/J/) /'¦ , 3/fa/na/ s- c THE ORIGIN AND DEVELOPMENT OF THE United States Senate CLARA HANNAH (KERR) Ph.D. ithaca, n. y. Andrus & Church 1895 COPYRIGHT, 1895, BY CI.ARA H. KERR. 0^ TABLE OF CONTENTS. CHAPTER I. The Formation of the Senate in the Convention of 1787, , 1-14 CHAPTER II. Election of Senators and Organization of the Senate, 15-37 CHAPTER III. The Senate as a Legislative Body. I. — Secret-Sessions, . '. 38-40 II. — Quorum of the Senate, 40-48 III. — Order of Procedure, 48-59 IV. — Limitations of Debate, .59-68" V. — Appropriation Bills 68-80 VI. — Party Influences in the Senate 80-85 VII. — Relation of the President and Senate in Legisla tion ." 85-92 VIII. — Relation of the Senate and House of Representa tives in Legislation, 92-97 CHAPTER IV. The Senate as an Executive Body. I. — Secret Sessions, 98-103 II. — Appointments, . . . . • 104-135 III.— Treaties 135-158 CHAPTER V. The Senate as a Judicial Body, i59_I72 CHAPTER VI. Conclusion, 173-180 List of Works Cited with Date and Place of Publi cation, 181-1S4 PREFACE. : ' In the following study an effort has been made to trace the development of the United States senate from the time that a second house was first proposed in the con vention of 1787 to the present. In this discission espe cial attention has been paid to the way in which the senate has' exercised the powers granted to it by the con stitution, and to the ways in which, either by an increase or a decrease of those powers, it has deviated from the purpose of the framers of the constitution. In doing this the three functions exercised by that body, legisla tive, executive and judicial, have been separately treated. It has been impossible to obtain a full knowledge of the proceedings of the senate during its early days, as the debates were not reported and the sessions, for some : time, were held in secret. Our chief sources of informa tion regarding the period are the " Annals of Congress " and the " Senate Journal." These are supplemented by the " Journal of Maclay," covering the period of the First Congress, and the writings of the early statesmen, espe cially those of Washington, John Adams, Jefferson, Ham ilton and Madison. The same difficulty exists throughout for the execu tive proceedings, as the executive sessions are still held in secret, and none of the debates have been maae pub lic, except in the few instances in which the injunction of secrecy has been removed from them. As the " Ex ecutive Journal " since 1869 has not been published, it is still more difficult to obtain an adequate knowledge of the executive proceedings since that date. vi Preface. A list of the more important sources of information consulted in the preparation of this paper, including all those cited in the foot notes, is given at the end. Fol lowing established precedents, the document known as the " Pinckney Plan " has several times been cited, al though the genuineness of that document is now seri ously discredited. The work has been done under the direction of Pro fessor Moses Coit Tyler, to whose suggestions and assis tance I am much indebted. I am also indebted to the Honorable Henry Cabot Lodge for aid while making personal observations of the senate, and to Mr. A. R. Spofford for help while using the Library of Congress. C. H. K. Cornell University, Ithaca, New York, July, 1895. THE ORIGIN AND DEVELOPMENT OF THE UNITED STATES SENATE. CHAPTER I. THE FORMATION OF THE SENATE IN THE CONVENTION OF 1787. The states, in adopting the articles of confederation which created a government in which all legislative power was vested in a single house, had departed from nearly all of their traditions of government. At that time, the division of the legislative power between the house of lords and the house of commons was considered an essential part of the English system ; and, in all of the colonies except Pennsylvania, two houses had been devel oped, and were provided for by all of the state constitu tions except those of Georgia and Pennsylvania. It was, therefore, but natural in framing a new form of government to replace that of the articles of confederation, which had proved inadequate, that a legislature of two branches should have been thought of. Both Randolph's and Pinckney's plans, introduced immediately after the organization of the convention, provided for two houses ; and two days later the convention decided, without debate, Pennsyl vania alone voting against it, in favor of such a distribu tion of the legislative power. ' Later, however, after the arrival of the New Jersey delegates, who wished only the amendment of the articles of confederation, the question was again considered, and New York and Dela ware voted with New Jersey for a legislature of a single branch. 2 The Origin and Development of the It being decided that there was to be a second house, the convention next proceeded to determine the manner in which its members should be chosen. . During the colo nial period-, in the royal colonies the councillors were reg ularly appointed by the king, and in the proprietary colo- onies by the proprietor ; while iu the popular colonies they were either chosen by the general legislature, as in Massachusetts, or directly by the voters, as in Rhode Island and Connecticut. In the formation of the state constitutions the more popular method of election of Rhode Island and Connecticut was followed by most of the states.1 Each of the three plans submitted to the convention, however, provided for a, secondary election : Pinckney's for an election by the lower house, Randolph's by the lower house from nominations, made by the state, legis latures, and Hamilton's for, a choice by. electors chosen by the people,, as in Maryland. A proposal by Mr. Read of Delaware removed the choice still farther from, the people by giving to the executive the appointment, of senators from a certain number nominated by the indi vidual legislatures. This, however, was too monarchical to meet with approval, and was not supported ; though later Gouyerneur Morris, who at this time was absent, went still farther and declared that, he. was in favor of the. simple appointment of senators by the executive, Tjbe. direct election of senators by they people, proposed and warmly supported by the committee to whom the Randolph plan was. referred,; was objected, to on. the grounds that thev people could not. safely be entrusted with the power, and because, it would give to the landed interests aiijUndue preponderance; and the plan adopted by many of the states in choosing members to. the con gress of the. cpnfederation, namely, choice by the state 1 Under the-first constitutions • of .-&-' C and N. H. the members. of the upper house were chosen by those of the lower ; and in Maryland by electors chosen by the people. United States Senate. 3' legislatures, was agreed upon, it being held that the sense of the people could be better collected in this way, and that thus the most distinguished characters would- be chosen. It was also pointed out that this method had' the advantage of connecting the state and national governments. In the debates over the formation of the constitution, the point which caused the most discussion was the method of representatioU in the two branches of congress. Though the colonies had an equal Voice in the con^ tinental congress, it had not been granted without a struggle,1 and during the debates over the qiies^ tion several compromises had been suggested. That of Sherman of Connecticut, who proposed that " the vote should be taken two ways ; call the Colonies, and call the individuals, and have a majority of both,"2 was a foreshadowing of the plan of the senate and house of representatives. The delegates frorii Delaware had been forbidden to vote for any constitution which should not provide for the equality of representation of the states, and there were' others strongly in favdf of that plan. Proposals for the representation of the states in accordance with their im- pbrtanc'e and in accordance with property* were not well supported. The1 method of representation for the lower branch was first de'cided, the great struggle being over' the plan to be adopted in the senate. The1 possibility of different" methods of representation in the two houses was evidently in the mind of Dickin^ son when, in the course of the discussion' oVer the method of1 impeachment of the president, he said that he hoped that each state would retain an equal vote' in at least one 1 Works of J. Adams, II, 499. * Works of J. Adams, II, 499. 3 Representation in the state legislatures of Massachusetts and New Hampshire was based upon this principle. 4 The Origin and Development of the branch of the national legislature ;T but it was Sherman of Connecticut who, when both parties seemed bent upon having their own way, proposed granting repre sentation of the states in proportion to their inhabitants,- in one branch, and equal representation in the other.2 His proposition was well supported by his colleague, but at that time no one else spoke in favor of the plan. It satisfied neither the small states nor the large ones, and it led to a discussion so violent that at one time there was danger of the convention's dissolving without ac complishing anything. Dr. Franklin then came forward urging the necessity of compromise. The matter was referred to a committee, who reported substantially the plan of Sherman. Many, seeing the necessity of a com promise, though by no means satisfied with the plan pro posed, supported it ; and the vote when taken stood five to four, with one state divided.3 All agreed that the senate ought to be so constituted as to be a check on the lower house, but there was a disagreement as to the means to be adopted to secure this end. Gouverneur Morris, having in mind, doubtless, the house of lords, thought that, for this purpose, dignity and permanence were necessary. He therefore wished to have the second branch composed of men of large property, an aristocracy who, from pride, would sustain consistency. To make them completely independent, he wished them chosen for life.4 Hamilton's plan embodied the same idea, but it met with no success, for the people dreaded above all things the creation of an aristocracy. The councils of the colonies had, in general, been com posed of the men of the most wealth and importance in the colony ; and stood in social rank next to the governor, especially in the royal colonies, where they were ' Elliot, V, 149. 2 Ibid., V, 179. ¦» Ibid., V, 316. < Ibid., I, 475. United States Senate. 5 appointed by the king during good behavior. They had constantly been objects of suspicion ; and therefore, in the state constitutions, five years was the longest term of a senator,1 while a majority of the states elected their senators annually. In the convention, the length of term proposed varied from a life tenure, urged by those who regarded the British constitution as the best of models, to a single year, a plan urged by the New Eng land delegates, and especially those of Connecticut, who declared that their constituents would never consent to give up their annual elections. A short term of office was urged by the strong states' rights men also ; for they feared that, if the term of service were long, the senators would make their home at the capitol city, and, forget ting their dependence and becoming alienated, would neglect the interests of the state which sent them. At first the term of office was fixed at five years,2 as a happy medium between the life tenure which, it was feared, would make the senators regardless of the wishes of the people, and a shorter term which would not be sufficient to secure permanency and consistency in the legislative business. Later, it was fixed at six years, one third going out each year.3 Rotation was first sug gested by Mr. Pinckey, and, when proposed later by Mr. Gorham, met with no opposition. An effort to intro duce a property qualification, which existed in seven of the state constitutions,4 failed ; but the recognition of the greater ability required of a senator was shown by making the age qualification of a senator thirty years ; and, in view of the fact that they were to have an 1 The Maryland seuators held office five years ; Delaware's three ; Virginia's four ; New York's four. 4 Elliot, I, 451. » Rotation was adopted for the provisional council of Pennsylva nia iu the "Frame of Government" of 1782-3, and for.the state council. It was also provided for the senates in the state constitutions of New York, Delaware, and Virginia. * In Mass., Md., Del , N C, N. J., N. Y., N. H. 6 The Origin and Development of the agency in the formation of treaties, the term of citizen ship required was fixed at nine years. It was pretty generally agreed that the duties which wrere to he assigned to the senate could be best performed by a small number. Gouverneur Morris favored three representatives from each state, for he thought if there were but two, and a majority a quorum, the senate would be too small to entrust with the important duties which had been assigned to it. This number was objected to on the ground of expense, and because it would be dift> cult for the more remote states to send so many ; and, on the motion for two from each state, Maryland alone voted against it.1 It has been said that a long term for senators was op posed by the supporters of states' rights on the ground that it would diminish the influence of the states. The same reason led them to oppose, though unsuccessfully, the voting per cqpita instead of by states, and the pay ment of the senators out of the national treasury ;' the difference of opinion on all these points being due to different ideas regarding the office of the senate. The states' rights party, who wished the senate to represent the states, advocated their payment by the states that they might not become independent of them ; while the natipnal party, who wished the senate to be representa tive pf national and not state interests, advocated the payment of senators from the national treasury. The national party prevailed, and the payment of senators was left to the general government. A proposal to fix the salary was discarded on account of the change of values, and a motion which provided that the compensa tion of senators and representatives should be the same was withdrawn when it was pointed out that this would be unfair, as senators would have to remain longer from home and so would be obliged to remove their families.2 1 Elliot, v, 356-357- 2 Elliot, V, 425-427. United States Senate. 7 The powers which the senate was to have were at first but vaguely defined. Thus, Mr. Randolph's .plan, as first submitted and as amended in the committee of the whole, made no distinction as to the powers to be granted to the two houses. The Pinckney plan gave the originating of all money bills to the house of dele gates, and to the senate the sole power of declaring war, making peace, and appointing ambassadors ; while Ham ilton's, which was introduced about a month later, gave to the senate the sole power of declaring war ; of advis ing and approving treaties ; of approving or rejecting all nominations, except the heads or chiefs of the depart ments of war, finance, and foreign affairs.1 Although the upper house of every state except Con necticut, Rhode Island, and North Carolina was restricted by its constitution from originating money bills, a pro posal in the early part of the convention, before the manner of representation was decided upon, to limit the United States senate in a similar manner, was negatived. Later, when it had been decided that the states were to be equally represented in the second branch, it was pro posed, as a compensation to the large states, to give to the first branch of the legislature the exclusive right of originating "all bills for raising and appropriating money and for fixing salaries," and to forbid the senate's altering or amending them f and, though some of the representatives of the large states, among whom were Mr. Madison and Mr. Wilson, declared that they saw no concession in this, it was agreed to by a majority of two states. This decision was very unsatisfactory to many, and the subject was again brought up for consideration. Those who were in favor of the clause as/it then stood,. supported it because senators were not the direct repre sentatives of the people, and because it was feared that 1 In several of the states the upper house could not even amend money bills. It was so in S. C, Md., Va., N. J. 2 Elliot, V, 274. 8 The Origin and Development __ of the the senate would sit constantly, and so be able to mature plans during the recess and force them upon the house.1 Another reason, according to Colonel Mason, for restrict ing the upper house was that " it could already sell the country by means of its treaties." 2 It was finally agreed to amend the clause so that it would read : " All bills for raising revenue shall originate in the House of Repre sentatives, but the Senate may propose or concur with amendments."3 One of the greatest defects in the government formed under the articles of confederation was the lack of an adequate war power ; and, as before noticed, in the plans of Pinckney and Hamilton the power of declaring war was entrusted to the senate. Pinckney urged that the senate would be the best repository of this power, as it would be better acquainted with foreign affairs, was repre sentative of the states, and was a smaller body. Moreover it would be singular to entrust the power of making war to one body, and that of peace to another. His reason ing, however, was ineffectual ; the majority of the conven tion being unwilling to entrust so important a power to the senate alone. The same objection was raised to giving to the senate alone the treaty-making power. A proposal to give it to the president met with no more favor, and it was finally agreed that the treaty-making power should be given to the president, by and with the advice and con sent of two-thirds of the senators present. The two- thirds vote was objected to by many, as the minority would thus be able to control the majority, and it was urged that, as the president was to be associated with the senate in the negotiation of treaties, that would be a sufficient check.4 There were, on the other hand, those 1 Elliot, v, 415. 2 Ibid., 427. 3 Ibid., 529. * Ibid., 524. United States Senate. g who would have still further restricted the power of the senate ; and the conventions of North Carolina and Virginia which adopted the constitution proposed that, for ceding territorial rights, the consent of three-fourths of the senate should be required.1 The trial of impeachments seems to have been con- ' fided to the senate less because it was thought to be pre eminently fitted for the work than because there was no other body better suited to it.2 Both Randolph's and Pinckney's plans gave the trial of impeachments to the national judiciary, and it was thus reported by the com mittee of detail. Not until near the end of the conven tion was it proposed to substitute the senate in the trial of the impeachment of the president.3 It was urged in favor of the change that a small number of judges, in debted to the president for their appointments, could scarcely be impartial and might be corrupted ;4 and it was finally decided to give to the senate the trial, not only of the president, but of all officers liable to im peachment. As, in the state governments, all the appointments were not made in the same manner, so, in the national con vention, it seems not to have been intended at first to place the appointment of all officers in the power of one person or body. Randolph's plan mentioned only the judges, the appointment of whom he would have given to the national legislature. Pinckney's plan gave to the 1 Elliot, IV, 245 ; III, Virginia, 660. 8 Elliot V, 508, aud Federalist, No. 65. In the latter Hamilton up holds the plan adopted by the convention, not by showing that the senate was a body eminently fitted for the work, but by pointing out the defects in the other plans proposed, and concluding that the duty might better be assigned to the senate than to any other body. 3 Elliot, V, 507. The constitutions of Mass. and Del., and the second constitution of N. H. gave the trial of impeachments to the upper house ; while in S. C the trial of impeachments was given to the senate and all judges not members of the lower house ; and in New York to the senate, chancellor, and judges of the supreme court. 4 Ibid., 528, 529. io The Origin and Development of the senate the appointment of judges of the supreme court, ambassadors, and all ministers to foreign ports ; and to the president, with the consent of the senate, all other appointments. While Hamilton would have given the appointment of all officers to the president, and to the senate, the confirmation of all but the heads of the departments. A proposal to refer certain appointments to the legislatures or executives of the several states,1 as well as a confirmation of certain appointments by an equal vote of the states,2 met with little support. The chief debates were over the manner of appointment of the judicial officers and ambassadors- Mr. Gorham suggested " that the judges be appointed by the execu tive, with the advice and consent of the second branch, in the mode prescribed by the constitution of Massa chusetts." " This mode," he said, "" had been practised long in that country, and was found to answer perfectly well." 3 Mr. Madison suggested a confirmation by two- thirds of the senate. Both of these as well as an ap pointment by the president and by the national legisla ture were voted down : the appointment of judges and also of ambassadors was given to the senate ; and to the president, the appointment of all officers not otherwise provided for. The first draft of the constitu tion regulated appointments in this manner, and it was not until the first of September that a committee of eleven, to whom the postponed parts of the constitution had been referred, reported the clause substantially as it now stands.4 To the objection of Mr. Wilson that this mode would destroy the responsibility of the executive, 1 Elliot, V, 475. •'Ibid., 266. ''¦Ibid., 328. Mr. Gorham's recollection seems to have been at fault for the constitution then in force in Massachusetts says : " All judicial officers shall be appointed by the Governor by and with the advice and consent of the Council," which was not the second branch of the legislature. ' "Ibid., 507. United States Senate. ri Gouverneur Morris replied " that, as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security."1 Mr. Gerry, on the other hand, said : " The idea of responsi bility in the nomination to office is chimerical. The President cannot know all characters, and can therefore always plead ignorance.''2 There was, however, very little debate, and, after a slight change, the clause was adopted. To the senate had been left the choice of its president,, as well as its other officers, until a successor for the pres ident was provided, when, in order to give him some thing to do, he was made president of the senate. This plan was advocated because otherwise some member of the senate would have to preside, and would thus be de prived of his vote except in the ease of a tie.3 It was objected to as being an encroachment on the rights of the senate, and because it mingled top much the legislative and executive powers.4 Mr. Gerry, thinking that there would be between the president and vice president a close intimacy, said that they " might as well put the president himself at the head of the legislature." Gou verneur Morris, with truer insight, saw that the relations of the two would not be such as to warrant any fear.5 Two othep subjects deserve mention from the influence which a different decision of them would have had on the senate. The first of these is the manner of electing the president of the United States. Many methods were suggested, two of which would have changed considera bly the relations of the president and senate. One pro viding for an election by the national legislature, which < Elliot, V, 523. "Ibid., 523. 3 Ibid., 522. * Ibid. sIbid., 522. 12 The Origin and Development of the was the plan adopted in most of the state constitutions,1 was at first the favorite and was adopted. Later, when this was reconsidered and the choice of the president given to electors, it was proposed that, in case of two candidates having an equal number of votes or of no candidate having a majority, the election should be made by the senate out of the five highest candidates. As it was thought that, in the choice by electors, there would seldom be anyone who would have a majority, it was believed that this was really giving the election to the senate ; and the fear that this would make the president dependent on the senate, lead to corruption, and lay the foundation for an aristocracy, led to its rejection and the substitution of the house for the senate.2 The other subject to be- noticed is the proposal for an executive council, to whom, instead of the sen ate, should be given the confirmation of appointments made by the president. Many objected to the latter method because of the mingling of the legislative and executive functions, and because they thought that it would render necessary the continuous session of the senate, a circumstance which would be expensive and might be dangerous. Moreover, they thought the senate too large a body for that purpose. That there should have been many in favor of an executive council is not strange, for one was provided for by the constitutions of nearly all the states, and, as Colonel Mason said, "in rejecting a council to the President an experiment was about to be tried which the most despotic government had never ventured upon."3 The delegates to, the con- 1 It was so in Delaware, Maryland, Virginia, New Jersey, North Carolina, South Carolina under both the first aud second of its consti tutions, and in New Hampshire under its first constitution. In Penn sylvania the executive officer was elected by the assembly aud council, in Georgia by the assembly and iu all the other states by the people. 2 Elliot, V, 507, 520-524. sI6id., V, 525. United States Senate. 13 Vention, however, preferred to adopt the plan of the col onies in the earlier days, of combining in the upper house the duties of a council to the president and of a branch of the legislature. There was a wide difference of opinion as to the rela tive powers of the president, senate, and house of repre sentatives, in the government as finally constituted. First, in regard to the relation of the president and sen ate ; there were, on the one side, those who, like Mar tin, believed that the senate, through their desire for the emoluments and the offices which the president could give, would become subservient to him j1 on the other side, there were those who, like Madison, believed that the power of the senate to try impeachments and to con firm nominations would make the president dependent upon it.2 As regards the relative powers of the two houses, there was the same difference of opinion. Thus, there were many who, either on account of the im mense powers given to the senate, or the small number of its members, or their long continuance in office,3 or for all these reasons, fearedlhat the senate would be able to destroy any balance in the government and to accom plish whatever usurpations it wished on the liberties of the people. Colonel Mason even went so far as to say that if a coalition should be established between the president and the senate they could overthrow the gov ernment.4 On the other side there were some who thought that the restriction placed upon the senate in regard to bills for raising revenue rendered it almost useless as a part of the legislature.5 A more moderate view' is set forth by Hamilton in the " Federalist," where he says : " Against the force of the immediate representatives of 1 Elliot, 1, 361. 2 Elliot, V, 528. 3 Elliot, II, 286; * Elliot, V, 513. > Elliot, I, 367. 14 The Origin and Development of the the people, nothing will be able to maintain even the constitutional authority of the senate, but such a display of enlightened policy and attachment to the public good as will divide with that branch of the legislature the affections and support of the entire body of the people themselves."1 It was pretty generally agreed that the senate, from the manner of its election, would be composed of men of greater knowledge and broader information than the house ; and that their proceedings would be marked by more coolness, system, and wisdom than those of the popular branch. There were also many who, thinking that the senators would be repeatedly re-elected and would reside at the capitol city, feared that they would fprm a class by themselves and so lay the foundation of an aristocracy ; and this fear, which led to the proposal of an amendment in the New York convention, lasted for some time after the government had gone into operation. 1 Federalist, No. 63. CHAPTER II. ELECTION OF SENATORS AND ORGANIZATION OF THE SENATE. The constitution framed by the convention and finally adopted, provided that " The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof ; but the Congress may, at any time, by law make or alter, such regulations, except as to the places of choosing Senators."1 This privilege congress did not avail itself of until 1866. In the meantime, the manner of choosing its senators was regulated by each state, the senators of some states being chosen by the twg houses sitting separately, and others by a joint meeting of the two houses ;2 but in either case a majority was always considered necessary to elect, until. 1866, when the New Jersey legislature, in joint session, decided that a pluraL ity should elect. The senator so chosen was refused a seat- in the. senate, and this case led to the passage of the law regulating the mode of election. This law provided first for a viva, voce election in each house by a majority of ,aJLthe votes cast. If the same person did not receive a majority in both houses,, or if either house had failed to elect, then, on the following day, the two houses, in joint: assembly, were to proceed in . the same Aanner as before to the choice of a senator.3 1 Article I, section IV. 8 In 1866 there were sixteen or seventeen states in which the sen ators were so elected (Congr. Globe, ist Sess., 39thtCongr., p. 1571, statement of Mr. Johnson. ) though there were some, distinguished men, like Sumner and Kent, who thought that this was contrary to the spirit of the constitution. (Sumner, Works, X, 381, 382.) * Revised Statutes, Sects., 14,, 15, 16., 1 6 The Origin and Development of the The right conferred on the senate of judging of the elections, qualifications, and returns of its own members, and of punishing them for disorderly behavior, and, with the concurrence of two-thirds, of expelling a mem ber,1 has been frequently exercised, there having been, between 1789 and 1885, sixty-eight election cases consid ered by the senate,2 and ten senators expelled, beside those who, at the breaking put of the war, were, either expelled, or their names stricken from the lists, or their seats declared vacant. The cases of senators who were appointed by the governor are important as interpreta tions of the power, granted by the constitution to the state executive, to make temporary appointments when " vacancies happen by resignation or otherwise, during the recess of the legislature of any State."3 The decision in 1797 in the case of Kensey Johns of Delaware established the principle that the executive could not make an appointment to fill a vacancy if a session of the legislature had been held since the vacancy existed.4 In 1809 it was decided5 that a senator, appointed by a governor during, the recess of the legislature to hold office until the meeting of the next legislature, should hold his seat, after the meeting of the legislature, until the choice of a successor ; while in 1850 it was also held that he should keep his seat until his successor had sig nified his acceptance of his election by the presentation of his credentials.6 In 1853 this was further modified by the decision in the case of Samuel Phelps, who was appointed by the governor during the recess of the legis- 1 Article I, section V. 2 Sen. Misc. Docs., 49th Congr. ist Sess., No. 47. 3 Art. I, sect. 3. "Sen. Misc. Docs., ist Sess., 49th Congr., No. 47, p. I. This de cision was reaffirmed in 1853, Ibid., p. 23. ^Ibid., p. 4. In the case of Samuel Smith. 6 This decision has since governed the action of the senate. (2d Sess., 31st Congr., Sen. Reports, No. 269.) United States Senate. 17 lature to fill a vacancy. Afterwards the state legislature met and adjourned without electing a senator. Phelps continued to occupy his seat during the remainder of the session of congress after the adjournment of. the state legislature and also at a special session ; but, when congress again met in December and he attended, his right to do so was questioned and . decided in the nega tive.1 The right of the governor to make appointments to fill vacancies caused by the expiration of terms of office, as well as to make appointments to fill vacancies in un finished terms, was not questioned until 1825 wneli a senator so appointed was declared not to be legally en titled to his seat but, as neither the debates nor the reasons for the decision are recorded, it is impossible to tell whether the decision was made on this ground or .because the appointment was made in advance of the vacancy.2 In favor of the first view are the . numerous examples during the next fifty years .of cases in which, under the same circumstances, vacancies have been al lowed to exist until the meeting of the legislature,3 as also the report of a committee on a somewhat similar case in 1837, which states the decision to have been made on this ground and to have been generally acqui esced in. In support of the other view are quotations from Story4 and the "National Intelligencer"5 which would seem to show that Mr. Lanman's right to a seat in the senate was denied on the ground that the governor could not make an appointment in anticipation of a vacancy. In 1879 and again in. 1885 it was hlld. that the governor had a right to. make an appointment to fill 1 49th Congress ist Sess., Sen. Misc. Docs., No. 47, p. 17. 2 Ibid., pp. 28, 31. 3 49th Congr., ist Sess., Sen. Misc. Docs., No. 47, p. 29. 4 Commentaries, \ 727, note. s March 8th, 1825. 1 8 ' The Origin and Development of the a vacancy occasioned by the expiration of a term of a senator.1 The question whether the right of the senate to judge of the " elections, qualifications, and returns" of its own members gave it the power to admit when and how4 it pleased senators from the seceeded states, occupied much of the time of the Thirty-ninth Congress. Finally a resolution was adopted, in the senate by a vote of 29 to 18, which declared, in order to close agitation, that no senator or representative should be admitted into either branch of congress from any of the said states until congress declared such states to be entitled to rep resentation.2 According to Hamilton it was to be expected from the choice of senators by the state legislatures, who them selves would be select bodies of men, that they would be chosen with peculiar care and judgment ;3 and that those elected would be men most distinguished for their abilities and virtue.4 It was likewise expected that this method would have the advantage of removing the choice from the activity of party zeal. Indeed the choice by the state legislatures seems to have been looked upon with favor pretty generally ; and whereas, in the first congresses, numerous resolutions were intro duced for amendments to shorten the term of office, to prevent naturalized citizens from being chosen senators, to prevent one indebted to the United States or entrusted with the management of the money of the United States or direction of any bank from being a senator, and to prevent members of congress from being eligible to civil office, no motion seems to have been made to change the method of election. '49th Congr. ist Sess., Sen. Misc. Docs., No. 47, pp. 26, 36. 2 Congr. Globe, ist Sess., 39th Congr., pp. 1143, 1147. 3 Federalist, No. 27. *Ibid., No. 64. United States Senate. 19 The wished for removal of senatorial elections from party politics and popular prejudices obtained to a cer tain extent at first. Thus Gallatin, a strong republican and a representative of a republican district, was elected senator from Pennsylvania by a Federalist legislature, and this without his being a candidate by his own mo tion or that of his friends ;J and Adams and Pickering were chosen senators by a Massachusetts legislature a few months after they had been defeated in an election for representatives,2 which shows a state of affairs far different from the present, when a Nebraska senator re cently resigned his position because the party majority in the state legislature had changed and he was no longer in accord with it. A more important departure from the original idea regarding the election of senators is to be found in the gradual change from an indirect election to one which, in many cases, is practically direct. As early as 1851, when Sumner was elected senator, it seems that the idea of his candidacy was present, in the state elections f and since then candidates for the state legislature have fre quently been pledged in advance to vote for a particular person as senator ; and one constitution even contains a provision in accordance with which the legislature may provide for the expression by the electors of their prefer ence for United States senator at the election next pre ceding the expiration of the term of a senator.4 The failure of the constitution in this respect is one of the prominent reasons urged in favor of a change in the method of election. Another reason is the corruption practised in the election of senators. This also is no new thing. In 1867, when Conkling was a candidate for sen- 1 Stevens, Gallatin, p. 98. 2 Life of Pickering, IV, 52, 53. 3 Sumner, Works, II, 426. 4 That of Nebraska of 1875. 20 The Origin and Development of the ator, he wrote that he might have had from New York $200,000 to use in securing his election ;* while Harper's Weekly in 1870 asserted that votes for senators in Rhode Island were bought at the 'rate of five dollars a head.2 Federal patronage also is frequently employed to control the elections. This corruption, which is used in the elec tion of the members of the state legislature, in the cau cus, and in the action of the state legislature, has become a great evil. So stubborn and so eager are the contests at times that the election of senators has been known to occupy an entire session of the legislature. The de mand for popular election of senators has been made by the legislatures of many of the states3 and in the plat forms of numerous party conventions. Such a demand was made by California and Iowa as early as 1874.4 The house of representatives has twice passed, by- the requisite two-thirds vote, a resolution for the proposed amendment,; — in the 52nd Congress almost unanimously. These, resolutions were quietly pigeon-holed in tlie sen ate;- and similar resolutions, introduced in the senate, have served no purpose other than to give the mover an opportunity to gain popularity with his constituents by making a speech ; and, although nearly every congress witnesses the introduction of such resolutions, there seems to be no immediate probability or even possibility of their passing the senate. In its organization the senate has the advantage of the house in that, ordinarily, it does not have to choose a presiding officer; and that, even when it does, the office of president pro tempore being of slight importance as compared with that of speaker of the house, his election is of correspondingly less difficulty. The independence of the vice president, of the senate, 'Life of Conkling, p. 287. 2 Nov. 26th, p. 755. 3 111., Ind., Calif., Id., Ia., Kan., Ky., La., N. Y., Or., Wis. 4 43«"d Congr., ist Sess., Sen. Misc. Docs., Nos. 66, 69. United States Senate. 21 and its consequent inability, in any way, to control him, are undoubtedly the chief reasons why the senate always h.as done, and still continues to do for itself things which, in the house, are confided to the presiding officer. Even the right of preserving order, which is generally consid ered inherent in. the duties of any presiding officer, has, at times, been questioned. The rules of the First Con gress prescribed the course of procedure when a senator was called to order, but did not say who was to exercise the power.1 The presiding officer, however, had, with out question, been accustomed to exercise it, until the winter of 1826, when Vice President Calhoun decided that the right to call to order on questions touching the latitude or freedom of debate belonged exclusively to the members of the senate and not to the chair.2 This gave rise to much discussion as to the position of the vice president in the senate and whence he derived his powers. Some, like John Quincy Adams, held that they were derived from the constitution, and others that they were dependent upon the rules and usages of the senate.3. A proposal in 1828 for the amendment of the rules brought on another long discussion, and it was fin ally decided, two to one, to change the rules so as to read : " Wheii a member shall be called to order by the President or a Senator," etc.4 1 The rules of the First Congress on the subject were as follows : Rule 16 : " When a member shall be called to order, he shall sit down until the President shall have determined whether he is in order or not : every question of order shall be decided by the President with out debate ; but if there be a doubt in his mind, he may call for the sense of the Senate." Rule 17 : "If a member be called to-order for words spoken, the exceptionable words shall be immediately taken down in writing, that the President, may be better enabled to judge of the matter." 2 Congressional -Debates, vol. II, p. 573. 3 Calhoun, Works, vol. VI, pp. 322 ff. . 4Congr. Deb., ist Sess., 20th Congr., vol. IV, Part I, pp. 340, 341. At the same time it was agreed, only two voting against it, that "every question of order shall be decided by the President, without debate, subject to appeal to the Senate." 22 The Origin and Development of the The rule as amended, however, did not declare, as does for example that of the house of representatives, that the presiding officer should call to order, and a question arose as to whether the duty was more imperative on the chair than on any member of the house. Mr. Fillmore, calling attention to this in 1850, stated that he had con cluded that, though under the rule the authority of the chair and of senators to call to order was equal, yet the duty was more imperative on the chair, and he should feel bound to discharge it accordingly.1 However, Mr. Bright, a few years later, when acting as presiding officer, held that the rules did not authorize him to call a sen ator to order.2 This decision was severely criti cized, and led to the amendment of the rules so as to leave no doubt that it was imperative on the presiding officer to preserve order.3 The vice president can exercise but little influence on legislation, except through the power of the casting vote ; and, as it has seldom happened that parties were equally divided in the senate, he has rarely had occasion to use it.4 In the convention, when a council for the president was under discussion, it was suggested that the president of the senate, the speaker of the house, the chief justices of the supreme court, and the heads of depart ments should compose it ;5 and Adams considered his ex clusion from the cabinet as a want of personal respect.6 1 Congr. Globe, ist Sess., 31st Congr., p. 632. z Ibid., 34th Congr., ist Sess., p. 1483. 3 The rule reads : "If any member, in speaking or otherwise, trans gress the rules of the Senate, the Presiding Officer shall, or any mem ber may, call to order ; and when a member shall be called to order by the President, or a Senator, he shall sit down, and shall not proceed without leave of the Senate. And every question of order shall be decided by the President, without debate, subject to an appeal to the Senate ; and the President may call for the sense of the Senate on any question of order." (ist Sess., 34th Congr., pp. 1477, 1484.) 4 It was most considerable during the First Congress. 5 Elliot, V, p. 462. B Jefferson, however, regarded a share in the executive deliberations as inconsistent with his legislative duties. United plates Senate. 