to discharge the duties of his place, and does not resign his office; or whenever he has in any manner, or for any cause, forfeited or lost the confidence upon the strength of which he was elected. "That is the common law applicable to all deliberative bodies who elect their presiding officers; and the reason is just as strong here as it is anywhere else. Now, let me consider for a moment the arguments that have been offered on the other side. First, the argument offered by my friend from North Carolina (Mr. Merrimon). He admits that the Senate can remove a President pro tempore for cause. "The Senate, according to his admission, may of its own motion change this officer; he says for cause.' Who is to judge of that cause? The Senate. Whether it be good cause or bad cause, indifferent cause or no cause at all, the Senate is the exclusive judge of it. It may be because he has committed high crimes and misdemeanors, or it may be that he does not represent the sentiments of a majority of the body, or that he is not satisfactory as a presiding officer, or for any other reason. The Senate may remove him, he says, for cause. Well, as the Senate is the exclusive judge of that cause, it seems to me that admits the whole case. When the Senate comes to make the removal, it is not bound to assign a cause; it is not bound to give any reason for it. It is presumed there must be some cause, but whether the cause is sufficient, reasonable, or unreasonable, the Senate is the exclusive judge. Therefore it amounts simply to this, that the Senate, according to his own admission, may change the Presiding Officer at pleasure." Mr. Norwood, of Georgia, said: "Suppose the President of the United States were to die to-day; would not our present President pro tempore be President of the United States tomorrow; and, if so, could we change him, and elect another man to that office to-morrow morning? Would he not become instantly upon the death of the President of the United States the occupant of the executive office? Could we then to-morrow by a vote here change that officer? Mr. Morton: "I think I comprehend the question of the Senator from Georgia, and that it is this: When the duties of President of the United States are devolved upon the President pro tempore of the Senate by the death of the President of the United States, can the Senate then change the President pro tempore at pleasure, and thus in effect change the Executive of the nation? That is the question. Upon that point I am not prepared to answer. I do not know what would be the effect of the law of 1792; whether that law would have the effect to fix the tenure of the President pro tempore or not; but that it can have no effect upon his office before the contingency happens is perfectly clear. Until that time comes the question suggested cannot be raised." Mr. Kernan, of New York, said: "Suppos ing the President of the United States dies, and the President pro tempore of the Senate enters upon the functions, and is acting as President, could not the Senate appoint a new President pro tempore?" Mr. Morton: "That is precisely one of the difficulties surrounding this question. That contingency has never yet happened. It was seriously discussed among Senators when the impeachment of President Johnson was pending, whether, in case the President pro tempore of the Senate should have the duties of the President of the United States devolved upon him, he would have to leave this Chamber, and we elect another. That was a question which was then considered; and it is not free from doubt. My own impression is that he is still the President of the Senate, and that he has the duties of President of the United States devolved upon him in addition thereto; and I am informed, in regard to the President of the Senate in one of the States upon whom the office of Governor devolved, the Governor having been impeached and removed from office, that the construction there was given to a similar provision that the President of the Senate was still presiding officer of the body, and came into the Senate every day and called the body to order, and then called a member to the chair. I believe that was the case in Arkansas." Mr. Norwood: "We are now construing a clause in the Constitution which gives us power over the President pro tempore to make and unmake him, as I understand the Senator from Indiana to contend. Now, if his position be correct, would it not follow that the act of Congress would divest the Senate of a constitutional power? The act provides for this officer becoming President of the United States, and in that event we should lose control of him. In that event the act of Congress would supersede a power vested in the Senate by a provision of the Constitution, which would be a legal impossibility." Mr. Morton: "I said that that was a question about which there was doubt; but my impression off-hand is that he would still be President pro tempore of the Senate, even after the duties of President of the United States had been devolved on him under the act of 1792. But I say this in answer to my friend from Georgia, that the effect of the Constitution, what this provision means, certainly cannot be changed by the subsequent passage of a law. The act of 1792 can have no effect upon the construction of this provision of the Constitution." Mr. Norwood: "Now, then, if I understand the Senator from Indiana, his position is that notwithstanding the President might die today and the President pro tempore of the Senate become President of the United States tomorrow, by operation of the act of 1792, we still could exercise our constitutional power over that officer as the President of