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YEAs–Messrs. Bogy, Caperton, Cockrell, Cooper, Davis, Eaton, Goldthwaite, Harvey, Johnston, Kelly, Kernan, McCreery, Merrimon, Randolph, Stevensia, Thurman, Wallace, and Whyte–18.
Nays—Messrs. Alcorn, Allison, Anthony, Booth, Boutwell, Bruce, Cameron of Pennsylvania, Čameron of Wisconsin, Christiancy; Clayton, Conkling, Cragin, Dawes, Edinunds, . sen, Hamilton, Hamlin, Ingalls, Key, McDonald, oil. Mitchell, Morrill of Maine, Morrill of Vermont, Morton, olesby, Paddock, Patterson, Sargent, Saulsbury Sooneer, Wadleigh, West, Windom, Withers, all Wright—36.
Assex r–Messrs. Bayard, Burnside, Conover, Dennis, Dorsey, English, Ferry, Gordon, Hitch. cock, Howe, Jones of Florida, Jones of Nevada, Logun, Maxey, Norwood, Ransom, Robertson, and Sherman—18.
So the motion was not agreed to.
The Presiding Officer: “The question recurs on the adoption of the resolution.”
The result was announced—yeas 34, nays 15; as follows:
Yeas—Messrs. Alcorn, Allison, Anthony, Booth, Boutwell, Bruce, Cameron of Wisconsin, Christiancy, Clayton, Conkling; Cragin, Dawes, Edmunds, Frelinghuysen, Hamilton Hamlin, ngalls, Kernan Key, McDonald, McMilian, Wils. Morrill of Maine, Morton, Oglesby, Paddock, Patterson, Sargent, Saulsbury, Spencer, Wadleigh, West, Windom, and Wright—34.
Nays—Messrs. Bogy, Caperton, Cooper, Davis, Eaton, Goldthwaite, Johnston, McCreery, Merrimon, Randolph, Stevenson, Thurman, Wallace, Whyte, and Withers—15.
Assext—Messrs. o, Burnside, Cameron of Pennsylvania, Cockrell, Conover, Dennis, Dorsey, English, Ferry; Gordon, Harvey, Hitchcock, Howe, Jones of Florida, Jones of Nevada, Kelly, Logan, Maxey, Morrill of Wermont, Norwood, Ransom, Robertson, and Sherman—23.
Mr. Hamlin : “That will be in order after the Senate shall have acted on the amendment proposed by the committee.” The amendment was agreed to. Mr. Hamlin: “Mr. President, from what is said to me by Senators around me, I apprehend that the scope of the resolution and the subject to which it relates may not be familiar to all the Senate. I will state very briefly what the resolution is. It is a novel proposition. It is such a one as I have never before known in the Senate. I have made some investigation in relation to the matter, and I do not find that from the commencement of the Government to the present time the attention of the Senate has ever been called to the precise point which the resolution raises and brings before us. “The Senate has its rules. The Senate is an existing body, and its rules exist with the body. The House of Representatives is a body which expires once in two years, and its rules expire, of course, with each expiring Congress. We have besides what we call the joint rules for the arrangement of business between the two Houses — rules that have been concurrently agreed upon by both the House and the Senate; and I think that from the commencement of the Government to the present time—certainly within my recollection—there has been no instance when the Senate or the House has been asked to act at the commencement of any session of Congress upon the joint rules. Occasionally new joint rules are proposed and agreed to ; amendments are suggested and agreed to. But what is the condition of things? The House, in its constitutional limit, expires, and with it its joint rules must expire; and if they expire upon the part of the House, they must necessarily expire upon the part of the Senate; and it is only by acquiescence in long years that they have been treated and regarded as rules, and not by an affirmative vote either of the House or of the Senate. “But the Senator from Vermont now brings the matter to the notice of the Senate, and on looking at it carefully and critically, and in a legal point of view, the committee are unanimously of opinion that the point which he has suggested is one which the Senate certainly should take notice of at least when it is brought to its attention. To illustrate its necessity, some action of the body is desired under a joint rule to-day, and the Senator rises in his lace and interposes an objection that there is no joint rule existing to-day between the House and the Senate to which either the Senate or the present House has agreed, and it would seem to me that in a parliamentary sense that objection would be well taken. True, we may acquiesce in the adoption of such rules as the House may adopt; they may adopt these several rules; but I suggest that in their action this year they have not done so, and I think in the ruling of the Speaker of the House in a very few words he has placed the matter so clear and so plain that no man can misunderstand it. I call the attention of the Senate to what took place in the other House in relation to adopting rules at the commencement of the session. A member from Pennsylvania (Mr. Randall) submitted the following resolution: Resolved, That the rules of the House of Representatives of the Forty-third Congress shall be the rules of the House of Representatives until otherwise ordered, excepting Rule 166 and Rule 167.