23 Had Washington, in accordance with the desire of Adams, summoned him, as vice president, to the cabinet meetings, it is probable that the influence of both the president and vice president in the senate, especially since the change in the manner of election, so that the president and vice president are members of the samel party,, would have been greater than it now is. The attendance of the vice president has varied much in accordance with circumstances and the will of the occupant, of the office. After the passage of the law of March first, 1792, giving the succession to the presidency to the president pro tempore, in case there were no vice president, and after him to the speaker of the house, it became customary for the vice president to retire at least a few days before the end of the session, to. give an op portunity for the election of a , president pro tempore, that the succession to the presidency might not be en dangered ;x it being maintained that the president pro tempore held office over a recess of the senate, provided the vice president had not appeared in the senate since his election.2 -. The constitution provides for the choice of a president pro tempore in the absence of the vice president. In 1820 provision was also made by rule for filling the chair temporarily, it being provided that " the Vice President, or President of the Senate pro tempore, shall have the right to name a member to perform the duties of the Chair ; but such a substitution shall not extend beyond 1 The change in the succession to the presidency in i886*made this no longer necessary. 2 This was questioned in the 2d Sess. 39th Congr. (p. 380), though the presidents pro tempore of the preceding sessions, in the absence of the vice president at the opening of the session, had, with but four excep tions, presided, ( ist Sess. 44th Congr., Sen. Reports, No. 3, p. 3). This practice was upheld by the chair. In the first session 44th Congress, (p. 377), a resolution which declared the office of president pro tem pore of the senate to be held at the pleasure of that body was adopted. 24 The Origin and Development of the an adjournment."1 This rule was interpreted by some so as to limit the exercise of this power to cases in which the presiding officer was present in the senate chamber, and by others to extend to an appointment by him when not present. The first case in which objection seems to have been made to an appointment by the presiding of ficer in his absence was in 184.5. The objection was withdrawn after some discussion in which attention was called to the case of Mr. Southard, who, for several days, had made such appointments.2 The next session, how ever, a similar circumstance arising, the senate voted to proceed to the election of a president pro- tempore, and the man designated by the vice president was choseU by the senate.3 In 1856, on a similar occasion, the senate again unanimously elected the man designated by the presiding officer to take his place.4 In 1879 such an appointment by the vice president passed without ques tion, but in 1882 the senate again questioned the right, and, after some debate, adjourned, in order to avoid a decision.5' At the next session, in the revision which the rules underwent, the power to make such an appoint ment was expressly conferred on the president pro tem pore, no mention being made of the vice president6 Until recently the tenure of office of the president pro tempore has been held to be dependent upon the vice president and to cease with his return to the senate.7 This interpretation of the clause of the constitution which reads : " The Senate shall choose a President pro tempore, va. the absence, of the Vice President,," was not even questioned until 1861, when a resolution to reverse 1 No. 22. .of those adopted in 182a 2 Congr. Globe, ist Sess., 29th Congr., p. 96* 3 Ibid., 2d Sess., 2,9th Congr.,. pp. 161, 162, 4 Ibid.,isi Sess., 34th Congr., pp. 1368, 1369, 5 Congr.. Record,, ist Sess., 47th Congr., pp. 4449-4454. 6 Ibid., ist Sess., 48th Congr., pp. 160, 168, 237. 'Congr. Record, ist Sess., 51st Congr., p. 2145, for list of cases*. United States Senate. 25 the practice was introduced and debated, but not voted on.1 When next it was brought up, the presidential suc cession had been changed so as to exclude the president pro' tempore, and this1 seems to have influenced some to reverse the practice. Those who favored the change did so because of the greater convenience, and those opposing it did so on the ground that it was unconsti tutional, since the term was fixed by the constitution.2 The right of the senate to control of the president pro tempore as well as the other officers of the senate, andyin consequence, the right to remove him and elect another ' at any time, though questioned, has always been upheld by the majority.3 Prior to 1824 the tenure of all the other officers of the sen ate was during good behavior. It was then provided that the secretary of the senate, sergeant-at-arms, door keeper, and assistant door keeper should be elected at the first session of every congress.1 This rule remained in force until 1849,2 when, on account of the inconveniences of such frequent elections, it was repealed, and an attempt to renew it in the "Thirty-second Congress failed.3' The Democratic party remaining in control of the senate un til 1861, there were of course no changes in the officers for party reasons ; but when, in that year, the Republi cans obtained a majority, they at once proceeded to change certain of the officers of the senate. Although this- action seems to have been dictated by party motives only, the spoils system was not fully in troduced. For some time afterwards the acting^secretary ¦Congr. Globe, ist Sess., 37th Congr., p. 436. 2 Congr. Record, ist Sess., 51st Congr., p. 2153. 3 Ibid., ist Sess., 44th Congr., Sen. Report, No. 3, p. 7. Also Congr. Record, ist Sess., 44th Congr., p. 373, and 47th Congr., special, pp. 519 ff- 4 Annals of Congr., ist Sess., i&th Congr., p. 140. 6 Congr. Globe, 2d Sess., 30th Congr., p. 490. eIbid., ist Sess,, 33d Congr., p. 62. 26 The Origin and Development of the was a Democrat,1 and when the Democrats again came into power in 1879 thirty of the one hundred and twenty offices of the senate were filled by Democrats, some of whom had held over from the previous Demo cratic administration, while others had been chosen by the Republican senate. With the return of the Dem ocrats to power in 1879 a sweeping change in the senate offices was made, the spoils system being fully .intro duced.2 In the early days of the senate, the vice president, hav ing taken his seat, or, he being absent, a president pro tempore having been elected, and the other officers of ' the senate having been chosen, the organization of the senate was completed ; for there were at first no standing committees to be chosen. By an act of August sixth, 1789, a joint standing committee on enrolled bills, com posed of two members from the house. and one from the senate, was created ;3 and in 1806 a senate standing com mittee on engrossed bills was added.4 At the same time it was provided that, " When any subject or matter shall have been referred to a select committee, any other sub ject or matter of a similar nature, may, on motion, be referred to such committee."5 During the next session, in obedience to an act making appropriations for the purchase of books, a joint standing committee on the library was created ;6 and, at the succeeding congress, a standing committee to audit and control the contingent expenses of the senate was provided for.7 These were 'The secretary, Mr. Dickens, was prevented by the infirmities of age from attending, and the chief clerk, a Democrat, performed the duties of the secretary until finally, on the advice of Mr. Dickens, a new election was held and a republican chosen. (Congr. Globe, ist Sess., 37th Congr., p. 119.) 2 Congr. Record, 1st Sess., 46th Congr., pp. 48-60. 3 Senate Journal, ist Sess., ist Congr., p. 54. 4 Rule 22. 5 Rule 14. "Sen. Jour., 2d Sess., 9th Congr., vol. IV, p. 114, Dec. 17, 1806. ' Ibid., ist Sess., 10th Congr., vol. IV, p. 191, Nov. 4, 1807. United States Senate. 27 the only standing committees appointed prior to 181 6, when the number of select committees had become so large1 and the inconveniences of frequent balloting had become so considerable, it was agreed that, thereafter, eleven standing committees should be appointed at the beginning of each session.2 These were : The commit tees on foreign relations, on finance, on commerce and manufactures, on military affairs, on the militia, on naval affairs, on public lands, on the judiciary, on post offices and post roads, on pensions, and on claims. The two standing committees before mentioned were continued. The committee for the District of Columbia was added almost immediately after.3 A committee on Indian af fairs was created in 1819,4 and one on roads and canals in 1820.5 Other standing committees have been added as the need for them has appeared, until at the second session of the Fifty-second Congress there were forty-six stand ing committees to be appointed before the organization of the senate was completed. The manner of appointment has been changed several times. The first rules provided for .the election of all committees by ballot, a plurality of Votes electing. It would, however, appear from the Journals that the rule was frequently set aside, for often instead of the usual form, " Ordered, That .... be a committee for . . . ," which would apply to any method of choos ing committees, the appointment of a committee is noted thus : " On motion, " Ordered, That . . . be a committee . . . ," which would seem to indicate that the committee was ¦Between 90 and 100 were appointed at the ist Sess., 14th Congr. (3d Sess., 37th Congr., Sen. Misc. Docs., No. 42, p. 3.) 2 Sen. Jour., 2d Sess., 14th Congr., p. 38. *Ibid., 49, 56. 4Sen. Jour., ist Sess., 16th Congr., p. 65. 6 Ibid., p. 145, 148. 28 The Origin and Development of the not chosen by ballot, but that it was accepted by the senate on the motion of one of its members.1 The standing committees, however, were for many years regularly chosen by ballot in accordance with the rule. From 1823 to 1833 the rules on the subject' were changed several times, the senate apparently seeking a means by which it could avoid the tediousness of ballot ing and yet not allow the appointment of its committees to pass from its control. In the first session of the Seventeenth Congress, the. vice president being absent, a motion was made for the appointment of the committees by the presiding officer, but the vice president attending before the motion came to a vote, it was postponed. At the next session of con gress, the vice president being again absent and his ill ness rendering his attendance improbable, the rule was changed so as to read: "All committees shall be ap pointed by the presiding officer of this House, unless specially ordered otherwise by the Senate:" The last clause was probably added to make it possible, if the vice president should attend, to return at once to the former practice. The first session of the Nineteenth Congress, Vice President Calhoun attending, was allowed to appoint the committees ; but before the end of the ses sion a motion was made and carried, with only two dis senting voices, to return to the earlier practice ;2 and, at ' Mr. Breeze said that between 1789 and 1820 it was not customary for the senate to choose its own committees (ist Sess., 29th Congr., p. 21), and a rule given by Mr. Maclay which may have embodied the prac tice of the senate reads : " When a commitment is agreed upon, the President (of the Senate) shall take the sense of the Senate as to the manner of appointing the committee, whether by motion from the Senate, nomination from the chair, or by ballot ; which shall take place accordingly." (Rule 13.) 2 Congr. Debates, ist Sess., 19th Congr., pp. 571, 572. It was asserted at the time that the change was not made because Vice President Cal houn had abused the power but on general principles ; but Williams in his " Statesman's Manual " says that the change was made because of the improper use made by Mr. Calhoun of his power. (I, p. 656. ) United States Senate. .29 the next session, before the election of committees, a change was made in the rules so as to provide for the election of the chairman of every committee separately and by a majority vote, and then for the election of the other members of each committee by a single ballot and a plurality vote.1 In 1828 the rule was again changed so as to give the appointment of the committees to the president pro tem pore, if there was one, leaving the rule as before, in case the vice president was in the chair.2 The reason of this distinction was said to be the irresponsibility of the vice president to the senate.3 This rule also was found unsatisfactory, for, in the first session of the Twenty-third Congress, the political majority in the senate having changed since the last ses sion, the president pro tempore? chosen at the previous session, was of the opposite party from the present ma jority. The rule was, therefore, changed and the appoint ment of the committees restored once more to the senate under the former rule, which has never. been changed since ;5 except that in the rules adopted in the second session of the Forty-fourth Congress, the words " unless otherwise ordered " were inserted. Thus it is seen that the rules of the senate have provided for the choice of its committees by ballot during all but about seven years. Though since 1833 the rules have always provi ded for the choice of committees by ballot, they have been set aside much more frequently than followed. For 1 Congr. Deb., 2d Sess., 19th Congr., p. 3. 2 Sen. Journal, 2d Sess., 20th Congr., p. 51. The vice president was absent at the opening of the next two sessions, some thought design edly (Congr. Deb., ist Sess., 23d Congr., 22), the rule being construed as an intimation that the senate desired the vice president to remain away until after its organization. Calhoun, however, denied that he had purposely been absent, (ist Sess., 23d Congr., p. 19.) ' Congr. Deb., ist S^ess., 23d Congr., p. 20. 4 Hugh L. White. ''" 6 Congr. Globe, ist Sess., 23d Congr., p. 20. 30. The Origin and Development of the a time, whenever the vice president was absent, the ap pointment of the committees was almost invariably left to the president pro tempore} Once, also, the appoint ment of all the committees was given to the vice presi dent f and another time, after the election of four of the chairmen, the appointment of the other members of the committees was left to the vice president.3 At the first session of the Twenty-ninth Congress, for the first time, a part of the committees were accepted by resolution ;4 and at the next session, after the chairmen of six of the committees had been chosen by ballot, a list agreed upon by both sides of the senate, in which the chairman of each committee and a majority of its members were of the same- party as the majority of the senate, was read and adopted f a way being thus found at last by which the senate could avoid the tediousncss of balloting, and yet retain the control of the commit tees in its own hands. Since that time, with few excep tions, it has been the custom to move to suspend the 1 At the third session of the 25th Congress (Congr. Globe., 16), and the first session of the 26th Congress (Congr. Globe, 50, 51), and the second session of the same Congress (Congr. Globe, 2, 12), the presi dent pro tempore appointed all the committees but the chairman of the committee on commerce. At the first session of the 27th Con gress (Congr. Globe, p. n), the chairmen of the committees were chosen by the senate, but the appointment of the other members was given to the president pro tempore. At the third session of the 27th Congress (Congr. Globe, 38-40), the first session of the 28th Congress (Congr. Globe, pp. 5, 22), the second session of the same Con gress (Congr. Globe, 8, 12), and the second session of the 31st Con gress (Congr. Globe, p. 7), the committees were appointed by the president pro tempore. 2 Congr. Globe, 2d Sess., 25th Congress, pp. 9, 12. 3 Ibid., ist Sess., 25th Congr., 14, 16. Proposals for such a course made later were rejected. (Congr. Globe, ist Sess., 29th Congr., pp. 19-21 ; 2d Sess., 29th Congr., 19.) 4 Congr. Globe, ist Sess., 29th Congr., p. 66. 6 Ibid., 2d Sess., 29th Congr., pp. 19, 30. United States Senate. 31 rules, and then to adopt a list of the committees decided upon in caucus.1 It would seem that the representation of both parties on the committees was no new thing, for Mr. King, who had served in the senate since the adoption of the con stitution, stated in 1844 that it was the invariable prac tice.2 On the other hand, Jefferson, in his " Parliamentary Manual " says that the British practice was to refer a bill to a committee all of whom favored it ;3 and, as he does not say that the practice of the senate was different, one is justified in inferring that it was the same. With the establishment of standing committees it would of course be impossible to know in advance exactly what bills were to be referred to each committee, and therefore im possible to follow the principle laid down by Jefferson. It may be, therefore, that it was then the present practice was established, and that it was of. the standing committees only which Mr. King was thinking when he spoke of the practice in the matter. When the rule was followed and the committees were chosen by ballot, a plurality making a choice, unless some previous arrange ment were made, the result was very uncertain ;4 but, with the introduction of the practice of adopting by resolution lists of committees previously made out and 1 Exceptions to this practice are found in Congr. Globe : 2d Sess., 36th Congr., p. 23 ; ist Sess., 31st Congr., 39,45 ; 2d Sess., 31st Congr. p. 7 ; ist Sess., 34th Congr., p. 18 ; 3d Sess., 37th Congr., p. 1554 ; 2d Sess., 45th Congr., p. 56; 3d Sess., 46th Congr., 14; 2d Sess., 47th Congr., p. 23. 2 Benton, Thirty Years' View, II, pp. 335, 336. 3 Section, XXVI. * 4-Mr. Hickey, Chief Clerk'of the senate, in a report in 1863 said re garding this that it had been found that, without a previous consulta tion and arrangement, by the plurality principle, all the members of the committees, except the chairman, for whose election a majority was required, might be obtained by a united minority, contrary to the ' will of the majority ; and that, on the other hand, with such an ar rangement on the part of the majority, the minority might be entirely excluded from the committees. (3d Sess., 37th Congr., Sen. Reports, No. 42, p. 32. ) 32 The Origifi and Development of the decided upon in caucus, there was no more difficulty on that score. Not only have the minority generally been represented on the committees, but, as a rule, the major ity, after having made out a list of the committees, as signing their own members to the positions desired and leaving blanks for the minority to fill out,, have sent this list to ¦ the minority for its action ;x and Mr. Pendleton said in the Forty-seventh Congress that it had become the accepted custom for the majority of the senate to seek conference with the minority, to discuss with them not only the members of the. minority who should be placed on each committee, but also regarding the number of representatives which the minority- should have and the Committees which they should entirely control.2 The practice in regard to the chairmanship of com mittees has not been uniform. Up to 1827, when it was provided that, for the election of the chairman of a committee, a majority should be required, while for the other members of the committee, a plurality- of votes only, there is. no mention of a chairman in the rules of the senate as given in the " Senate Journal " ; but Mr. Maclay says that the chairman of . a committee. was the senator of the most northerly state of those from which the members of the committee were taken. There seems, however, to be reason for doubting the correctness of this rule.3 ¦3d Sess., 37th Congr., Special, p. 1554, statement of Mr. Saulsbury ; ist Sess., 38th Congr., 15, 16. 2 Special Sess., 47th Congr., p. 16. 3 Rule 12, Journal of Maclay. If this rule was observed it seems strange that it should have received, no notice from the statesmen of the time, in their letters or writings, and that Jefferson should not have mentioned it in his " Parliamentary Manual," where he says in regard to the committees of parliament r " The clerk may deliver the bill to any member of the committee. But it is usual to deliver it to him who is first named." Moreover, Jefferson says that the chair. man of the committee makes the report, but an examination of the "Senate Journal" shows that, generally, the person who reported the United States Senate. 33 The usual custom was to continue senators on the same committee, unless they desired change, and to pro mote no one over them ; and the same way with the chairmen.1 This custom has sometimes led to the pos session of all the important places by senators from one district, as in the Thirty-seventh Congress, when, of the twenty-two committees, the chairmanship of eleven, and of these three of the most important, belonged to New England. Party politics, however, have been allowed to come in to a certain extent. In the second session of the Thirty-ninth Congress three distinguished chiefs were stricken 'from their places as chairmen and assigned the foot of their committees, although the committees did not have charge of matters of a political nature.2 The removal of Mr. Sumner from the chairmanship of the committee on foreign affairs by his own party, because of his opposition to the president, is another example of departure from the rule. Mr. Cameron, his successor, was, however, entitled by seniority to the place if a vacancy should occur.3 4 The opportunity for corruption and jobbery which is offered by the application of seniority of service. in one case and not in another, led to a proposal in the Fifty- third Congress, which, however, was rejected, that unless otherwise ordered " the committees of the Senate shall be organized with reference to the equality of the states, and that seniority of service shall give preference in the assignment of committees and chairmanships." Of the forty-six standing committees of the senate, at the second session of the Fifty-third Congress, twenty- bill was the one first mentioned on the committee, and he was not always the representative of the most northern state represented on the committee, though he very frequently was. ' Congr. Globe, ist Sess., 36th Congr., p. 178 ; Blaine, Twenty Years in Congress, I, 323 ; 3d Sess., 37th Congr., Sen. Misc. ;Docs., No. 42. s Congr! Globe, 2d Sess., 39th Congr., p. 520. 3 Blaine, Twenty Years, II, 503, note. 34 The Origin and Development of the one met regularly once a week, the others having no regular time of meeting but coming together when called by the chairman. The number of members on the standing committees has varied. Three was the usual number prior to 1818 when the number was raised to five for all but two com mittees,1 these being still composed of but three mem bers. Since then the number of members on the vari ous committees has been frequently changed and now the number varies from three to thirteen, nine being the most usual number. Each senator ttsually serves on from four to six committees. The meetings of the com mittees are ordinarily secret, though they may be made public. Frequently special subjects are referred to sub-com mittees or individuals to investigate and report to the committee. The committee may be authorized to sum- riion witnesses and to take evidence. The majority re port of the committee is not signed, it being considered as the report of the whole committee. With the major ity report are usually printed the views of the minority, each member of the minority being privileged to set forth his views. The usual custom of the senate has been for the members of the committee of the opposite parties to consider the bills together. Recently, however, a ten dency has been manifested to adopt the practice followed to a considerable extent in the house, of the majority and minority holding no conference on the subject. Thus, •in 'the Forty-ninth Congress, a report was submitted by a majority of the committee which the minority first heard on the morning that the report was made to the senate ;2 and in the second session of the Fiftieth Con gress the tariff substitute was prepared by the Republican ¦ Rules of 1820, No. 30. 2 Congr. Record, ist Sess., 49th Congr., p. 1584. United States Senate. 35 majority of the senate committee.1 Sometimes, when there was need of haste, as in the second session of the Twenty- fifth Congress, a bill has been reported by a committee within twenty-four hours after its receipt, although the senate had been in session all the time, and the committee did not have leave to sit during the session, the bill having been separately considered by each member at his desk.2 The authorization of a committee to sit during the recess was unusual in the early days,3 but it has now be come quite common. The early committees did not employ clerks, but in 1849 one was granted^to the com mittee on printing4 and soon after all the other commit tees obtained them.5 Each committee has its calendar and keeps a record of its proceedings. The influence of committees on legislation has steadily increased from the early days when there were no stand ing committees, and motions were introduced on leave, a committee being raised to prepare a bill embodying the motion, until the present time. This is due to the in crease in the amount of business to be done, which made it necessary constantly to rely more and more on com mittees. As early as 1855 it was said in the senate that more work was done in the committees than in the sen ate ;6 and in 1857 Mr- Hamlin said : " It is through committees to a very great extent — to much the greatest extent — that the business of the Senate is prepared and presented to the Senate for action."7 The bills which are 1 Congressional Record, p. 304. 2 Congr. Globe, 2d Sess., 25th Congr., p. 384. 3 The first instance was that of a committee appointed to investigate the affairs of the United States bank. Benton, II, p. 365. 4 ist Sess., 31st Congr., p. 61. 8 In 1855 nineteen committees employed clerks and two years later all but four committees were allowed them, (ist Sess., 35th Congr., p. 158. ) Now all have them. 6 Congr. Globe, 2d Sess., 33d Congr.", p. 729, statement of Mr. -Clay ton. "•Ibid., ist Sess., 35th Congr., p. 39. 36 The Origin and Development of the adversely reported are generally postponed without de bate.3 Now the committees are the only machinery by which the senate investigates questions of law and fact,2 and, as Mr. Voorhees said at the last session of congress : " The final exercise of sovereign legislative power is oft- times and to a large extent performed by committees."3 Thus everything depends upon their formation and in telligent action. In the appointment of other than the standing com mittees the rule has always been the same, that is, they have been appointed by ballot, a plurality of votes elect ing, except between 1823 an& l82^ when they, as well as the standing committees, were appointed by the pre siding officer. Conference committees, by usage, always consist of three members on each side. At the head of the senate conferees is usually the man who has had charge of the bill in the senate. The rules provide for the appoint ment of these committees by ballot unless otherwise or dered. Generally the conference committee is left free, though there have been cases in which it was instructed.4 In an ordinary free conference, to which bills are usually referred, the only limitation of the committee. is that they shall not put in new matter which has not been proposed in either house.5 The report of a conference commit tee is of a privileged character, and can be made at any 'Congr. Globe, 2d Sess., 35th Congr., p. 119. Also ist Sess., 39th Congr., p. 3868, when in one evening nineteen adverse reports were ;made by a committee and accepted without debate. 2 Congr. Record, 47th Congr., Special Sess., p. 15. " The rule which allows a committee reporting a bill to amend it as it pleases before individual senators have a chance has been influential in increasing the power of committees. 4 For example, Congr. Globe, ist Sess., 38th Congr.,. p. 900, and Congr. Record, ist Sess., 49th Congr., pp. 7617-7628. 6 Congr. Record, 2d Sess., 48th Congr., p. 1468. In the first session of the 49th Congress (p. 308), a joint rule, regulating this, was passed by the senate. United States Senate. 37 time " except when the journal is being read, or a ques tion of order, or a motion to adjourn is pending, or while the senate is dividing ; and, when received, the question of proceeding to the consideration of the report, if raised, shall be immediately put, and shall be determined with out debate." The extensive powers exercised by com mittees of conference at the present time is well known. This power is due mainly to the great amount of business to be transacted, and has grown with its growth. As early as the first session of the Thirty-sixth Congress, Mr. Trumbull said : "A practice has grown up here — abominable, I may say — by which the legitimate duty devolving upon the whole body is turned over to a com mittee of conference."1 This state of affairs has become steadily more noticeable. 1 Congr. Globe, p. 3028. CHAPTER HI. THE SENATE AS A LEGISLATIVE BODY. I. SECRET SESSIONS OF THE SENATE. When the First Congress met at New York in the City Hall the senate chamber was a wainscoted room, about forty feet square and fifteen high.1 The senators were seated in a semi-circle around the chair of the vice pres ident, being arranged according to states, the senators from New Hampshire on the right of the president and those from Georgia on the left.2 As the number of senators was so small, the transaction of business was comparatively easy, so that but few rules were needed, and this gave rise to practices which, though suitable and advantageous then, have become inconvenient and embarrassing now that the number of members is four times as great and the bulk of legislation vastly in creased. Much of the time of the senate during the first session of congress was necessarily occupied with its organization, and the decision of the questions as to 1 Pennsylvania Packet, March 12, 1789. 2 According to Rule I given by Mr. Maclay (Journal of Maclay, p. xiii). It is difficult to decide just what credence should be given to these rules of Mr. Maclay which were found written upon the cover of his journal, and which differ in many respects from those given in the senate journal. They are such as might be expected if a senator had attempted to write down from memory the rules of the senate, adding interpretations which they had received and practices which were followed though not embodied in the rules. They sometimes contain in one rule what in the senate journal is given as two, and vice versa. They also contain entirely new matter for which there is often no other authority and which iu one case is certainly contrary to fact (Rule 9), and in two other cases probably is so (parts of rules 7 and 12). United States Senate. . 39 mode of procedure, etc., which must come up at the: establishment of a new government. The holding of its sessions with closed doors, which in the light of its future development was, perhaps, the most im portant step taken by the senate at this time, was pro vided for by no rule and seems to have been entered upon without debate and without question. At that time secret sessions of legislative bodies were not as un common as they now are, and consequently the action of the senate attracted less attention than it would now. Prior to 1766, when on the motion of James Otis the general court of Massachusetts yielded to the demand for publicity of debates, no legislative body of America had admitted the public to its sessions;1 and the congress of the confederation and the convention for framing the constitution had both sat with closed doors. Nothing is said upon the subject in the debates of the convention, but from a passage in the " Federalist " in which Hamilton draws a favorable comparison between the mode of appointment adopted by the constitution of the United States and that of New York, where the council of appointments confirmed nominations in secret, it would seem that open sessions were expected. 0n the other hand, if this were the case it is strange that the sessions should have been held in secret without any rule being made on the subject, and apparently without any question being raised. Even Washington did not know the reason which had led the senate to adopt this practice, but he suggests that it may have been to avoid speaking to the gallery, of which there was too much in the other house.2 The remonstrances which were shortly made against the secret sessions soon forced the senate to consider the 1 Eaton, Secret Sessions, p. 12. 'Washington, Works, vol. XI, p. 411. Letter to David Stuart, July 26, 1789. 40 The Origin and Development of the subject. In the second session of the First Congress Mr. Lee of Virginia, in obedience to his instructions, sub mitted a resolution for the opening of the doors of the senate and supported it by a speech occupying two days. No one replied and when the question was put Mr. Lee was supported by but two votes. Nevertheless the sub ject was brought up again and again. Jealousies of the senate began to arise in the minds of the people on account of its secret sessions. l It was urged that secret ses sions destroyed the best security against mal-administra- tion and annihilated the influence of the people over one branch of the government ;2 and, finally, in the first session of the Third Congress a motion for opening the doors when the senate was sitting in its legislative capa city, except in such cases as in the opinion of the senate required secrecy, was passed,3 aud at the next session the doors were opened to the public. The debates, however, were still but little, reported and, though the papers of the time generally contained daily accounts of the proceedings of the house when congress was in session, it is only rarely that those of the senate were referred to. A further advance towards publicity was made in 1802, when it was agreed to admit a stenographer to the floor of the senate.4 II. QUORUM OP THE SENATE. The first congress under the new constitution was slow in assembling and it seemed at first that the irreg ularity of attendance prevalent in the old congress was to reappear in the new. But eight senators were in their places on the fourth of March ; and, in spite of two cir cular letters to the absent members, one of March the 1 Annals of Congr., 3d Congr., ist Sess., p. 34. 2 Annals of Congr., 2d Sess., 2d Congr., pp. 625, 626; ist Sess.,, 3d Congr., pp. 33, 34. "Ibid., ist Sess., 3d Congr., p. 46. 4 Sen. Journal, ist Sess., 7th Congr., vol. Ill, pp. 165-166. United States Senate. 4i eleventh and the other a week later, a quorum was not secured until April sixth. Those who had appeared at the appointed time, full of interest and eager anticipa tion, felt no little chagrin at this apparent indifference. There were, however, excellent reasons for the delay. The New York senators had not yet been elected and others were detained by sickness, while, as Madison wrote to Jefferson, "The season of the year, the peculiar bad ness of the weather, and the short interval between the epoch of election, and that of meeting " formed a better apology for the delay than would be likely to occur to one on the other side of the Atlantic.1 In succeeding ses sions quorums were obtained with but little or no delay. In order to keep a quorum after it was once obtained a rule was adopted providing that : " No member shall absent himself from the service of the Senate without leave of the Senate first obtained '.' f and, according to Mr. Maclay, violation of this rule was to be punished by writing on a slip of paper the name of the senator so doing, together with the nature of his transgression, and annexing it to the rules which hung in the senate cham ber, there to remain until the senate, on his application or otherwise, should take action on the same.3 In the early days senators usually asked for leave of absence, and numerous entries regarding it are found in the journals ;4 occasionally, also, notices of senators ab sent without leave appear.5 Gradually, however, the 1 Madison, Works, I, p. 458. Letter of March 29, 1789. 2Annals of Congr., 1st Sess., ist Congr., p. 21, Rule XIX. 3Journal of ^aclay, p. xiv, Rule XVI. 4 Benton says : " In the first age of the government, no member ab sented himself from the services of the House to which he belonged without first asking and obtaining its leave, or if called off .suddenly, a colleague was engaged to state the circumstances to the House and ask the leave. (Thirty Years' View, II, 178, 179.) 5 At the second session of the Fifth Congress a resolution was adopted two months before the end of the session, which provided "That the Secretary of the Senate be directed to write to all such 42 The Origin and Development of the rule came to be disregarded. Benton says that he recol lects " no instance of leave asked since the last of the early members, the Macons, Randolphs, Rufus Kings," etc. ;x and by the Forty-seventh Congress the rule had so long been disregarded that when a senator asked for leave of absence a question was raised as to the necessity of his so doing, and the vice president stated that, though the rule was perfectly explicit, it had not been the prac tice of the senate to enforce it.2 Even while pretty carefully observed, the rule was found to be insufficient for the purpose of maintaining a quorum. Thus when such an important matter as the Jay treaty was before the senate it was with difficulty that a sufficient number of senators were kept together to decide it ;3 and in the second session of the Fifth Con gress so many senators were absent, two months before the end of the session, that the secretary was directed to write to those absent without leave, requesting their im mediate attendance.4 The same session the rules were amended so as to authorize a number less than a quorum to send the sergeant-at-arms after' any or all the absent members at the expense of the absentees, unless an ex cuse for non-attendance, deemed sufficient by the senate, were made.5 Attempts made under this rule to move the compul sory attendance of absentees were held out of order with out a day's notice, and in 1877 the rules were changed Senators as are absent without leave, or whose leave of absence has expired, requesting their immediate attendance." (Annals of Congr., P- 558.) 'Thirty Years' View, II, 178, 179. 2 Congr. Record, ist Sess., 47th Congr., p. 4401. 3 Goodrich writes to Wolcott: "It has wounded us extremely that; no remonstrances or respect for public business have been able to keep Senators and members of our House here a few days or a week." (Gibb's Administration of Washington and Adams, I, p. 343.) 4 Annals of Congress, 2d Sess., 5th Congr., p. 558. "Annals of Congress, 2d Sess., 5th Congr., p. 589, Rule 19. United States Senate. 43 so as to give to the senate the " power to request, and, when necessary, to compel the attendance of the absent Senators."1 Previously an attempt had been made to decrease the the number of absentees by the publication in the Congressional Globe of the names of those absent at every vote on which the yeas and nays were recorded. This rule, adopted in 1864,2 was repealed in i875,s but the names of those absent on every roll call have nevertheless. still been published. Attempts were also made to secure the attendance of senators by a deduction from their salary for absences. This was first tried in 1816, when provision was made for a deduction from the salary of all those absent either at the beginning or during the session of the senate, except in case of sickness.1 This law, however, was re pealed in 1817,5 and the law passed in 18 18 had little or no effect in restraining absences ; for, though it provided that senators should receive pay only for days when they attended the senate, except when their absence was due to certain specified causes, these causes were so all em bracing6 as to make the restriction of little use, and its effi cacy was sometimes still further diminished by the passage of a resolution at the end of the session providing that sen ators who did not take their seats at the1 opening of the session "by reason of sickness of themselves or families, 1 Rule 3. Under this rule it was held necessary to first request the attendance of absent senators. (Congr. Record, 3d Sess., 45th Congr., p. 1847; 2d Sess., 51st Congr., p. 1437.) 2 Congr. Globe, ist Sess., 38th Congr., p. 2090. 3 Ibid.. 2d Sess., 43d Congr., p. 1669. ¦•Statutes at Large, vol. 3, pp. 257, 258, ist Sess., 14th Congr., chap. XXX. 5 Statutes at Large, vol. 3, p. 345, 2d Sess., 14th Congr., chap. IX. "Statutes at Large, vol. 3, p. 404, ist Sess., 15th Congr., chap. V. The law provided that if a senator were detained by sickness on his journey or if he were unable to attend the senate after his arrival, he should nevertheless receive the regular per diem allowance. 44 The Origin and Development of the providential causes or necessary business," should never theless receive the regular per dieni allowance.1 The rule adopted in 1818 remained in force, though attempts were frequently made to change it, until 1856,- when it was repealed, and a rule adopted which pro vided that a deduction from the salary of any senator should be made for every day's absence unless he should assign as a reason the sickness of himself or family.2 In 1862, in order to keep senators at their places toward the end of the session, it was further pro vided that when a senator, in anticipation of the adjourn ment of the senate, withdrew from his seat without leave and did not return, he should forfeit, in addition to the sum deducted for each day's absence, an amount equal to the mileage allowed for his return home.3 In 1866, when the law regarding salaries was again changed, no deduction for absences was provided for. During most of the war the question of a quorum was of especial importance, for it had not then been de cided whether the clause of the constitution which pro vides that "a Majority of each [house] shall constitute a Quorum ",4 meant a majority of all those who by any possibility might be elected, or only a majority of those who had been elected and were entitled to take their seats. If the former was held then, after the secession of the southern states, the absence for any reason of a very few senators would have been enough to break a quorum. The house had, at the first session of congress after the secession of the southern states, decided that a quorum of the house was a majority of those who had been elected and were entitled to take their seats. Pre cedents could be found in the practice of the senate in 1 Congr. Globe, ist Sess., 33d Congr., p. 2092. 2 Statutes at Large, vol. 11, p. 48, ist Sess., 34th Congr., chap. 123. 3 Congr. Globe, 2d Sess., 37th Congr., pp. 3377-8. 4 Art. I, sec. V. United States Senate, 45 support of each interpretation. At the first session of the First Congress, there being eleven states in the union, entitled to twenty-two senators, but the New York sena tors nbt yet having been elected, eleven were not con sidered a quorum. The next session, however, the op posite interpretation was given. There being twelve states, entitled to twenty-four senators, and one of the senators having recently died, twelve were considered a quorum. The next time, November sixth, 1804, under exactly similar circumstances the opposite was held, and in 181 2 under similar circumstances this latter decision was adhered to j1 but finally in 1864 a resolution was adopted declaring that a quorum of the senate consisted of a majority of the senators duly chosen.2 The difficulty in maintaining a quorum, due at first only to senators absenting themselves from attendance in the senate, has been increased in later times by the growth of two customs, unknown in the earlier days, namely, pairing off and refusing to vote, the object of the latter generally being to break a quorum. The custom of pairing off was long in reaching the senate. Mr. Benton says that the first instance in the house of representatives when being " paired " was given as a reason for not voting was in 1840, and that, during the thirty years he was in the senate, he had never seen an instance of it ; but, says he, " the practice has since penetrated that body ; and ' pairing off ' has become as common in that House as in the other. As a conse quence, the two Houses are habitually found voting with deficient numbers — often to the extent of a third' — often with a bare quorum."3 The pair usually extended only to political questions, so that a senator who was paired, and in the senate, could ' Congr. Globe, 2d Sess., 37th Congr., p. 3191, for list of cases. 