this body and change him.” Mr. Morton: "That is my impression; but that case has not occurred. I simply mean to say that whatever may be the effect of the act ⚫of 1792 in fixing the term of the President pro tempore, it can have no such effect until the contingency takes place, even if the Senator is right about it. It cannot have that effect in advance of the happening of the contingency." Mr. Norwood: "Would it not follow, then, I will ask the Senator, by the exercise of the power for which he contends, that the Senate of the United States would have the constitutional power to elect a President of the United States?" Mr. Morton: "No, sir; not the President of the United States." Mr. Norwood: "If the President pro tempore of the Senate becomes President of the United States eo instanti on the death of the President, and we the next day can change that officer, an officer of this body, and put another in the chair, would we not virtually elect the President of the United States?" Mr. Morton: "We would not elect a President of the United States at all, I submit to my friend. The President pro tempore of the Senate does not become Vice-President; he simply is the presiding officer of the Senate. He does not lose any of his functions as Senator; he votes on every question; his name is called on the roll; and he has a right to call any other member to the chair and come down and take part in the debates. He is in no sense the Vice-President of the United States; and when the duties of President of the United States are devolved upon the President of the Senate pro tempore, he does not become President of the United States, but he is simply performing the duties of that officer for the time being under the law." Mr. Stevenson, of Kentucky, said: “Mr. President, I desire to say that the usage of the Senate upon the question of the tenure of the President pro tempore for seventy years has been directly opposed to the argument of the Senator from Indiana. I confess frankly that precedents in legislation are not necessarily conclusive evidence of what the law is. But when there has been, as in this case, a long, unbroken series of precedents, always in one direction, it is strongly persuasive that their construction of this clause of the Constitution is the true one. This argument finds additional support when we ascertain such jurists as Judge Collamer, of Vermont, and James A. Bayard, of Delaware, able and honored members of the legal profession, opposed in political sentiment, concurring in opinion that the office of President pro tempore of the Senate is one of fixed tenure, and is not subject to removal at the mere pleasure of the Senate. The debates in 1861 show that Senators Collamer and Bayard differed-not upon the point of the permaneney of the tenure of the President pro tempore, not upon the point that that officer did not hold his appointment at the mere pleasure of the Senate, as the pending resolution asserts. No, sir; they differed alone upon the point upon the duration of the appointment. Mr. Collamer held that the President pro tempore continued to hold his position during the absence of the Vice-President, during the senatorial term of such officer, and that the return of the Vice-President to the Senate did not terminate the tenure of the appointment of President pro tempore; while Mr. Bayard, upon the other hand, argued that the true limitation of the tenure of the President pro tempore during his term as Senator was the return of the Vice-President. In other words, as soon as the Vice-President took his place in the Senate the office of President pro tempore ceased, and another election became necessary. "Both these eminent legal minds concurred in opinion that it was not competent for the Senate to remove the President pro tempore at their whim and pleasure. The views of each were in direct opposition to the report of the committee and to the conclusions reached by them. "There was no difference of opinion between them on the point that the office of President pro tempore was fixed by the Constitution, although they reached different results as to its duration. "I concur in the opinion of Mr. Bayard, so ably vindicated by the masterly argument of the Senator from North Carolina (Mr. Merrimon). I could, I am sure, add nothing to what was so forcibly and well said by him in support of his views of this question, and in which I so heartily concur, and I should say nothing but for the construction so earnestly insisted upon by the Senator from Indiana (Mr. Morton) in his argument to-day, and which, if it prevail, may lead to pernicious results, foreseen by the framers of the Constitution, and intended to be avoided and guarded against by this clause of the Constitution creating the office of President pro tempore of the Senate. "The honorable Senator from Indiana insists that the act of 1792, declaring that the President pro tempore shall, upon the happening of certain contingencies, become President of the United States, cannot change the Constitution. I admit it. But that Senator will not deny that an act of Congress, passed so shortly after the adoption of the Constitution as this act of 1792, constitutes a strong contemporaneous implication as to what the framers of the Constitution intended in creating the office of President pro tempore of the Senate, and as to what that Congress thought as early as 1792, was the true construction of that clause of the Constitution creating that office. "Examine the clause itself: The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. "The Constitution creates this office. The incumbent is not elected by the Senate. He holds his office independently of