwise have arisen from the preceding clause which states that the VicePresident of the United States shall be the President of the Senate-to exclude the presumption that that was an exclusion of the power of the Senate to have a President pro tempore in his absence, and the Senate in that case, of course, would be obliged to wait until he should come, just as for a long time in England the House of Commons were totally unable to do any business at all, according to their precedents and usages, when the Speaker was absent or sick or unable to take the chair; for they had no power, as they then understood, growing up as they did, to select anybody to act as Speaker pro tempore. They got over that delusion, however, I will add, a good while ago; but that used to be the first impression. "Inasmuch as this first clause would be a direct declaration that the Vice-President of the United States, and he alone in a legal sense, should be the President of the Senate, in order to guard against any question that might arise as to the ordinary power of the Senate to exercise what would otherwise be one of its inherent functions, this additional clause was inserted, that in the absence of the Vice-President, or while he exercised the duties of President of the United States, the Senate should choose a President pro tempore. "Then the question is, what is a President pro tempore? The Constitution does not say they shall choose a President to fill the vacancy caused in the presidency of the Senate when the Vice-President exercises the office of President of the United States,' which is for a fixed period, when the President dies, during the whole period of his unexpired term. So I conclude that if the Constitution-makers had intended that the President pro tempore of the Senate, in spite of the very meaning of those words, should be an officer who had a title to an office which was continuous, determined either by the efflux of time or by some external contingency, they would have said so and would have declared, when they were regulating the office of the President pro tempore of the Senate, that this officer should hold his office until the Vice-President should again take the chair or until the expiration of the term of the VicePresident who had been transferred to the performance of the duties of President of the United States. That would have most naturally occurred to everybody who had intended that the Presiding Officer of the Senate should be an officer irremovable at the pleasure of the Senate, as upon all principles it is agreed that but for this clause he would have been. I think that was admitted in the debates by gentlemen on the other side. It would have been easy for them to have said so; and had it been in their minds there can be but very little question that they would have said so, as it appears to ine. "But what does 'President pro tempore' mean? It has never been held, that I know of, until this discussion, that pro tempore' means during the period of the absence of the Vice-President or during the period that he is exercising the functions of President of the United States; 'pro tempore' does not mean that, or it never did until now. It has always been understood to mean-and I believe there is as little question about its uniformity of construction as of any words that ever appear in proceedings for the time being;' that is, the instant, the present time, and not for any future time, either to-morrow or next day. A president or an officer, anything for the time being' is for the present time, and to-morrow would be another time; and, but for the construction that we have put upon this clause of the Constitution, and which we have affirmed by the resolutions we have already adopted, I should have had no doubt that it would have been the duty of the Senate every morning during the absence of the Vice-President to elect a President pro tempore for that day. I should have had no doubt about it at all; but we have construed by a long course of usage the duration of the office of our President pro tempore not to terminate with the particular day of our session upon which he is called to the chair; and so we have affirmed it now to be our law, and I believe it to be. "I am fortified in this opinion completely by the state of the English law upon the subject at the time the Constitution was made, and, indeed, ever since, until quite recently. Of course everybody knows that the Senate was constituted upon the model of the House of Lords. Senators do not hold their offices for life, as the Lords do, but they hold them independent of direct elections by the people. They are selected by other bodies than the people-by the Legislatures of the States-and they have a limited term. Like the Lords, they have regularly a Presiding Officer who is not one of their body, but who is an independent and external officer, if I may use that phrase. The Lord Chancellor in England, or, if he be dead, the Lord Keeper of the Great Seal, is the regular Presiding Officer of the House of Lords, not a member of the body, having no vote. In the practice of the House of Lords and under its immemorial proceedings, when the Lord Chancellor was absent, just as we say 'when the Vice-President is absent,' the Lords chose a Speaker of the Lords pro tempore, the very phrase being used in all the journals and proceedings, as well-known a parliamentary com mon law in England as any other law that existed in England at the time our Constitution was made. But you will find, when you look at the journals of the Lords, that although their standing order reads, as it appears in May's book on parliamentary law-I cannot find the original order-that they are to choose a Speaker pro tempore during the vacancy,' which is a much stronger term than simply 'pro tempore;' yet every morning they choose a fresh Speaker pro tempore, usually the same gentleman, of course; but I am speaking of the officer. He only holds by virtue of the standing orders of the Lords from day to day, and the first thing after prayers are said and the House is counted, in the absence of the Lord Chancellor, is to elect a Speaker pro tempore, and he holds through that day. The next day, the Chancellor not appearing, the same ceremony is gone through with, until the Lord Chancellor appears. "I say that the wise men who framed the Constitution and who were modeling it in this respect somewhat upon the methods and proceedings and characteristics of the government with which they were most familiar, in providing for this President pro tempore of the Senate in the absence of the Vice-President, must have expected that those words would have the same construction that they were known to have by the immemorial practice and common law of the House of Lords in Great Britain. So then our historic knowledge, as well as the words of the Constitution, clearly proves to my mind that the President pro tempore holds his office at the pleasure of this body, and that every day, if we like, we may select another officer, and but for our long practice-a very convenient