2 Congr. Globe, ist Sess., 38th Congr., p. 2087. » Benton, Thirty Years' View, II, p. 178. 46 The Origin and Development of the vote on a non-political question or on a roll call. Conse quently there might appear to be a quorum present at all times, except when the yeas and nays were demanded on a political question. The annoyance in keeping a quo rum arising from this, recently led to a proposal to count, for the purposes of a quorum, all senators present and paired.1 The first rules adopted in the senate provided that every member present in the senate, when the yeas and nays were called, should vote, unless he were excused for special reasons ;2 and, under this rule, it was for some time the practice to allow senators to vote or not as they pleased, when a quorum was present.3 Beginning with about 1850 efforts were occasionally made to compel sen ators to vote.4 These attempts, however, were so few that in the Forty-sixth Congress it was stated that : " The practice of the Senate in permitting its members, with out question, or challenge, to withhold their votes, when ever they have thought fit to do so, has been so uniform and unbroken, that, so far as precedents can make it so, it has become an absolute parliamentary right, and cannot be questioned without reversing the steady practice upon which the members of the body have a right to rely as their protection in the exercise of their discretion in giving or withholding their votes."5 Ordinarily, when a senator refrained from voting, no notice would be taken of it ; and it was only when attention was called to the fact by some one that the senate would have to 1 Congr. Record, ist Sess., 53d Congr., p. 2536. 2 Rule XI. 3 Statement of the vice president in 1851, Congr. Globe, 2d Sess., 31st Congr., p. 248. 4 For example, in 185 1, 2d Sess., 31st Congr., p. 248 ; also 3d Sess., 41st Congr., p. 1603, and ist Sess., 46th Congr., p. 2147. 6 Congr. Record, 3d Sess., 46th Congr., p. 2423. United States Senate. 47 vote whether or not to excuse the member.1 There was, however, 110 provision for compelling a senator to vote if, after the senate had voted not to excuse him, he should still refuse to vote, and it has been repeatedly held that it could not be done.2 A decision of the vice president in the first session of the Forty-sixth Congress, that on the question of excusing a senator from voting, a quo rum must be present, made it impossible to obtain a quo rum by refusing to excuse a senator from voting.3 A ruling made at the same time to the effect that the fact of no quorum voting was not conclusive evidence that there was no quorum present, but that the chair had a right to count the senate to ascertain and, if he discov ered a quorum present, business might be proceeded with,4 greatly diminished the efficiency of this means of retarding business, by making it possible to proceed with debate, though not to a vote, should a quorum be present in the senate, even though a quorum was not voting. A decision of the second session of the Fiftieth Con gress,5 that after a vote showing no quorum, and a roll call showing the presence of oue, it was not in order to move the sergeant-at-arms to request the attendance of absent senators, made it impossible to bring to a decis ion any question on which the yeas and nays were de manded and for which a quorum was necessary, if sena tors, by remaining in the senate and yet refusing to vote, 1 Wheu this began to be done occasionally, questions arose as to the time at which attention should be called to the fact, etc. (Congr. "Record, 2d Sess., 31st Congr., p, 248 ; 3d Sess., 41st Congr., p. 1603), which finally led to the adoption of a rule regulating it. '(Rule 17, adopted in 1877.) 2 ist Sess., 46th Congr., 2147 ; 3d Sess., 46th Congr., 2423. In 1879 an unsuccessful attempt was made to compel a senator to vote by or dering the sergeant-at-arms to request his attendance, (ist Sess., 46th Congr., p. 2147.) 3 Congr. Record, ist Sess., 46th Congr., p. 2175. 4 Ibid., 2174, 2175. 5 Congressional Record, 2d Sess., 50th Congress, p. 1043. 48 The Origin and Development of the chose to break a quorum. The senate would, however, still be entitled to proceed with debate.1 Proposals made providing that, when a quorum was present though not voting, senators present and not voting should be entered in the journal and counted for a quorum, and the vote announced accordingly2, have not been brought to a vote. If there be no call for the yeas and nays and no one calls attention to the lack of a quorum, business may go on indefinitely, and indeed much of the time now a quo rum is not present in the senate. Especially is this the case when a debate is going on. The number of sena tors in the chamber scarcely averages twenty-five on such occasions, though if there is a roll call a sufficient number of senators to constitute a quorum will usually assemble from various portions of the capitol. In the early years, if the rule given by Mr. Maclay may be trusted, this was not the case, a withdrawal from the senate chamber for more than a quarter of an hour be ing punished in the same manner as neglect of attend ance during a session.3 The absenting of themselves by senators in order to escape the responsibility of a vote is not a matter of re cent occurrence, examples of it being found in very early times. III. ORDER OF PROCEDURE. In the early congresses the regular hour of meeting seems to have been eleven A. M., and the length of the session ordinarily about four hours.4 Now, however, for a long time, twelve o'clock has been the usual hour for assembling and the length of the session about five hours ; but, as business becomes more pressing toward ' Congr. Record, ist Sess., 51st Congr., p. 3468, statement of Mr. Hoar. 2 Ibid., ist Sess., 51st Congr., p. 3704 ; ist Sess., 53d Congr., p. 2641. 3Journal of Maclay, p. xiv, Rule XVI. 4 Washington, Works, XI, p. 483, note. Mr. Maclay says that it was often not more than an hour. United States Senate. 49 the middle or end of a session, the hour is changed to eleven and, when more time still is needed, to ten ; and it is sometimes, for a short time, even put as early as nine. The session is also lengthened at the other end by taking a recess and holding an evening session. Pro posals for thus lengthening the session are almost always objected to by some on the ground that it leaves no time for committee work or the examination of bills ; and the evening' session often proves of no avail, through the inability to obtain a quorum, and is usually occupied by some one or two persons who wish to make speeches, no action of the senate being taken. During the early part of the session the senate almost always adjourns over Saturday and sometimes Friday also, and even Thursday occasionally, this being more frequent in the early days of the senate. When more time is required, however, the senate meets every day of the week except Sunday, and sometimes at the end of the session even that day is not given to rest As is but natural, even in the early days when no more business came before the senate than it dbuld con veniently transact, there was some little hurry at the end of the session. Mr. Maclay writes in his journal for March second; of the third session of the First Congress, that more business was hurried through the senate that day than in a month of former sessions ; and of the next day he says : " The House seemed in a continual hurri cane. Speaking would have been idle, for no one would or could hear. . . . . It was patching, piecing, altering and amending, and even originating new busi ness. . . ." The senate met again at six o'clock. " Fourteen resolves were proposed and carried through," and then, according to Mr. Maclay, the confusion became so great that he was unable to tell what was being done.1 At the next session there was business enough to 'Journal of Maclay, 409-411. 50 The Origin and Development of the require evening sessions on the last two days and, from that time on, the crowding of bills to the end of the session becomes more and more noticeable. Sometimes bills would be introduced and passed through all their stages, under a suspension of the rules, in one day, but this was not often done, as the senate was usually fully occupied in considering bills already somewhat advanced and in action on conference re ports and bills sent it from the other house.1 As early as the Fourth Congress this press was felt sufficiently to lead to a proposal for a rule forbid ding the origination of a law of general importance within the last ten days of the session, and declaring that the senate would act on none received from the house within that time.2 The rule, however, was not adopted and the amount of business transacted on the last days of the session continued to increase. The edi tor of the Congressional Debates says in 1825: "Very little debate usually takes place within the last ten days of a Session, the time of both Houses being employed in perfecting business already matured by the committees, etc., . . . principally upon private bills, which seldom elicit more than a passing remark from the chairman of the committe which reported each bill, and sometimes not even that. We have known in the last week of the Session, as many as forty bills pass in one day ; " but these pass without debate.3 Mr. Clay said that nearly all the business of the last session of the Twenty-fifth Congress was done in the last thirty days of the session ;4 and Mr. Hale, in the first session of the Thirty-fourth Congress, said that thirteen years of experience in the senate confirmed his idea that 1 Bills were lost at every session for lack of time. 2 Annals of Congr., 2d Sess., 4th Congr., pp. 1576, 1577. 3 Congr. Debates, vol. I, 2d Sess., iSth Congr*, pp. 741-742, note. 4 Congr. Globe, ist Sess., 26th Congr., p. 251. United States Senate. 51 all the business of the session, irrespective of its length, was done in the last two weeks of the senate, — a theory which would seem to be justified by the passage, in one morning, of fifty bills of which no one knew the subject except the senator who moved to take them up.1 In the Sixteenth Congress seventy or eighty bills were signed between eight at night of the last day of the session and the next morning ; and, on one occasion, seven laws passed their three readings in ten minutes.2 In order to prevent a repetition of this in the future, two rules were added by the Seventeenth Congress to the joint rules. The first provided that : " No bill that shall have passed one House shall be sent for concurrence to the other on either of the three last days of the session ; " and the second that : " No bill or resolution that shall have passed the House of Representatives and the Sen ate shall be presented to the President of the United States, for his approbation, on the last day of the session."3 Had legislation been conducted in accordance with these rules there would certainly have been a considera ble improvement ; but, at almost every session there after, while the joint rules were in force, one or both of the rules would be suspended in favor of certain or all the bills of the session. Thus, of 142 bills passed in 1832-33, 90 were signed under suspension of the rules. At first it was held that these rules could be suspended whenever a majority wished, without a day's notice ;4 but, in 1836, it was held that it required unanimous con sent to consider a resolution from the house suspending the rules on the same day that it was received.5 In 1852 1 Congr. Globe, ist Sess., 33d Congr., p. 2214, statement of Mr. Pratt. 2 Annals of Congress, ist Sess., 17th Congr., p. 273. 3 Annals of Congr., ist Sess., 17th Congr., vol. I, p. 143. 4 Congr. Deb., vol. VII, 2d Sess., 21st Congr., p. 334. 5 Ibid., vol. XII, part ii, ist Sess., 24th Congr., p. 1937. 52 The Origin and Development of the the rules were amended so as to provide that such a mo tion should " always be in order, be immediately consid ered and decided without debate."1 Thus matters remained until the Forty-fourth Congress, when it was decided in the senate that the joint rules did not hold oVer from one congress to the next, and a joint resolution accordingly passed re-adopting those of the previous session.2 The house, however, seems to have thought differently ; at least it did not adopt the resolution sent it by the senate, and, at the end of the session, sent up a resolution for the suspension of the joint rules. The senate refused to act upon this, sending to the house a resolution stating that, in their opinion, there were no joint rules.3' Thus, since 1876, there has riot even been the restraint of the sixteenth and seven teenth joint rules on the pushing of important business to the end of the session.4 To gain more time at the end of a session, the date of adjournment is frequently extended at those sessions whose termination is not fixed ; and, in the latter case, a few hours are sometimes obtained by turning back or stopping the senate clock so that business can be done after midnight of March third, the time at which it seems at first to have been generally supposed that con gress ended.5 At the second session of the Thirtieth Congress, when objections were made to the continuation of the session after twelve o'clock, the objections were overruled, and ' Congr. Globe, ist Sess., 32d Congr., p. 1288, Rule 26. 2 Congr. Record, ist Sess., 44th Congr., p. 520. 3 Ibid:, p. 5567. 4 It would seem that the senate no longer wished to be restrained by these rules, for the joint rules which the senate has since adopted, but which have not been agreed to by the house, have contained no rules corresponding to the old 16th and 17th rules. 5 Benton, Thirty Years' View, I, p. 555. United States Senate. 53 the session continued until 7 A- m. of March fourth f and, at the next congress, it was decided that the term of senators did not expire till noon of March fourth.2 The disorder which often prevailed in the senate, near its close, when there was much more business to be trans^ acted than could possibly be got through with, and when everyone wished to secure the passage of his. pet project, was often great. Mr. King, in taking the chair of the senate, March 3, 1841, said that : " He must be per mitted to say that he had witnessed, on several occasions:, at the close of the session of congress, a degree of excite ment which did not, in his opinion, comport with the grave duties of the senate, and which was calculated to impair the weight of their deliberations, and was not calculated to facilitate the dispatch of their business . . . . if, unfortunately, there should be any departure from the strict order, he should feel it his duty to check it instantly."3 The talking and confusion on the floor, which makes it difficult to get attention, and the scramble of six, eight, or ten senators for the floor, in more recent times, is notorious. After the reading of the journal, it has always been the custom to devote a certain amount of time, usually an hour, to the despatching of matters for preparing and expediting business. At first there was no rule on the subject, but Jefferson in his " Parliamentary Manual " 4 says that such was the practice of the senate, and. that no bills were put on their passage until twelve o'clock. A rule, adopted in 1834, which provided for the presen tation of petitions and reports from standing committees after the reading of the journal, says nothing of the time 1 Congr. Globe, 2d Sess., 30th Congr., pp. 686-692. • 2 Ibid., 2d Sess., 31st Congr., p. 820. 3 Congr. Globe, 2d Sess., 26th Congr., p. 225. A stronger statement on the same subject by Mr. Greeley may be found iu Parton's Life of Greeley, p. 280. 4 Section XIV. 54 The Origin and Development of the which was to be so occupied ; but it still seems to have been customary to devote an hour to such business.1 In 1877 the morning hour was made a definite period; but in 1883 it was again made indefinite, provision being made for proceeding to the consideration of the general calendar, under the Anthony rule, immediately after the conclusion of the morning business, or at one o'clock, and continuation of it until two o'clock.2 At first new matter could be introduced at any time except when a question was before the house ;3 and it was not until 1868 that the rules provided for the intro duction of bills during the morning hour.4 The first rules adopted provided for at least one day's notice of an intended motion for leave to introduce a bill.5 The setting aside of this rule by unanimous con sent in the case of nearly all bills, and the consequent encumbrance of the journal by the repetition of the words, " I ask leave to introduce a bill without having given previous notice," having become very general, a committee was appointed in 1874 to prepare an amend ment to the rule, the restraint of which it was thought was sometimes needed. Various means of avoiding the inconvenience and yet maintaining the essential part of the rule were tried.6 Finally, a rule was adopted which provided that : " Whenever a bill or joint resolution shall be offered, its introduction shall, if objected to, be post poned for one day." The rules have always provided for three readings of all bills and resolutions and, prior to 1877, these readings 1 Qongr. Globe, ist Sess., 35th Congr., p. 717, statement of the vice president. 2 Rule VIII. 3 Jefferson, Manual, sec. XIV. * Rule 24. 5 Rule 12. 6 Congr. Record, ist Sess., 44th Congr., p. 574 ; 2d Sess., 44th Congr., p. 627. United States Senate. 55 had to be on separate days, unless otherwise ordered by the unanimous consent of the senate. It was then pro vided1 that bills and joint resolutions from the house of representatives or from a committee could be read twice on the same day, if not objected to. By 1843 ^ h3-^ come to be the practice for all three readings of the bill to be by title only ; and, attention being called to it, the vice president decided that the rules of the senate required the reading of bills through on their second reading ; whereupon it was done for a few days, but was found to consume so much time that the one who, in the first place, had objected to the prac tice, said that : " He hoped it would be the understanding in the future, that all bills would be read the first and second times, before reference to a committee, by their titles only, unless any senator should call for the reading entire of particular bills." This was accordingly done.2 The first rule adopted regarding the order of procedure after the conclusion of the morning business was that of 1820, which provided that the unfinished business of the last preceding session should have the precedence.3 Af ter -this came the special orders, if any, and then the general orders.4 In 1858 a question was raised as to whether a special order, which had been made for a special time, if not finished on that day, came up the next day at the time for which it had been fixed at the previous day, or at one o'clock, and the latter was decided.5 When the amount of business became much greater the special orders, which were frequently made merely from courtesy to accommodate a senator, were found to 1 Rule 24. 2 Congr. Globe, ist Sess., 28th Congr., p. 41. 3 Rule 15. 4 This was first embodied in the rules in 1870. (Congr. Globe, 2d Sess., 41st Congr., p. 1819.) 6 Congr. Globe, ist Sess., 35th Congr., p. 717. 56 The Origin and Development of the be a hindrance to business ; and in 1862 it was agreed, without opposition or debate, that thereafter a two-thirds vote should be required to make any subject a special order.1 As the end of the session approaches, . in later days, a special time has often been set aside for the con sideration of special classes of bills ; and these special orders have sometimes become so numerous as, to leave little time for. the transaction of the regular business, and made it necessary to rescind all such-orders;2 Occasionally a whole session has been set aside for the consideration of a special subject. Mr. Clay wished so to limit the business of the special session of the Twenty- seventh Congress, but the resolution introduced by him for this purpose was not acted upon, and it was not until the adjourned session of the Fortieth Congress, which met July 3, 1867, that such a limitation was adqpted. It was then decided to confine the business of the session to removing obstructions to the acts of reconstruction and giving them the scope intended. The decision was not reached . without strong objections being made tp it, notably by Mr. Sumner, who declared it unconstitu tional.3 A similar resolution was adopted at the . first session of the Forty-second Congress and at the first session of the Forty-sixth Congress. The course of a private bill in the senate is generally the same as that of a public bill. Thpugh there is no time set aside by the standing rules for their considr eration, as there is in the house, special days., are fre quently ordered to be devoted to their consideration for the remainder of the session, or until they are disposed of. 1 Congr. Globe, 2d Sess., 37th Congr., pp. 287, 288.' This has since been the rule on the subject. 2 Congr. Globe, 2d Sess., 41st Congr., p. 1819 ; Congr.' Globe, 2d Sess., 46th Congr., p. 1403. 3 Congr. Globe, ist Sess., 40th Congr., pp. 481-498. United States Senate. . 57 Recently some restrictions have been placed upon the repeated re-introduction* of claims once rejected by con gress. The senate passed a joint resolution for this purpose at two succeeding sessions of the Twenty-seventh Congress, but the resolution was not considered by the house ; and there seems to have been no restriction of this sort until long after, when a senate rule was adopted,1 forbidding bringing -up a claim on which an adverse report had been made and accepted, unless new evidence had been discovered. As- it is not very difficult to obtain new evidence, this has not proved much of a restraint.2 The increasing number of private bills, which occupied so much of the, time of the senate, led, in 1856, to the adoption of a rule providing that : " Whenever a private bill is under consideration, it shall be in order to move as a substitute for it, a resolution of the senate referring the case to the Court of Claims." This rule seems to have; been dropped some time between 1868 and 1877, but in 1 883s a rule authorizing-the reference to the court of claims of all claims involving the determination of facts, was adopted in accordance with a statute of that year.4 A practice had grown up in the senate of securing the passage of private bills, which had failed on their merits, or for the consideration of which a time could not be found, by tacking them to the appropriation bills. To • prevent this, a rule was adopted in 1850, which declared that no amendment, providing for a private claim, should be .received, even though the same had been previously sanctioned by/ the senate.5 This was soon amended by striking out that part of the rule which reads " although 1 No. 58 of the rules adopted in i877,and No. 31 of the present rules. 2 Congr. Record, ist Sess., 48th Congr., p. 1078. 3 Rule XVI, sec. 3, Now found in Rule XV, sec. 3. * Statutes at Large, vol. 22, p. 485, 2d Sess., 47th Congr., chap. 116. 6 Congr. Globe, 2d Sess., 31st Congr., p. 78. 58 The Origin and Development of the the same may have been previously sanctioned by the senate," and inserting "unless rit be to carry out the provisions of an existing law, or a treaty stipulation."1 In recent times the number of private bills has in creased so much as to occupy an undue amount of the time of the senate, and this has led to numerous pro posals for rules restricting the introduction of such bills.2 According to the usage 6f the British parliament, un finished business of one session was destroyed by a dis solution or prorogation of parliament ; and, soon after the organization of the new government, a joint commit tee of the two houses decided that such was the proper mode of procedure to be followed by congress.3 All at tempts made to change this decision failed, until 1848, when a joint resolution was adopted providing that all " bills, resolutions, or reports " of either house, undeter mined at one session, should be resumed and acted upon " after six days from the commencement of a second or subsequent session of Congress."4 A question arising in the senate as to whether this included petitions, a res olution was adopted in 1854 providing that all business undetermined at one congress should be resumed at the next, no time for so doing being mentioned. The ques tion raised at subsequent sessions as to whether or not this rescinded the joint rule was not decided.5 A similar resolution was adopted at succeeding sessions and was added to the standing rules in 1868,6 the member of the committee who reported the rules declaring that the com mittee did not consider that the rule repealed the joint rule, but that it was in harmony with it.7 At the same 1 Congr, Globe., ist Sess., 33d Congr., p. 1058. * For example, Congr. Record, ist Sess., 48th Congr., p. 1077. 8 Sen. Journal, vol. I, 2d Sess., ist Congr., p. 107. 4 Congr. Globe, ist Sess., 30th Congr., p. 1085. 5 Ibid., 3d Sess., 42d Congr., p. 2. « Rule 52. ' Congr. Globe, 3d Sess., 41st Congr., p. 4, Mr. Edmunds. United States Senate. 59 time a question was raised as to whether the joint rules forbade action before six days had elapsed. The house had held that it did not, but the senate that it did j1 but as the joint rules ceased to exist soon after this, there is no longer this restriction on the action of the senate. Executive business has ordinarily been taken up at the end of the day's session, unless there was something that could qot wait, or would require an entire day. IV. LIMITATIONS OF DEBATE. In the early days of the senate, debate was practically unlimited, the restraints placed upon it being slight and seldom enforced. They were, that no motion should be debated until seconded, that the decision of all questions of order should be made by the president without debate, and that no member should speak more than twice in any one debate on the same day without leave of the senate. The previous question, which was provided for by the rules2 but rarely used,3 and was omitted in the re vision of the rules in 1806, was not used to limit de bate, but as in the continental congress and the parlia ment of England, where the previous question was used to avoid a vote on a given subject. The proper occasion for its use was, according to Mr. Jefferson, to get rid of subjects " of a delicate nature as to high personages, etc., or the discussion of which may call forth observa- 1 Ibid., 2d Sess., 34th Congr., p. 1 ; 3d Sess., 41st Congr., pp. 3, 19 ;¦ 3d Sess., 42d Congr., p. 2. 2 Rule IX. "The previous question being moved and seconded the question from the chair shall be 'Shall the main question be now put?' And if the nays prevail, the main question shall not then be put. " In the continental congress the usual form of the question was "Shall the main question be not now put ?" and if decided in the affirm ative the main question was not then put. In two instances this is the form used in the senate. (Exec. Jour., I, 96, 97.) * Exec. Jour., I, pp. 96, 97, 318. Sen. Jour., ist Sess., ist Congr., pp. 60, 61. Annals of Congr., ist Sess., 8th Congr., p. 363. 60 The Origin and Development of the tions which might be of injurious consequence's."1 He, however, says that its use had been extended abusively to other cases ; and by reference to the cases in which it was used in the senate, it would seem probable 'that its use there was, as in England at the present time, to en able the body to dispose of the subject without a direct vote upon it. The previous question was debatable2 and was used in both legislative and executive session and in the trial of impeachments, but not on amendments,3 or in the committee of the whole.4 In 1806, debate upon a motion for adjournment was forbidden,5 and the following year debate on an amend ment at the third reading of a bill ;6 but for many years thereafter no further limitations were imposed, and this freedom of debate was rarely abused.7 Mr. Calhoun said, in 1840, that : "There never had been a body in this or any other country in which, for such a length of time, so much dignity and decorum of debate had been main tained."8 These remarks were called forth by a proposal of Mr. Clay for the introduction of the previous ques tion,9 which, he stated, was rendered necessary by the abuse which the minority had made of the unlimited ' Manual, sec. XXXIV. 2 Ibid., sec. XXXIV. "Then the previous question is proposed and, in the modern usage, the discussion of the main question is suspended and the debate confined to the previous question." Maclay gives as a rule of the senate the following: "In case of a debate becoming tedious, four senators may call for the question, or the same number may at any time move for the previous question, viz : ' Shall the main question be now put?' " (Rule 7.) I can find no confirmation of this rule. 3 Sen. Jour., vol. Ill, ist Sess., 6th Congr., p. 27. 4 Jefferson's Manual, sec. XXIV. s Rule 8. 6 Seii. Jour., vol. IV, 2d Sess., 9th Congr., pp. 135, 138, 139. 7 See Benton on the subject, Congr. Globe, ist Sess:, 27th Congr., p. 204. 8 Congr. Globe, ist Sess., 27th Congr., p. 205. "Ibid., p. 203. United States Senate. Ci privilege of debate. The proposition met with so much opposition that it was abandoned ; but the accusation of factious opposition ou the part of the minority, made at that time,1 was heard again and again in succeeding con gresses ; and this, together with the increasing amount of business to be transacted, which made some limitation of even legitimate debate seem desirable at times, led in the following years to several proposals having this object in view.2 None, however, were adopted until, the civil war, when it was agreed that, in the consideration in secret session of subjects relating to the rebellion, debate should be confined to the subject-matter and limited to five minutes, "except that five minutes ¦ be allowed any member to explain or oppose a pertinent amendment."3 All other proposed limitations of debate failedi until 1868, when a rule was adopted providing that : " Motions to take up or to proceed to the consideration of any ques tion, shall be determined without debate, upon the merits of the question proposed to be considered ;" the object of the rule being, according to Mr. Edmunds, to prevent a practice which had grown up in the senate, " when a question was pending, and a senator wished to deliver a speech on some other question, to move to postpone the pending order and take up another ; and then proceed to deliver their speech on the other question."5 According 1 Congr. Globe, ist Sess., 27th Congr., p. 203. 2 These were for a rule allowing an amendment to be laid on the table without the bill (Congr. Globe, ist Sess., 31st Congr., p. 1688, and ist Sess., 32d Cong., p. 1609), for the introduction of the previous question (Congr. Globe, ist Sess., 31st Congr. , pp. 1466, 1688), and for the limitation of debate, during the remainder of the session, to five minutes, except ou leave granted (ist Sess., 35th Congr., p. 2526). 3 Congr. Globe, 2d Sess., 37th Congr., pp. 490, 536. 4 The limitations proposed were to allow a majority (Congr. Globe, 2d Sess., 37th Congr., p. 1557), or two-thirds (2d Sess., 41st Congr., pp. 1819, 2212), to fix the time for ending debate, and to allow amend ments to appropriation bills to be laid upon the table without the bill (Congr. Globe, 2d Sess., 41st Congr., p. 4128). 5 Congr. Globe, 2d Sess., 41st Congr., p. 508. 62 The Origin and Development of the to Mr. Trumbull, the object of the rule was to prevent the consumption of time in debate over business to be taken up.1 The rule was interpreted as preventing debate on the merits of a question when a proposal to postpone it was made. As appropriation bills generally excited so much in terest and discussion, it was natural that the necessity for limiting debate on them should be felt more than on other bills ; and, about this time, many motions were made having this in view. The first to be agreed to was one allowing amendments to appropriation bills to be laid on the table without prejudice to the bill.2 The efficacy of the rule, which had been repeatedly proposed and rejected, was soon acknowledged by all, and it was afterwards extended so as to apply to other bills as well.3 In the consideration of appropriation bills at the end of the session, in order to expedite business debate had, on several occasions, by unanimous consent, been con fined to five minutes ; and finally, in 1872, it was ordered that, during the remainder of the session, it should be in order, in the consideration of appropriation bills, to move to confine debate by any senator on the pending motion to five minutes.4 The necessity for some limi tation of debate caused the adoption of similar resolu tions at most of the succeeding sessions. The so-called Anthony rule which, for the expedition of business is the most important limitation of debate yet adopted, places no restraint upon the rights of the minority, inasmuch as a single objection will prevent its application to the subject under consideration. It was first adopted in the third session of the Forty-first Con gress, when the great increase in the amount of busi- 1 Congr. Globe, 2d Sess., 41st Congr., pp. 507, 508. 2 Ibid., 3d Sess., 41st Congr., p. 1477. 3 Congr. Record, ist Sess., 47th Congr., p. 1907. * Congr. Globe, 2d Sess., 42d Congr., pp. 2867-2883, yeas 33, nays 13. United States Senate. 63 ness, which made it impossible to reach every thing, and caused such a scramble for precedence that hours were often consumed in deciding what should be done, made it necessary to find some means of relief. The rule as first adopted provided that : " On Monday next, at one o'clock, the Senate will proceed to the consideration of the Calendar, and bills that are not objected to shall be taken up. in their order ; and each Senator shall be entitled to speak once and for five minutes, tonly, on each question ; and this order shall be enforced daily at one o'clock till the end of the Calendar is reached, unless upon motion the Senate should at any time otherwise order."1 This regulation proving efficacious was adopted in succeeding sessions ;2 and finally, in the second session of the Forty-sixth Congress, was added to the standing rules. The vice president at the next congress having decided that, if a majority decided to take up a bill, on objection being made to its consideration, the limitation of debate would still apply, the rule was amended so as to prevent this.3 When the regular morning hour is not found sufficient for the consideration of all unobjected cases on the calendar, special times are often set aside for the consideration of the calendar under the Anthony rule. A proposal to require the objection of five to pass over a bill was at once objected to as a form of the previous question,4 and all other proposals for a limitation of de bate, which would also limit the power of the minority, have been repeatedly rejected ; and, at present, there ; » 1 Congr r Globe, 3d Sess., 41st Congr., p. 28. The rule was inter preted as allowing objection to be made at any time. (Congr. Record, 2d Sess., 40th Congr., pp. 1302-1304.) 2 1 have found no notice of the adoption of this rule from this time until the second session of the Forty-fifth Congress, but when it was then proposed it was said that it had been used for some time. 8 Congr. Record, ist Sess., 47th Coiigr., p. 3345. 4 Ibid., 3d Sess., 46th Congr., p. 1693. 64 The Origin and Development of the seems to be no probability of such a rule being adopted. Though the senate has steadily refused to place gener al limitations on its right of debate, it is comparatively easy, when the question under consideration does not in volve strong feeling, to secure unanimous consent to the limitation of debate to five or ten minutes, on the subject before the house. Similarly the time for ending debate and taking the vote is often fixed by unanimous consent.1 The custom is first seen coming in at the Twenty-ninth Congress, when an unsuccessful attempt was made to in duce the minority to fix a day for taking the vote on the Oregon Bill, which had been debated two months. Usually,, when there is no factious opposition, and the majority have been willing to grant to the minority a reasonable time for debate, there has been no difficulty in securing, such unanimous consent. It has come to be the custom to thus fix the time for taking the vote on all the revenue bills,2 and this practice doubtless contributes '- much to the rapidity with which the senate can transact business. All the rules for the limitation of debate which have been adopted are such as were needed to restrain perfect ly legitimate debate ; and, as has been clearly proven of late, are little or no restraint upon the minority, should it wish to attempt factious opposition. In the early days of congress no complaint is heard of factious opposition or dilatory motions, but from about 1850 such complaints begin to be heard.3 The first in- 1 Such an agreement was not enforced by the chair, but every sena. tor felt bound to stand by it (Congr. Globe, 2d Sess., 41st Congr., p. 478 ; Congr. Record, ist Sess., 51st Congr., p. 4129), aud, according to senatorial usage, a number less than a quorum could make the agree ment. (Congr. Globe, 3d Sess., 41st Congr., p. 1589, statement of vice president. ) 2 Congr. Record, 1st Sess., 51st Congr., p. 9109, statement of Mr. Gorman. 3 For example, Congr. Globe, ist Sess., 32d Congr., p. 1606; ist Sess., 34th Congr., p. 1723 ; 3d Sess., 37th Congr., p. 1491. United States Senate. - 65 stance in which the minority openly declared their inten* tion of -.' filibustering was in 1849, when Clay brought forward his proposition for a previous question ; but, as the subject was not pushed, the minority were not forced to carry out their threats. The right of the minority, under certain circumstan ces, to prevent action by all dilatory motions in -their power, was avowed in 1879; when an' attempt was made to repeal the then existing election laws, on an army ap propriation bill, and the opposition of the minority forced the dropping of the measure. But the most notable case, prior to the recent one, happened- at the special session of the Forty-seventh Congress, when- the Republicans, having just obtained a majority in the senate, wished to change certain of the officers of 'the senate at the-special session. The Democrats objected to the change being made at that time, and delayed action by long speeches, by motions to adjourn and to go into executive session, and by refusing to vote and so breaking a quorum:: The struggle finally became one to decide whether the major ity or minority should rule the senate. • There -were an equal number of Republican and Democratic senators so that the casting vote of the vice president was needed to make a majority for the Republicans.' His right to a casting vote in the election- of officers was questioned, and, on this ground, some of the minority, while ao- knowledging the right of the majority to govern as a rule, denied it in the present instance. This position, however, was invalidated by the refusal of one of the Democratic senators to vote with his party on this point, the vote of the vice president being, therefore, unneces sary for securing the action desired by the majority.1. The struggle, which began on the twenty-fourth of March, continued, almost without interruption, till May fourth, when a motion was made to go into executive 'Congr. Record, Special Sess., 47th Congr., p. 407.' 66 The Origin and Development of the session, the majority, however, declaring that they did not give up the struggle.1 The subject was • again brought up on the sixth and eleventh of May, but meet ing with the same opposition was dropped, the minority thus coming off victorious. The debates in the senate and the articles in the newspapers were of much the same character as those seen during the recent contest be tween the majority and the minority in the senate, and the feeling excited against the senate was very consider able. The action of the minority in this case was less defensible than in the recent struggle, in that they could not then intrench themselves behind the assertion that they were resisting for the good of the country, as- what was concerned was purely a party measure. From this time on the minority have shown a dispo sition to make use of dilatory tactics to prevent any action of the majority to which they objected. In the second session of the Fifty-first Congress, the Democrats, being in but a small minority, attempted to dictate the order of business which should be followed. About forty-six days had been given to the debate on the Force Bill in the senate and, the minority still refusing to allow a vote to be taken, the majority then attempted to pass a resolution for the close of debate by the majority after a reasonable time, but this met with the most deter mined opposition. A session of four days without ad journment was held, at the end of which time the Repub lican majority gave way and moved to take up the apportionment bill. It was this action of the minority that led to the proposals for a limitation of debate which were so strongly urged during that, session. The recent action of the minority in the first session of the Fifty-third Congress, when the bill for the repeal of the purchasing clause of the Sherman act was dis cussed in the senate from August twenty-ninth to Oc- 1 Congr. Record, 47th Congr., Special Session, p. 453. United States Senate. 67 tober thirty-first, on which day the minority gave way and allowed a vote to be taken, has raised in the minds of the people a very general contempt for that body, and numerous are the expressions to the effect that such a thing had never before happened in the senate. This feeling seems, however, to be but a repetition of that aroused against the senate at the special session of the Forty-seventh Congress, and scarcely stronger. If the length of time occupied in the discussion is alone considered, it is seen that it was not much greater than has often been consumed in the discussion of im portant questions, on which opposing views were held',, or which involved party questions. The difference between this discussion and that over the re-charter of the United States bank, for instance, lay in the open avowal, on the part of the minority, of their constitutional right to ob struct legislation by all means in their power, and their intention of using them ; and in that- all attempts of the majority, after' reasonable time had been allowed for debate, to have a time, however distant, fixed for taking the vote, were unsuccessful, a night session failing to secure the desired end. All means of opposition were tried. Speeches which occupied three and four days were delivered.. Senators refused to vote to make a quorum, and one dilatory motion after another was made. Attempts to change the rules were, of course, without avail. The vice president did not see fit to adopt the suggestion, frequently' made, that he should refuse to recognize the members of the minority, nor was the sug gestion of Judge Cooley, who held the action* of the minority to be antagonistic to the constitution, adopted. He wrote : " Members of the majority should make the proper motions looking to definite and final action on the pending measure, and the presiding officer should recognize them ; since only in that way can the inalien able right of the Senate to express its will be exercised." 