the body over which he presides. This is an exception to usages of parliamentary law, which allows deliberative bodies to choose their presiding officers. There is no disagreement or doubt on this point. The Constitution then proceeds: 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. death of the Vice-President, or while he is discharging the duties of President. If the VicePresident returns to the Senate and takes the chair, the tenure of the President pro tempore is determined and ceases, and a new election is legal. If the Vice-President never returns, then the President pro tempore continues until his term of Senator expires; hence the act of 1792 by its provisions recognizes this construction of the clause as the true intendment of the framers of that instrument. Hence a uniform series of precedents for seventy years in recognizing the President pro tempore of the Senate during the absence of the Vice-President and until his return as its permanent presiding officer, not removable except for cause. "The Senator from Vermont (Mr. Edmunds) says that nobody questions the right of the Senate to choose its officers. That is a canon in parliamentary law disputed by nobody. Let that be admitted. Let it further be conceded that the framers of the Constitution were well and thoroughly versed in parliamentary law, and, being so versed, none knew better than they that the Senate possessed the right, under Mr. Conkling, of New York, said: "Supthat law, to choose a presiding officer in the pose, in such an event as has been suggested, absence of the Vice-President. With this the President pro tempore of the Senate should knowledge of parliamentary usage the perti- enter upon the execution of the duties of Presnent question arises: Why did they insert this ident of the United States and his term as Senlatter clause and create the President pro tem- ator should expire before the end of the presi pore of the Senate a constitutional officer? It dential term, is it the opinion of the Senator was wholly unnecessary, as argued by the from Kentucky that he would continue to be Senator from Vermont. The Senate possessed acting ex officio as President of the United the right to elect a President pro tempore. States, although the term of his senatorship, Why should the Constitution create this office? by virtue of which he came to be President pro Why did the wise men who framed that in- tempore, had expired?" strument create an office and define its duties? They surely had an object in its creation. What was it? In the legal construction of any instrument no canon of the law is more strongly established or better recognized than that you shall so construe it as to make all its provisions harmonize, if possible, and that effect shall be given to every expression contained therein. "The first question which arises in the clause of the Constitution is: What was the intention of the framers of this Constitution in creating the President pro tempore of the Senate a constitutional officer? The Senate would have had the right to choose him without it. It will not do to say that this is an unnecessary provision; it would be disrespectful to the memory of those wise men to say that this clause is mere surplusage. You must, therefore, so construe this clause as to give to it some definite effect. You must search for the intendment of the framers in creating this office of pro tempore President of the Senate. When you do so, I am clearly persuaded that their purpose was to make him a permanent officer. Permanent how long? Clearly during the absence of the Vice-President. But is that the entire limitation? No, sir! The Constitution says in addition, during the period the VicePresident is discharging the duties of President of the United States in the event of the death or removal by impeachment of the latternamed officer. I admit that the tenure of the President pro tempore is of uncertain duration. Still its tenure is fixed and determined, not by the Senate, but by the Constitution; not for any specified time, but during the absence or Mr. Stevenson: "I should think that he would continue to be President until the Governors of the several States had, after being notified by the Secretary of State of the death of the President, caused an election of an electoral college, and a new election of President had taken place under the provisions of the act of Congress. The strongest answer against the argument of the Senator from Indiana (Mr. Morton), as I think, is to be found in the extraordinary results which might practically follow his construction. "The act of 1792, in the event of the death of the President and Vice-President, makes the President pro tempore President of the United States until a new election can be held in accordance with the provisions of that act. "Does the Senator from Indiana sincerely believe that the Senate of the United States could remove at its pleasure the President pro tempore of the Senate after he became President of the United States? If the argument in favor of the right of the Senate to remove the President pro tempore at its pleasure be correct, the right to remove him after he was President would follow. If not, why not? Indeed, I understood the honorable Senator to claim that this right of the Senate to remove its President pro tempore would extend to him even if he was President of the United States. In support of that postulate, he insisted that in some of the States a LieutenantGovernor who had become Governor still presided over the Senate of the State when the State constitution contained provisions somewhat similar to that which we are now considering. He cited Arkansas, and was