one, too, indeedI should have said, if the question were a new one, that he would only hold his office from day to day, without an order of the Senate, which it would be perfectly competent to make, of course, that he should hold for any definite length of time or until the reappearance of the regular Presiding Officer. "But certainly, Mr. President, whatever may be said upon this topic, the Constitution does not fix the term of the President pro tempore. The most that can be said is that it leaves it open to doubt and dispute. It does not define how long he shall exercise the powers of that office. Now, then, the law in this country is perfectly well settled (and every lawyer, I suppose, is familiar with it), decided by the Supreme Court of the United States more than once, that where the Constitution does not fix that is the language of the court-the term of an officer appointed under the Constitution, he is removable at any time at the pleasure of the appointing power. I am not now discussing the question of removals by the President, whether with or without the consent of the Senate. That is open to dispute, as we all understand. But as the Supreme Court say, in the case of Hennen, in 13 Peters's Reports (which I have brought in for any gentleman to read if he likes), whether the assent of the Senate be necessary to a removal by the President of an officer appointed under the Constitution, all parties agree, and it is clear law, that the appointing power, the whole body of the appointing power, has the clear right to remove at its pleasure any officer appointed under the Constitution whose term of office is not fixed by it. The Constitution confessedly does not fix the term, by any definite language of any sort, during which this officer shall exercise his functions. It does not say that he shall hold until the end of the term of the VicePresident who is exercising the office of President of the United States, or that he shall hold until the Vice-President returns. It says he shall hold pro tempore.' Now, it is said to be open to doubt whether 'pro tempore' means for the time being or for some future time to be determined by some subsequent event; but in any case, as the Constitution has not defined how long this officer shall hold, the law is clear, as with every other officer of the United States whose term is not fixed, that the power of appointment includes the power of removal and change. When, therefore, the Senate of the United States has power to appoint a President pro tempore and other officers, as the committee so well state in their report, there is carried in that grant of power also the right to change those officers at pleasure. So it appears clear to me that this third resolution declares a plain principle of law, which is binding upon us, and which it is our duty for the benefit of the future to declare." Mr. Wallace, of Pennsylvania, said: "Will the Senator from Vermont permit me to ask him whether this resolution would cover the case of the devolving of the presidency of the United States on the incumbent of the chair, the President of the Senate pro tempore? In other words, does he hold that the Senate would have the power to change the President pro tempore of the Senate after the presidency of the United States had been cast upon him by the operation of the act of 1792 ? " Mr. Edmunds: "This resolution does not refer to that question at all. We are merely asserting the general power of the Senate. Whether the Senate would have power to change its President pro tempore after he by law should be required to perform the duties of President of the United States is of course entirely another question. If it is of any advantage to my friend from Pennsylvania to know my opinion, although it is entirely outside of this debate, I will state it frankly. I think the power of the Senate over its President pro tempore, which exists in the nature of its own body and under the Constitution, cannot be cut short by any act of Congress whatever." Mr. Morton, of Indiana, said: "Mr. President, until this question was brought before the committee I had never heard a suggestion from any source that the President pro tempore of the Senate was not removable at the pleasure of the Senate. I have no doubt that the reason for saying anything about the Senate having power to elect a President pro tempore grew out of the clause suggested by the Senator from Vermont (Mr. Edmunds). The fourth clause of the third section of the first article says: The Vice-President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided. "Now, to rebut the presumption that he was the only President of the Senate, and that the Senate could not hold a session in his absence, the next clause provides that in his absence the Senate may elect a President pro tempore. When the Vice-President is absent the Senate is then on the same footing with every other deliberative body; that is, it has the power to elect its own presiding officer. The Constitution makes the Vice-President ex officio the President of the Senate. The Senate has no control over him except by impeachment, articles being preferred by the House of Representatives. That is an arbitrary provision, not common to most deliberative bodies. Then, to rebut any presumption that in the absence of the Vice-President the Senate could not hold a session, but must wait until he came back, it provides that the Senate may elect a President pro tempore. In other words, it simply puts the Senate then on the footing of other deliberative bodies that elect their own presiding officer. "What is the law in regard to deliberative bodies that elect their own presiding officer? The general law established by parliamentary usage, not only in England, but in this country, and every other country in State Legislatures, in city councils, whatever may be the grade or character of the presiding officer, or of the body, is that in the absence of any provision giving to them another person as a presiding officer they may elect their own presiding officer, and remove him at pleasure. The common parliamentary law is that a presiding officer elected by the body itself holds at the pleasure of the body. I will read from Cushing's Treatise on Parliamentary Law: ' It is essential, also, to the satisfactory discharge of the duties of a presiding officer, that he should possess the confidence of the body over which he presides, in the highest practicable degree. It is apparently for the purpose of securing this necessary confidence that the presiding officer is required to be chosen by the assembly itself, and by an absolute majority of votes; that he is removable by the assembly at its pleasure; and that he is excluded from Each of these particulars requires to be briefly conall participation in the proceedings as a member. sidered. "Again : The presiding officer, being freely elected by the members, by reason of the confidence which they have in him, is removable by them, at their pleasure, in the same manner, whenever he becomes perma nently unable, by reason of sickness or otherwisą |