68 The Origin' and Development of the This not being done, and the minority finally giving way, the rights of majorities and minorities have received no authoritative interpretation; and there seems, at present, no probability that a change of rules, even, will result from, the action of the minority, much less a radi cal changein the constitution of the senate itself. All other means of securing a vote on a given ques tion having failed, an all-night session is usually tried. This was first found necessary in 1837, in order to secure a vote on the expunging from the journals of the resolu tion censuring President Jackson.1 It was again tried in the first session of the Thirtieth Congress,2 the session last ing till 8 A. M.,, before the vote was taken. As time went on and the- difficulties of obtaining a vote on any subject increased, the number of all-night sessions became greater. They did not always succeed in their object, by any means. In the second session of the Thirty-ninth Congress, Mr. Wilson said .that, in the twelve years he had been in the senate, he had never known anything to be gained by the policy of night sessions.3 Frequently, however, a vote was obtained by this means and all- night sessions continued to be tried, almost every con gress witnessing at least one .such attempt. On such occasions it is usual to give all the time fox speaking to the minority. When night sessions were first used, the time seems to have been really occupied with debate, but later dilatory motions came to occupy most' of the time. .Often senators would refuse to vote so that it would be impossible to secure a quorum. V. APPROPRIATION BIIJ^S. The constitution provides that " All bills for raising Revenue shall originate in the House of Representatives ; 1 Benton, Thirty Years' View, I, pp. 727-731. a Congr. Globe, pp. 999, 1002. 1 8 Congr. Globe, p. 1396. United -. States Senate. 69 but the Senate may propose or concur with Amendments as on other Bills."1 This clause has been the subject of much discussion, .the phrase " All bills for raising Rev enue " being interpreted, on the one hand, as preventing the senate from originating any bills for appropriating money, as well as for raising it ; and, on the other, as laying a prohibition only upon the origination of bills for raising money. In support of the first view the use of the phrase " revenue bills," especially in England at the time of the adoption of the constitution, was cited, while the other side relied on the ordinary meaning of the word. Both sides appealed to the debates in the convention, attention being called on the one hand to the use of " money bills " and " revenue bills " as synon ymous terms, and- on the other to the fact that the clause as first reported read " All Bills for raising and appro priating money and for fixing the salaries," but as finally adopted read1 "All bills for raising Revenue."2 In support of the first view is the almost unbroken practice of the origination of the general appropriation bills in the house ; but, on the other hand, there are numerous cases in which the senate has, without being questioned: by the house, originated bills for all kinds of special appropriations.3 ¦ Moreover the right of the sen ate to originate the general appropriation bills has been asserted by that house on several occasions. A resolu tion which indirectly declared the senate to have this power was introduced in 1797, but was postponed.4 In 1816, however, a bill making additional appropriations 1 Article I, sec. VII. 2 Elliot, Debates, V, p. 377, Art. IV, sec. 5, as reported by the com mittee of detail. 3 The instances of special appropriations originated in the senate are too numerous to be mentioned. The majority report of the judi ciary committee in 1S81 said that they would fill a volume. (3d Sess., 46th Congr., House Reports, No. 147, p. 10.) * Sen. Jour., 2d Sess., 4th Congr., vol. II, p. 348. 70 The Origin and Development of the for the year was not only introduced and passed in the senate,1 but agreed to in the house without any objection being made to the place of origination. In the first session of the Thirty-second Congress the senate, by implication, declared that it could originate appropriation bills by refusing to add " to the Senate " to a proposed rule which provided that : " All general ap propriations shall be sent at least ten days previous to the day fixed for the adjournment of Congress."2 A few years later, the delay of the house in sending the appropriation bills caused the senate to instruct the committee of finance to " prepare and report such of the general appropriation bills as they may deem expedient." It was thus left indefinite, that they might confer with the committee of ways and means of the house and decide upon a division of the work.3 Only one of the appropria tion bills was introduced and passed in the senate, and this was not considered by the house, which introduced and passed a bill of its own that was accepted by the senate. Shortly after this, however, the house impliedly denied that appropriation bills were revenue bills, by denying the right of the senate to amend, by raising the rates of postage, a bill making appropriations for the post-office ;4 and at the third session of the Forty-sixth Congress the house committee on the judiciary, to whom the subject had been referred, upheld the right of the senate to originate all appropriation bills.6 Of late years the senate has not pushed its claims. A proposal at the first session of the Forty-seventh Congress to instruct the committee on appropriations to introduce the general appropriation bills, was not received with 1 Sen. Jour., ist Sess., 14th Congr., pp. 440, 632. 2 Congr. Globe, ist Sess., 32d Congr., p. 1787. 3 Ibid., ist Sess., 34th Congr., pp. 160-163, 375-38i. 4 Ibid., 2d Sess., 35th Congr., p. 1634. 5 House Reports, No. 147. United States Senate. 71 favor -,1 and though at the second session of the Forty- eighth Congress the river and harbor bill was intro duced in the senate, it was not, as was stated, with the object of raising the old question of the right of the senate to introduce the appropriation bills, but only to give the senate committee ample time for its considera tion. The bill was that of the house with certain parts, disliked by the senate, stricken ,out ; and, after its refer ence to the committee, no further action was taken by the senate. This attitude of the senate should not, how ever, be interpreted as a sign of weakness or submission to the house. The senate no longer claims the right of originating appropriations, because the right has ceased to be of any practical importance, being a disadvantage rather than an advantage, since, under the present system, the senate makes very radical changes in the appropria tion bills which the house has, ordinarily, no time to consider or amend. Mr. Hoar, writing in. 1879, held that the exclusive right of the house to originate money bills, gave to the senate a considerable preponder ance of influence,2 and its influence since then has rather increased than diminished. Another point on which the senate and house have disagreed is as to whether or not a bill for reducing revenue is a bill for the raising of revenue. During the first half of the century leave was repeatedly granted in the senate for the introduction of bills re ducing the revenue by diminishing duties or, for the entire repeal of acts imposing duties ; and many exam ples may be found of bills so originated having become laws.3 In 1833 the introduction in the senate of Clay's tariff compromise, was objected to because, though reduc- 1 Congr. Record, pp. 4508, 4509. 3 North American Review, vol. 128, p. 117. 8 3d Sess., 41st Congr., Sen. Reports, No. 376, p. 7. 72 The Origin, and Development of the ing the revenue in general, it contained one clause rais ing it j1 and, though the objection was overruled in the senate and the bill introduced there, in order to avoid collision with the house an exactly similar bill, intro-* duced and passed in the house, was, when received in the senate, made the basis of action there.2 In 1844, however, leave was refused in the senate to revive this act on the same ground that objection had earlier been made to the introduction of the original bill. j The senate still maintained that it - could introduce bills to reduce or entirely repeal duties, and laws of this character were agreed to by the house when introduced in the senate;3 but in 1871 the house. , denied this right also.4 The position taken by the, house was so deter mined that, at the next congress, leave to introduce a bill for the reduction of the internal taxes was refused by the senate on the ground that it was useless, since the house would surely reject such a bill ;6, and, later, the senate committee on the judiciary reported against the right of the senate, to introduce a bill for the reduction of taxation, though still maintaining .that it could intro duce one for the entire repeal of a law imposing taxes." The house, during the same session, in its eagerness to restrain the senate, indirectly reversed the decision of the previous session, and held a bill for, repealing duties not a revenue bill, by declaring that the, senate had no right to amend a bill 1 of that character, then under con sideration, so as to raise revenue. At first all the general appropriation bills, were made in one act, but in. 1794 the army appropriation was made separately, and in 1798 the appropriation for the navy. 1 Similar bills had earlier been introduced in the senate. 2 Congr. Globe, ist Sess., 28th Congr., pp. 159 ff, 165, 166, 633. 3 3d Sess'., 41st Congr., Sen. Reports, No. 376, p. 7. 4 3d Sess., 41st Congr., Sen. Reports, No. 376. 5 Congr. Globe, 2d Sess., 42d Congr., pp. 46, 47. 6 2d Sess., 42d Congr., Sen. Reports, No. 146. United States Sen-ate. 73 In 1837 the general appropriation bills were " civil and diplomatic, army, navy, indian."1 The appropriations for the several branches of the public service are now made in thirteen bills.2 In the senate these are allrer ferred to the committee on appropriations, though num erous attempts have been. made to, secure the reference of each of the appropriation bills to the committees having charge; of the subject with which each bill is concerned. For the first few congresses the appropriation bills were received ; from the house in good season, but in the first session of the Fourth Congress, an additional appropria tion bill, being necessary, it was introduced and rushed through the senate in the last two days of the session.; and, at the next session, the bill, making appropriations for^the military and. naval expenses was not received in the senate till March third. Unanimous consent to its immediate consideration was at first refused but later granted. At the same time a resolution was submitted, condemning the withholding of the appropriation bills till the end of the session as an infringement on the rights of the senate, aud proposing the adoption of a rule forbidding the origination or receipt of such bills within the last ten days of the session.3 Though . there was an improvement the next session, it didi not last, and the practice in this regard became worse rather than better. The rule adopted in the house in 1837, requiring the committee on appropriations, within thirty days .after the opening of the session, to report the general appropriation bills, or in failure thereof the reasons of such failure, seems tohave had little effect ;4 and, the appropriation bills coming to the senate later and 1 Rules of the House of Rep., ist Sess., 45th Congr., p. 120. 2 Rules of the House of Rep., ist Sess., 51st Congr., pp. 287, 288. 3. Annals of Congress, 2d Sess., 4th Congr., p. 1576. ,, 4 A list, giving- the dates of the receipt of the appropriation bills, is given in Congr. Globe, ist Sess., 34th Congr., pp. 160-161, and Congr. Record, ist Sess., 49th Congr., p. 6373. 74 The Origin and Development of the later, the senate in 1852 amended the sixteenth joint rule so as to provide that all appropriation bills should be sent at least ten days before the end of the session,1 but the house failed to agree to the change. A proposal, made quite recently, for a rule forbidding a committee to 'report an appropriation bill within five days after its receipt, had in view the same object. The impossibility of properly considering the bills in the short time usually left the senate, led at times, as has been seen, to the introduction of the bills in the senate ; but, as there were such serious objections to this course on the ground of its unconstitutionality, it has not often been tried. It is, however, perfectly possible for the sen ate committees to consider bills before their receipt from the house, and this is often done,2 and it sometimes hap pens that amendments are offered by senators to appro priation bills before their receipt from the house.3 This custom, by which the senate can gain more time for the consideration of bills, added to the fact that the amendments which an appropriation bill now receives in the senate are most considerable, sometimes even an en tirely new bill being substituted, has turned the tables so that now the house suffers more than the senate from the delay of the appropriation bills. For, frequently, when a bill is returned to the house, it is so late that there is no time to consider the amendments made by the sen ate, so that the house simply non-concurs in them, and the bill goes to a conference committee. There part of the senate amendments are put back on the bill, and, as the conference report is often adopted by the house without consideration, the amendments made by the senate are 1 Congr. Globe, vol. 24, part III, ist Sess., 32d Congr., p. 1787. 2 It was done as early as the first session of the 32d Congress. (Congr. Globe, p. 1786.) 3 For example, House Bill, No. 13,462, was not received iu the sen ate until February 3, 1891, but on January 13, 1891, an amendment to it was proposed in the senate. United States Senate. 75 never considered by the house. Moreover, the wishes of the senate, when there is a difference of opinion upon a proposition originated in the senate, are much more apt to prevail when tacked to a bill to which the house has already given its assent, than when introduced as a sepa rate bill. The fact that the senate is a more permanent body than the house also gives it an advantage every two years, in that the house knows that, if the senate insists on its amendments, and the bill is lost, the then existing house of representatives loses all power over the subject, as, at the extra session which is thus made necessary, its successors will have charge of the matter. The house rule adopted in 1837, requiring all appro priation bills to be reported within thirty days after the , beginning of congress or the reasons for not doing so, was retained as late as the Forty-fifth Congress. After that for a time there was no rule on the subject, but in the second session of the Fifty-second Congress1 a rule was adopted which makes it the duty of the several commit tees to report the general appropriation bills within eighty days after the formation of the committees in a long session, and within forty days after the commence ment of a short session ; and further provides that " in failure thereof, the reasons of such failure shall be priv ileged for consideration, when called for by any member of the House." Of late years the senate usually increases the amount of the appropriations : the bills of the house providing for an amount less than that demanded by the estimates of the heads of the departments, are raised in the senate so as to correspond more nearly to them. The result is that the senate has come to be accused of extravagance. Ac cording to Mr. Sherman, another reason why appropria tions are always increased in the senate is that the heads of the various departments, for some reason, perhaps a 1 Rules of the House, No. XI, sec. 53. 76 The Origin and Development of the desire to* appear economical, never include in their esti mates all of their expenses, and when the appropriation bills are before the senate committee they appear and ask to have these items inserted. The right of amendment of the appropriation bills granted to the senate by the . constitution, has always been given the broadest interpretation ; the only limita tion upon it being the rules of the senate. At first there was no need of rules., During the first twenty years only about one-half of the appropriation bills received any amendment at all.1: The house generally agreed to these amendments of the senate^ and when it did not, the senate receded.2 Conference committees were, therefore, not often necessary, there being but six on appropriation bills during the first thirty years. Iyater it became the custom to discuss on the appropria tion bills more than any others, the questions that con cerned the country at large, and numerous amendments, containing general legislation or providing for private claims,3 were added, so that : half of the debates on appropriation bills came to be concerned with these private claims.4 This state Pf affairs caused the 1 Out of thirty-three general appropriation bills seven passed the senate without amendment. Of twenty-two army appropriation bills thirteen, and of the fifteen navy appropriation bills twelve passed the senate without amendment. During the next ten years an increasing number of the appropriation bills were amended, about two-thirds be ing so treated. 2 Of the twenty-four general appropriation bills amended by the sen ate, the house concurred in all the amendments made to eighteen of them, and in certain of the amendments made to the other six ; and it concurred in all of the amendments of the senate to the nine army and three navy bills which the senate amended. As neither the amend ments made by the senate, nor the bills as first passed by the house, are generally given, it is impossible to tell how important the senate amendments were. 3 Congr. Globe, ist Sess., 32d Congr., p. 1287, statement of Mr. Bright. 4 Ibid., p. 2170, statement of Mr. Hunter. United States Senate. 77 adoption, without debate, in 1850 of a rule which pro vided that : " No amendment proposing an additional ap propriation shall be received to any general appropriation bill, unless it be made to carry out the provisions of some existing law, or some act or resolution previously passed by the Senate during the session, or in pursuance of an estimate from the head of some of the departments ; and no amendment shall be received whose object is to pro vide for a private claim, although the same may have been previously sanctioned by the Senate."1 A little later this rule was amended so as to allow amendments proposed by a standing committee, it being urged that otherwise the senate could but register the decrees of the louse. The same privilege was later extended to select icommittees.2 The rule was again amended in 1854 by striking out " although the same may have been previ ously sanctioned, by the Senate," and inserting " unless it be to carry out the provisions of an existing law or treaty stipulation,"3 and again, in 1867, the rule was further modified by adding : '? and all amendments to general ap propriation bills reported from the Committees of the rSenate, proposing new items of appropriation; shall, one day before they are offered, be referred to the Committee 1 Congr. Globe, vol. 23, 2d Sess., 31st Congr., p. 94. The rule as in terpreted by the senate was construed to apply to estimates made by he, departments at the request of individual senators, and to an amend ment proposed by a committee, and based on an estimate of a depart ment. (Congr. Globe, ist Sess., 32d Congr., pp. 1190, 1192. ) Amo tion niade in 1852 to require the recommendation of an appropriation by the head of the department to which it referred was not adopted. (Ibid., pp. 1286-87.) ^ 2 Congr. Globe, ist Sess., 33d Congr., p. 1381. 3 Ibid., p. 1058. The same session (p. 2214), a proposal was made, but not voted on, which declared that " hereafter the Senate will not receive or consider any bill or proposition, other than the general ap propriation bills for the support of the government, which appropri ates money for more than one object." 78 The Origin and Development of the on Appropriations ; and all general appropriation bills shall be referred to the same Committee." x Under the old rule it had been held that an amendment to an amendment could be offered by anybody,2 and the presiding officer thought this the correct interpretation under the new rule, but his decision was overruled.3 Prior to 1855, there had been no instance of important general legislation being attached to appropriation bills, though for the" preceding ten years unimportant legisla tion had been passed in that way. In that year the tariff bill was added to an appropriation bill,4 and from that time on such a course of procedure became very common.5 Mr. Sherman, speaking of the practice in the Fortieth Congress, said : " Almost every legislative act changes an existing law, and the House rule forbids that being done on the appropriation bills ; but in the Senate we have never practiced upon that. On the con trary, we seek the appropriation bills, sometimes, not only to carry convenient amendments, but to assert great principles ; and I might go to many instances in the history of the government where the Senate has attached important legislative provisions to appropriation bills, and has presented them in that way forcibly to the country."6 Proposals made at the second sessions of the Fortieth and Forty-first Congresses, for such amendments of the rules as to forbid general legislation on the appropria tion bills, were rejected or tabled ;7 but in the second session 1 Congr. Globe, ist Sess., 40th Congr., p. 12. 2 Ibid., p. 3518, decision of the Chair. 3 Ibid., p. 3520. 4 Ibid., 2d Sess., 33d Congr. 6 Prominent examples are to be found in the second session of the 34th Congress, the second session of the 38th Congress, and the first sessions of the 39th and 42d Congresses. 6 Congr. Globe, 2d Sess., 40th Congr., p. 3612. ''Ibid., 2d Sess., 40th Congr., pp. 2089, 2090, and 2d Sess., 41st Congr., pp. 4128, 4249. United States Senate. 79 of the Forty-second Congress, the tendency to put all the legislation of the session on the appropriation bills led the senate to adopt a resolution not to receive, during the remainder of the session, any amendments making legislative provisions other than such as directly related to the appropriations contained in the bill.1 No per manent change, however, was made until the second session of the Forty-fourth Congress,2 when it was pro vided that no amendment to a general appropriation bill should be received which proposed general legislation, or which was not germane or relevant to the subject- matter of the bill.3 This rule was held to apply to general legislation sent from the house, and to amend ments of conference committees.4 Prior to this time the rules of the house on the subject had been more strict than those of the senate, and the house was accustomed, therefore, when it wished some thing forbidden by its rules to be included in an appro priation bill, to get it put on in the senate. Now this was changed.5 There was, however, no less of general legislation on appropriation bills, for the point of order would either be waived and legislation allowed, or all general legislation would be stricken out, and then, in conference committee, part of it would be put back on without the senate ever having discussed it. Thus Mr. Blaine said, in 1879, that there had been more legis lation on appropriation bills since the adoption of the senate rule than in the twenty previous years, because, the 1 Congr. Globe, 2d Sess.. 42d Congr., p. 2883, yeas 33, nays 13. 2 Proposals had, however, been earlier made for such a change, as in the first session of the 44th Congr., pp. 1362, 2100. 3 Congr. Record, 2d Sess., 44th Congress, p. 628, rule 29. 'Ibid., ist Sess., 47th Congr., p. 6603; 2d Sess., 48th Congr., p. 1467. For other decisions under the rule, see 2d Sess., 46th Congr., Sen. Misc. Docs., vol. II, No. 84, under rule 29. 5 Statement of Mr. Dawes, Congr. Record, 2d Sess., 48th Congr., p. 1465, 8o The Origin and Development of the senate being restricted by its rules, the house had it all its own way;1 and in the Forty-eighth Congress, Mr. Iri- galls declared that, for the last ten years, there had hardly been an appropriation bill passed which did not contain general legislation.2 A joint rule on the subject, adopted by the senate in the first session of the Forty-eighth Congress, was not agreed to by the house,3 but the house in the first session of the Forty-ninth Congress amended its rules so as not to allow the change of any existing law on an appropria tion bill.4 This rule, which was interpeted by Speaker Reed so as to: forbid all legislation on the appropriation bills, has turned the tables, and greatly increased the power of the senate, so that now, as at an earlier perio.d> if the house wishes general legislation on an appropria tion bill it must get it put on in the senate, where a ma jority only is required to suspend the rules after notice given, while in theliouse two-thirds is necessary. VI. PARTY INFLUENCES IN THE SENATE. In spite of the secondary election of senators, which it might be supposed would remove them to a certain ex tent from party politics, party influences began to make themselves felt in the senate as soon as parties were or ganized. As the state legislatures almost invariably elected men belonging to the party dominant in those bodies, a senator was as much the representative of a party as if 1 Congr. Record, 3d Sess., 45th Congr., p. 635. 2 Congr. Record, 2d Sess., 48th Congr., p. 1318. 3 A proposal in the first session of the Fiftieth Congress for a rule directing the presiding officer on the receipt of house bills to strike out all provisions of a "general legislative character other than such as relate to the dispositions of the moneys appropriated therein," sub ject, however, to an appeal to the senate, was not agreed to. (Congr. Record, p. 4208.) 4 P. 332. Previously it had been allowed if it restricted expenditure and was germane to the subject. United States Senate. 81 he had been elected directly. Of the exte.nt to which party feeling was carried one may judge from a letter of Jefferson in 1797 to Rutledge, in which he says : " You and I have formerly seen warm debates and high politi cal passions. But gentlemen of different politics would then speak to each other, and separate the business of the Senate from that of Society. It is not so now. Men who have been intimate all their lives, cross the street to avoid meeting, and turn their heads the other way, lest they should be obliged to touch their hats." ' It is difficult to tell just when party caucuses to decide upon the vote of the party on legislative measures came into use. During Washington's administration, they were held to decide on the action of the party regarding nominations f and it is a well established fact that a se cret caucus was held in 1800, for nominating a presiden tial candidate. The same year it was declared by Duane, in his paper, that a legislative party caucus was held at the house of one of the senators, at which seventeen senators were present ; and he further states that cau cuses were then in use in the senate, and that a certain bill, called the electoral count bill, was framed in a cau cus to which Mr. Pinckney, a staunch Republican, and one of the committee to whom the bill was referred, was not bidden.3 Mr. Pinckney, however,* declared that he was present at all the meetings of the committee, and the report of the committee to whom the accusation was referred declared it " false, defamatory, scandalous, and m malicious, tending to defame the Senators pf the United States, to bring them into contempt and disrepute, and 1 Works, vol. IV, p. 191. 2 Davis, Life of Burr, I, p. 408. This was to'decide whom to suggest to Washington as ambassador to France. Again in 1799, a caucus of Federal senators was held to decide whether to reject the nomination of Vans Murray to France. (Hamilton's Works, ed. by J. C. Hamil ton, VI, 400.) 3 Annals of Congress, ist Sess., 6th Congr., p. 114. 82 The Origin and Development of the to excite. against them the hatred, of the good .people of the United States." If the. statement of. Duane was .false; ;it would . still seem that legislative party, caucuses came in but a short time afterwards; for, Bradford, speaking ,of the second session of the Eighth Congress, says : " During this ses sion^ there was far less of free and independent discussion on the measures proposed; by the friends of the adminis tration,, than . had been . previously practised in both branches of the national legislature. It appeared that on ±he most important subjects the course adopted by the majority was the effect of caucus arrangement or, in other words, • had been previously agreed upon at meetings of the Democratic members held in private. Thus, the legislation of congress was constantly swayed by party feelings and pledges,. rather, than according to sound rea son,, or. personal conviction." V This system of party dic tation, was continued. In 1809, Story, giving his reasons for, refusing, a re-election to the senate, writes : " I found an entire obedience to party projects . required such con stant sacrifices of opinion andfeeling, that my solicitude was greatly increased to withdraw from the field." 2 The use, of the caucus constantly increased.; After a time,.as has been seen, the committees were always de cided upon in caucus. Sometimes the order of business was decided there.3 In 1862 an attempt was even made to control the president in his choice of cabinet officers, by a decree of the caucus advising the displacement of Seward, the secretary of state. Seward immediately re signed, but as the rest, of the cabinet declared that they 1 Williams, Statesman's Manual, I, 244, quoting Bradford, History of Federal Government. 2 Ivife.of Story, I, 194, 195. 3 lathe, ist> session of the 40th Congr., (pp. 496 ff.) there was a dis cussion of caucus obligations, -owing to Mr. Sumner's holding, con trary to the generally accepted theory, that one who remained in the caucus was not necessarily bound by itsdecisious. United States Senate. 83 would resign rather than consent to the proposed change, and as when the news got abroad it was received with general disapproval, the caucus began to back down, and the President requested Seward to resume the office which he had resigned. The caucus of the senate now usually meets about twice a month, and it is very largely through it that the older members in the senate exercise such a preponder ating influence. Another restriction upon the freedom of the early senators was the instructions of their state legislatures. The states had been accustomed to instruct their repre sentatives to the continental congress, and there . had been some discussion in the convention as to whether the senators should be independent of their legislatures, or should receive instructions from them. The right of instruction was debated in the house during the first session of the- First Congress ; but it was not until the third session: that the question was brought up in the senate by a motion of the Virginia senators, in obedience to their instructions, which, they mentioned, for opening the doors of the senate. Various opinions regarding in structions were, expressed. It was held that they amounted to no more than a wish, and ought to be na further regarded ; that they were binding upon senators ;, that no . legislature had any right to instruct at all, any more than the electors had a right to instruct the presi dent; that in local questions affecting the interests of his constituents the- representative ought to obey his in structions, but that in a national question he should not consider himself bound by the wishes of his con stituents. There was a second discussion of the question in 1808, but the most considerable debate on the subject in the senate, and the one in which the views of the opposite parties were most fully set forth, arose in connection 84 The Origin and Development of the with the re-charter of the United States bank (1811), up on which certain of the large states had instructed their representatives how to vote. Some senators obeyed their instructions and some did not ; but all felt it necessary to explain their action, and the reasons for it. Thus the debates were long drawn out, and the same thing said over and over again, but without any decision being reached. The subjects for which instructions were used were vari ous. They were used, as in the case of the bank bill, to en force the wishes of the states on important questions ; or to propose amendments to the constitution ; or to secure the passage of a local bill. The usual form of these in structions was: " Resolved, That the Senators of this state, in the Congress of the United States, be instructed, and our Representatives most earnestly requested," etc. Sometimes they were sent in the form of wishes only, or as requests. The results of instructions were usu ally satisfactory. Often the senators agreed with them, or could, on receiving them, make themselves believe that they did ; and, if they did not, enough pressure was usually brought to bear to make them prefer to resign rather than stay in office in direct opposition to the will of their constituents. The case of Hugh L. White attracted a good deal of attention. Benton, in speaking of his resignation, writes that it took place " under circumstances not frequent, but sometimes occurring in the Senate, . . . that of receiving instructions from the general assembly of his state, which either operate as a censure upon a senator or which require him to do something which either his conscience or his honor forbids." He continues : " He consulted his self-respect, as well as obeyed a Democratic principle, and sent in his resignation." A later instance of similar action is the resignation of Brown and Strange, senators from North Carolina, in United States Senate. 85 1840. An opposite interpretation of the relations of senators to the state ' legislatures was given by Sumner in 1872, when censured by the Massachusetts legislature. State legislatures are still accustomed to communicate to their representatives their views on various matters, and to instruct or request1 senators to act in a certain way. Sometimes, still, a senator is seen voting for a measure of which he disapproves, giving as a "reason for his action that the measure is favored by the state which he repre sents. It was natural that those states which held that state legislatures had a right to issue to senators mandatory instructions, should also wish to have the power to re call them ; and Virginia, in 1808, did in fact instruct her representatives to procure such an amendment to the constitution.2 Attempts were also made to make sena. tors more dependent upon their constituents by. shorten ing their term of office. VII. RELATION OF THE PRESIDENT AND SENATE IN LEGISLATION. Although it is. in the performance of its executive du ties that the senate comes most in contact with the presi dent, yet in the execution of its legislative duties the influence of the president is also felt. The only authorized means for the . exercise of this in fluence is through the veto, and the right and duty of the president from time to time to give " to the Congress In formation of the state of the Unicn, and recommend to their Consideration such Measures as he shall judge nec essary and expedient."3 This the president has done in his annual and special messages, both of which are now 1 For examples of this form see ist Sess., 43d Congr., Sen. Misc. Docs., Nos. 61, 69. 2 Sen. Jour., ist Sess., 10th Congr., p. 267. Tenn. and N. J. passed resolutions against this. 8 Art. II, sec. III. 86 The Origin and Development of the written. ,,i The annual messages of Washington and Adams, however, were delivered in the senate chamber where the house was also assembled, and a formal answer was returned by both houses,' who waited upon: the president for this purpose. Before the introduction of standing committees the various portions of the president's annual message were referred to special committees ; afterwards they were re ferred to the standing committees having the subject in charge as were also the special messages and reports.'. As the president can not support his plans in the sen ate aud has no means of enforcing them, they amount to little more than suggestions which congress may follow or not as it sees fit. The considerable influence on. legislation which some presidents have exercised seems usually to have . been mainly due to some circumstance other thaa their occu pation of, the presidential chair, such as their popularity with the people or their position as the recognized lead ers of their party. The influence of the first few presidents on legislation was very considerable ; but, with the decline in tlie char acter of the occupants of the office, their influence on legislation has decreased, and this in spite of the use of the patronage to support it and the increased use of , the veto power. The first considerable use of the veto was made by Jackson, who vetoed eleven bills, a greater number than had been vetoed in the forty preceding years.1 As a result it became no unusual thing to use the prediction of a veto as a chief argument ; in., debate. Clay, in a speech on the removal of the deposits, said: "The ques tion is no longer what laws will Congress pass, but what will the Executive not veto? The President, and not Congress, is addressed for legislative action."2 1 Prior to Jackson there had been but nine vetoes. 2 Congr. Debates, vol. X, part I, ist Sess., 23d Congr., p. 94. United States Senate. 87 Tyler and Johnson by their use of the veto set them selves in opposition to the will of congress; and, as under Tyler it was impossible to pass: bills over his veto, great deference- was paid to his wishes in the hopes- of securing his assent 9 but, as under Johnson the majority was large enough to override his vetoes,1 he was able by this means to exercise but little influence. The use of the veto to defeat other than unconstitu tional legislation was first objected to during the admin istration of Jackson.1 It >had, without question, been extended "by former presidents ~to inexpedient legisla1 tion f and the popular appeals on the subject, beginning in 1832 and running down to 1844, resulted in 1 a verdict in favor of a large, and liberal . discretion on the part of the executive, in the exercise of this power. Prior to Cleveland's time, the veto power had, in the main, been exercised only upon theoretical propositions or political' questions ; : and his liberal application of- it to special and individual legislation, especially to pension cases and public buildings, aroused considerable opposi tion. Some held ;that- the president had no'rightto ex ercise this power on 3. mere question of fact, such as whether a given pension ought to 'be 'granted, and that it was not the duty of the president to veto every bill which he should vote against were he a member of con gress. Cleveland's action, however, has been:- approved and applauded" by the country. > As under Jackson the control of the legislature by the use of the veto was.greatly increased; so, during his presidency, is seen the beginning of the use of patronage for the same purpose, — a means of influence which has constantly increased, though checked by the Civil 'Serv ice Reform, which diminished the number of offices to be disposed of by the president. 1 Clay's Works, V, 524. Webster, Works, IV, 86. Congr. Globe, ist Sess., 30th Congr., p. 898. 2 Madison, IV, 369. Story, Commentaries, sec. 887. 88 The Origin and Development of the The chief influence of the president on legislation is exercised through the heads of the departments who, unlike those of the continental congress, are respon sible to the president only and not to congress. At first, with one exception, the cabinet officers were assigned no duties toward congress. The secretary of the treasury, however, was required to " digest and pre pare plans, to report estimates and give information in person or in writing to either branch of Congress on subjects relating to his department."1 Objections had been made to allowing the secretary to report in person, because it was feared that he would then be able to exert too much influence ; and this reason was doubtless influ ential in causing the senate, when Hamilton was about to make his report on the national finances, and asked whether it should be made in person or in writing, to decide in favor of the latter. Other members of the cabinet, during the Frst Con gress, appeared in the senate chamber. The secretary of foreign affairs was twice summoned to appear before the senate.2 The president on several occasions sent mes sages by his secretaries ;3 and, in one instance, General Knox, on two successive days, accompanied the president 1 Statutes at Large, ist Sess., ist Congr., chap. 12, sec. 2. The reason for the different constitution of this department does not ap pear in the debates, but Gallatin suggests that its object was to give to congress direct control over financial matters (Works, I, 67); which may also account for the fact that while the titles of the other acts es tablishing the departments read "An Act to establish an Executive Department to be denominated," etc., that of the treasury reads simply " An Act to establish a Treasury Department." 2 Exec. Jour., vol. I, pp. 6, 7. 3 In the ist Sess., ist Congr., two messages were sent by Jay (Sen. Jour., I, 89, 93), and six by General Knox (Exec. Jour., I, 3, 26, 34; Sen. Jour., I, 55, 56, 81). At the next session four messages were sent by General Knox (Exec. Jour., I, 36, 58 ; Sen. Jour., I, 105, 107). United States Senate. 89 in the senate chamber; but with these exceptions no ministers have attended in the senate.1 A unanimous report of a committee of eight senators in February, 1 88 1, in favor of giving to members of the cabinet seats in both houses and recommending a change in the rules to provide for this, has never been acted upon. The secretary of foreign affairs, whose office was first created, has always been considered as at the head of the cabinet ; though for some time after the organization of, the government, owing to the deplorable condition of the finances and the importance of their regulation, and perhaps also to the character of the occupants of the of fice, the duties of the secretary of the treasury were more important. While the office was held by Hamilton and Gallatin, it exercised the most influence on legislation, and it was through it mainly that the executive influence was exerted. Before Hamilton entered upon his duties congress had been awkwardly struggling with the revenue, and when he was appointed, it turned eagerly to him for assistance. Not only were the plans submitted by him usually adopted but others were demanded of him. Frequent calls for information were also made, and a couple of the replies of Hamilton to such requests, which he consid ered demanded too. much, show a boldness and independ- 1 So far as I have been able to discover, these were the only in stances in which secretaries attended in the senate, but Benton says, in his " Abridgement of the Debates of Congress " (I, 16, note): "These entries in relation to the Secretary of Foreign Affairs show the early method of communicating with the Secretaries, being called before the Senate to give explanations and bring papers — a method now superseded by reports. The early Senators lamented the change, be lieving the old way to be the best for getting the information that was wanted, and also the best security against the appointment of incom petent. Secretaries." And Woodrow Wilson says in his "Congressional Government" (p. 257): "Before the Republican reaction which fol lowed the supremacy of the Federalists the heads of the departments appeared in person before the houses to impart desired information and to make what suggestions they might have to venture." 90 The Origin and Development of the ence which a cabinet officer of the present time would hardly dare assume.1 ¦ Jefferson, who, it must be remem bered, was an opponent of Hamilton, early thought that his department had an undue influence over the members of the legislature.2 During the civil war the importance -of the secretary of the treasury again became great, and his influence ever since has been considerable. * The 'treasury department being so important < in the First Congress, the need of annual reports from it was felt earlier than in the other departments. Hamilton had been accustomed to send- in a statement of the ex penses for the past fiscal year, together with aii estimate of the accountant. As this was found inadequate it was later provided: "That it shall be the duty of the Secretary of the Treasury to digest, to prepare^ and to lay before Congress at the commencement of every ses sion, a report on the subject of finance, containing esti mates of the public ¦ revenue and public expenditures, and plans for- improving or increasing the- revenues from time to time, for the purpose of giving information to Congress in adopting modes- -of ¦• raising money requisite to meet the public expenditures."3 As time went on statutes were passed making annual reports to: congress on other subjects obligatory ;•• A little -later annual re ports from the, other departments were also demanded. Besides the annual reports of the secretaries the sen ate is accustomed to ask for special reports on subjects relating to their departments. These calls for informa tion are most frequent. Even during, the earlier years they were numerous enough to occasion considerable in convenience, and in later times they have led to propo- ' Works, ed. by J. C. Hamilton, III, pp. 447, 588. Report of Feb. 6, I794- 2 Jefferson,, Works, III, 461, and IX, 95. 