“I will state that the first of those rules is one in relation to suspending the rules of the House, with which we have nothing to do; and the other is in relation to dilatory motions, and that was a rule of the House with which the Senate have nothing to do. The same gentleman (Mr. Randall) also submitted another resolution—there were two of them— authorizing the Speaker of the House to appoint four Representatives, the Speaker himself to be the fifth member, who should constitute a Committee on Rules in that body. A gentleman from Ohio (Mr. Garfield) raised a question of order, that there was no necessity for adopting the rules of the House. He did not state why, but he said:
I rise to a point of order. I object to the resolu
tion under the existing rules; which are our rules without declaration of this sort.
“I inferred instantly that they had adopted previously some general rule to extend the rules of the House from one Congress to another; and on looking I find that precisely that thing was done, and that was exactly what Mr. Garfield meant.” Mr. Morton: “Will the Senator state that point again?” Mr. Hamlin: “The gentleman from Ohio raised the question of order that the resolution submitted by the gentleman from Pennsylvania, Mr. Randall, was not necessary, inasmuch as “the existing rules are our rules without declaration of this sort.’ Why did Mr. Garfield say so? He used no explanatory language; I have read all he said; but on referring to the records of the House we find that in 1869 the House did adopt a resolution declaring that the rules should be the rules of that House and of succeeding Houses until otherwise ordered. That was the question raised, and now I will read the ruling of the Speaker upon it, so clear, so plain, that it seems to me there can be no doubt about it: The Chair overrules it, on the ground that the Constitution clearly gives to each House the right to adopt its own rules. Whatever may have been the rules or orders of a preceding House in reference to this matter, they cannot supersede the constitutional right of this House to adopt its own rules.
“Upon that the resolutions were unanimously agreed to in the House, and the rules of the House were agreed to; but there is no suggestion in that resolution that they shall apply to or that they are meant to apply to the joint rules; and I repeat again that the joint rules
of the two Houses have never been adopted at the commencement of any Congress; at least I have been able to find no such case; but they have been operative only by acquies. cence. “That being the case, and the Senator from Vermont presenting the resolution to the Sen. ate recommending the agreement of the Senate to the joint rules as they stand, the committee were of opinion that if there were a necessity that the Senate should at this session agree to joint rules, there was an equal necessity that the House should also agree to them, and therefore we recommend the amendment of the resolution by making it a concurrent reso. lution.” The President pro tempore: “The question is on the amendment proposed by the Sena. tor from Indiana (Mr. Morton), excepting the twenty-second joint rule.”* Mr. Conkling, of New York, said: “Let it be read.” The Chief Clerk: “After the word “Congress' in the fourth line, it is proposed to insert “excepting the twenty-second joint rule;’ so as to make the resolution read: Resolved by the Senate (the House of Representative concurring), That the joint rules of the Senate and House of Representatives in force at the close of the last session of Congress, excepting the twenty-secondjoint rule, be, and the same are hereby, adopted as the joint rules of the two Houses for the present session. Mr. Bayard, of Delaware, said: “Mr. President, the effect of a joint rule is a question of exceeding interest, and I confess, for one, my want of knowledge of the precedents of the body on this subject. The effect of the present amendment to this resolution, so far as I have heard it, is to abrogate by the action of the Senate one of the present joint rules of the two Houses, adopted on the 6th of February, 1865. It relates to the exceedingly important subject of the count of the electoral votes. I am one of those who have always believed that this joint rule was unwarranted by the Constitution; that by it powers are assumed distinctively by the two Houses of Congress which are not only not expressly given, but which I do not think are fairly to be implied by the very scant language of the Constitution on the subject. At the last session of Congress, the honorable Senator from Indiana (Mr. Morton) proposed an amendment of this joint rule. I think it was in the shape of a new joint rule, or perhaps it may have been a bill.” Mr. Morton: “The first movement was a rule, and afterward a bill was presented.” (See ANNUAL CycloPAEDIA, 1875, CoNGREss.) Mr. Bayard: “The subject then underwent consideration in very little proportion to its importance. I said then, and I think still, that no time would be so fortunate for the settlement of joint rules between the two Houses of Congress as when the two Houses should be under the control of different parties. A subject like this should rise far beyond the possibility of partisan heats, and the propositions in regard to it and the settlement of those propositions should be made free from anything like the color of party advantage. “Independent, however, of the question of the power of the two Houses of Congress over this counting of the votes, comes at once the question whether a joint rule adopted by the two Houses falls and becomes void by the expiration of the Congress in which that rule was adopted. So far as the Senate is concerned it will not, I think, be suggested, because this is a continuing body; there is always and at all times a quorum continuing from one Congress to another. It is not so with the House of Representatives, the termination of whose legal existence is at the end of every two years. I should like to learn from those who have examined this subject, and are therefore much more competent to speak of it than I am, whether this has been the understanding or the action of the Senate; because from custom invariable, long-continued, reasonable, and just, the force of law almost is obtained. Certain it is that, under this rule adopted in 1865, the electoral votes for President and VicePresident have three times been counted; and