sustained in his statement by the Senator from Arkansas that such was the usage in his State. I shall certainly take no issue with the Senator from Arkansas as to what the provision of the constitution of that State is, or what has been the usage under it. But I think I can say, both to the Senate and to the country, if the Arkansas constitution contains such a provision, and the president pro tempore of the Arkansas Senate after being Governor still presided over the Senate, that out of the thirty-seven States which constitute this Union Arkansas is the solitary State where such an anomaly exists. The case cited by the Senator from Indiana of the President of the Senate becoming Governor of the State occurred in Kentucky. Indeed, it occurred while I discharged the executive duties of that Commonwealth. I was elected Lieutenant-Governor on the State ticket in 1857 with Hon. John L. Helm, who was elected Governor. Governor Helm died within a few days after taking the oath, at his own home in Hardin County, and without ever reaching the seat of government. By his death I as Lieutenant-Governor became acting Governor of the Commonwealth of Kentucky and acted as such for one year, when I was elected Governor. There was then no Lieutenant-Governor, the law having made no provision for the election of one. The Lieutenant-Governor, by the terms of the constitution of Kentucky, is elected by the people and presides over the Senate. When I was elected Governor, the Senate of Kentucky elected Hon. P. H. Leslie president of that body, who, when I was elected to this body, was qualified as Governor and served out my unexpired term. Had the people of Kentucky been informed that Governor Leslie after qualifying as Governor could still have presided in the Senate, or that he was subject to removal from the office of Governor except for cause, I am sure they would have been confounded. "Mr. President, any construction of any clause of the Constitution of the United States, or the constitution of any State, which would confer upon the Senate of the United States the right to remove at its pleasure the President pro tempore after he had become President of the United States, without cause and at its pleasure, or which would in a State authorize the Senate to remove the president pro tempore after he had become invested with the executive duties as Governor or acting Governor, must be erroneous. Such a construction carries its own refutation. It would lead to mischief which could not be estimated. It was against such results that the Federal Constitution, in my judgment, intended to provide. "The intimation of the Senator from Indiana that the President pro tempore of the Senate, after becoming President of the United States, might still preside in the Senate, is novel and extraordinary. It seems to be unsupported by law and unsustained by usage. Such a doctrine finds no support in the usage of the State governments, unless in Arkansas." Mr. Thurman said: "If it does not interrupt the argument of my friend from Kentucky, I can name two instances in my own State in which the governorship of the State devolved on the Speaker of the Senate, and in each of those cases it was decided that the Speaker accepting the office of Governor vacated his seat as senator." Mr. Conkling: "Does the Constitution devolve the duties on him?" Mr. Thurman: "In the very words of the Constitution of the United States." Mr. Conkling: "That he shall act as Governor?" Mr. Thurman: "Yes, sir; the words are copied from the Constitution of the United States. It was so held for a plain reason, too plain for argument, that it is impossible that the legislative and executive powers or the judicial and executive powers of government can be vested in the same individual. "Upon the question that is immediately before the Senate, and as to which I have said that I was not entirely clear, but that the impression of my mind was in favor of the views of the minority of the committee, I wish to say a very few words indeed: 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 wish the attention of the Senator from Indiana for one moment. The Senator says that the power conferred in this clause is precisely the same in respect to the President of the Senate that it is in respect to 'the other officers,' and that if it is competent for the Senate to remove its Secretary, or its Chief Clerk, or its Sergeant-at-Arms, it follows necessarily that it has a like power to remove the President pro tempore. I submit to him that he is entirely mistaken in that. There is not one word in this clause that by any implication whatever fixes the duration of the office of any officer of the Senate except the President pro tempore. There is not one word in the clause, which, either expressly or by any implication, fixes the term of office of the Secretary of the Senate, of the Chief Clerk of the Senate, of the Sergeant-at-Arms, or of any of those officers who are strictly officers of the Senate. But, when you come to the President pro tempore, there are most pregnant words that do intimate, that do raise a fair implication, if they do not express it in fact, that he is to hold during the entire absence of the VicePresident, and, if that absence be caused by death, as in the case now before us, that then he must continue to hold as long as he is a member of the body, unless, in the mean time, another Vice-President has been chosen. Let us see how this matter is: The Vice-President of the United States shall be President of the Senate, but shall have no vote, etc. The Senate shall choose their other officers. "Why was the clause 'The Senate shall choose their other officers' put in at