3 Statutes at Large, II, 80. United States Senate. 91 sals for the restriction of this unlimited right.1 Some times the secretaries are riot only asked for facts,.' but also for opinions,2 and sometimes even for the project of a bill. Besides the calls made by the senate itself, frequent calls are also ihadeby -the committees; and, especially of late, it is mainly through these that the senate obtains what information it wants, and that the influence of the secretaries is exerted. Either the chairman or some member of the committee will call upon the secretary to obtain the desired information, or the secretary will be summoned before the committee to give his opinions or to make explanations and defend his plans. Sometimes also the secretaries are called upon for projects of bills. In later years they are not accustomed to wait for the committee to call upon them for their opinions, but themselves take the initiative, either waiting upon 'the committee or its chairman or some member of the com mittee for this purpose. Sometimes a secretary; acts directly upon the senate by inducing some senator to introduce a bill framed in his department.3 The influence which the executive department is able . ' As for a rule requiring all calls to be referred to a committee before they were voted upon "(Congr. Globe, 2d Sess., 40th Congress, p. 2090 ) , and for a rule requiring resolutions to lie over one day, which Mr. Webster said was caused by the increased practice of making calls up on the departments. 2 Hamilton especially was frequently asked for his opinions. Ob jections were made to such calls 011 the ground that they gave an un due influence to the secretary ; and, at the second session of the Twenty-second Congress (Congr. Deb.,, vol. IX, part i, 11^27, 50-59), the senate refused to make such a call, though at the previous session such a call had been made. In the second session of the Twenty-fifth Congress, the senate again- refused to call for opinionsi - (Congr. Globe, PP- 58, 59-) 8 For example, the Mills, Tariff Bill, the Fishery Billj and the Chinese Exclusion Bill. 92 The Origin and Development of the • to exert upon legislation by all these means is very con siderable.1 VIII. RELATIONS OE THE SENATE AND HOUSE OF REPRESENTATIVES IN LEGISLATION. The first senate manifested many aristocratic tenden cies. The majority wished to establish a government which should be dignified and awe inspiring. This appeared very prominently in the debates over the titles to be applied to the president and vice president,2 which occupied the senate for nearly a month, and the discussion over the manner in which senators should be referred to in the minutes.3 The senate did not forget that it was the upper branch of the legislature and, in various ways, showed that it felt itself superior to the house. Thus when a bill was received from the house which began : "Be it enacted by the Congress of the United States," it was amended in the senate to read : " Be it enacted by the Senate and House of Representa tives," Senator Izard declaring that the " dignity and preeminence of the Senate was the thing aimed at " in the form adopted by the house.4 The same disposition was again shown when the mode of communication between the two houses was under consideration. A committee of the two houses, after consultation, agreed to a report which provided for the sending of all bills to the house by the secretary of the senate, but required the house to send bills to the senate by two of- its members and all other messages by one member.5 The house refusing to agree to this, and an- 1 See 3d Sess., 46th Cougr., Sen. Reports, No. 837. Report of a committee of eight senators in favor of allowing secretaries a seat in the senate and house of representatives. 2 Annals of Congress, ist Sess., ist Cougr., pp. 34, 35, 36. 3 Journal of Maclay, pp. 64, 65. 4 Ibid., p. 16. 5 Annals of Congress, ist Sess., ist Congr., pp. 23, 24. United States Senate. 93 other conference failing to bring about a compromise, the senate agreed to receive messages by the clerk of the house, until a rule regulating the mode of procedure was adopted ; and it was finally left to each house to send messages by the persons whom a sense of propriety would dictate. The senate was again forced to give up its pretensions when the subject of the salaries which the members of congress should receive was under consideration. The house bill provided for the same compensation for sena tors and representatives, but in the senate it was voted, thirteen to six, that there ought to be a discrimination.1 A substitute for the house bill was then adopted which, while leaving the salary of senators and representatives the same until 1795, provided that, thereafter, the salary of the former should be a dollar a day more. The house refused to agree to this, and a bill regulating the sal ary until 1795, and granting the same compensation to members of the two houses, was finally adopted.2 When the question was again brought up in 1895 the senate no longer made any claims for a higher salary. The practice of the British parliament, where the two houses were entirely independent of each other, was followed, as a matter of course, in the congress of the United States ;3 it always being considered out of order to refer in one house to the debates, votes, or majorities in the other.* A resolution, introduced in the senate by Mr. Hoar, in the first session of the Forty-ninth Congress; declaring that it was not out of order, when a private bill was under consideration, to read or refer t® a report on the same subject made in the house of representatives 1 Sen. Jour., I, 66. 2 Ibid., I, 66, 67. 1 Jefferson's Manual, sec. XVII. * Ibid. 94 The Origin and Development of the during the same congress,1 was referred to the committee on rules and not brought before the senate again. Since the careful reporting and ; publication of the proceedings of congress, so that what is done in one body is immediately known everywheres this prohibition against reference to debates practically amounts to noth ing f and the influence of the action of each house on the other, which has always existed,3 has greatly in creased ; this being due largely, to the increased knowl edge in each house of the proceedings of the other.4 On certain subjects of minor detail which involve no question of public policy, the two houses act by joint committees.5 Occasionally also a joint committee on more important matters has been appointed. Such was the joint committee appointed to consider the expediency of admitting Missouri into the Union, and that to con sider- the expediency of a change of Indian policy.6 Still more important were the joint, committees on re construction created after the civil war. In the early days it was also customary, toward the close of a session, to appoint a joint, committee to decide ¦Congr. Record, ist Sess., 49th Congr.; 5493. Mr. Hoar said that the proposed rule embodied the recent practice of the senate. 'Ibid., pp. 54. 93- 3 In 1790 Mr. Page said that, occasionally, there were heard in the house such expressions as " We hear that the senate did so and so," and that the argument that the senate would not agree to certain things was often used in the house. . (Penn. Packet, July 15, 1790.) In 1840, the fact that an appropriation bill had been thoroughly dis cussed iu the house was given, in the senate, as a reason for its imme diate passage (Congr. Globe, ist Sess., 26th Congr., p. 375); andin the first session of the Forty-first Congress Mr. Pomeroy said : "It is a constantly growing practice here in the Senate^it was not so formerly but it has become so within the last year or two — to threaten us with the action of the House ; to tell us that if you do so and so the House will not agree to it, and if you do so and so the President or some other department will not agree to it.'' (Congr. Globe, p. 25.) 4 So says Mr. Hale, Congr. Record, ist Sess., 49th Congr., pp. 54, 93. 6 As committee on engrossed bills, committee on the library. "Congr. Globe, 2d Sess., 41st Congr., p. 2639. United States Senate. 95 on the time for adjournment and the business which should be acted :• upon during the remainder of the ses sion. This came to be objected to, both because of its inexpediency and uselessness, as -the committee usually recommended new subjects- to be considered instead of those which had already been, matured in one house,1 and the recommendations were usually disregarded ; and because the business of the two houses ought not to be mixed.2 The most important of all the joint committees are the committees of conference, for to them now are usually referred all the important matters which1 come before congress. The power of the conference commit tees is very great, especially near the end of the session when there is no time to examine their report,, and it is unusual for the report even to be read, it being adopted or rejected on the recommendation of the chairman, who gives a brief statement of its contents. Even, that, how ever, is sometimes omitted. Although the senate . was, with, one exception, given the same legislative power as therhouse-, the most impor tant measures were generally introduced in the house, in the early days ; and the house- was much more active than the senate in the initiation of legislation. Thus in the First Congress the house passed and sent to the sen ate about six times as many bills as, the senate, to the house, and of the. bills which became laws about the same proportion were introduced in the house. The work of revision and. amendment of the house bills, to which the senate devoted more time- than to fcihe origin ating of bills of its own, was carefully and thoroughly done, as shown by the number of amendments made to the -house- bills and by the. accounts of the debates given 1 Congr. Deb., vol. IV, part 1, 1st Sess., 20th Congr., p. 690. 'Ibid., p. 691. 96 The Origin and Development of the in "Maclay's Journal."1 The senate, however, did not long leave to the house such a preponderating part iu the origination of legislation. Its activity gradually in creased, and, in the Tenth Congress, while the senate in troduced and passed fifty-four bills, the house introduced and passed but eighty-one. From that time until recently the proportion has remained about the same in general, though sometimes, as in the Twentieth Congress,2 the num ber of its own bills passed by the senate has nearly equaled the number of house bills passed by the house, and occasionally, as in the special session of the Fortieth Con gress the senate has even surpassed the house in the number of its own bills which it has passed.3 At the Forty-ninth, Fiftieth, and Fifty-first Congresses the num ber of senate bills passed by the senate nearly equalled the number of house bills passed by the house, and in the Fifty-second Congress surpassed it.4 The proportion of house and senate bills that have become laws has been about the same as the proportion of its own bills passed by each house, except that the recent increase in the number of its own bills passed by the senate has not been accompanied by a corresponding increase in the number of senate bills which have be come laws. Up to this time, though the house had not passed as many senate bills as the senate had house bills, the house had passed about as large a proportion of the senate bills sent it, as the senate of the house bills ; but now, while the senate sends to the house nearly as many or even more bills than the house to the senate, about three times as many house bills have become laws. ' 1 During the first session of the First Congress the senate amended all but two of the house bills in which it concurred. 2 At the first session of the Twentieth Congress the senate passed 119 of its own bills and the house 132 of its. 3 The senate passed 31 of its bills and the house 24 of its. 4 Congr. Record, ist Sess., 52d Cougr., vol. 23, part I, pp.. 820, 821 ; Public Opinion, April 12, 1894. United States Senate. 97 Usually bills were taken up in their order, preference being given to neither senate nor house bills ;: but the great increase in the amount of business, and the failure of the house to act upon anything like all the bills sent it by the senate, has of late led, on several oc casions, to the adoption of. a resolution giving prefer ence, to house bills.2 This was advocated on the ground that there were already on the house table more senate bills than it could possibly act upon, and objected to be cause it -would increase the discrimination already exist ing, between the two houses, in regard to the origina tion of bills, until the house would claim, as practically its prerogative, the introduction of all bills. A joint rule, proposed by the senate, providing that each house during the last days of the session, in proceeding with the calendar, should take up the business from the other,3 was not adopted by the house ; and thus each house is still -left free to do as it likes. From the time of the great debate over the Missouri Compromise, until the end of the civil war, most of the important measures were introduced in the senate ;4 but, since the war, and the settlement of the great prob lems, of reconstruction, the questions of most importance to the nation being those of an economic nature, the senate has now lost its preeminence in this respect. 1 A motion made in the first session of the Sixteenth Congress for a rule which practically would have given the preference to house bills was laid on the table. (Congr. Deb., vol. I, p. 613.) At the second session of the Seventeenth Congress preference was given to senate bills. (Annals of Congr., p. 288.) 2 Congr. Record, 3d Sess., 46th Congr., pp. 2108, 2109; 2d Sess., 48th Congr., pp. 303, 304, 1707. 3 Ibid., ist Sess., 49th Congr., p. 186, Rule 10. 4 For example, the measures regarding Texas and Oregon, the ad mission of Iowa and Florida, the. Kansas and Nebraska Bills. CHAPTER IV. THE SENATE AS AN EXECUTIVE BODY. I. SECRET SESSIONS. In the early days, when all the sessions of the senate were held behind closed doors, the distinction, now very important, of the admission or non-admission of the public to the respective sessions, was absent. While the legislative sessions were soon made public, the executive sessions have constantly tended toward greater secrecy. Though at first all business was transacted with closed doors, there was no rule requiring it to be kept secret ; and that it was not so considered is evident, in spite of the fact that Maclay says the contrary,1 from the fact that it was thought necessary to impose a special in junction of secrecy whenever it was desired to keep anything from the public. Moreover, the legislative business could not have been regarded as secret, since provision was at once made for its monthly publication.2 This order related to the legislative proceedings only, and at the same time it was ordered that the proceedings in executive session should be recorded in a separate, book. There are, however, some indications that the executive proceedings were also published. Thus at the first session of the First Congress provision was made for sending "a printed copy of the Journals of both Houses, at the end of every session of Congress, to the Executive of each State and to the Legislature there of ; "3 and in 1792 a resolution was adopted by the senate 1 Rule XI given by Mr. Maclay provides: "Inviolable secrecy shall be observed with respect to all matters transacted in the Senate, while the doors are shut, or as often as the same is enjoined from the Chair." 2 Sen. Jour., vol. I, p. 27. 3 Annals of Congress, ist Sess., ist Congr., p. 96. United States Senate. 99 in executive session providing " That no executive business in the future be published by the Secretary of the Senate."1 A resolution proposed in 1791, authoriz ing the secretary of the senate to " furnish the members of the Senate, when required, with extracts of such parts of the Executive Journal as are not, by vote of the \ Senate, considered secret,"2 would indicate that the " Executive Journal " was not considered secret ; and later, we find senators maintaining that it was open to inspection.3 In 1806, however, in the revision of the rules it was provided that extracts from the executive records should not be furnished except by special order.4 Motions for opening the doors of the senate to the public, which, beginning with the second session of the First Congress, were renewed in every subsequent session until the desired object was attaiaed, provided for so do ing only when the senate was acting in its, legislative, or legislative and judicial capacities.. Apparently no one desired open sessions when executive business was being transacted; The first rule imposing secrecy was not passed until the twenty-second of December,. 1800,. some time after the legislative business had been transacted in public. This rule, suggested by President Adams at a time when foreign relations were threatening, provided: " That all confidential communications made by the President of the United States to the Senate, shall be, by the members thereof, kept inviolably secret; and that all treaties which may hereafter be laid before the Senate, shall also be kept secret, until the Senate shall, by their resolution, take off the injunction of secrecy."5 1 Exec. Jour., I, 100. 2 Res. of January 21, 1791, which was never called up. (Annals of Congr., p. 1792). 3 Annals of Congress, 2d Sess., 7th Congr., pp. 38, 39. ' 4 Annals of Congress, ist Sess., 9U1 Congr., p. 263, Rule 32. 5 Exec. Jour., vol. I, p. 361. ioo The Origin and Development of the At first all papers communicated by the president upon executive business were held to be confidential,1 but after 1830 only such communications as were marked " confidential " were so considered.2 The senate had earlier decided, in connection with the Panama mission, that it had a right to publish confidential com munications of the president, and to discuss them in public, without the assent of the president, whenever they thought the public interest required it.3 John Quincy Adams, who at that time was president, declared such a course to be unprecedented.4 For some time there was no rule regarding secrecy in the consideration of nominations and they were com municated by senators without reserve.5 Proposals, made in 1813, for the adoption of a rule imposing secrecy upon nominations were not considered ;6 and it was not until 1820 that it was ordered that " All information or remarks, touching or concerning the character or quali fications of any person nominated by the President to of fice," should be considered secret.7 It would seem, howev er, that, before this, it had come to be the custom to keep such matters secret ; for, a couple of years earlier when the proceedings which took place in the senate on a cer tain nomination were desired as evidence in the courts, the resolution which it was thought, necessary to intro duce authorizing senators to relate those proceedings, was voted for by one senator only.8 The rule adopted in 1820 was interpreted as imposing secrecy upon the votes of individuals, since they were the expression of 1 Congr. Deb., vol. II, p. 145, and Exec. Jour., vol. IV, p. 122. ' Exec. Jour., vol. IV, pp. 122 ff. 3 Congr. Deb., vol. II, p. 147. "Ibid., pi 146, and J. Q. Adams, Works, vol. VII, p. 117. » Annals of Congress, 2d Sess., 7th Congr., p. 49. 6 Exec. Jour., II, 374, 392. ' Rule 37. ¦8 Exec. Jour., Ill, 114. United States Senate. 101 an opinion, but not upon the fact of nomination, con firmation, or rejection, or the state of the vote, nor was it held to contain a prohibition against each senator telling how he had himself voted.1 The removal of the injunction of secrecy is now more common than in the early days. Prior to 1828 it was of rare occurrence, and confined principally to the proceed ings on treaties or nominations, and seldom extended to documents.2 For a long time there was no provision for giving a nominee an opportunity to defend himself against any charges brought forward ; but in 1877 it was provided that, when such charges were made, the committee might, at its discretion, notify such nominee thereof, but the name of the person making such charges should not be disclosed.3 Under this rule it became the cus tom, when serious charges were made against a nominee, to allow him an opportunity to defend himself. Despite the injunctions and rules imposing secrecy, what is transacted in executive session has always be come known. Thus, Mr. Forsyth said ina83i that: " It was soon found, as the Government moved on, that if a desire was felt that any subject should be bruited about in every corner of the United States, should become a topic of universal conversation, nothing more was neces sary than to close the doors of the Senate Chamber, and make it the object of secret, confidential deliberation. Our own experience shows that, in this respect, there has been no improvement : the art of keeping.state se- 1 Exec. Jour., IV, 122, Committee Report. Clayton said in 1854 that the principles laid down in this report had siuce governed the action of the senate. By rule 40 of those adopted in 1868 and rule 73 of those adopted in 1877 it was provided that the votes of individuals should be secret, but that the fact of nomination, confirmation, or rejection should not be considered secret. 2 Exec. Jour., VI, pp. 18-19. 3 Congr. Record, 2d Sess., 44th Congr., p. 659, Rule 73. 102 The Origin and Development of the crets is no better understood than it formerly was."1 Nor did this art become better understood as time went on. In 1869, the New York Times, apropos of the pub lication of the Hale-Perry correspondence, said : " The fact that all the proceedings of the Senate in executive session are regularly disclosed and made public, would naturally suggest the absurdity of keeping up , such a hollow sham any longer. It simply allows certain news papers to trade on the lack of honor of certain sena tors."2 Similar expressions may be found at almost any time, and the ease with which what is transacted in executive session at the present time becomes known, needs no example. At first the honor of senators had been trusted to keep secret the executive proceedings, but a breach of the rules in 18443 by a senator who furnished to a news paper, for publication, documents communicated in con fidence to the senate, led to the enactment of a rule providing that : " Any officer or member of the Senate, convicted of disclosing for publication any written or printed matter directed by the Senate to be held in con fidence, shall be liable, if an officer, to dismissal from the service of the Senate, and in the case of a member 1 Congr. Deb., vol. VII, 2d Sess., 21st Congr., p. 294. 2 New York Daily Times, April 21, 1869, p. 6. 3 Two earlier breaches of the rules had been known to the senate. The first was committed by Senator Mason, who, when a sketch of the Jay treaty, upon which an injunction of secrecy had been im posed, was published by the Aurora, during the recess of congress, sent his copy of the treaty to the paper. This action was highly ap proved of by some senators and was taken no notice of officially by the senate. The other breach of the rules, which called forth a reso lution of censure, was committed by General Pickering, who read in public session a confidential communication of the president ; but, as it was several years after its receipt, and as it had in the meantime been published in a newspaper, the resolution of censure was thought by many to be undeserved. (Annals of Congr., 3d Sess., nth Congr., pp. 67-83. ) United States Senate. 103 to suffer expulsion from the body."1 L,ater the rules provided for the infliction of the same penalty upon one revealing the " secret or confidential proceedings of the Senate."2 No senator has ever been expelled under this rule and yet, as has been seen, the proceedings in execu tive session have, nevertheless, continued to be known. This inability to keep secret what is done in execu-r tive sessions has been one of the arguments most frequently urged in favor of their abolition. Other objections made to them are 'that they are undemoc ratic, that they are an evasion of official duty and responsibility, and that the people have a right to know what is being done. Many, like Mr. Sherman, even consider the secret sessions unconstitutional, holding that the clause of the constitution authorizes secrecy only in particular cases, and not as a general rule. But perhaps the strongest argument against them is the op portunity thus offered for partizanship and corruption ; and especially for the operation of the spoils system and that strange form of dictation which is the result of the so-called " Courtesy of the Senate," whose existence many think is, in the main, due to the privacy of execu tive sessions. The assertions frequently made by sena tors, as well as by others, that stories are told and things said in secret session which never would be in open session, tend to confirm this view. Occasionally, during the first half century of the government, proposals were made for the abolition of secrecy in executive sessions, and from about 1840 to 1868 such proposals were very frequent. After that little attention seems* to have been paid to the matter until about 1885, since which time there has been much agitation of the subject and frequent proposals for a change made. 1 Exec. Jour., VI, pp. 270, 273. 2 Congr. Globe, 2d Ssss., 40th Congr., p. 1630, Rule 50. 104 The Origin- and; Development of the II. NOMINATIONS. When the first nominations of the president came be fore the senate for concurrence, it was resolved that the consent of the senate should be given by ballot.1 In the discussion, this .method was objected to on the ground that it was beneath the dignity of the senate, which should be open, bold, and una wed by any consid eration whatever, and because it would be productive of caballing and bargaining for votes. A few days later an attempt to reverse the* decision failed ; but, Vhen an expression of Washington in favor of a viva voce vote had been secured,2 this method was -adopted by the senate.3 Washington's suggestions regarding the mode of com munication to be observed between the president and senate were also adopted. The senate seeriis to have been in favor of oral communications.4 To the corii- mittee appointed to confer with him on the subject Washington said : " Oral communications may be proper, also, for discuss ing the propriety of sending representatives to foreign ports, and ascertaining the grade, or character, in which they are to appear, and may be so in other cases. " With respect to nominations my present ideas are, that, as they point to a single object, unconnected in its nature with any other object, they had best be made by written message. In this case the acts of- the President and the acts of Senate will stand upon clear, distinct and responsible grounds. " Independently of this consideration, it would be no pleasing thing, I conceive, for the President, on the one hand, to be present and hear the propriety of his nomi- 1 Exec. Jour., I, 7. 2 Washington, Works, vol. XI, p. 415. 3 Exec. Jour., vol. I, p. 19. 4 Washington, Works, vol. XI, p. 415. United States Senate. 105 nations questioned ; nor for the Senate, on the other hand, to be under the smallest restraint from his pres ence from the fullest and freest inquiry into the charac ter of the: persons nominated." 1 He also suggested that the time, place, and manner of communication should be left to the. president. The opinions of Washington having been reported , to the senate, it was : '•'¦Resolved, That when nominations shall be made in writtng by the President of the United States to. the Senate, a. future day shall be assigned, unless the Senate unanimously direct otherwise, for taking them into consideration. That when the President of the United States shall meet the Senate in the. Senate Chamber, the President of the Senate shall have a seat on the floor, be considered as the head of the Senate, and his chair shall be assigned to the President of the United States. That when the Senate shall be convened by the President of the United States, to any other place, the President of the Senate, and the Senators shall attend at the place appointed. The Secretary of. the Senate shall attend to take the minutes of the Senate. That all questions shall be put by the President of the Senate,. either in the presence or absence of the President of the United States ; and the Senators shall signify their as sent or dissent, by answering viva voce, aye or no."2 Although provision is thus made for the president making his. nominations in person and for the decision of the senate upon them in his presence, it does not ap pear that this method was ever adopted, even in the case of ambassadors, which Washington had thought might '"Washington, Works, XI, 418. He said further: " It is probable that the place may vary. . . . Whenever the government shall have buildings of its own, an executive chamber will no doubt be provided, where the Senate will generally attend the President." 2 Exec. Jour., I, p. 19., This rule is still found among the senate rules. 106 The Origin and Development of the be advisable. Had the other method been followed, the influence of the president would undoubtedly have been increased, aud the independence of the senate decreased ; so that it may well be doubted whether there would have grown up that freedom of dealing with the presi dent's nominations which now makes it necessary for him, if he wishes his nominations confirmed, to first confer with and obtain the consent of the senators from the state for which the nomination is made. In the early days of the senate, that part of the rule which provides that a nomination shall not be consid ered the same day that it is received was frequently set aside, the nomination being considered as soon as received ; or, if it was laid upon the table for a few days, " when called up for consideration the mem bers of the state interested in the appointment would give the Senate what information they might pos sess regarding the person nominated, occasionally other members would give their opinions, and, on these statements, the senators relied."1 Ordinarily only when the person nominated was unknown or charges were made against him, or in case of nomination of one who had had charge of the disbursements of money, was the nomination referred to a committee. Sometimes also nominations of ministers were referred to the committee on foreign affairs to inquire regarding the expediency of the appointment2 A proposal, made in 1822, to refer all nominations to the appropriate standing committee was tabled.3 With the in creasing number of nominations, the number of nominees regarding whom nothing was known naturally increased, 'Statement of Mr. Johnson. (Congr. Debates, 2d Sess., 20th Congr., p. 91.) The early senators also frequently consulted mem bers of the other house regarding nominations. (Annals of Congr., ist Sess., 10th Congr., p. 348.) 8 Congr. Globe, 2d Sess.; 20th Congr., p. 91. 3 Exec. Jour., Ill, pp. 294, 297. United States Senate. 107 thus necessitating more frequent reference to commit tees ; but it was not until 1868 that a rule was adopted requiring all nominations to be referred to the appropri ate standing committee, Unless otherwise ordered.1 At the same time it was provided that a nomination should not be considered on the same day that it was reported by the committee, except by unanimous consent. The need of communication between the president and senate, on nominations, soon appeared. The rejec tion by the senate of one of Washington's early nomi nations, led him to suggest that it might be expedient, in cases in which nominations seemed questionable to the senate, to communicate with him, that he might give his reasons for making the nomination under dis cussion.2 In pursuance of this recommendation, it be came customary, in case of doubt, to call directly by resolution upon the president or heads of departments for information or papers, or to refer the nomination to a committee to look into the matter. In one of the first cases the secretary of foreign affairs came into the sen ate by invitation, to give his information.3 The com mittees often summoned the heads of the departments to appear before them, and sometimes even waited upon the president. The latter was done during the adminis trations of John Adams, Jefferson, and Madison ; but the constitutionality of the practice was questioned both by Adams and by Madison ; and, according to Mr. Sedg wick, the chairman of a committee which waited upon Adams in connection with the nomination of Vans Mur ray as minister plenipotentiary to France, and who him self confessed the proceeding to be " an infraction of correct principles," Adams refused to consent to an in terview, until it was agreed that it should be strictly 1 Congr. Globe, 2d Sess., 40th Congr., p. 1630, Rule 37. 2 Annals of Congress, ist Sess., ist Congr., p. 61. 3 Exec. Jour., I, 6, 7. 108 The Origin and Development of the unofficial.1 Madison went farther, and absolutely refused to confer with a committee specially authorized to call upon him,2 sending to the senate a written communica tion in which he pointed out that the appointment of a committee to confer immediately with the executive lost sight of the coordinate relations of the senate and the executive.3 Besides this, there was then a great deal of informal communication and intercourse, though not as much as at present, both before and after nomination. Thus Adams writes : " Great pains have sometimes been taken by Senators, and Representatives too, to obtain nomina* tions to offices, sometimes for themselves, sometimes for their favorites ; sometimes with success and sometimes without ; "4 and Jefferson expressed surprise, when Short was rejected as minister, that his friends in the senate had not informed him of the intention,: that he might have given his reasons for the nomination. The efforts of senators of a later day to influence nomina tions are too well known to need examples. Of the agency of the senate in appointments, Hamil ton had said : "It will be the office of the President to nominate, and with the advice and consent of the Sen ate to appoint. There will, of course, be no exertion of choice on the part of the Senators. They may defeat one choice of the Executive, and oblige him to make another ; but they canpot themselves choose— th.ey can only ratify or reject the choice of the President. They might even entertain a preference to some other person, 1 Hamilton, Works, ed. by J. C. Hamilton, vol. VI, p 399. 2 He refused to meet a committee to whom the nomination of Gal. latin had been referred in the usual way, "to inquire and report to the Senate," but said that, if they were specially authorized by the senate, he would receive them ; yet, when they were so authorized, he still refused to meet them. (Exec. Jour., II, pp. 353, 354. ) " Exec. Jour., II, p. 382. 4 J. Adams, Works, VI, p. 535. United States Senate. iog at the very moment they were assenting to the one pro posed, because there might be no positive ground of op position to him ; and they could not be sure> if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected." 1 Under Washington the senate, in the main, confined itself to such an exercise of its powers. The rejection of a nomination because of the hostility of the sena-r tors of the state for which the appointment v/as made, and their preference for another, met with a sharp rebuke from Washington.2 Though Washington demanded a careful considera tion of his nominations, he wished to have the holders of office such as the senate wished, and in his nomina tions sought to choose those who would be agreeable to the senate. Thus, in 1794, when Gouverneur Mor ris, minister to France, was very unpopular with Repub lican senators, and this became known to Washington, he expressed informally a willingness to recall Mr. Mor ris, and appoint a person of the opposite party, if they would designate a fit person. Accordingly, the Demo cratic senators held a caucus in which they decided to recommend Burr. A committee, consisting of Madison, Monroe, and another, was appointed to wait on Wash ington and communicate their desires. Washington, however, refused to appoint Burr, saying that it had been a rule of his life never to appoint any one of whose integrity he was not assured ; but that if they would designate a person in whom he could confide, he would nominate him. Another caucus was accordingly held at which it was unanimously resolved to adhere to 1 Hamilton, Works, ed. by Ford, vol. IX. "Federalist," p. 416, No. LXVI. '* Exec. Jour., I, 16, 17. no The Origin and Development of tfie the former decision. Washington then showed that, though desirous of pleasing senators, he would not suffer dictation, and, on the second meeting with the committee, and their insistence on their former choice, he told them that his decision was irrevocable. The committee still remained inflexible, and Washington finally appointed Monroe.1 With the accession of Adams to the presidency, there being a large Federalist majority in the senate, and Ham ilton the real leader of the party, conditions were favor able for the senate to encroach on the power of the pres ident. , Adams wrote, in regard to this, that combinations and committees of senators were sent to hiin to remon strate regarding nominations ; and, if they could not prevail, obtained majorities in the senate against the nominations.2 The change in the attitude of the senate from the preceding administration is shown by the fact that, though Adams had many less nominations to make than Washington, eight of his were rejected, and nine lost from being postponed to the last of the session, while but five of Washington's were rejected. Under Jefferson, as under Adams, there was in the senate a large majority of the party of the president, but Jefferson, unlike Adams, being the real leader of his party, at first met with little opposition in his appointments, only three being rejected during the first six years. Toward the end of his administration, however, a disposi tion to control him in the exercise of this power appeared.3 This was first shown in the rejection of Short as minis ter to Russia, which4 indicated the termination of the individual personal influence of Jefferson and was the 1 Life of Burr, I, 408, 409. 2 Works, VI, 535. See also Ibid., IX, 301, and Jefferson, Works, •IV, 261. 3 Statement of J. Q. Adams, found in Adams, Life of Gallatin, 389- 390, and J. Adams, Works, IX, 302. 4 According to J. Q. Adams. United States Senate. in forerunner of a more extensive plan for influencing nominations which began with the administration of Madison. Under both Jefferson and Madison this dictation of the senate, unlike that under Adams, was effected by a small knot of senators operating mainly in secret ses sion.1 During Madison's first term nineteen nomina tions were rejected, and though, when the actions of these senators became known to the public, the prime movers lost their popularity and were compelled to re tire from the senate, the seeds of usurpation of power by the senate were left behind. Thus far, however, this action of the senate had attracted so little attention that both Kent and Story, the one writing in 1832 and the other in 1833, take no notice of it. Story speaks of the senate as having " but a slight participation in the ap pointments to office,"2 and Kent says : " Having no agency in the nomination, nothing but simply consent or refusal, the spirit of personal intrigue and personal attachment must be pretty much extinguished, for a want of means to gratify it."3 Though several of Jackson's nominations were re jected,4 they were so bad that it is only strange that more were not. He also attempted to coerce the senate by renominations, a practice which was then new, though since followed to a considerable extent, especially by Tyler. With the withdrawal of Jackson from the presidency, and the accession of a man who did not enjoy his great popularity, the senate was once more able 1 Adams, Life of Gallatin, pp. 389-391. 2 Commentaries, sec. 752. 3 Commentaries, Lecture XIII, vol. I, p. 288. * Niles' Register, vol. 46, July 12, 1834, p. 329 : "It is stated that the Senate at the last session confirmed 449 nominations and rejected only 17." 112 The Origin and Development of the to make its influence felt in nominations.1 This influence was the result of a practice, followed from the first, of depending upon the senator from the state for which the nomination was made for information regard ing it. After a time it came to be a fixed rule that a nomination would be rejected if the senator of the state concerned declared it -to be unfit,2 and finally ou the mere ground that the nomination was personally obnox ious to him.3 With the full establishment of this practice all free dom of nomination naturally passed from the president to the various senators and members of congress, the president being compelled, if he wished his nominations confirmed, to first obtain the approval of the senators from the state- in which the appointment was to be made.4 The practice, which was checked somewhat by the popular disapproval of the action of Conkling and Piatt in resigning their seats because the president re fused to allow them to disburse the patronage of New York state, has since fully recovered its former strength, as is shown by the recent rejection of the nominations of Hornblower and Peckham. The power of the senate in appointments has been increased in other ways. One of these is by the increase of the offices to which appointments are made with the concurrence of the senate. A very considerable increase 'Benton, Thirty Years' View, II, 629; and Congr. Deb., 2d Sess., 23d Cougr., pp. 563, 564, where Mr. Hill says : "Some persons for a few years past, have seemed to manifest a longing desire that the Senate should have a hand in the management of the executive de partments beyond the power the Senate possesses as a coordinate branch of the legislature." 2 In case the senators belonged to the party of the president. 3 Such a case is noted in the New York Times of 1869 (April 19, p. 4), the custom, which it says had prevailed to some extent before, being severely criticised. 4 Senators and committees of the senate have acknowledged that such is the case. . United States Senate. 113 was made when, in 1836, a law was passed providing for the appointment, with the advice and consent of the senate, of deputy .postmasters in all- the offices at which the commission allowed :to the postmaster amounted to $ 1000.00 or: upwards;1, -Moreover, owing to the great increase in the number, of officials to be appointed, and the consequent impossibility of the president knowing the character of all,. senators have obtained a great influence in the. nomination to. the lower offices for which their confirmation was not ineeded. In 1 861, the nomination of all lower postmasters was unconditionally turned over to congressmen, by an official announcement that, there after, such nominations would* be made on the recom mendation of the members of: congress of the different districts, and that applications addressed to them would receive- attention earlier than if sent to the department, thus -saving much delay and trouble.-2 'In other depart ments, also, the influence of senators became paramount. In 1869, a senator said in debate : li It is an every day occurrence that applicants for office apply to Senators and Representatives assuring them:that^their recommen dation *alone is lacking to secure them the coveted posi tion ; and some of the departments, I am told, have ac tually kept a debit and credit account with members to show the number of appointments they are entitled to, and receive."3 ,' «•. < -. ,<;., v.\ ¦--¦ v The disbursement of the patronage came to occupy a third of ;the working time of senators* and led them to neglect. their legislative duties, while tempting them to * 1 Statutes at Large, vol. V, p. 87, ist Sess., 24th Congr., chap. 270, sec. 33. 2 New. York Semi- weekly Tribune, March 15, 1861. 3 Congr. Globe, 2d Sess., 41st Congr., pp. 17, 18. In the 2d Sess.,, 42d Congress, it was said that Mr. .Trumbull in fifteen months made 103 recommendations. This was, however, denied by Mr. Trumbull. (Congr. Globe.p, 1181.) , , 4 Statement'of Garfield during his presidency. 