* The twenty-second rule was as follows:
The two Houses shall assemble in the hall of the House of Representatives at the hour of one o'clock P.M., on the second Wednesday in February next succeeding the meeting of the electors of President and Vice-President of the United States, and the President of the Senate shall be their presid: ing officer; one teller shall be appointed on the part of the Benate, and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the Pres. dent of the Senate, the certificates of the electoral votes; and said tellers, having read the same in the presence and hearing of the two Houses then assembled, shall make a list of the votes as they shall appear from the said certificates; and, the votes * been counted, the result of the same shall be delivered to the President of the Senate, who shal thereupon announce the state of the vote and the names of the persons, if any, elected; which announcement shall be deemed a sufficient declaration of the persons elected Presi. dent and Vice-President of the United States, and, together with a list of the votes, be entered on the journals of the two Houses. If, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision: and the Speaker of the House of Representatives shall in like manner, submit said question to the House of Representatives for its decision; and no question shall be decided affinatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses; which being or tained, the two Houses shall immediately reassemble, and the
presiding officer shall then announce the decision of the
question submitted, and upon any such question there shal be no debate in either House; and o other question per; tinent to the object for which the two Houses are assembled may be submitted and determined in like manner. At oth #. meeting of the two Houses seats shall be provided o ollows: For the President of the Senate, the “Speaker's chair;" for the Speaker, a chair immediately upon his left; the Senators in the body of the hall, upon the right of the residing officer; for the Representatives, in the body of to ll not occupied by the Senators; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, a the Clerk's desk; for the other officers of the two Houses to front of the Cerk's desk, and upon either side of the Speako platform. Such joint meeting shall not be dissolved until the *lectoral votes are all counted and the result declared: an" no recess shall be taken unless a question shall have aro regard to counting any of such votes, in which case it shall be competent for either #. acting separately, in the manno hereinbefore provided, to direct a recess, not beyond the ne” day at the hour of one o'clock P. M.
therefore it is a question of great importance for the Senate and the other House to settle whether a joint rule has a longer life than the Congress in which it is adopted, and whether upon the expiration of that Congress ipso facto the rule dies. So far as the Senate is concerned, we all know that the Senate's rules continue, but the question is what effect the different constitution of the other House of Congress has upon a joint rule. It is true that there is a very customary resolution of the House, made, I believe, at the opening of each new Congress, respecting the rules, and I believe at the present session of Congress the usual resolution was passed adopting the rules of the former Congress with two exceptions; but in the Senate I have no knowledge of any such practice, and the peculiar constituency of this body would make such a practice unnecessary, if not irregular.” Mr. Merrimon, of North Carolina, said: “I simply wish to say that the Committee on Rules were unable to ascertain that there was any departure on the part of the Senate from the uniform custom of continuing the joint rules from Congress to Congress. The long experience of our Chief Clerk, embracing about thirty-eight years, knows of no exception, and as far as he has been able to learn, on examination, there has been no exception.” Mr. Morton: “No exception to what?” Mr. Merrimon: “No exception to the practice that the joint rules continue from Congress to Congress on the part of the Senate. But when the matter was brought to the attention of the Committee on Rules, we could not see how any rule, whether joint or otherwise, of one Congress could be binding upon a subsequent Congress, for the Congress as a Congress lasts but two years. As a legal proposition, if a joint rule is not binding upon the House, how could it be binding upon the Senate? We thought one House of Representatives could not by its own mere construction imply an engagement on the part of a subsequent Congress. The committee went on the ground that if a joint rule was not binding on a subsequent House, it could not be binding upon the Senate in connection with a subsequent House, for an engagement with one Congress is no engagement with another Congress.” Mr. Frelinghuysen, of New Jersey, said: “I agree with the Senator from Delaware, that the twenty-second joint rule is very objectionable. Therefore, it seems to me to be the part of wisdom to adopt the joint rules, leaving out the twenty-second, which is not agreeable generally, I think, to the Senate, and then adopt some rule as a substitute for it. If we leave the rule as it is, everything is unsettled ; we must have another rule. It is