all? The reason of it is very obvious. You will find a like provision in regard to the House of Representatives. It was to give each body the absolute power to choose its own officers. Just for the same reason that each House is made the sole judge of the election, returns, and qualifications of its own members, so the choice of its own immediate servants is vested in each House, and it is to prevent the choice of officers of the Senate, or officers of the House being made a subject-matter of legislation, being governed by law, or being conferred upon any executive authority. It is for that reason alone that the clause is put in here that 'the Senate shall choose their other officers.' Then the Constitution goes on and says: 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.' "If the Senator from Indiana is right, why was not this clause condensed so as to say 'the Senate shall choose their other officers, and when necessary a President pro tempore? Why was it not put in those few words? Where was the necessity of putting in words that import a term for which that President is to hold his office? If the Senator from Indiana and the majority of the committee are correct, the whole object would have been accomplished by saying, 'The Senate shall choose their other officers, and also a President pro tempore when necessary.' That would have left him in the power of the Senate. But, instead of saying in those few words that the Senate should have the power to elect a President pro tempore, they go on to say, and a President pro tempore in the absence of the Vice-President.' And that is not all: 'Or when he shall exercise the office of President of the United States.' "It does look as if the plain import of this language was that there is to be such an officer, and it is admitted he is an officer, for, if he is not, he could not become President under the act of 1792, and that act would be unconstitutional. There is to be such an officer as a President pro tempore of the Senate, and that officer is elected for an absence of the VicePresident, and if that absence is to be continuous, as in the case of his becoming President of the United States upon the death, resignation, or removal from office of the President, then that Senator, thus President pro tempore, is to hold for the whole term. "That is the natural import of this language, as it seems to me upon further reflection. In view of the language of the Constitution and in view of the fact that it seems to have been the idea of the framers of the Constitution that the presiding officer of this body should have a certain independent status, a certain permanency of tenure of office, and with the strong reasons which have been given favoring this permanency of tenure, I cannot bring myself ultimately to the conclusion that this is an office held durante beneplacito; that we are to turn our presiding officer out one day and put somebody else in; and that, owing to some casual change of majority or change of feeling in the Senate, we are to reverse the thing the next day and reinstate the old officer. I know that there is very little to be gained by supposing extreme cases. There is very little to be gained by supposing that the Senate would do so improper a thing; and yet it might be done in times of high party excitement. Then, I think, Mr. President, that there is great force in what was said by the Senator from Florida (Mr. Jones). If you say that the President pro tempore can be changed at the will of the Senate, and the House of Representatives should take the opposite view of it, and the office of President of the United States should devolve on the President of the Senate, you might have a conflict between the two Houses as to who was the Chief Executive Magistrate. If, for instance, we were to change our President pro tempore, elect some one else in his stead, and (this not being a matter of the special privileges of the Senate, upon which our judgment is conclusive-for upon it depends who shall be President of the United States) if the House of Representatives should take the opposite view and say, 'You have improperly elected a man; you have violated the Constitution by electing a man when there was no vacancy and when you had no power to change your presiding officer,' we can see that there would be a conflict immediately between the two Houses. That may be an extreme case, too-that is to say, a case not very likely to occur and yet it is a case so likely to occur that it has been thought necessary to provide by law for the event of the death of both the President and Vice-President of the United States, and it is provided for in the Constitution also. The Constitution contemplates that both President and VicePresident may die or their offices become vacant, and it requires Congress to provide for such a contingency, and Congress has provided for it; so that it is not reasoning from extreme cases or improbable hypotheses to say such a case may arise; and, seeing that it may arise, it is possible there may be this conflict between the two Houses if the opinion advocated by the majority of the committee shall prevail. The other opinion, that which makes the of fice of President pro tempore permanent as long as the Vice-President is absent, removes any possibility of danger of a conflict." The Presiding Officer (Mr. Allison in the chair): "The question is on the indefinite postponement of the third resolution." The Chief Clerk read the resolution, as follows: 3. Resolved, That the office of President pro tempore of the Senate is held at the pleasure of the Senate. The question being taken by yeas and nays, resulted-yeas 18, nays 36, as follows: |