114 The Origin and Development of the make the support of an administration dependent upon obtaining nominations for their friends. This usurpa tion of the appointing power, which, according to the report of the civil service commission of 1871, tended to make the president and his secretaries merely the ap pointment clerks of congress,1 was one of the evils which the civil service reform sought to check. The movement for civil service reform began in the senate with the introduction of a bill by Mr. Sumner in 1864 ;2 and, from that time, the subject was occasionally brought up in both houses of congress, and urged by the presidents. The first step was taken in 1 871, by the passage of a resolution authorizing the president to pre scribe rules and regulations for the admission of persons into the civil service. It was proposed in the senate as an amendment to an appropriation bill, and passed with out debate.3 Under this act a commission was appointed by the president, which reported, rules for the regulation of the civil service, that were at once put in operation. In 1872 and 1873 congress made appropriations for car rying these rules into effect ; but, in spite of the success of the reform and the recommendations of the presi dent, no appropriations were made after those years, and consequently the active work of the commission was suspended, though it was still left in existence. Thus the experiment failed through lack of the support of congress. The most serious obstacle to an improvement was found to be the system by which the appointing power had been so largely encroached upon by congressmen ;4 1 2d Sess., 42d Congr., Sen. Docs., No. 10, pp. 6, 7. 2 Congr. Globe, ist Sess., 38th Congr., p. 1985. The bill was never called up. 3 Ibid., 3d Sess., 41st Congr., p.- 1997. This was regarded by tbe committee on the judiciary as only the first step in the reform. The bill was so introduced only because it was impossible otherwise to get the attention of congress for it. 4 Annual message of President Hayes, 2d Sess., 46th Cpngr. United States Senate. I/" 115 and the part of the system which had been the most un satisfactory was that in which the senate had the great est ability to thwart it,, namely, in connection with those nominations which required their advice and con sent.1 The report of the civil service commission of 1874 pointed this out, and called attention to the fact that, in this regard, an effective reform could be brought about only when the senate and the executive should act upon the same general theory of conferring office ; 2 and President Grant, recognizing the impracticability of rules in regard to such offices, unless sustained by the action of the senate, advised leaving this portion of the subject to the future.3 - President Hayes repeatedly, but without effect, recom mended legislation on the subject.4 The death of Gar field by the hand of a disappointed office seeker brought home so vividly the evils of the then existing system as to induce congress, at the next session, in accordance with the recommendation of President Arthur, to again make an appropriation for the . support o£ the civil service commission ; and the following session a bill was passed establishing the commission, only five vot ing against it in the senate.5 This law affected only the departments in Washing ton, and post offices, and custom offices where over fifty were employed, leaving untouched all that class of officers whose confirmation belonged to the senate, and provid ing that no one whose confirmation belonged to the senate should be required to be classified or to pass an examination unless by the consent of the' senate.6 The 1 ist Sess., 43d Congr., Sen. Docs., No. 53, pp. 88, 89. , 2 Ibid. 8 Ibid. 4 Congr. Record, 2d Sess., 45th Congr., p. 4 ; 2d Sess., 46th Congr., p. 3 ; 3d Sess., 46th Congr. 5 Ibid., 2d Sess., 47th Congr., p. 661. 6 Sec. 7 of the bill. n6 The Origin and Development of the bill did not touch foreign ambassadors or officers of that class or lower postmasters, and yet it was declared that it would relieve senators of three-fourths of their troubles.1 To guard against the exercise of an improper influence upon the board of examiners it was provided that no recommendation of a senator or representative, except in regard to character, should be received or considered by any one concerned in making the examination.2 . The support of the act has not been altogether satis factory, and the large number of offices to which it does not apply still leaves much room for the interference of the senate. The number of offices to which the law applies has been constantly increased, however, so that, while in 1883 but eleven per cent.3 came under its regu lation, about twenty-five per cent, do now,4 and efforts are constantly made to further extend it ; while the frequent motions made to repeal the law have met with no success.5 When it is seen to what an extent the senate has en croached upon the power in appointments undeniably granted to the president, it is not surprising to find that it has also shown itself ready to interpret the constitu tion in its favor, whenever there is an opportunity. Such an opportunity is afforded by the clause which gives to the president power " to fill all Vacancies that may happen during the recess of the Senate, by grant ing Commissions which shall expire at the End of the next Session." 1 Congr. Record, 47th Congr., 2d Sess., p. 244. 2 Ibid., p. 656. 3 Ninth Annual Report of the Civil Service Commission, p. 10. 4 World Almanac, 1895. This is more than half of the offices in im portance and salary. 6 The amendment of the constitution so as to give the election of certain officers to the people, or to create a house of electors to con firm or elect officers, were alternative reforms proposed. (Congr. Record, ist Sess., 47th Congr., pp. 85, 3767.) United States Senate. 117 Washington, on the advice of Hamilton and Jay,1 de cided that this did not give him power to appoint to an original vacancy, during the recess of the senate.2 John Adams3 and Jefferson,4 however, acted under the op posite interpretation, without being questioned by the senate ; but, when a similar course was followed by Mad-. ison, a resolution protesting against it was introduced and debated, though not voted on.5 A similar resolution of 1825 was laid upon the table by a majority of two, after a long debate, in the course of which each side declared that the previous practice supported its view. While it was acknowledged that the president had a right at any time to appoint special agents, without the advice and consent of the senate, there was a difference of opinion as to what special agents were and the duties which could be assigned to them. In the second session of the Twenty-first Congress, when the appropriation for a treaty with the Ottoman Porte, negotiated by spe cial agents, who of course were not nominated to the 1 Hamilton's Works, ed. by Lodge, VIII, p. 407. 2 The cases cited by the opponents of this theory, in which the prac tice of Washington seems to have been different, prove on examina tion not to apply exactly. Thus Mr. Short, when commissioned by Washington to adjust the boundary between Spain and the United States, was already resident minister in Madrid. The appointments to the Barbary States, without the consent of the senate, could be justified on the ground that the countries were in a state of war, and also because the senate had previously given its consent to the nego tiation of a treaty ; and Morris seems to have been appointed as a private agent rather than as » public minister. (Annals of Congr., ist Sess., 13th Congr., pp. 751-753. and Congr. Deb., vol. II, part 1, ist Sess., 19th Congr., pp. 609-614.) « 7 As shown by the appointment, without asking the advice of the senate, of his son, then minister to Berlin, to negotiate a treaty with Sweden ; and of Rufus King to negotiate a treaty with Russia. 4 Appointment of Short. See statement of Jefferson's position in his Works, vol. V, p. 360 ; for lists of precedents and discussion, An nals of Congr., ist Sess., 13th Congr., pp. 704, 720, 721, 752 ; Congr. Deb., ist Sess., 19th Congr., p. 614. 5 Exec. Jour., II, 416. 118 The Origin and Development of the senate, was agreed to ; it was accompanied by a resolu tion stating that this should not be considered as " sanc tioning, or in any way approving, the appointment of these persons, by the President alone, during the recess of the Senate, and without their advice and consent, as commissioners to negotiate a treaty with the Ottoman Porte."1 There were, however, many who, like Madison, thought this the wrong interpretation of the constitu tion.2 In 1863 a committee of the senate held that the power to make such appointments was necessary from the very nature of the treaty-making power ;3 and the presidents have continued to employ special agents for this purpose. With regard to original vacancies in statutory offices, those who denied the right of the president to fill them in the recess of the senate, did so not only on the ground that a vacancy can not happen in an office not before filled, but also because, in the case of an office created by the legislature, the vacancy would necessarily exist prior to the recess, and, therefore, could not be said to happen in the recess. Some, while denying the first, admitted the second, while others interpreted " vacancy happening in the recess" as a vacancy happening to ex ist in the recess. The early congresses seem to have held that the pres ident had not a right to appoint to an original statutory vacancy, for, when a law creating new offices was passed so near the end of the session as not to ¦ give time for filling them, the president would be specially authorized to do so, during the recess.4 Moreover, Mr. Gore said, in 1814, that this was the invariable practice ;6 and in 1826 1 Congr. Debates, 2d Sess., 21st Congr., p. 310, yeas 25, nays 18. ' Madison, Works, IV, 369 ; III, 268. 3 3d Sess., 37th Congr., Sen. Reports, No. 80, p. 8. 4 Statutes at Large, vol. 1, p. 200, 3d Sess., ist Congr., chap. 15, sec. 4. " Annals of Congress, ist Sess., 13th Congr., p. 656. United States Senate. 119 Mr. Tazewell said that it had never been pretended by any one, at any time, that the president might make an ap pointment to an original statutory vacancy.1 In 1831 he said, further, that but one president had ever at tempted to make such appointments, and that, in that case, the nominations were rejected by the senate, and a report made setting forth the constitutional construction, to which the executive afterwards assented.2 This view was upheld by Attorney General Mason in 1845,3 but the report of a committee of the Thirty- seventh Congress shows that appointments were, never theless, occasionally made to original statutory vacancies in the recess of the senate ;4 and, in 1868, Attorney General Evarts held that this, and the case of a vacancy happening in an office during the session of congress, were exactly the same, and that in both cases the presi dent had a right to make an appointment during the re cess.5 After that it seems to have been usual for the president, during the recess, to make appointments to original vacancies if they happened to occur, though congress still occasionally specially authorized the presi dent to make such appointments,6 thus apparently not recognizing that he had a right to do so in any case. The claim was also frequently disputed in the senate, and in the Thirty-seventh,7 Fiftieth,8 and Fifty-first9 Congresses, committees were appointed to look into the matter. , As the early congresses had held that the president ' Congr. Debates, vol. II, part i, 1st Sess., 19th Congr., p. 607. 8 Congr. Debates, vol. VII, 2d Sess., 23d Congr., p. 225. * 3 4 Opinions, 363. 4 3d Sess., 37th Congr., Sen. Reports, No. 80, pp. 9, 11. 5 12 Opinions, 457. 8 Congr. Globe, 2d Sess., 39th Congr., pp. 407-409. Also, 3d Sess., 37th Congr., Sen. Reports, No. 80, p. 9. '3d Sess., Sen. Reports, No. 8a 8 ist Sess. 9 ist Sess. 120 The Origin and Development of the could not appoint" to an original < vacancy, so it would seem that they also held that he could not fill vacancies happening during the previous; session ; for, on: one occa sion at least, an act was passed specially authorizing the president to make such appointments during the recess,1 and Madison thought himself unable to make an ap pointment to fill a vacancy which had existed since the last session.2 With Monroe a different practice was in troduced,3 and was followed, by most of the subseqilent presidents,4 who were supported in it by the opinions of the attorney generals.5 During Lincoln's administra tion, however, it would' seem, that -a different view pre vailed, for in the Washington despatches ; of the New York Times for March 9, 1861, the following appears : " Mr. Lincoln found about seventy vacancies in appoint ments under government- These must be filled while the Senate is in session, or cannot be until Congress meets again." . ,, - It has always been the practice of. the president to fill vacancies created during the recess ;by removals though a minority have held that they could not be considered to have happened; - .,'...:•; Another way in which the senate, when fin opposition to the president, has curtailed his power, is by refusing to act upon his nominations at tlie end of , his term. This was done at the end of the term- of J. Q. Adams, when the senate refused to act on his nominations for associate justices. of the, supreme court, on .the ground 1 Statutes at Large, vol. I, p. 749, 3d Sess., 5th Cougr., chap. 47. 3 Madison, Works, vol. Ill, p. 400. 3 3d Sess., 37th Congr., Sen. Reports, No. 80. 4 Ibid., pp. 9-12; Congr. Record, ist Sess., 51st Congr., p. 176. 5 Digest of Opinions of Attorney Generals, in House Misc. Does., 2d Sess., 48th Cougr., No. 15, pp. 288-294, \\ 3, 13, 34, 35, 59, 66, 78, 79, 88, 89 ; and Opinions of Attorney Generals, vpl. 17, p. 521. There was one exception, Attorney General Mason, in 1845, "holding the op posite. (4 Op., 363.) United States Senate. 121 that the people having in an election expressed their diss- approbation of the existing president, he should make only such nominations as were actually necessary to carry on the government. Under Tyler this was car ried further, it being informally agreed, toward the end of his term, not to act on any of his nominations. In the early days of the government the custom, which has now become fixed, of confirming; without question or reference all cabinet nominations, was not firmly established, though greater i deference has always been paid to these nominations of the president than to any others,1 and they have, in general, been accepted without a dissenting voice.2 The fear of a rejection, however, prevented Jefferson nominating Gallatin as secretary of the treasury, to the old congress, which was strongly Federalist f and Madison, being threatened with a rejection of Monroe if he were nominated as secretary of foreign affairs, gave up his wishes and nom^ inated Robert Smith, who was suggested to him by cer tain senators ;4 while later, when Monroe was nominated as secretary of foreign affairs, an attempt was made to find a reason for his rejection by an .examination of his accounts.5 Moreover, three cabinet nominations have 1 No vote is recorded against any of the cabinet nominations of Washington, Jefferson, Van Buren, Taylor, Fillmore; or :Pieree, and votes are recorded against only one each, of the cabinet nominations. of J. Adams, J. Q. Adams, Monroe and Buchanan, while votes are, re? corded against four of Madison's nominations, and against two of both Lincoln's and Johnson's. ' ' 2 Iu the 2d Sess., 39th Congr. (Cougr. Globe, p. 384), Mr. Fessen- den said : " It has always been considered, since the foundation of the government, as a matter of course, as a general rule — there may have been one or two exceptions, and- 1 think there have been — that the President might select such persons as he pleased to be members of his cabinet — the general idea of the Senate has been, whether they hked the men or not, to confirm them without difficulty." 3 Stevens, Gallatin, p. 185. 4 Adams, Life of Gallatin, p. 390. 5 Exec. Jour., II, p. 1S8. 122 The Origin and Development of the actually been rejected, each one, however, under unusual circumstances.1 Now, nominations for the cabinet, like those of senators for office, are confirmed at once, and without reference. The omission in the constitution of a provision re garding removals, placed that subject among those which must be decided by inference, thus giving an opportu nity for opposing views. The question came up for de cision in the very first congress assembled under the new ¦ constitution, being caused by a clause in the bill for the organization of the departments, which provided that the heads of the departments should be appointed " by the President, by and with the advice and consent of the Senate, and be removable by the President."2 Starting from this the discussion extended to the sub ject of removals in general. Four different opinions were advanced. There were a considerable number who held that no removal could be made but by impeach ment, and much of the discussion in the house went to the upholding or refuting of this ; which, however jus tifiable as an interpretation of the constitution, should, it would seem, have been ruled out from the first on ac count of its impracticability, even with the small num ber of offices then needed. A second party held that, since the constitution was silent regarding removals, the legis lature might give the power to whom it would ; while a third, regarding the power of removal as incident to that of appointment, held, therefore, that it was vested in the president and senate.3 Still another party main tained that, inasmuch as- the power of removal was an executive power, it belonged to the president ; and this 1 Roger B. Taney (Exec. Jour., IV, p. 427, yeas 18 nays 28) ; James M. Porter (Exec. Jour., VI, p, 227, yeas 3, nays 38) ; and David Hen- shaw*(Exec. Jour., VI, pp. 210, 211, yeas 8, nays 34). 2 Annals of Congress, ist Sess., ist Congr., p. 385. 3 This is the opinion held by the supreme court, 13 Ott. Rep., 227, 237 ; 13 Peters Rep., 259, 261, Ex parte Hennen. United States Senate. 123 was ,the view which finally prevailed, being adopted in the house by a considerable majority.1 In the senate the subject was debated four days, the discussion being mainly as to whether the senate was or was not associated with the president in removals. Mr. Ellsworth, whose opinion as a member of the conven tion carries weight, says : " There is an explicit grant of power to the President which contains the power of re moval. The executive power is granted, not the execu tive powers hereinafter enumerated and explained. The President not the Senate, appoints, they only consent and advise. The Senate is not an executive council ; has no executive power."2 So equally divided was the senate on this subject, that it was only by the casting ..vote of the vice president that the clause, as adopted by the house, was retained.3 Under the first six presidents, with the exception of Jefferson, there was little or no abuse of the power of removal, and the subject seems to have attracted no at tention until the action of Jackson brought it forcibly before the people. The bill passed May fifteenth, 1820, limiting the ten ure of office of certain officials to four years, by which the senate was enabled, through its power of confirma tion, practically to remove all such officers at the end of four years, was ostensibly introduced only for the purpose of obtaining greater security for the upright performance of their duties by the officers concerned. Mr. Adams, however, said that the object of the law, which was drawn by Crawford, was to gain sifpport for 1 The clause as first adopted in the house implied a legislative grant of the power, and, attention being called to this, the language was changed. (Annals of Congress, ist Sess., ist Congr., pp. 399, 600- 604.) * J. Adams, Works, III> pp. 408, 412. 3 Half of the members of the senate at that time had been mem bers of the convention. 124 The Origin and Development of the Crawford for the presidency.1 Introduced in the senate, the bill passed its various stages in both houses without debate, and, in the senate,' was ordered to a third read ing by a vote of 29 to \? The tendency of this law did not, however, escape the attention of the statesmen of the time. Madison questioned its constitutionality,3 and Jefferson, foreseeing clearly its effect, declared it to be more baneful than . the . unsuccessful attempt, at the beginning of the government, to make all officers irremovable, except with the consent of the senate.4 ; The first two presidents after the passage of the act, despite the urgency of senators, did not take advantage of the opportunities thus offered them, and renominated, at the expiration of office, everyone against whom there was no complaint.5 Under their successors, , however,,, the expiration of the four years' term came, to be con sidered as the vacation of the office,6 so that J. Q. Adams wrote in 1828: "The result of the act *. has been to increase the power of patronage exercised by the Presi dent, and still more that of the Senate and of every in dividual Senator."7 So far reaching were the effects of the law that Calhoun said in 1846 that "it had done more toward making a revolution- in the United States than almost any other law."8 A bill, introduced in 1826, for the repeal of this law and the substitution of one requiring a report at the end of every four years from all officers having charge of the collection or disbursement of the revenue, and providing for the removal of defaulters, was not voted on ;9 but iu 1 J. Q. Adams, Works, VII, 424. s Annals of Congress, ist Sess., 16th Congr., p. 674. 3 Works, III, 200. "Jefferson, Works, VII, 190. 5J. Q. Adams, Works, VI, 520, 521. 6 Benton, Thirty Years' View, I, 82. ' J.-.Q: Adams, Works, VII, 425. 8 Congr. Globe, ist Sess., 29th Congr., p. 819. "Ibid., vol. II, part ii, ist Sess., 19th Congr., App. p. 138. United States Senate. 125 1835 the same bill was introduced in the senate and passed by a vote of 31 to 16,1 but was not acted upon in • the house. Again in 1846 the senate repealed so much of the act as limited the tenure of office of pay masters to four years,2 but the house disagreed to it, and the law still remains1 in full force, though an attempt has recently been made, in connection with the civil service reform, to repeal this and other laws limiting the tenure of office. Another means by which it has been attempted to gain indirectly the power of removal, which the first senate, by the casting vote of the vice president, declared that it did not possess, was by calling upon the president to state his reasons for a removal, when acting upon the nomination to fill the vacancy, so occasioned. Prior to 1826 there was no- attempt to make this a general rule, but in individual cases unsuccessful resolutions of this character had been introduced.3 The bill proposed by the committee appointed in 1826 to consider the expediency of reducing the executive patronage, required the president, in making a nomi nation to fill a vacancy caused by a removal, to give his reasons for such removal, and was in tended; according to Mr. Benton, " to operate as a restraint upon removals without cause and to make legal and general ¦ what the Senate itself and the members of -the .committees individually had con stantly refused to do in isolated cases. It was," said he, " the recognition of a principle essential to the proper exercise of the appointing power, and entirely Consonant to Mr. Jefferson's idea of removals; but never admitted 1 Congr. Globe," vol. XI, part i, 2d Sess., 23d Congr., p. 576. 'Ibid., ist Sess., 29th Congr., pp. 833, 834. 3 Benton, Thirty Years' View, I, 82. Congr. Debates, vol. VII, part i, P- 37o. Exec. Jour., 11,504. . 126 The Origin and Development of the by any administration, nor enforced by the Senate against anyone— always waiting the legal enactment."1 This bill never coming before the senate for action, individual motions to inquire into the cause of certain removals continued to be made,2 though for some time unsuccessfully. The majority held not only that the president had a right to remove all federal officers, but that the senate had no right to inquire into the cause of the removal, its3 duty being confined to deciding regard ing the fitness of the person nominated to fill the va cancy created, and the only remedy, in case of an abuse of power by the president, being impeachment. The senate in the past had not acted upon such a narrow in terpretation but, on several occasions, had asserted its right to look behind the fitness of candidates, and upheld it by the rejection of the candidates, as in the case of Monroe's military nominations in 1822, and the cases of rejection of ministers because a mission, was not deemed expedient at the time the nomination was made. Among the minority, at this time, were found various shades of opinion. While the most extreme held that the consent of the senate was as necessary for removals as for appointments, there were others who held that the president had a right to suspend an officer, but that if the person nominated as a successor was rejected then the former incumbent still remained in office ;4 while still others claimed for the senate only the right to re strain the president in the abuse of the power of removal.5 In 1835 a resolution was finally adopted in the senate, but not considered iu the house, requiring the president to give his reasons for removals, in making nominations to fill the vacancies so occasioned. At the same time, 1 Benton, Thirty Years' View, I, 82. 8 Exec. Jour., IV, 70, 76. 3 Congr. Deb., ist Sess., 21st Congr., p. 457. "J. Q. Adams, Works, VIII, p. 189. 5 Congr. Debates, ist Sess., 21st Congr., p. 385. United States Senate. 127 as has been said, the repeal of the tenure of office bill of 1820 was agreed upon by the senate.1 During the same session of congress the senate had asserted its right, in an individual instance, to call upon the presi dent for the reasons of a removal, stating, in the pream ble of the resolution asking them, that they were re quested because they might contain information neces sary in the action of the senate on the nomination of a successor.2 President Jackson refused to comply with the request, which he characterized as an " encroachment on the rights of the executive," 3 and the senate upheld its view by the rejection of the nomination of a succes sor4 and a second rejection on the renomination of the same person.5 This seems to te the only case prior to 1867 in which such a resolution was adopted. Similar ones during the administrations of Tyler* and Taylor7 failed, many, however, voting against them who would have been in favor of a general rule on the subject, or of de priving the president altogether of the power. In 1844 a committee on retrenchment reported against the power of removal in the president, and advised the passage of a law specifying "the disqualifications or reasons which will be considered in law sufficient to au thorize removals."8 A little later a motion to require the advice and consent of the senate in reducing the army at the end of the war failed, though several voted against it, not because they disapproved of the 1 Congr. Debates, vol. XI, part i, 2d Sess., 23d Congr., p.. 576. 2 Exec. Jour., IV, pp. 465, 466. 3 Ibid., p. 468. He held that " the President, in cases of this na ture, possesses the exclusive power of removal from office." ' Ibid., p. 481. 6 Ibid., pp. 519. 528, 529. 6 Exec. Jour., V, p. 401. ' Congr. Globe, ist Sess., 31st Congr., pp. 74, 160. 8 ist Sess., 28th Congr., Sen. Docs., No. 399. 128 The Origin and Development of the principle, but because they thought it unwise to decide so momentous a question without thorough debate.1 From this time- till the close of the civil war, the slavery question, and then the conduct of the war, nearly banished all other questions. The system of partisan removals seems to have been accepted as a necessary evil, in the case of the senate, partly perhaps, because of the increasing share in the patronage which it had obtained. The quarrel of congress with President Johnson caused it to seek every means of limiting his power and led to the passage of the tenure of office act of 1867. During the first session of the Thirty-ninth Congress both houses had been vehemently importuned to take from the president the power of removal.2 The action of the president in renominating, during the recess, per sons whom the senate in the preceding session had re jected — thus practically doing away with the senate's power of confirmation — as well as his removals from office and the general opposition to him, ensured the passage of the act at the next session.3 The bill, as first reported by the joint select commit tee on retrenchment and- as adopted in the senate, pro vided' that all officers appointed by and with the advice and consent of the senate, with the exception of the cabinet officers, should hold office until a successor had been duly appointed,;1, except that, in the recess of the. senate, the president might suspend an officer who had 1 Congr. Globe, ist Sess., 29th Congr., p. 959. '•Ibid., 2d Sess., 39th Cougr., p. 15 17, statement of Mr. Howe. 3 Mr. Edmunds, the chairman of tbe committee, however, in report ing the bill, said that he did so in no partisan spirit, and that he thought the bill one that would be good for any administration and all times ; and it was frequently asserted in the debates that the action desired was not ou account of partisan spirit or hatred of the presi dent. United States Senate. 129 become "legally disqualified or incapable" to perform his duties ; but this fact must be communicated to the senate for approval or disapproval within thirty days after its reassembling, and, if the senate did not con cur in the suspension, the officer was to be restored. Furthermore, it guarded against the continued reeom- missioning of an officer by the president, without asking the consent of the < Senate, by providing that a vacancy, lawfully happening during the recessrmight be filled by the president, the person appointed holding .office till the end> of the next session ; when, if no appointment had been made with the advice and consent of the senate, the office; should remain vacant until such att appointment: could be made.1 In the debate, the subject was considered in all: its bearings. The old question of the right of the president to make any removals was discussed; and the precedents for it enumerated ; but the-' point which excited most discussion was the exception of the heads of the depart ments. The amendment proposed for striking, out the clause in which this exception, was made was twice voted down in the senate, the second time by a vote- of 27 to 13.2 In the house, a similar motion was first lost by two, votes, but on reconsideration was adopted 75 to 66.3 The senate refused to accede -to; this amendment, but a report of a conference, ^committee was filially "ac cepted^ which adopted the house amendment .with an amendment providing that the members of ¦¦ the: . cabinet should hold their offices respectively for and during the term of the president by whom they were appointed, and for one month thereafter, subject to rerhPval-by and- with the advice mittees of the senate, the influence of the chairman of the committee on foreign affairs being the greatest. The power of the senate in this regard seems to have increased considerably of late. The Nation in 1872 says : " The conduct of the Senate during the past ten" years on questions of foreign policy has been such that , it will hereafter be very difficult, if not increasingly dif- \ ficult, for the President to enter on any negotiation with j any foreign power on his own motion, or from his own sense of fitness or expediency. The relations between him and the Seriate have, as every body knows, of late undergone serious and important, though not always perceptible modifications."1 And Mr. Morgan, when the tendency of the senate to control all diplomatic affairs was shown in its action on the fisheries treaty, said : " The Senate has become of late years extremely aggressive in its endeavor to control by resolutions, and through the action of the committees, the whole diplomatic relations."2 When a treaty has been negotiated, the president has assumed the right to reject it without submission to the senate, if he deemed it unwise ;3 and, in one case, that of the extradition treaty with the Netherlands of May 29, 1856, the president, after submitting it to the sen ate, requested its return, and the senate complied with the request. The treaty was re-submitted a few months later and ratified with amendments. The president in laying a treaty before the senate has also suggested amendments ; 4 and, in one case, that of the treaty of 1863 with Peru, the treaty was formally amended before sub mission to the senate.5 1 Nation, May 30, 1872, p. 348. 8 Congr. Record, ist Sess., 50th Congr., p. 8672. 3 Such was Jefferson's course of procedure in regard to the treaty of December 31, 1806, with Great Britain, and such that of Polk in regard to the treaty with Mexico of March 15, 1854. 4 Exec. Jour., VIII, 290, IX, 266, XI, 256. s Ibid., XIII, 122. 146 The Origin and Development of the When a treaty has been agreed to by the senate, on condition that ratifications should be made within a cer tain time, and this has not been done, it has been cus tomary to submit the treaty to the senate for a second ratification.1 With one exception a law or resolution of corigress has been considered necessary for the abrogation of treaties, it being held that, since treaties are by the con stitution declared to be "the supreme law of the land," they could be abrogated by no power less than that which abrogates existing laws, which is the congress.2 The first instance of the abrogation of a treaty on our part was that of the French treaty in 1798. The joint resolution declaring the treaty to be void was introduced in the senate, and no nptice appears in the recorded proceedings of any other possible mode of action being suggested. When later the termination of the convention with Great Britain regarding the joint occupancy of Oregon was desired, the president recommended its" repeal by law, and congress complied with the recommendation.' There were some, at that time, who held that the same power should be required for the abrogation of a* treaty as for its conclusion, and, in the second session of the Thirty-third Congress, the senate in secret session unarii- mously adopted a resolution authorizing the 'president, at his discretion, to give notice to Denmark of the "termi nation of the treaty with that power ;3 it being held that a law of congress was not necessary as >the treaty con- 'J. Q. Adams, Works, V, 285; Exec. Jour., IV, 7, 9, 147, 151 ; V, 244, 275 ; VIII, 385. 2 This was the view taken by Story (Commentaries, sec. 1838), and upheld by Judge Iredell in a judicial decision. (Ware vs. Hylton et al. ; 1 Curtis, 205. ) 3 Exec. Jour., IX, 431. United States Senate. 147 tained provision: for its termination.1 The notice, in accordance with the senate resolution, was given and, at the next session, the senate refused to consider a resolu tion, introduced, by Mr. Sumner in open session,. direct ing the committee of foreign affairs to consider if an act of congress was not necessary for the abrogation of a treaty.2 The resolution of Mr. Sumner had been1 Caused by a proposal made in executive session and favorably reported by a committee, for the abrogation.1 by -resolu tion of the senate of certain articles of a treaty with Great Britain ;3 and, though the resolution was never voted upon, it was feared at the time that there was an intention of reviving it. . ..'",> - The action in the ease of the Denmark treaty has not been made a precedent, and, though there aresstill some who hold that a treaty may be abrogated by the presi dent and senate, the practice has conformed to the earlier mode, the joint resolution often being introduced in the senate, as in the abrogation in 1883 of the fisheries arti cle of the treaty with Great Britian.4 That a law of eongress in contradiction of treaty stip ulations repealed them has always been held.5 ¦ "The treaty with Great Britain regarding the joint occupancy of Oregon contained provision for its termination, but it was' not' held, on that account, that a law was unnecessary for its abrogation ; nor was this held in regard to the treaty of 1854 with Great Britain which was abrogated by law in 1865. " Sumner, Works, IV, 99. 3 Exec. Jour,, ix, 330, 334. * Congr. Record, 2d, Sess., 47th Congr., p. 3056. 5 This is shown by the law of 1816 for regulating the tonnage, from which it is seen that it was considered necessary, if the provisions of treaties were not to be abrogated by the law, to state this to' be the case (Statutes at Large, vol. Ill, p. 314, ist Sess., 14th Congr.; chap1. .107, sec. 6). A law of 1817 (Ibid., vol. Ill, p. 344. 2d Sess., 14th Congr., chap. 3, sec. 1), and one of 1862 (Ibid.', vol. XII, p. 558, 2d Sess., 37th Congr., chap. 163, sec. 15) shows the same ; and this view has been upheld by judicial decisions. (Taylor vs. Morton, C. C. R.y 2 Curtis, 454 ; and Cherokee Tobacco Case, 11 Wall, 621. " A law of Congress repugnant to a treaty to that extent abrogates it.") 148 The Origin and Development of the Although in the clauses of the constitution referring to treaties, nothing is said of any share of the house in them, such part has been clairiied by the house. That such a claim should have been made is due to the fact that many treaties contain stipulations regarding sub jects, which, by the constitution, are specifically con fided to congress, or may be inferred to be granted to that body. Especially in Indian treaties has the house claimed, and exercised, a considerable influence, since nearly all such treaties involve the payment of money of the dis posal of the public lands, in the latter of which the house considers that it has an equal right of deciding, and in the former a preponderating. Washington recognized this claim of the house by consulting and receiving instructions from it before pro ceeding with negotiations.1 The usual practice was for congress to make appropriations for Indian treaties prior to their negotiation. Sometimes the appropriations were made in general terms, sometimes specific sums were appropriated for negotiations with specified tribes, and sometimes laws were passed authorizing the president to enter into negotiations for treaties with certain tribes, no special appropriation being made for the purpose.2 Occasionally, however, treaties involving the payment of money were made without a previous appropriation, congress afterwards making it. In 1838 a resolution was submitted in the senate for bidding the president to have negotiated, without a pre vious appropriation by congress, any treaty with the In dians for the purchase or exchange of land ;3 and bills . and joint resolutions, denying the right of the senate and the executive, by treaty with the Indians, to dispose 1 Annals of Congress, ist Sess.,' ist Congr., pp. 60, 710, 711. 2 See Statutes at Large, under Indian treaties. Also Congr. Globe, ist Sess., 40th Congr., p. 374, and ist Sess., 41st Congr., p. 167. 3 Exec. Jour., V, p. 138. United States Senate. 149 of the public domain, except by direct conveyance to the United States, were repeatedly introduced in the house, but pigeon-holed in the senate.1 An increase in the practice of negotiating Indian treaties without any previous law was acquiesced in by the house for some years, and the Indian policy practi cally left to the senate f but in 1867 a law was passed, on a bill making appropriations for deficiencies in the contingent expenses of the senate, which provided that : " All laws allowing the President, the Secretary of the Interior, or the Commissioner of Indian affairs to enter into treaties with any Indian tribes are hereby repealed, and no expenses shall hereafter be incurred in negotiat ing a treaty with any. Indian tribe until an appropria tion authorizing such an expense shall be first made by law." 3 The exigencies of an Indian war made it neces sary to repeal this law soon after,4 but in 1871 it was finally agreed that no treaty should thereafter be made with an Indian tribe.5 The infringement of treaties regulating commerce, acquiring or ceding territory, or providing for the pay ment of money, upon the powers granted to congress, has led the house to claim a discretionary power in car rying into effect treaties containing regulations on any of these subjects ; and it has been able to enforce its claim through the necessity for legislative action to carry such treaties into effect.. This claim was first made in connection with the Jay treaty, which excited much partisan feeling, and was ratified by the bare two- thirds vote required. The treaty provided for^he pay- ' Congr. Globe, ist Sess., 41st Congr., p. 57, statement of Mr. Julian. " Ibid., pp. 147, 166 ; and ist Sess., 40th Congr., p. 374, statement of Mr. Sherman. 3 Statutes at Large, vol. XV, p. 9, ist Sess., 40th Congr., chap. 13, sec. 6. 4 Ibid., p. 18, chap. 34. » Ibid., vol. XVI, p. 566, 3d Sess., 41st Congr., chap. 120. 150 The Origin and Development of the ment. of, a. small sum of money, and its promulgation before its submission to the house naturally irritated those who' claimed for the house a discretionary power in carrying such treaties into effect. The opposition was begun by the introduction of a resolution calling upon the president for papers relating to the treaty, with the, avowed object of discussing the constitutional ques tion. This called forth a debate of nearly a month, in the course of which the different views were set forth.1 The resolution ., .,, The senate committee of foreign affairs, to whom the treaty was referred, reported that they believed the con trol of trade, and the function of taxing, were indisput ably .given /to congress, and that they were not prepared 1 Congr. &lobe, 2d Sess., '40th Congr., p.'4393, urged by Mr. LoughJ bridge. ' 2 Ibid., p. 4394, urged by Mr, Banks. * Statutes at Large, vol. VIII, p. 432, Art. VII. • 4 Exec. Jour., IV, 209. 6 This treaty changed duties laid by law, and put it beyond the power of congress to exceed the stipulated maximum of duties on imports, for at least three years. 6 Exec. Jour., VI, 263. 156 The Origin and Development of the to sanction so large an innovation as the adoption of the present treaty would be, "upon ancient and uniform practice in respect of the Department of Government by which duties on imports should be imposed." : The next day after the report was made, the convention was laid upon the table by a vote of 26 to 18, which, it would seem, should indicate the views of the members on the constitutional question, as that was the only objection made to it ; but Calhoun says that it was defeated from strictly party motives,2 and this statement is supported by the fact that the eighteen who voted against tabling the convention were Democrats, being the direct descend ants of the strict construction Republicans, who, in 1795, had wished to restrict so closely the power of the presi dent and senate in making treaties. The president not regarding this action of the senate as final, again submitted the question to it,3 when the com mittee re-affirmed their former report, stating that the ob ject of the committee in its former action " was to reach the end of the refusal to ratify the convention in the mode most conformable to the comity due to the parties to it."4 The committee, while declaring that the power of the president and senate to interfere in the regulation of im ports was not contested, or the possible occurrence of an occasion where it might be advisable, held that in the present case it was not so. Since then the senate has frequently exercised this power, though not without objection being made. In 1885 the house committee on the judiciary made an elab orate report on the powers of the executive in making- treaties affecting the tariff, which was accompanied by a resolution declaring : " That the President, by and with 'Exec. Jour., VI, p. 333. 2 Winsor, Narrative and Critical History, vol. VII, p. 512, citing Lawrence, Wheaton's International Law, ed. 1863, p. liv. 3 Exec. Jour., VI, 357. 4 Ibid., 407. United States Senate. 