uncertain, as the matter is left in the twelfth article of amendment to the Constitution, whether the President of the Senate acts merely ministerially, or whether he acts judicially. The law says he is to open the certificates, and the votes then, in the presence of the two Houses, are to be counted. Counted by whom ? Who is to determine whether a vote is lawful or not? Does it require both Houses of Congress acting separately to admit a vote, or are they to be presumed to be lawful votes, so as to require both Houses to reject them : There are a great many questions involved, and it seems to me that this is a propitious time, and that it is our duty to fix this question, so that that danger to the country resulting from the present uncertainty shall be removed.” Mr. Thurman, of Ohio, said: “The resolution now before the Senate rests upon the assumption that the joint rules of the two Houses fall at the end of what is called every Congress, and that they must necessarily do so upon the theory that the House of Representatives expires at the end of every Congress, while it is said that the Senate is a perpetual body. Why is it said that the Senate is a perpetual body ? I know of no reason except one, and that is that only one-third of its members go out every two years, so that there is always a sufficient number of Senators in office to constitute a quorum of the Senate.” “The Senate is said to be a perpetual body, because it can be convened at any instant. I say, that the Congress of the United States can be convened at any moment. In the contemplation of our Constitution there is never one moment of time when there is not a Congress of the United States which can be convened upon the call of the President, and in point of fact it is so; for, although some of the States have been accustomed to elect after the 4th of March, as the State of Connecticut, and perhaps the State of Kentucky, yet the great majority of the States elect before the 4th of March, in the fall preceding the 4th of March of the odd year; and I believe that, under an act of Congress which we have passed, and which will go into effect after 1876, all the members of the House of Representatives will be elected before the 4th of March of the year when a Congress expires. But there never has been one day, I believe, since the inauguration of this Government when a quorum of the House of Representatives has not been elected, and a Congress could not have been convened upon the call of the President; and I say the theory of our Government is that all the departments of the Government, executive, judicial, legislative, are in existence at every moment of time. A department of Government is not the less in existence because some seat may be vacant in it. There is no less a Supreme Court because there may be a vacancy on the bench of that court. There is no less a Chief Executive because the President may die. There is no less a Congress because seats on this floor, or in the other House, may be vacant. No, sir; the theory of our Government is that there is a Congress always in existence, and the fact is that there is such a Congress; that at no time, perhaps, in all our
history has there been a single moment when, upon a call of the President, a lawful Congress of the United States could not have been assembled.” Mr. Sherman, of Ohio, said: “The rules of the House of Representatives, I believe it is conceded on all hands, expire with the Congress. There can be no doubt about that; because that has been the universal practice of the Government, I believe, from the beginning. While I was a member of the House there were two or three important occasions when, before the House was organized, it was held that there were no rules. The hour rule, so necessary in the government of the House, was abandoned during at least two periods of stormy contest; and it was agreed on all hands, that the rules of the House of Representatives expired with the Congress, and that no law, no act of Congress even, could prevent it. An act of Congress cannot extend the rules of one House to another, because the Constitution, the supreme law of the land, declares that each House shall make its own rules. By the established practice of the Government from the beginning to this hour, it has been held that the rules of the House of Representatives expire with the Congress, and that no law can operate to extend the rules from one Congress to another, because that would be to violate the Constitution itself. In this respect, the rules of each House are precisely alike. The rules of the Senate are no more operative than the rules of the House of Representatives. We have the power to change them at any moment.” Mr. Morton: “Mr. President, I have always understood the theory of the two Houses to be this: first, that the Senate is a continuing body. That results from the nature of its organization, and also because it is a part of the executive department of the Government. We have had some discussion here within a few days, involving that very question. When the Senate adjourns from one session to another, it is nothing more than a recess of the Senate. It does not differ in point of law from an o from Thursday over to Monday. The officers all continue. We have just decided that a President pro tempore of the Senate elected at a former session continues to be President pro tempore when the Senate meets in a new Congress. In that way we have recognized the continuous character of the Senate; but I believe I have never before heard it said that the House of Representatives was a continuing body. The Senator from Ohio says that in that respect it is precisely like the Senate. The organization of the Senate is never lost; all the officers continue. If we have a Vice-President, he continues during his term. We have a President pro tempore, a Sergeant-at-Arms, and a Secretary, and they continue