157 the advice and consent of the Senate, cannot negotiate treaties with foreign governments, by which the duties levied by Congress can be changed or abrogated ; and such treaties to be operative as laws, must have the sanction of Congress." l The disapproval of the regu lation of duties by the treaty-making power was also shown by proposals for an amendment to the constitu tion requiring the prior consent of congress to recipro city treaties ; and one for the election of senators by the people, because the senate was arrogating to itself the power of levying taxes by treaties. There are a few instances in which treaties regulating the revenue have recognized the rights of the house by requiring that the treaty should not go into effect until congress had passed the laws necessary to put it in operation. Such a provision was contained in the re ciprocity treaty of 1854 with Great Britain,2 in the reciprocity treaty of 1875 with Hawaii,3 and in that of 1883 with Mexico.4 In the latter case the necessary legislation was never passed by the congress of the United States. The decision of the circuit court of the United States is in favor of the position taken by the house. It is held that, in the execution of a treaty which stipulates for the payment of money, the representatives " exercise their own judgment in granting or withholding the money. They act upon their own responsibility, and not upon the responsibility of the treaty-making power. It cannot bind or control the legislative action in, this respect, and every foreign government may be^presumed to know that, so far as the treaty stipulates to pay mon ey, the legislative sanction is required." 5 1 2d Sess., 48th Congr., House Res., No. 2680. » Statutes at Large, vol. X, p. 1092, Art. V. 3 Treaties and Conventions, 1 776-1 887, p. 548, Art. V. 4 Ibid.,?. 718, Art. VIII. 6 Turner vs. Am. Baptist Church, 5 McLean's C. C. R., 347. 158 The Origin and Development of the The United States, however,- did not recognize this in 1834, in the case of France, when it was maintained that a failure to execute a treaty, duly made and ratified by the proper authorities, was a sufficient cause for war. Such is also the view taken by high authorities on in ternational law. Pomeroy says that the neglect or re fusal of congress to carry out the provisions of a treaty, would be a sufficient cause for war ;l and Wheatonthat, as a matter of international law, there is no doubt that the nation is bound.2 1 Constitutional Law, p. 450, sec. 676. 2 International Law, p. 339, sec. 266, note. Halleck (International Law; vol. I, p. 234) holds the same ; and much the same view "is taken by Attorney. General Cushing, who says : " Such action may be re garded as a political duty under ordinary circumstances, and in no case has such legislation been heretofore refused." (6 Op., Cushing, 1854.) CHAPTER V. THE SENATE AS A JUDICIAL BODY. The judicial functions of the senate have rarely been exercised, there havirig been but seven trials in the pe riod of over a hundred years since the organization of the government under the present constitution.1 The first trial was that of Senator Blount in 1798. Docuriierits containing evidence of his guilt were trans- riiitted by the president to both houses at the sariie time, arid the ' senate was considering his conduct when the resolution for impeachment was received from the housel This was near the end of the session, and a couple of months of the next session had passed by before the ar ticles of impeachment were received ; and the trial did not take place until the following session. The articles of impeachment exhibited by the house charged Blount with setting on foot, on the weSterri frontiers, an expedition to conquer the territories of Spain and transfer them to Great Britain ; with exciting the Indians to attack the Spanish ; with corruption of the Indian interpreter, and attempts to alienate the con fidence ' of the Indians from our agent ; and with en deavoring to excite the Indians against the United States, over ' the settlement of certain boundary questions. Blount riot appearing at the trial, he was allowed to be heard by counsel, who pleaded a lack of jurisdiction on the part of the senate. They maintained : "I, That only civil officers of the United States are impeachable ; and that the offences for which an Im- ' These were of Senator Blount in 1798, Judge Pickering in 1803, Judge Chase in 1804 and 1805, Judge Peck in 1830, Judge Humphries in 1862, President Johnson in 1868, and Secretary Belknap in 1876. 160 The Origin and Development of the peachment lies, must be committed in the execution of a public office. . " II. That a Senator is not a civil officer, impeachable within the meaning of the Constitution ; and that, in the present instance, no crime or misdemeanor is charged to have been committed by William Blount in the char acter of a Senator," ] The right of the senate to try a person impeached, after his expulsion from office, was also questioned. The question of jurisdiction was argued for and against by the managers and counsel for four days, and then con sidered by the senate in secret session for four days more, when it was decided, fourteen to eleven, that William Blount was not a civil officer within the meaning of the constitution of the United States, and therefore was not liable to be impeached by the house of representatives.2 This far reaching decision, which removed all senators and representatives from the fear of impeachment, and which, according to Rawle, was undoubtedly contrary to the intention of the constitution, was very severely criti cised at the time ; and the senate later put on record its belief that senators and representatives are civil officers, by holding that the oath prescribed for " civil officers," by the act of 1862, must be taken by senators. The next person to be impeached was John Pickering, a judge of the federal district court of New Hampshire. He was charged with decisions contrary to law and with drunkenness and profanity on the bench.5 Pickering failing to appear when summoned, either in person or by counsel, a letter from his son was read, stating that his father was insane, and asking for time in which to collect proofs of it. Enclosed was also a letter of Mr. Harper asking that he might be allowed to appear 1 Annals of Congress, ist Sess., 5th Congr., p. 2263. 2 Ibid., p. 2318. 3 See Articles of Impeachment. United States Senate. 161 on behalf of the petitioner, since it was impossible for any one to appear as attorney or agent of the judge, as he was insane.1 The managers on the part of the house objected to this;2 but the senate, after debate, decided that they would " hear evidence and counsel respecting the insani ty of John Pickering." 3 As the managers did not feel themselves under any obligation, to discuss a preliminary question thus raised by a third person, unauthorized by the person accused, they withdrew to take the opinion of the house as to their future action. The senate re fusing to adjourn until they should hear further from them, Mr. Harper was immediately heard in support of the plea of insanity. The next day the senate notified the managers that it was ready to hear evidence in sup port of, the articles of impeachment. Accordingly, on March eighth, the trial was continued. The argu ment of the managers and the taking of testimony oc cupied two days ; when, the senate having refused to postpone the decision to give time for further testimony to be produced, the judge was declared guilty by a strict party vote, all the Federalists voting not guilty, and re moved from office ; but the further disqualification to hold office was not added.4 Scarcely was judgment pronounced in the case of Pickering when the impeachment of Samuel Chase, associate justice of the supreme court, was received. At that time a custom prevailed to a certain extent, both here and in England, of delivering a political speech in the charge to the grand jury. Chase was a strong Fed eralist and the delivery by him of such a speech, in which he criticised severely certain acts of the Republi cans, excited much indignation and led to his impeach- . 1 Annals of Congress, ist Sess., 8th Congr., p. 330. " Ibid., p. 331. 3 Ibid., p. 333- 1 Ibid., pp. 362-368. 1 62. The Origin And Development of the ment" The eighth article of impeachment was based on this speach, which it declared was delivered with in tent to excite the grand jury and people against the gov ernments of the United States- and Maryland. The charges made in the other seven articles were brought to- light by the investigation of the- house committee, in his- career as judge, belonging to a period of time five years earlier, and charged him with arbitrary, oppressive, and unjust conduct in the trial of certain cases. Chase, while acknowledging that he had in most cases done as charged by the articles of impeachment, denied the motives imputed to him for so doing; and declared that, in each case, he believed himself to be acting in strict accordance with justice and right/ and that if he were wrong it was an. error of judgment; and-not a crime, that he had committed. He called attention to the pre cedents for the action charged in the eighth article,, and pointed out that, as he had violated no law, he could not be punished.1 The trial -lasted nearly a mouthy when the vote was taken and the judge acquitted, there being but two arti- ¦ cies on which a; majority pronounced him guilty, and: this although; there was a strong Republican majority in the senate. :- The next person tried was^ James Peck, a judge of the federal district, court of Missouri. He was charged by the house with having arbitrarily, unjustly, and oppres sively, . under color and: pretence of lawy punished for contempt of court a certain attorney who had published in a newspaper a criticism of a decision -of .Judge Peck on a. land case.2 The action referred to had been taken in 1826, but it was not until 1830 that the impeachment was decided >upon, though attempts \ to procure his im peachment had been made before. 1 Annals of Congress, 2d Sess., 8th Congr., 102 ff. 2 See Articles of Impeachment, Congr. Debates, ist Sess., 21st Congr., pp. 411, 412. United States Senate. 163 The judge in his defence asserted that the paper re ferred to was a contempt of court, because it misrepre sented the opinion of the court, which it professed to censure, and tended to excite the public mind against it ; and, moreover, that he was justified in believing that this, misrepresentation was willfully, wantonly, and ma liciously made. He further maintained that if he were wrong in this, it was an error of judgment, and not a misdemeanor willfully and knowingly done in violation of the law, or with the intention imputed in the articles of impeachment.1 The trial began in the first session of the Twenty-first Congress, when the answer of the respondent was -filed. It was then postponed until the next session, in which it continued uninterruptedly from December 20th. to Jan uary 31st, when Peck was declared not guilty.2' The next trial was that of West H. Humphries,, judge of the federal district court of Tennessee, who,, though actively engaged in the war of the rebellion,, had not resigned his position as United' States judge. Impeach ment, therefore,, became necessary to render the- office vacant. He was accordingly impeached, and tried in due form, though naturally he neither appeared in per son nor by attorney at the trial. The seven articles of impeachment were based on a secession speech delivered at Nashville in 1860^ and on his acceptance of the office of confederate judge, and he was convicted by the unan imous vote of the senate. The next trial, that of President Johnson, is the most important one, both because it was the trial of^the chief officer of the United States, and because of the strong partisan feeling connected with it, which made this trial the most severe test of the justice and impartiality of the senate as a judicial body which it has ever undergone. 1 Sen. Jour., 2d Sess., 21st Congr., App., pp. 251-321. 1 Twenty-two voting not guilty, and twenty-one guilty. 164 The Origin and Development of the The conflict between President Johnson and congress had caused several proposals of impeachment to be made. In November, 1867, the judiciary committee, after a long investigation, reported iu favor of an im peachment,' but the resolution was rejected by the house f and it was not until the removal of Secretary Stanton, contrary to "the tenure of office act as held by both houses, and the appointment of Thomas as secretary ad interim, that the impeachment of the president was re solved upon. Stanton had refused to vacate his office, and at once communicated to the house, of representa tives notice of his attempted removal. The same day a resolution for the impeachment of the president was submitted, and, after being debated for three days, was adopted.3 The promptitude with which this impeachment was carried through, was something new. The resolution of impeachment was communicated to the senate the 25th of February, and on March 4th the articles of impeach ment were presented. These were eleven in number. The first three charged the president with violation of the tenure of office act in the removal of Stanton and appointment of Thomas. The next three charged him with conspiracy with Thomas, and others unknown, for the violation of the tenure of office act, and the seizure by force of the property of the United States in the de partment of war. The eighth article related to the al leged attempts, by means of the appointment of Thomas, to control the disbursements of the money in the military service. The ninth article charged the president with attempting to induce General Emory to violate the act regulating the military service ; while articles ten and eleven charged him with designing and intending to set 1 Congr. Globe, ist Sess., 40th Congr., pp. 791, 792. 2 Ibid., 2d Sess., 40th Congr., pp. 67, 68. 3 Ibid., 2d Sess.,^4oth Congr., pp. 1329, 1400. United States Senate. 165 aside the lawful authority of congress, by exciting the people against it, by scandalous and inflammatory speeches, and by deqlaring that the Thirty-ninth Congress was no congress. The eleventh article also charged him with " unlawfully devising and contriving " means to prevent the execution of the tenrire of office act, the act for the regulation of the army, and the recon struction acts. The president in reply to the first three articles denied that Stanton's case came under the provisions of the tenure of office act, inasmuch as he was appointed by President Lincoln, and had not been reappointed ; he therefore held that there was a vacancy existing when Thomas was appointed. He further denied that the re moval of Stanton was made with intent to violate the tenure of office act, and also that there was a conspir acy with Thomas, and he declared that he only said to Emory in conversation what he had also said in messages to congress. In answer to articles ten and eleven he claimed the right of freedom of speech, and he denied that he had ever said that the Thirty-ninth Congress was not a congress, or had attempted to evade the execution of the laws. He also called attention to the fact that the charges made in these last articles did not relate to any official wrong doing or misconduct. As the total number of senators was fifty-four, and twelve of these were Democrats, who would be sure to vote not guilty, there could be no conviction should the proof offered fail to convince seven of the Republican senators, and this was what happened. Several Repub lican senators held that, inasmuch as at the time of the passage of the tenure of office act, it was admitted that it did not apply to the cabinet officers of Mr. Lin coln, they could'; inot therefore vote guilty on the Stan ton articles. On the Emory and conspiracy articles the proof was weak, and the tenth article was based on 1 166 The Origin and Development of the unofficial- utterances. Before * the end of the. trial it was apparent that the second, third and eleventh articles were the ones on which the largest number would vote guilty. Accordingly, the vote was, by order of the senate, first taken on the eleventh article, there being 35 for conviction and 19 for acquittal. - The sen ate then adjourned till May 25th, when the vote was taken on the second and third articles, with the same re sult. The senate then adjourned- sine die, and the chief justice directed a verdict of acquittal to be entered upon the record. The charges of corruption and intimidation of sena tors, whichwere so loudly made in the press; and which caused committees of investigation to be appointed in both houses, were never proven. The seventh and last trial was that of W. W. Belknap, secretary of war under Grant. He was unanimously im peached by the house on the charge of having, for six years, received money for the appointment and retention in office of the post trader at Port Sill. Secretary Bel knap had resigned, and his resignation had been accepted a few hours before the adoption of a resolution for his im peachment ; and his plea was that, inasmuch- as he was, both before and at the time of the adoption of the reso lution of impeachment, a private citizen, the senate had no jurisdiction in the case.1 The house in their replication, which upheld the ju risdiction of the senate, pointed out that the respondent was an officer of the United States at the time of the commission of the acts charged, and while the investi gation of his conduct was going on, his resignation be ing tendered with full knowledge of the proceedings and with intent to evade them.2 Secretary Belknap de nied that he had resigned in order - to evade any pro- 1 Congr. Record, ist Sess., 44th Congr. Trial of Belknap, p. 6. 2 Ibid. Trial of Belknap, p. 76. United States Senate.' - 167 ceedings * of the house of representatives, and that, -the house, had his case under consideration prior to his resig nation, since it had neither taken any steps for the in vestigation of his conduct, or authorized a committee, to do so ; the committee on expenditures of the war depart ment, who had '¦' been pretending to make some inquiry into his conduct," not having been authorized to do so, and being still engaged in examining witnesses: when the house received news of his resignation. After hearing the arguments on both sides, the ques tion of jurisdiction was debated by the senate in secret session for thirteen days, when it was decided by a vote of 37 to 29, that Secretary Belknap was amenable to im peachment, nothwithstanding his resignation; from office.1 The counsel for defence; holding that their plea had been sustained inasmuch as two-thirds had not voted against it, refused to plead ¦ farther to the merits of the ease, whereupon, in accordance with the order of the senate, the trial proceeded as on a plea of not guilty. : The trial continued- throughout the month of August, and when the vote was taken it stood 36 to 25 on all but the last article, on which it was 37 to 25. Belknap was accord ingly acquitted. The two trials most important in the interpretation of the constitution on the subject of impeachments are the first and last, — the first because it declared senators and representatives not to be civil officers in the meaning .of the constitution, and therefore not liable to impeachment; and the last because of the position taken as to the effect of resignation upon the amenability to impeachment, of the officer concerned. At the first trial all the rules and forms of: procedure for the conduct of the trial. had to be decided upon, and the practices then adopted have for the most part been followed since, others being added as occasion arose. 1 Congr. Record. Trial of Belknap, p. 76/ 1 68 The Origin and Development of the The rules adopted at the first trial were added to and readopted at the second and third trials, and then re mained the same until the trial of President Johnson, when they underwent a complete revision. On receipt of the articles of impeachment a summons . is issued to the person accused, to appear on a certain day and answer the charges made against him. He may appear either in person or by counsel, and his answer to the articles of impeachment is at once filed. If he does not appear in either way, the trial proceeds as on a plea of not guilty. After the filing of the answer of the res pondent, time is usually given for the consideration of the rejoinder, and when the court of impeachment again meets, the arguments of the counsel and managers are heard. Witnesses are examined and cross-examined in the usual way. The rules of the first and third trials were adopted by the senate before its organization as a court of impeach ment by the taking of the oath, but at the second trial not until afterwards. When the rules for the trial of President Johnson were under consideration, objection was made to their adoption before the taking of the oath, on the ground that the senate, sitting in its legisla tive capacity, had no right to adopt rules for governing its action as a judicial body. The objection was, how ever, overruled, and the rules adopted by tlie senate in legislative session ; but they were afterwards readopted pro forma by the court to accord with the conviction of the chief justice on that point1 Another point on which the chief justice differed from the senate was in regard to the time in the pro ceedings on an impeachment when the senate should be organized as a court by the taking of the oath. At the trials of Blount and Pickering, the oath was not taken until the trial was about to begin,"but at the other trials 1 Congr. Globe, 2d Sess., 40th Congr., Supplement, p. 5. United States Senate. 169 it was taken preparatory to the receipt, from the house, of the articles of impeachment. The rules adopted in 1868 provided for the administration of the oath imme diately after the receipt of the articles of impeachment,1 and it was so administered in that and the following trial, in spite of a communication of the chief justice, in which he held that not only should the taking of the oath precede the receipt of the articles of impeachment, but also the actual announcement of the impeachment.2 The house has always accompanied au impeachment by a demand that the senate " do take order " for the appearance of the person accused. At the first trial the senate, on the receipt of the impeachment, had held Blount in $20,000 bail ; and when, on the following day, he was expelled from the senate, and his sureties gave him up, it was ordered that the messenger take him into custody " until he shall enter into recognizance himself, in. the sum of $1,000, with two sufficient sureties in the sum of $500 each," which he did on the following day.3 When the same demand was made with reference to Judge Pickering it was resolved, as in the former case : "That the Senate will take proper order thereon." No action, however, was taken, and a committee appointed at the next session to inquire if any further proceeding ought to be taken regarding the impeachment, reported that the senate had no constitutional power to take into custody the body of the person accused, and that all that was necessary was a notification to the party concerned, of the impeachment, it being optional with him whether he appeared in person, or by attorney,, or not# at all. The committee, therefore, held that no further proceed ing should be taken by the senate, until after the receipt of the articles of impeachment.4 1 Rule 3. 2 Congr. Globe, 2d Sess., 40th Congr., p. 1644. 3 Annals of Congress, ist Sess., 5th Congr., p. 44. * Ibid., ist Sess., 8th Congr., p. 317. 170 The Origin and Development of the Another change is in regard to the attendance of the house. The rules adopted at- the first trial -provided for no accommodations for the members of the house, and there is no notice of their 'having attended, though the house adjourned during the progress of the trial, it being thought improper' to proceed with the business of the house in the absence of so considerable a number of its members.1 At the second trial, though prepara tions were made -for- the accommodation of the house in the senate chamber during the trial, and the house was notified of the fact, it did not adjourn during the trial, except when judgment was being pronounced, at which time it attended in the senate chamber. Since then it has always been the custom of the house to be present in the senate during the progress of the trial,2 and the propriety of such a course of -action was not questioned until the rules for regulating the procedure in the trial of President Johnson were under discussion, when- it was objected to, on the ground that the presence of the house would exert an undue influence.3 The rule was, however, adopted as usual, and the house not only at tended during the trial, as in former cases, but also ac companied the managers, as a committee of the whole on the state of the union, when the articles of- impeach ment were presented, though their attendance at that time was not contemplated by the rules. The rules adopted at the first trial provided for the decision with closed doors of all questions arising in the course of the trial ;4 and, under this rule, the senate had for four days : debated, in secret session, the question of jurisdiction. At the next trial a step towards publi city was 'taken by providing for the retirement of the senate to an adjoining committee room for consideration 1 Annals of Congress, 5th Congr., vol. Ill, p. 2564. * In the trial of Peck they did not attend all the time.' ' 3 Congr. Globe, 2d Sess., 40th Congr., p. 1595. 4 Annals of Congress, 5th Congr., vol. II,p. 2197. • United Stales Senate. 171 of a motion, only when a third of the members present required it j1 and, at the same time, it was agreed to ad mit stenographers to the trial.2 Finally, at the trial of Judge Chase everything was made public, it being pro vided that " At all- times whilst the Senate is sitting upon the trial of an impeachment the doors of the Sen ate Chamber shall be kept open." The rule remained in this form until the trial of President Johnson, when it was amended by the addition of " unless the Senate shall direct the doors to be closed while deliberating up on its decisions." 3 At the trial of Judge Chase, provision was, for the first time, made for the publication of the proceedings on the trial. Provision was also made at the same time for the publication of the proceedings on the previous trials.4 A proposal made at the trial of President Johnson for the reporting in Confidence of the proceedings in secret session was negatived, as was also a similar proposition made at the next trial.5 The trial of President Johnson saw the adoption of rules for the limitation of debate. Argument on all preliminary questions was limited to one hour on each side,6 and the final argument on the merits of the ques tion was confined to two persons on each side.7 It was also provided that, when the doors were closed for delib eration, no member should speak more than once on any one question, or for more than ten minutes on an intro ductory question, or fifteen on the final question, unless by consent of the senate to be had without debate.8 1 Annals of Congress, ist Sess., 8th Congr., p. 327. 2 Sen. Jour., vol. Ill, p. 503. 3 Rule 19. 4 Resolution adopted February 20, 1805. 5 Congr. Record, ist Sess., 44th Congr., vol. IV, part vii, p. 73. 6 Ibid., 2d Sess., 44th Congr., p. 1580, Rule 20. * Ibid., Rule 21. 8 As first proposed, the rule read " unless by unanimous consent ;" but this was so strongly objected to that it was amended so as to read as given. 172 The Origin and Development of the At the trial of President Johnson, the chief justice for the first time presiding, questions arose as to the ex tent of his powers. Though some had held that, in the trial of an impeachment, the vice president, when he presided, had a right to vote as a member, he had never exercised other than a casting vote. The same claim was made for the chief justice, but it received little sup port, and a motion denying his right to a casting vote was rejected by a majority of six only. Another question was raised by the fact that there was no vice president, the question being whether, in such a case, the president pro tempore should be allowed to vote in the trial of the president, inasmuch as he now stood next in succession to the presidency. On this ground objection was made to his taking the oath, but, after some debate, in the course of which it was pointed out that the president pro tempore might be changed at any time in the course of the trial, the objection was withdrawn.1 1 Congr. Globe, 2d Sess., 40th Congr., pp. 1675-1700. CHAPTER VI. CONCLUSION. In the development of the senate, three loosely de fined periods may be noted. During the first of these, which extended over about thirty, years, and especially during the first half of this period, the house was the most conspicuous branch of the legislature.1 While the legislative sessions were held in secret, it was but natural that the proceedings of the senate should attract less at tention than those of the house ; and that it was still so, even after the opening of the doors of the senate, may have been partly due to the force of habit ; partly to the fact that the house represented the people directly, and was, therefore, more popular ; and partly to the business like manner of conducting legislation in the senate, — due, doubtless, to the small number of senators and the se cret sessions, — which, though conducive to good legisla tion, did not attract popular attention. The lack of re ports of the proceedings of the senate in the papers of the day, even after the legislative sessions of the senate were made public, although those of the house were quite fully reported, would also have its influence. This being so, the house was naturally the place in which any subject was introduced, which it was desired should excite attention, and create an impression abroad. Thus it is not strange that, in spite of the executive du ties entrusted to the senate, and the longer term of its members, a seat in the house was sometimes regarded as equally or even more desirable than one in the senate.2 1 Morris went so far as to say that the complete sovereignty of America was substantially in the house. (Life of Morris, III, pp. 185, 186, and Diary, II, p. 528.) 2 Madison, Works, I, 438. 174 The Origin and Development of the Thus Clay in 1811, when there was a question of war, refused to be a candidate for re-election to the senate that he might'get into the house.1 Not only were sena tors occasionally seen resigning their seats to become state governors, as at present, but even to become mayors of large cities,2 and it was by no means an unusual thing for one who had been a senator to be elected into the house of representatives.3 In 1808 Story wrote that though the senate was ordinarily composed of men of ripe years and respectable appearance, yet the house was generally greatly superior in talents.4 On the other hand, the Pennsylvania Packet^ speaking of the First Congress, said : " Perhaps a more truly respectable del egation could not have been made, than appears in the Senate. Many of them are men eminently con spicuous for their abilities and political knowledge. Eleven of them were members of the Grand Con vention,, and were in favor of the Constitution, and they are all men in whom the people of the United States can place entire confidence for the speedy and ac* tive operation of the new government ;''5 and John Adams described the- senate- during his presidency, as a *' select council of statesmen, true to their duties, not ambitious of logomachy, and not making their honorable station subsidiary to other objects." 6 Most of the senators were men of moderate means,7 and some of them were rich for' that time,8 but there 1 Clay, Works, IV, 47. 2 Otis; iii 1821, to become mayor of Boston, and DeWitt Clinton to become mayor of New York. a Webster, Works, III, 12. 4 Life of Story, I, p. 158. 5 Thursday, March 12th, 1789. 6- John Adams, Works, I, 571. "'-¦ ' ' A Boston paper of July 8, 1789, says: "Considering that Con gressmen are elected from amongst the wealthy, for their abilities and integrity," etc. (Taken from the Pennsylvania Packet, July 22, 1789. ) 8 Life of J. Smith, p. 57. United States Senate. 175 was not the number of wealthy men which is to be found in the senate now, and which has given it the name of " The Rich Man's Club." The accusations of corruption, which were made even during the First Congress, are by no means proven. Hamilton, who was most frequently accused of using improper means to secure his majorities, declared that he did not know of a single senator who could properly be called a stock jobber or a paper dealer ; and .Madison says that the accusation of bribery in 1796 was a "slan derous assertion ; ''1. while the statement of Senator Tay lor, that he resigned his seat in congress because of '' the extreme corruption of- Congress and the President," aroused much indignation from his brother . .senators, who thought the statement unwarranted.2 - That there, was a trading of votes, is shown by the way in which the place for the capitol was decided upon. The senate in its mode of , conducting business was most orderly and dignified. A Nova Scotia paper, in 1 791, said :'¦' There is but one assembly- in the whole range of the Federal Union in which eloquence is deemed unnecessary, and, I believe, even absurd and intrusive, — to-wit, the Senate, or Upper House of Congress. They are merely a deliberative meeting, in which every man delivers his concise .opinion, one leg over the other, as they did in the First Congress, where an harangue was a great variety."3 The rule, adopted in the First Con gress, and still found among the rules of the senate, which provides that : " No member shall speak to another, or otherwise interrupt the business of the Senate, or read any. printed paper, while the Journals or public pa pers are reading, or when any Senator is speaking in any 1 Works, II, p. 71. Letter of January io, 1796. 2 Ames, I, 161. 3 Taken from Sumner's Works, XIII, 191. Occasionally, however, it would seem that a "harangue" was delivered in the senate, for Maclay- mentions a speech which lasted two days. 176 The Origin and Development of the debate,"1 was not then, as now, a dead letter, but was carefully observed. Moreover, the senators were not then accustomed to be absent from the senate chamber during a large part of the day's session ; and, according to a rule given by Mr. Maclay, a senator who should withdraw from the senate chamber for more than a quar ter of an hour after a quorum was formed, would be guilty of disorderly conduct, and be punished in the same way as for neglect of attendance during the ses sion.2 During the latter half of the first period the leg islative importance of the senate was gradually increas ing, and, with the great debate over the Missouri Com promise, it obtained the lead. From that time till the civil war, the struggle between the North and South over slavery was the all important question ; and this struggle was, for the most part, fought out in the senate, where, owing to the system of representation, the two sides were evenly matched. The senate thus became the center of interest for the whole country, and the place where most of the important measures were intro duced, and the great debates took place which have justly gained for the senate a world wide renown. Sum ner, speaking of this in 1869, said : " Without neglect of business the Senate has become a center from which to address the country. A seat here is a lofty pulpit with a mighty sounding board, and the whole wide spread people is the congregation." 3 The senate was still, however, remarkable for the closeness of its debates, and the brevity of its discus sions, and was to be distinguished from the house by reason of its greater decorum and dignity, and the ease with which order was preserved.4 Passions, however, 1 Rule 2. 2 Journal of Maclay, p. xiv, Rule 16. 3 Sumner, Works, XIII, p. 191. 4 Exec. Jour., V. p. 4, address of .Vice President Johnson; and Ben ton, Thirty Years' View, I, 206-208. United States Senate. 177 sometimes ran high, it being during this period that oc curred in the senate chamber that scene between Mr. Benton and Mr. Foote, in which the latter drew a pistol. Many have borne witness to the fact that at this time the senate occupied the first place in the government. Van Buren said in 1823 tnat the senate, more than any other branch, controlled all the efficient power of the gov ernment ; and Story, who wrote in 1833, said of the sen ate : " It has given a dignity, a solidity, and an enlight ened spirit to the operations of government, which have maintained respect abroad and confidence at home." x Greeley, in 1836, said that the senate was the " ablest body of its numbers on earth " f and Richard Johnson, a few years later, when vice president, said : " There is not, in my opinion, upon the globe, a legislative body more respectable and more exalted in character than the Senate of the United States." 3 The increased importance of the senate is also shown by the way in which a seat there was regarded. Niles Register for 1822, says : " A place in the Senate of the United States, in point of honor aud respectabilty, is second only to a place in the presidential chair ; " 4 and John Brown wrote to Clay ten years later that he would prefer a place in the senate to any within the reach' of American ambition.5 The highest terms of praise were made use of in regard to senators. Webster, in 1830, spoke of the senate as a "Senate of equals, of men of individual honor and personal character, and of absolute independence," who knew no master and acknowledged np dictation;6 and De Tocqueville, who travelled in 1 Sec. 725. 2 Recollections of a Busy Life, p. 225. 3 Exec. Jour., V, 4 ; Benton, I, 208; and Niles Register, XXII, 274, for similar statements. 4 Vol. XXIX, p. 241. 3 Clay, Works, IV, 343- 6 Webster, Works, III, 274. 178 The Origin and Development of the America in 1834, wrote regarding it : " Scarcely an in dividual is to be found in it, who does not recall the idea of an active and illustrious career. The Senate is composed of eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose language would, at all times, do honor to the most remarkable parliamentary debates of Europe." x During the second period, the power of the senate in nominations was much increased. At first the senate had, in the main, confined itself to the exercise of the powers, granted it by the constitution, of advising and consenting to the nominations made by the president1; but, in the second period, it practically obtained, to a great extent, the power of nomination as well, a power which, owing to the great increase in the number of of fices and the introduction of the spoils system, had coriie to be enormous. The civil service reform limited the power of the senate by decreasing the number of offices which it could control, but, except for that, its powet now is as great as ever. The new chamber, twice as large as was then needed,2 which the senate moved into in 1859, where it was diffi cult for senators to make themselves heard, and the larger number of senators resulting from the admissibn of several new states into the union, made the sen ate no longer so well fitted for a debating body where the great leading questions of the day could be thoroughly discussed, and thus brought before the country. This, and the increase in the number and diver sity of the subjects to be acted upon by the senate, due'to the growth of the country, and the increased material pros perity which followed the war, has contributed largely to make the senate what it is in its third stage of develop ment, when it has become more like the house, many of whose rules and practices it has adopted. 1 Democracy, in America, chap. VIII. 2 Sumner, Works, X, 497, 498. United States Senate. 179 The senate has not, however, adopted those strict rules for the limitation of debate which are in force in the house, and it still remains the chief debating body, though it has not that preeminence in this respect which itenjoyed in the second period ; its long debates, which are regarded with disfavor by the people, even when their object is not to delay business, having contributed to the loss of public esteem which the senate has suf fered. „, During the preceding period the minority was frequent ly charged by the majority with factious opposition ; but it is only within recent years that" minorities have not only attempted, by all sorts of factious opposition, to prevent any action to which they objected, but have bpjdly declared that this was their intention, and that they had a right so to do ; and have followed up their declarations with sufficient persistence to gain their ends. j(,As all attempts by the majority in such instances to cliange the rules have been met by the same factious oppo sition, and as, when the immediate necessity for a change is passed, the majority has not shown itself eager for a change, this action of the minority has not led to the amendment of the rules, though such amendment has been loudly demanded by the country ; and, as matters now stand, a very few senators, if they are only persist ent and not too scrupulous, can delay indefinitely the action of the senate. . The fact that it is only recently that the opportunities for factious opposition, offered by the senate rules, have been made use of, though the rules have always b^n as fa vorable to such action as at present, would suggest that the character of the senate had degenerated. Corrup tion, indeed, seems to exist in the senate, as well as in every other department of government, local, state and national ; for though it is seldom that the actual sale of a vote has been proven, it can scarcely be doubted 180 The United States Senate. that indirect means of bribery are often employed. A proposal in the second session of the Thirty-eighth Con gress for a standing committee on corruption, brought out the startling fact that many reports of frauds dis covered by committees had never been acted upon. That there is a good deal of corruption would also appear from the numerous proposals for its prevention, and the discussions which these have called forth.1 The number of rich men in the senate has increased, but the number of very rich ones who are senators only because they are rich, is often exaggerated.2 If, however, it is acknowledged that there is more cor ruption than formerly, and that the average of character of senators is lower, it is only admitting that the char acter of public men in general has declined ; for the senate is still recruited mainly from men who have pre viously held some state or United States office, especially from among state governors and United States represen tatives, so that the senate is largely composed of the ablest men who have sat in the house. A seat in the sen ate, is, as a rule, preferred to one in the house, and the senate still remains the most distinguished branch of the legislature; 1 One of the proposals most frequently made, is to forbid senators acting as attorneys for railroads. 2 Thus Jonathan Chase said, in 1889, that fully one-half of the sen ators were men of small or no means, a large proportion of the others were men of moderate means, and that only a few were rich men, while there were but three or four who possessed great estates. (North American Review, vol. 148, p. 50.) See, also, Forum, "The Senate in the Light of History." LIST OF WORKS CITED WITH DATE AND PLACE OF PUBLICATION. Adams, Charles Francis. (See Adams, John, and Adams, J. Q. ) Adams, Henry, Life of Albert Gallatin. Philadelphia, 1880. Adams, Henry, Life of John Randolph. Boston, 1883. Adams, Henry. (See Albert Gallatin. ) Adams, John, Life and Works of. Ed. by Charles Francis Adams, 10 vols. Boston, 1856. Adams, John Quincy, Memoirs of. Ed. by Charles Francis Adams, 2 vols. Philadelphia, 1874. Ames, Fisher, Works of. Ed. by Seth Ames, 2 vols. Boston, 1854. Ames, Seth. (See Ames, Fisher. ) Annals op Congress, ist Congress — 16th Congress. Washington, 1834-1855. Attorney Generals, Official Opinions of the, 1789-1880, 16 vols. Washington. ATTorney'Generals, Digest of Opinions of, in House Miscellaneous Documents, 2d Sess., 48th Congr., No. 3. Benton, Thomas H., Thirty Years' View, 2 vols. New York, 1854. Blaine, James G., Twenty Years of Congress, 2 vols. Norwich, Conn., 1884. ' Burr, Aaron. (See Davis, M. L.) Cabot, George. (See Lodge, Henry Cabot.) Calhoun, John C. , Works of. Ed. by Richard K. Cralle, 6 vols. Vol. I, Columbia, S. C, 1851 ; II, 1881 ; III, IV, V, 1874 ; VI, 1879, New York. Civil Service Commission, Reports of. Washington. Clay, Henry, The Life, Correspondence, and Speeches of. Ed. by Calvin Colton, 6 vols. New York, 1857. Colton, Calvin. (See Clay, Henry.) Congressional Debates, 2d Sess., 18th Congress— ist Sess., 25th Congress, 14 vols. Washington, 1825-1837. Congressional Directory. Washington, 1809, 1816, 18^9-1894. Congressional Globe, ist Session, 23d Congress— 3d Session, 42d Congress. Washington, 1834-1873. Congressional Record, ist Session, 43d Congress— 2d Session, 53d Congress. Washington, 1874-1894. Conkling, Albert, The Life and Letters of Roscoe Conkling. New York, 1889. Conkling, Roscoe. (See Conkling, Albert. ) CrallE, Richard X. (See Calhoun, John C.) Davis, M. L., Memoirs of Aaron Burr, 2 vols. New York, 1836. 