until the Senate itself makes a change. Therefore the organization of the body is not lost, and every adjournment of the Senate is simply in the nature of a recess. But, Mr. President, that is not the case with the House of Representatives at all. In the House it is just the reverse. The Senator from Ohio (Mr. Thurman) says, that a member of the House is elected for two years. So he is. That is the term prescribed by the Constitution. He says that he is paid when Congress is not in session. First, he was paid a per diem only when Congress was in session; afterward it was changed to a salary by the year; but that certainly does not affect the question of the legal existence of the House. We speak in general of ‘Congress,” two years. But, so far as the legal existence of the House of Representatives is concerned, how can we conceive of that when the members have never come together, their credentials have never been examined, and they have no officers elected? There is no House of Representatives until it is organized.” Mr. Saulsbury, of Delaware, said: “Mr. President, I do not concur in all that I have heard on this question. I differ from the views expressed by the Senator from Ohio (Mr. Thurman). I do not regard the House of Representatives as being at all times an organized body. While it is true that the House of Representatives is one of the departments of this Government, yet there are periods when there is no organization of the body, according to the view which I take, and the members of the House of Representatives in each Congress have the right to adopt their own rules, and the rules provided by the previous Congress are not obligatory upon them. But I do not concur in the views expressed by the other Senator from Ohio (Mr. Sherman), that it is competent for this body to annul, at pleasure, any joint rule between the two Houses. The view which I take of these joint rules is that, as they require the concurrent action of both Houses, they partake of the nature of a statute, and that neither House may annul a joint rule without the concurrence of the body that helped enact it. I therefore do not believe that it is competent for the Senate of the United States to annul the twenty-second joint rule, nor do I believe that it is competent for the House, after its having been enacted or ordered by the concurrent action of both Houses, without the concurrent action of both Houses to render it null and void. This is the view I take of the joint rules.” Mr. Conkling: “Mr. President, I dispose sufficiently of the whole question as it presents itself to me by turning to the Constitution and finding that “the House of Representatives shall be composed of members chosen every second year by the people of the several States,' and so on, and by seeing further that ‘the Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day,” as it in the beginning was determined by law and as it has been
since. I find my way sufficiently clear when I see that once in two years the members of the House of Representatives are rechosen, not some of them but all of them, thus supplying anew the whole personnel, the whole incarnation (if I may so speak of that House. Now, by settled usage in that case, in analogous cases, and by usage, as it seems to me very clearly within the attributes and within the prerogatives of the House, each Congress (as it is called for convenience, as the Senator from Ohio says) proceeds to take its own orders, to make its own rules under the express permission of the Constitution of the United States. When the Senate concurs in a joint rule, a concurrent rule, the Senate assents to the making of rules by the House, if they proceed from the House, extending as to those rules to this body. It assents by adopting them as a part of its own rules. Should any House undertake to make rules to govern a succeeding House, I conceive the action would be entirely nugatory; and, if so, it follows as a matter of course that a rule made by one House, although the Senate may be a party to it, if it is designed to bind a succeeding House, is as void as it would be were it a rule for the House alone. Certainly the House would have no greater prerogative, no more far-reaching prerogative in the establishment of a rule, if it happens to be a rule to which some other body is to be a party, than it would have were it a rule for the government of itself, supposing all the time that it be a rule in the strict sense of that word as distinguished from a statute or from that kind of joint resolution which a Senator over the way had in mind when he inquired whether the signature of the President had ever been attached to this rule. “If I be right in that, Mr. President, it is very clear that in every Congress as it is called (adopting again this term for convenience), the House of Representatives is obliged to adopt rules in some form for its government; and it is very clear that the resolution referred to by the Senator from Oregon, adopted by the House at the commencement of the session, was an expedient, competent, and orderly proceeding. If that resolution covered, as perhaps it did, the joint rules of the two Houses, it brings to us the question whether we will adopt those joint rules. Now, undoubtedly it would be competent for the Senate, sub silentio (as the Senator from Massachusetts said touching another matter), by acquiescence, by that silence which implies consent, to go on and observe the joint rules. That it seems has been done repeatedly, perhaps usually, before. It would have happened now very likely but for the fact that every Senator who has regarded this subject at all cannot have failed to feel that we were called upon to take some action touching the twenty-second joint rule, which it has been said by the Senator from Delaware and by other Senators involves very grave dangers. A resolution was offered by the Senator from