1 82 List of Works Cited. Dickinson, Daniel S., Speeches, Correspondence, etc. of. Ed. by John R. Dickinson. New York, 1867. Dickinson, John R. (See Dickinson, Daniel S.) Eaton, Dorman B., Secret Sessions of the Senate. New York, 1886. Elliot, Jonathan, Debates on the Federal Constitution, 5 vols. Philadelphia, 1891. Executive Journal of the Senate, 1789-1828, vols. I-III, Wash ington, 1828. 1829-1869, vols. IV-XVI, Washington, 1887. Federalist, The, in Works of Hamilton) Ed. by Henry Cabot Lodge, vol. IX. New York and London, 1885. Gallatin, Albert, The Writings of. Ed. by Henry Adams, 3 vols. Philadelphia and London, 1879. Gallatin, Albert. (See Stevens and Adams, Henry.) Gibbs, George, editor of Administration of Washington and Adams, 2 vols. New York, 1846. Greeley, Horace, Recollections of a Busy Life. Chicago, Cincin nati, San Francisco, Boston, New York, 1868. Greeley, Horace. (See Parton.) • ¦<¦>- Halleck, International Law, revised by Sir Sherston Baker, 2 vols. London, 1878. Hamilton, ALEXANDER,_The, Works, of. Ed;- by Henry Cabot Lodge., 9 vols. New York and London, 1885. Hamilton, Alexander, The Works of. Ed. by John C. Hamilton, 7 vols. New York, 1871. Hamilton, John C. (See Hamilton, Alexander. ) Harper's Weekly, 1870. New York. House of Representatives, Digest and Manual of. Washington. House Journal, 1789-1895. Washington. Jefferson, Thomas, Works of. Ed. by H. A. Washington, 9 volsj Philadelphia, 1869. Kent, James, Commentaries on American Law, 2d edition, 4 vols. New York, 1832. King, Rufus, Life and Correspondence of. Ed. by Chas. R. King, 2 vols. New York, 1 894-1 895. Lodge, Henry Cabot, Life and Letters of George Cabot. Boston, 1878. Lodge, Henry Cabot. (See Hamilton, Alexander.) Maclay, William, Journal of. Ed. by Edgar Maclay. New York, , 1890. Maclay, Edgar. (See Maclay, William. ) McMaster, John Bach, History of the People of the United States, 3 vols. New York, 1885. Madison, James, Writings of. Published by order of Congress, 4 vols. Philadelphia, 1867. Manual. (See Senate and House.) Morris, Anne Cary. (See Morris, Gouverneur. ) Morris, Gouverneur, The Diary and Letters of. Ed. by Anne Cary Morris, 2 vols. New York, 1888. List of Works Cited. 183 Morrison, John Hopkins, Life of Jeremiah Smith. Boston, 184$. ¦ Nation, 1865-1894. New York. Niles Register, 75 vols., 1811-1849. Baltimore. North American Review, Nos. 12S, 148. New York. Parton, James, Life of Horace Greeley. Boston, 1882. Pennsylvania Packet. Philadelphia. Pickering, Timothy, The Life of, 4 vols. Vol. I, ed. by Octavius Pickering, Boston, 1867 ; vols. II, III, IV, ed. by Charles W. Uphaui, Boston, 1873. Pickering, Octavius. (See Pickering, Timothy.) Pomeroy, John Norton, An Introduction to the Constitutional Law of the United States, 7th edition. Boston, 1883. Public Opinion for 1893. Randolph, John. (See Adams, Henry.) Rawle, William, A View of the Constitution of the United States. Philadelphia, 1825. Read, George. (See Read, William Thompson.) Read, William Thompson, Life and Correspondence of George Read.' Philadelphia, 1870. - ' " Reports. (See Senate and Civil Service Commission. ) Revised Statutes of the United States. (See United States. ) Senate Executive Documents, 1st Session, 30th Congress— 2d Sess., 53d Congress. Washington. Senate Journal, 1789-1815, reprint in 5 vols. Vols. I-II, 1820 ; vols. III-V, 1821. 1815-1895, Washington. Senate Miscellaneous Documents, ist Session, 30th Congress— 2d Session, 53d Congress. Washington. Senate Public Documents, ist Session, 18th Congress— 2d Session, 29th Congress. Washington. Senate, Reports of Committees of the, ist Session, 30th Congress — 2d Session, 53d Congress. Washington. Senate, State Papers, 3d Session, 13th Congress — 2d Session, 17th Congress. Washington. Smith, Jeremiah. (See Morrison, John Hopkins.) Sparks, Jared, Life of Gouverneur Morris, 3 vols. Boston, 1832. Sparks, Jared. (See Webster, Daniel. ) Statutes at Large. (See United States. ) Stevens, John Austin, Life of Albert Gallatin. Boston, 1884. Story, Joseph, Life and Letters of. Ed. by William W. Story. 2 vols. Boston, 1851. Story, Joseph, Commentaries on the Constitution, 3d edition, 2 vols. Boston, 1833. Story, William. (See Story, Joseph.) Sumner, Charles, Memoirs and Letters of. 15 vols. Boston, 1870- 1883. Supplement to Revised Statutes. (See United States.) 1 84 List of Works Cited. Supreme Court. (See United States.) Times, New York Daily, i860, 1861, 1869. Treaties and Conventions between the United States and Other Powers, 1776-1887. Washington, 1889. Tribune, New York Semi- Weekly, 1861. United States, Reports of the Circuit Court. United States, Reports of the Supreme Court. United States, Revised Statutes, 2d edition. Washington, 1878. United States, Statutes at Large, 1789-1887, 24 vols. Washington. United States, Supplement to the Revised Statutes of. Vol. I, 1874-1891. Washington, 1891. Vol. II, 1892-1893. Washington, Upham, Charles W. (S.ee Pickering, Timothy.) Washington, George, Writings of. Ed. by Worthington Chauncey Ford, 13 vols. New York and London, 1889. Washington, W. A. (See Jefferson, Thomas.) Webster, Daniel, The Works of. Ed. by Jared Sparks, 6 vols. Boston, 1851. WheaTon, Henry, Elements of International Law. Ed. by Richard Henry Dana, 8th edition. Boston, 1866. Williams's Statesman's Manual, 2 vols. New York, 1846. Winsor, Justin, editor of Narrative and Critical History of the United States, 8 vols. Boston and New York, 1887-89. INDEX, Absence, leave of, 41-42. Absentees, publication of names of, in Congressional Globe, 43. Adams, John, election of, as sena tor, 19 ; exclusion from the cab inet, 22, 23 ; delivery of his an nual message, 85 ; rule suggest ed by, 99 ; waited upon by a committee of the senate, 107 ; refusal to meet a committee of the senate, 107 ; on soliciting nominations, 108 ; nominations of, rejected, no; on the en croachment of the senate on the president's power in nomina tions, 1 10 ; appointments by, to original vacancies, 117; on ten ure of office bill of 1820, 123; failure of, to consult senate pre vious to the negotiation of trea ties, 140 ; on the character of senators, 174. Adams, John Quincy, on powers of the vice president, 21 ; on the right of the senate to publish confidential communications from the president, 100 ; refusal of the senate to act on certain of the nominations of, 120-121 ; on the result of the tenure of office act of 1820, 124. Adjournment, extending the date of, 52 ; Alabama affair, 142. All night sessions, 67. Ambassadors, appointment of, ac cording to Pinckney's plan, 7, ro. Amendments proposed to the con stitution, 18, 20, 157. Anthony rule, 54, 62-63 I proposed amendment of the, 63 ; decision of the vice president on the, 63. Appointments, methods of mak ing, proposed, 9-1 1, 12 ; opin ions regarding influence of the manner of making,, upon the re lations of president and senate, 13 ; under the United States con stitution and that of .New York state, 39 ; to original vacancies, 117 ; to original statutory offices, 118-119; to vacancies existing since the last session, 120 ; of special agents to negotiate trea ties, 143-144. See Nominations. Appropriation bills, 57-80; origi nation of, 7, 69-72 ; amendment of, by the senate, 7, 57-58, 71, 74> 75. 76 ; interest on, 62 ; rule allowing amendment to be laid on the table without the bill, 62 ; debate on , limited by unanimous consent, 62 ; consideration of, in the senate before receipt from the house, 71-74 ; origination of, ceased to be an advantage, 71 ; number of, 72-73 ; reference of, in the senate, 73 ; time of receiv ing, in the senate, 73-74 ; effect of delay of, on the senate and house, 74-75 ; private claims added to, 76-77 ; rules restrict ing the amendment of, 77-78 ; general legislation on, 78-79 ; power of the senate on, 80, 112 ; rules of the house restricting general legislation on, 79-80 ; for the negotiation of a treaty, 142-143. 150-151, 152-153; for Indian treaties, 148 ; for execut ing the Jay treaty, 150 ; for exe cuting the treaty with Russia, 153- Aristocracy, fear of, 4 ; fear that senate form an, 14. Arthur, Chester A., recommenda tion of civil service reform by, "5- Articles of Confederation, lack of war power under the govern ment of the, 8. Attorney Generals, opinions of, "9. I5i- Bank, United States, re-charter of, 84. Belknap, W. W., impeachment and trial of, 166-167. Bentou, Thomas Hart, on senators asking leave of absence, 42 ; on "pairing off," 45; on use of instructions, 84 ; on requir ing the president to give his i86 Index. reasons for a removal, 125 ; ou claim of the senate to a right to consultation in the negotiation of treaties, 141 ; scene with Mr. Foote, 177. Bills, adversely reported by a committee, 35-36 ; passage of, through all t,heir stages in one day, 50; not to be put on their -passage till 12 M., 53 ; intro duction of, 54 ; to be read three times, 54-55 ; setting aside a spe cial time, to - consider special classes of, 56. See Private bills, Appropriation bills, Revenue bills. Blaine, James G., on the effect of the senate rules restricting leg islation, on appropriation bills, 79-80. Bradford, statement of, regarding caucuses, 82. Bright, decision on the right of the president of the senate to call to order, 22. Brown, Senator of North Caro lina,, resignation of, 84. Blount, William, . impeachment and trial of, 159-160,; expelled from senate, gives bail, 169. Business, increase- of, 35, -62-6-3 > -transaction of, ,38 ; crowding of, to end of the session, 49-52 ; unfinished, 58^9, ; executive,. ¦when considered, 59. Burr, Aaron, recommended ,by caucus ;for minister to ^France, 109. , ! Cabinet, -proposed composition of, 22, 23 ; nomination of Madi son for the, 121 ; organisation, 122 ;>' nominations to the/ (see Nominations). Cabinet Officers, dictation of, by caucus, 82 ; duties of, toward congress,, 88 ; responsible only to trie president, "88 ; attendance of, in the senate, 88-89 ; report in favor of giving- seats in con gress' to, 89; annual' reports to congress from, $0 ; calls by con gress for special reports from, 90 ; calls lor opinions of,, 91; removal of, 128, 129; term of office of, 129-130. Calendar, consideration of, under the Anthony rule,. 63. . Calhoun, John C, decision of, on right of vice-president to call to order, 21 ; committees appoint ed by, 28 ; on. debate in the sen ate, 60 ; on effect of tenure of office bill of 1820, 124 ; ou the reasons for the rejection of a treaty, 156. California, demand of, for popu lar election of senators, 20. Cameron, Senator, appointment of, as chairman, 33. Capitol, residence of senators at the, 14. Caucus, first use of, 81 ; legisla tive, 81-82; committees decided upon in, 82 ; attempt of, to con trol cabinet officers, 82 ; time of meeting and influence of, 83 ; suggests Burr for minister to France, 169. Chairman. See Committees. Chandler, Senator, resolution of, against negotiation of treaties by special agents, 144. Chase, Samuel, impeachment and trial of, 161-162 ; a Federalist, 162 ; publication of tbe pro ceedings on the trial of, 171 ; trial of,, in open session, 171. Chief Justice of the supreme court, to be member of the president's council, 22 ; opinion of, on the time for the adoption of the rules for the trial of im peachments, 168; 011 the time for administering the oath in the trial of impeachments, 169 ; presided -at the trial of Presi dent Johnson, 172 ; right of, to a casting vote when he presides, 172. Circuit Court, decision of, regard ing the rights of the house in treaties, 157. Civil Service Commission, crea tion of, 114; .report of, 114; re- establishment of, 115. Civil Service; Reform, checks the use of patronage to control leg islation, 87 ; - first movement for, 114; adoption and failure of, 114.; obstacles to, 114; extent of, 115-116; recommendations of, by 1 the presidents, 115; sup- 1 port of, 116; limitation of the power of the senate in nomina tions by, 178. iCivil War, 94, 176. Index. 187 Clay, Henry, on crowding busi ness to the end of the session, 50 ; on debate in the senate, 60 ; proposal of, for the previous question, 65 ; on power Of the president, through the veto, 86 ; preference of, for a seat in- the house, 174. Clay's tariff compromise, intro duction of, in the senate objected to, 71-72. Cleveland, Grover, use of the veto by, 87 ; position of, on removals, 134, 135- Clock of the senate* stopping of the, 52. Colonies, representation of, in the continental congress, 3. Committees, 26-37 ; to audit and control the contingent expenses of the senate, 26 ; on engrossed bills, 26 ; number of standing committees, 26-27 ; on foreign relations, judiciary, post offices and post roads, pensions; claims, District of Columbia, Indian af fairs, roads and canals, com merce, manufactures, military affairs, naval affairs, militia, pub lic lands, and finance, 27; choice of the, 27-31, 36, 82 ; choice of chairman of, 29, 30, 32 ; same chairman usually retained, 33 ; British- practice regarding the composition of the, 31 ;- repre sentation of parties ou the, 31-32 ; permanence of the, 33 ; corrup tion in the choice of, a ; meet ing of the, 33-34 ; relation of the majority and minority of, 34 ; number of members on, 34; manner of work of,- 34-35 ; re ports ofj 35 ••; may sit during the recess, 35 ; influence of, on leg islation, 35-36; reference of messages of the president to, 86 ; influence of the departments on the senate through, 91 ; heads of the departments1 summoned to appear before the, 107. Committees of conference, ap pointment of, 36 ; number of members of, and instruction of, 36 ; reports of, 36, 37 ; powers of, 37 ; number of, on appropri ation bills in the early days, 76 ; importance of, 95. Committees, joint; on the library, 25 ; on enrolled bills, 26 ; action of congress by, 94 ; to decide on the business to take up dur ing the rest of the session, 94-95. Congress, to consist of two houses, I ;- representation in, 3 ; tardy attendance, 40-41 ; reliance of, on Hamilton, 89 ; calls of, for reports from the departments, 90 ; power of, to regulate re movals, 122 ; quarrel with Presi dent Johnson, 128 ; abrogation of treaties by law of, 146-147 ; laws of, repealed by treaty stipula tions, 151 ; right of, to dispose of the territory of the United States, 152 ; acquisition of terri tory by, 152 ; corruption of, 175. Conkling, Roscoe, election of, as senator, 19, 20 ; resignation of, 112. Connecticut, councillors of, how chosen, 2 ; delegates of, urged one year for1 term of senators; 5. Cooley, Judge; suggestions for overcoming the resistance of the minority, 67. Continental- Congress, representa tion in, 3 ; representatives to, in structed, 83. Conventions, amendment pro posed by, of North Carolina and Virginia, 9. Corruption, of senators, 19, 20 ; in choice of committees, 33 ; in all departments, 179-180. Corwin, minister of the United States to Mexico, 142. Councillors, how appointed, 2 ; character and social position of, 4; objectsof suspicion, 5. Councils, of the colonies, compo sition of, 4. Council, Executive, to confirm nominations, 12 ; proposed com position of, 22. Courtesy of the Senate, 103, 109, 112. Crawford, George W., tenure of office bill of 1820 drawn by, 123. Debate, reporting of, 40 ; amount of, at the end of the session, 50 ; limitations of, 59-68» J79 1 on motion to take up, prohibited, 61 ; limitation of, in secret ses sion to five minutes in the con sideration of subjects relating to the rebellion, 61 ; limitation of, on appropriation bills by unani- 188 Index. mous consent, 62 ; in the trial of impeachments, 171. Delaware, instructions of delegates from, 3. Democrat, the secretary of the senate a, 26. Democrats, in the majority in the senate, 25, 26, 165 ; number of, holding senate offices, 26; cau cus of, 109. Denmark, abrogation of treaty with, 146 ; treaty with, 147. Departments, Heads of. See Cabi net Officers. De Tocqueville, on the character of the senate, 77-78. Dickinson, John, on the method of representation in the two houses, 3, 4. Doorkeeper, term of office of the, 25- Ecuador, appointment of charge1 d'affaires to negotiate a. treaty with, 143-144. Edmunds, Senator, on the object of a rule limiting debate, 61. Election laws, attempt to repeal, 65- Ellsworth, Oliver, on power of re moval, 123. Evarts, Attorney General, on ap pointments to original statutory vacancies, 119. Executive, choice of state, 12 ; appointment of senators by state, 16, 17. See President. Emory, General, 164. Factious opposition, 61, 64-67, Federalist, The, quotation from, 13, 14 ; statement from, 39, Federalists, majority of, in the senate, no ; vote of, on im peachment of Pickering, 161. Fillmore, Millard, on right of the president of the senate to call to order, 22. Force bill, 66. Foreign Affairs, Secretary of, at tendance in the senate, 88 ; head of the cabinet, 89. Boote, Senator, scene with Sena tor Benton, 177. Forsyth, Senator, on the useless ness of secret sessions, 101. France, abrogation of treaty with, 146 ; failure of, to execute a treaty, 158. Franklin, Benjamin, compromise urged by, 4. Gadsden treaty, 153. Gallatin Albert, election of, as senator, 19 ; influence of, ou leg islation, when secretary of treas ury, 89 ; nomination of, as sec retary, 121. Garfield, James A, death of, 115 ; urges repeal of tenure of office act of 1867, 133. Germanic Zollverein, treaty with, 155- Georgia, 1 ; seats of senators from, 38. Gerry, Elbndge, on responsibility of the president in nominations, 11 ; ou making the vice-presi dent president of the senate, 11. Grant, Ulysses, on civil service reform, 1 15 ; recommends repeal qf tenure of office act of 1867, 133 ; previous consultation of the senate regarding treaties by, 142. Gore, Senator, on appointments to original statutory vacancies, 118. Great Britain, treaty with, 139, 141, 142, 151, 157 ; abrogation of treaty with, 146 ; proposal for abolition of certain articles of a treaty with, 147 ; attempt of Blount to organize an expedi tion to transfer certain of the territories of Spain to, 159. Greeley, Horace, ou character of the senate, 177. Goiham, N., proposed rotation for senators, 5 ; proposal of, for the appointment of judges, 10. Governor. See Executive. Hale, Senator, on crowding busi ness to the eud of the session, 50-51. Hamlin, Senator, on the impor tance of committees, 35. Hamilton, Alexander, plan of, for election of members of the up per house, 2 ; proposes life tenure for senators, 4 ; powers given senate by plan of, 7, 8 ; plan of, for making appoint ments, 9, 10 ; on the power of the senate, 13, 14 ; on effect of the manner of choosing sena tors, 18; on mode of appoint- Index. 189 riient adopted by the constitu tion, 39 ; manner of making his report, 88 ; influence of, iu con gress, when secretary of the treasury, 89 ; reports of, as sec retary of the treasury, 90 ; ou agency of the senate in appoint ments, 108-109 ; leader of the Federalists, no ; advice of, re garding appointments to origi nal vacancies, 117 ; on the cor ruption of senators, 175. Harper, letter of, to senate, 160- 161 ; hearing of, by the senate, 161. Harper's Weekly, statement of, 20. Hawaii, treaty of 1875 with, 157. Hayes, Rutherford B., urges civil service reform, 115 ; urges re peal of the tenure of office act of 1867, 133. Hoar, Senator, on advantage of introduction of . appropriation bills, 71 ; resolution introduced by, 9B- Hornblower, rejection of nomina tion of, 112. House of Representatives, reasons for giving to, choice of presi dent, when tie or no oue a ma jority, 12 ; opinions as to the relative powers of the, arid sen ate, 13; resolution of, for amendment providing for the direct election of senators, 20 ; , rule of, for preserving order, 22; rules of, regarding legislation on appropriation bills, 73-75, 79; position of, on the right of the senate to introduce a bill for the repeal of a revenue law, 72 ; re lation of house to senate iu legislation, 92-97 ; independ ence of the senate, 93-94 ; num ber of bills introduced in the, 95-96, 173 ; number of house bills that become laws, 95-96 ; most important measures intro duced in the house at first, 95, 173 ; preference given to bills of the, 97 ; rights of, in treaties stipulating for the payment of money, 148-155, i57-r58 ; rights of, in the acquisition of terri tory, 151-155 ; rights of, in com mercial . treaties, 155-157 ; at tendance of, at the trial of im peachments, 170 ; reports of proceedings of the house in the papers, 173 ; preference of a seat iu the house to one in the senate, 173-174. Humphries, West H., impeach ment and trial of, 163. Impeachments, 9 ; reasons for giving to the senate the trial of, 9 ; power of the senate to try, make the president dependent on it, 13 ; the only remedy for abuse of the power of removal, 126; trials of, 159-172; offences for which an, lies, 159-160 ; ef fect of resignation on amena bility to, 166-167; importance of first and second trials of, 167; rules for the trial of, 167-168 ; mode of procedure in the trial of, 168, 169 ; time of organizing the senate as a court for the trial of, 168; presence of the house, 170; secret sessions,, 170- 171; publication of proceedings, 171 ; limitation of debate, 171 ; admittance of stenographers; 171 ; right of chief justice to a casting vote, 172 ; right of the president pro tempore to vote in the trial of president when there is no vice president, 172. Indians, attempt of Blount to ex cite, against the United States, 159 ; treaties with, ( see Treaties). Ingalls, Senator, on general legis lation on appropriation bills, 80. Instructions, of the delegates from Delaware to the convention, 3 ; of Virginia to Mr. Lee, 40 ; dis cussion in the convention over, 83 ; sent to the representatives in the continental congress, 83 ; debate over, in the senate, 83- 84 ; opinions regarding the force of, 83, 84, 85 ; form of, and sub jects for which used, 84 ; use of, 85- * Iowa, demand of, for popular elec tion of senators, 20. Izard, Senator, 92. Jackson, Andrew, expunging of the resolution censuring, 68 ; use of veto by, 86 ; use of patronage to control legislation, 87 ; nomi nations of, in ; removals made by, 123 ; on the right of the president to makeremovals, 127; igO Index. consultation of the senate by, previous to the negotiation of a treaty, 140. Jay, John, advice of, regarding ap pointments to original vacan cies, .117 ; treaty negotiated by, 42 ; injunction of secrecy ou, 135 ; action of the house ou, 149-150. Jefferson, Thomas, on the compo sition of the committees, 31 ; on tbe morning hour, 53 ; on use of the previous question, 59-60 ; on intensity of party feeling, 81 ; on Hamilton's influence over congress. 90 ; waited upon by a committee of the senate, 107 ; surprise at the rejection of Short, T08; nominations of, no; the leader of his party, no; influ ence of the senate on the nomi nations of, in; appointments of, to original vacancies, 117 ; cabinet nominations of, 121 ; re movals made by, 123 ; on the tenure of office bill of 1820, 124 ; idea of, ou removals, 125 ; posi tion of, regarding the share of the house in treaties, 150-151 ; on the power to acquire or cede territory, 151. Johns, Kensey, the appointment of, 16. Johnson, Andrew, use of veto by, 87; quarrel of, with congress, 128; renominations of, 128; re movals of, 128 ; removal of Stanton by, 130-131 ; nomina tion made by, for secretary of war, 131 ; consultation of the senate bv, previous to the nego tiation of a treaty, T42 ; impeach ment and trial of, 163-166 ; adoption of rules for the trial of, 108 ; attendance of the house at the trial of, 170 ; limitation of debate at the trial of, 171 ; trial of, presided over by the chief justice, 172. Johnson, Richard, on the charac ter of the senate, 177. Journals, publication of, 98. Journals, Executive, extracts from, 97 ; secrecy of, 99. Judges, appointment of, in the Randolph plan, 9 ; in the Pinck ney plan, 10. Judiciary, national, to try im peachments, 9. Kent, James, on the power of the senate iu nominations, in. King, Senator, term of service in the senate, 31 ; on the composi tion of the committees, 31 ; on the appearance of the senate at the end of a session, 53. Knox, General, attendance in the senate, 88, 89; accompanies Washington to the senate, 138. Louisiana, purchase of, 150. Lower Branch, representation in the. 3. Legislature, national, to appoint judges according to Randolph's plan, 9; to choose president, 11. Legislatures, state, proposal to refercertain appointments to, 10. Legislature of Virginia, resolution of, for the abolition of secret sessions, 40. Lincoln, Abraham, consultation of the senate by, previous to the negotiation of a treaty, 142. Maclay, William, rule of, regard ing the chairman of a com mittee, 32 ; rule of, regarding absences, 41, 176 ; on crowding business to the end of the ses sion, 49 ; on secrecy of legisla tive business, 98 ; account by, of meeting of Washington and the senate to negotiate a treaty, 138-T39. Madison, James, on origination of appropriation bills, 7 ; proposal of, regarding appointments, 10 ; on the relative powers of the president and senate under the constitution, 13 ; on delay in meeting of the First Congress, 41 ; waited upon by a commit tee of the senate, 107 ; refusal of, to meet a committee of the senate, 108 ; member of a com mittee to wait upon the presi dent, 109 ; nominations of, re jected, 111 ; influence of the senate on nominations of, ill ; appointments by, to original va cancies, 117 ; on the use of spe cial agents, 118; on appoint ments during the recess to va cancies occurring during the previous session, 120; cabinet nominations of, 121 ; on tenure of office bill of 1820, 124 ; on Index. 191 the claim of the senate to pre vious consultation in the nego tiation of a treaty, 141 ; on cor ruption of senators, 175. Martin, Luther, on the relation of the president and senate under the constitution, 13. Maryland, senators of.how chosen, 2 ; votes against two senators from each state, 6. Mason, Attorney General, on ap7 pointments to original statutory vacancies during the recess, 119. Mason, George, on forbidding the senate to originate appropria tion bills, 8; on an executive council, 12 ; on the effect of a coalition of the president and Senate, 13. Massachusetts, councillors of, how chosen, 2 ; appointments in, 10 ; election of senators of, 19. Messages. See President. Mexico, consultation of the sen ate regarding a treaty with, 142 ; negotiation of a treaty with, '^-i^ ; treaty of 1803 with, 157- , Minority, representation of, on committees, 32 ; relation of the minority of a committee to the majority, 34 ; factious opposi-; tion of the, 61, 64-65, 66, 67, 179; restraint of the rules for the lim itation of debate upon the, 64 ; attempt of, to control the order of business, 66; given all the time for speaking in the all night session, 68. Missouri, joint committee on the admission of, 94. Missouri Compromise.debate over; 176. Monroe, James,, member of a committee to wait upon the president, 109 ; appointed min ister to France, 1 10 ; ou ap pointments, during the recess, to vacancies occurring in the previous session, 120; cabinet nominations of, 121 ; military nominations of, 126. Morgan, Senator, on the power of the senate in the negotiation of treaties, 145. Morris, Gouverneur, on the choice of senators, 2 ; on the means ,of making the senate a check on the house, 4 ; on the composi tion of the senate, 4 ; proposes a life tenure for senators, 4 ; favored three senators from each state, 6 ; on results of making the vice president president of the senate, 11 ; on the' mode of appointment adopted by the constitution, 11; unpopularity of, with the Republicans, 109. Nation, The, on the power of tbe senate in the negotiation of treaties, 145. National. Intelligencer, on the right of the governor to appoint a senator in anticipation of a vacancy, 17. Nebraska, resignation of the. sena tor of, 19. New England, delegates of, urged one year for the term of sena tors, 5. New Hampshire, seats of senators of, 38. New Jersey, delegates of, for a leg islature of one branch, 1 ; elec tion of senator of, by a plurality vote, 15. New York (city), meeting of the First Congress at, 38.- New York (state), amendmentpro- posed by the convention of, 14 ; appointments under the consti tution of, 39 ; patronage of, 112. Niles Register, on the importance of a seat in the senate, 177. Nominations, to be confirmed by the senate, according to Hamil ton's plan, 7 ; secrecy on, 100- 101 ; 104-122 ; manner of voting on, 104-105 ; mode of communi cation between the president and senate on, 104-106, 107-108 ; mode of considering, 104, 107, 134 ; rejection of, of Washing ton, 107, 109 ; influence of the senate on, 108-109, no, in, 112, 1 14, 128, 178 ; limitation by the senate of the president's power in, 110-114, 120-121 ; increase in the number of, to be niad'e, 113; for the cabinet, 121-122. See Appointments. Nominee, provision for giving to a, opportunity to defend him self, 101. North Carolina, convention of, amendment proposed by the, 9. Nova Scotia, quotation from a 192 Index. paper of, on the mode of con ducting business in the senate, 175- OFFICE, limitation of tenure of office, 123-125, 127, 128-135. Officers of the senate, bow chosen, II ; term of, 25-26; attempt to change the, 65. Oregon, treaty for settlement of the controversy over, 141. Oregon bill, attempt to fix a time for taking the vote on the, 64. Original vacancies. See Appoint ments. Otis, James, motion of, in general court of Massachusetts for public sessions, 39. Ottoman Porte, treaty with the, 117. "Pairing off," growth of cus tom, 45 ; use of, 45, 46. Papers, reports of the proceedings of the senate and house in the, 4°, 173- Parties, influence of, on the elec tion of senators, 18, 19 ; in the senate,. 22 ; influence of, on senate officers, 25-26 ; represen tation of, on the coinmittess, 30-32, 33 ; influence of, iu the senate, 80-85 ! intensity of, pas sions, 81. See Caucus. Patronage, use of, to control sena torial elections, 20; to control legislation, 86, 87. Peck, James, impeachment and trial of, 162-163. Peckham, rejection of nomination of, 112. Pennsylvania composition of col onial and state legislatures of, 1 ; election of senators of, 19. Pennsylvania Packet, on the char acter of the first senate, 174. Peru, amendments made by the president to the treaty with, 145. Philips, Samuel, decision in the case of, 16, 17. Pickering, John, impeachment and trial of, 160-161, 169 ; in sanity of, 160-161. Pickering, Timothy, election of, as senator, 19. Pinckney, Charles, suggested ro tation of senators, 5 ; plan of, pro vides for two houses, 1 ; plan of, for election of the members of the upper house, 2 ; powers given to the senate by plan of, 8 ; plan of, for the trial of im peachments, 9 ; for appoint ments, 9, 10 ; not bidden to a caucus, 81. Piatt, Senator, resignation of, 112. Polk, James K., consultation of the senate by, prior to the nego tiation of a treaty, 141; requests an appropriation for the nego tiation of a treaty with Mexico, I52-I53- Pomeroy, John, on the rights of congress in carrying treaties into effect, 158. Postmasters, appointment of, 113. Presidency, succession to, 23, 25. President, to be tried on impeach ment by the senate, 9 ; power in appointments proposed to be given to the president, 10 ; to be chosen by the national legis lature, 11; by electors, 12; opinions as to the relative powers of the president and . senate under the constitution, 13 ; authorized means of influ ence on legislation, 85 ; relation of president and senate in legis lation, 86-92 ; messages of the, 85-86 ; sources of influence of the president, 86 ; influence ou legislation through the use of the veto, 86-88 ; influence exer cised through the departments, 88, 89 ; titles for the, 92 ; rule imposing secrecy on the confi- . dential communications of the, 99 ; right of the senate to pub lish the confidential communi cations of the, 100 ; waited upon by a committee, io7-*io8 ; power of, iu appointments, io'S, 112, 123 ; relation of, to the senate in nominations, 114; power of the, to use special agents, 117- 118 ; to fill vacancies during the recess, 116; to appoint to origi nal vacancies, 117; to original statutory vacancies, 1 18-11 9; to fill, during the recess, vacan cies which had occurred during the previous session, 120 ; to fill vacancies created during the recess by removals, 120 ; limita tion by the senate of the pow er of the, in nominations, 120- Index. 193 121 ; power of, to make re movals, 122, 123, .126, 127, 128- 129, 132-133, 134; abuse of the power of removal, 123 ; effect of the tenure of office act of 1867 on the power of, 124; calls upon, for the reasons of re movals, 125, 127 ; proposal to require, to give reasons for his removals, 125 ; right of, to amend or reject a treaty, 145 ; corruption of, 175. President pro tempore of the sen ate, choice of, 11, 24; impor tance of, 20 ; in succession to presidency, 23 ; power of, to ap point member to take the chair, 23-24; tenure of office of, 23, 24-25 ; removal of, 25 ; appoint ment of standing committees by, 29, 3° ; right of, to vote in the trial of the president when there is no vice president, 172. President of the senate. See Vice President. Previous question, use of, 59-60 ; opposition to, 6r. Private bills, at the end of the session, 50 ; special days set aside for, 56 ; re-introduction of, 57 ; reference to court of claims, 57 ; tacking of. to appropriation bills, 57, 77 ; number of, 58. Property, to be the basis of repre sentation in congress, 3. Property qualification for sena tors, 5. Quorum of the senate, 40-48 ; rule for maintaining a quorum, 42 ; attempt to keep a, by de duction from salary for absences, 43-44 ; wriat constitutes a, 44- 45 ; means of breaking a, 45 ; effect of "pairing off" on a, 46 ; refusal of senators to vote in order to break, 46-48 ; busi ness done without a, 48. Randolph, plan of, provides for two houses, 1 ; powers given to the senate by plan of, 7 ; plan of, for trial of impeachments, 9 ; for appointments, 9. Rawle, William, on amenability of members of congress to im peachment, 160. Reed, Speaker, decision of, 80. Removals, 122-135 ; opinions re garding the power to make, 122, 123, 126 ; calls upou the presi dent to give his reasons for mak ing. 125, 126, 127 ; report of a senate committee on the right of the president to make, 127. See Tenure of Office Acts. Re-nominations, made by Jackson aud Tyler, in; by Johnson, 128 ; restriction of, 129. Representation, in the continental congress, 3 ; in congress, 3, 4 ; of the states in the senate, 7. Representatives, provision of the constitution regarding election of, 15 ; attempts of, to obtain nominations, 18. Republicans, majority, of, in the senate, 25, 65 ; criticism of acts of, by Chase, 161 ; opinions of certain, on the impeachment of Johnson, 165. Revenue bills, to originate in the house, 7 ; to be amended by the senate, 8 ; fixing, by unanimous consent, the time for taking a vote on, 64 ; are bills reducing revenue, 71-72. Rhode Island, councillors of, how chosen, 2 ; purchase of votes for senator of, 20. Rotation of senators, 5. Rules (of the house of representa tives), for the preservation of order, 22 ; on reporting of appro priation bills, 73-75 ; restricting legislation on appropriation bills, 79. 80. Rules (of the senate), proposals for amendment of the, 21, 22, 179 ; for preserving order, 22, 175 ; for filling the chair, 23 ; for the choice of the committees, 26, 27 ; suspension of the, 29-31 ; regu lating absences, 41; for main taining a quorum, 42-43 ; requir ing a senator to vote, 46 ; pro posed, to prevent huiay at the end, 50 ; on the order of busi ness, 53-54 ; on the introduction of bills, 54 : on unfinished busi ness, 55, 58, 59 ; restricting the re-introduction of private claims, 57 ; forbidding putting private claims on appropriation bills, 57-58 ; for the limitation of de bate, 59, 60, 61, 62, 63 ; failure of attempts to change the, 67 ; 194 Index. regulating the sending of appro priation bills, 70; restricting the amendment o f appropriation bills, 77, 78 ; imposing secrecy, 99 ; on nominations, 10, 100 ; to give a nominee an opportunity to defend himself, 101 ; impos ing a penalty for the disclosure of confidential documents, 102 ; regulating the mode of commu nication on nominations, 105 ; on the reference of nominations to a committee, 107 ; imposing secrecy on nominations, 135- 136 ; for the trial of impeach ments, 167-169. Rules, of Maclay, 32, 381.41, 48; joint, to prevent crowding of bills to the end of, the session, 51, 52 ; suspension of joint, 51- 52. Russia, nomination of Short as minister to, no; treaty with, 153- Salary. See Senators. Secrecy, of . legislative business, 98 ; of executive business, 98- 99 ; removal of injunction of, 101 ; rule imposing a penalty for violation of, 102-103 ! rule imposing, on treaties, 135-136. Secret Sessions, 38-40, 98-103, 135-136, I7°-I7i, 173 ; reasons for, suggested by Washington, 39 ; objections to, 39-40 ; jeal ousies of the senate, on account of, 40; abolition of, in legisla tive session, 40, 83, 99 ; useless ness of, 101-102, 136 ; arguments for the abolition of, 103, 136. Secretary of the senate, tenure of office of, 25. Secretaries, relation of, to the sen ate, in appointments, 114. Sedgwick, Senator, on the propri ety of a committee waiting upon the president, 107. Senate, formation of the, iu the convention, 1-14 ; representa tion in the, 3, 7 ; to be a check on the house, 4 ; number of members in, 6, 173 ; powers given to the, by various plans submitted, 7, 8, 10 ; expected that senate sit constantly, 8; to choose its presiding officer, 11 ; to choose president if no earidi-: date has a majority of the votes of the electors, 12 ; objections to confirmation of nominations by the, 12 ; opinions as to the power of the, 13, 14 ; election of members of, and organization of the, 15-37 ; to judge of the qualification and election of its members, 16; to have power to expel a member, 16 ; to- regu late the admission of senators of the seceded states, 18 ; or ganization of, 20, 26 ; presiding officer of, 20-25 ; relation of, to the vice president, 21 ; preser vation of order iu the, 21, 22, 175-176 ; democratic party, a majority in the senate, 25,. 26; committees of the, 26-37, ( see Committees) ; chamber of the, 38, 178; as a legislative body, 38-97 ; secret sessions of the, 38-40, (see Secret Sessions) ; order of procedure, 48-59, 173, :75 ! quorum of the, 40-48, (see Quorum); length of days session of the, 48-49 ; hour of assem bling, 48-49 ; adjournment of, over Thursday, Friday, and Sat urday, 49 ; sessions of the, on Sunday, 49 ; evening sessions, 49i 5° J crowding of business to the end of the session, 49-52 ; disorder in the, at the close of a session, 53 ; morning hour of the, 53-54 ; limitations of de bate, 59-68, (see Debate) ; all night sessions of the, 67 ; popu lar disapproval of the action of the, 67 ; appropriation bills in the, 68-80, (see Appropriation bills) ; party influence in the, 80-85, (see Parties) ; relation of the president and senate in leg islation, 85-92 ; relation of the senate, and house in legislation, 92^97 ; aristocratic, tendencies of the early senate, 92 ; assump tions of superiority, 92-93 ; communication with the house, 92-93 ; independence of the house, 93-94; number of bills introduced in the, 95-96 ; im portance of measures introduced by the, 97, 176; as an execu tive body, 98-158 ; secret ses sions on executive business, 98- 103 ; decision of the, on its right to publish confiden tial communications of the Index. 195 president, 100 ; share of, in ap pointments, 104-135, (see Ap pointments) ; removals, 122-135, .(¦see Removals and Tenure of Office Acts) ; treaties, 135-158, (see Treaties) ; judicial func tions of the, 159-172 ; jurisdic tion of the, in impeachments, 159-160 ; organization of, as court for the trial of impeachmeuts, 168-169, (see Impeachments); importance of the, 173, 176, 177; reports of the proceedings of, in the papers of the day, 173 ; called "The Rich Man's Club", 175 ; debate in the, 175, 176, 178; de7 eorum and dignity of the, 176- 1 77 ; importance of a seat in the, i73-r74, 177. 180 ; charac ter of, 177, 178; resemblance of, to the house, 178. See Rules, Officers, Adjournment, Clock, Bills. Senators, election of, 2, 19, 20 ; inT fluence of party in the election of, 18, 19, 80; terms of,,- pro posed in the. convention, 4, 5 ; terms of state, 5,; of, appointed by the governor, 16'; attempts to shorten the term of, 85 ; num ber of years citizenship required, 4, 5 ; age qualification, 5 ; resi dence at the capitol, 5, 14 ; ro tation of, 5 ; property qualifica tion, 5 ; to vote per capita, 6 ; salary of, 6, 6, 93; deduction from salary of; for absence, 43- 44 ; fear that senators form an aristocracy, 14 ; re-election of, 14 ; character of, 14, 174, 177, 178, 180; number of, expelled, 16 ; appointment of, by the gov ernor, 16, 17 ; of the seceded states, 18 ; . effects of manner of choosing senators, 18 ; resigna tion of a, of Nebraska, 19 ; cor ruption of, 19-20, 166, 175, 179- 180 ; calling of, to order, 21-22 ; representation of, on the com mittees, 33 ; number of commit tees on which a, usually serves, 34 ; seating of, 38 ; attendance of, 41-42, 43, 48, 176; punish ment for nou attendance, 176 ; rule requiring, to vote, 46 ; at tempts to. compel, to vote, 46- 47 ; refusal of, to vote, 67 ; ab senting of themselves by, to escape the responsibility of a vote, 48; time at which term expires, 52-53 ; scramble for the floor, 53 ; attempts to obtain power to recall, 85 ; reference to, in the minutes, 92 ; rule im posing penalty for the violation of secrecy by, 101-102 ; influence of, on nominations, 108, no, 111-113; time of, occupied by the distribution of patronage, 113 ; relief afforded to, by the civil service reform, 116; a civil officer, amenable to im peachment, 160 ; number of, 165 ; resignation of, to become mayors, 174 ; election of, as representatives, 174 ; wealth qf, J74-175, !8o; recruited from governors and representatives, • 180. See- Instructions. Sergeant-at-Arms, 25. Sessions, length of days, 48 ; in the evening, 49, 50 ; of four days, 66. Seward, William H., resignation of, as secretary of state, 82. Sherman, Roger, compromise pro posed by, 3, 4. Sherman, John, on the reasons for the increase of appropriation bills iu the senate, 75; on gen eral legislation on appropriation bills, 78 ; on secret sessions, 103. Sherman act.billfor the repeal of the purchasing clause of the, 66-67. Short, rejection of nomination of, 108, no. Slavery, importance of the ques tion of, 176. Smith, Robert, nomination of, for the cabinet, 121. Spain, attempt of Blount to organ ize an expedition to conquer'the territories of, 159. Speaker of the house, to be a member of the president's coun cil, 22 ; in the succession to the presidency, 23. Special agents, use of, 117-118 ; appointment of, to negotiate treaties, 143. Special orders, 55-56; devoting an entire session to, 56. Stanton, removal of, from office, 130, 164, 165; position of, on the tenure of office bill of 1867, 130. States, representation of the, 3 ; ig6 Index. length of term of senators of th e, 5 ; provision of the constitutions of the, for an executive council, 12 ; election of the executives .of the, 12. States Rights Party, opposed a long term for senators, 5, 6 ; op posed voting per capita, and payment of senators by the na tion, 6. Stenographer, admission of, to the floor of the senate, 40 ; during the trial of impeachments, 171. Strange, Senator of North Caroli na, resignation of, 84. Story, Joseph, on the right of the governor in the appointment of senators, 17 ; on party influences in the senate, 82 ; on the power of the senate in nominations, 11 ; on the character of senators, 174; on the importance of the senate, 177. Southard, Samuel , appointments by, to fill the chair, 24. Sumner, Charles, election of, as senator, 19 ; removal of, from chairmanship, 33 ; objections of, to limiting the business of the session to a special subject, 56 ; censure of, by legislature, 85 ; bill of, providing for civil ser vice reform, 114; resolution in troduced by, 176. Supreme Court, decision of, re garding the acquisition of terri tory, 151 ; on the repeal of a law, by treaty stipulations, 151. Taylor, Zachary, proposal to ask, for reason of a removal, 127. Taylor, Senator, on the corruption of congress and the president, ' 175- Tazewell, Senator, 011 appoint ments to original statutory va cancies, 119. Tenure of Office Act of 1820, 123- 124 ; effect of, on the power of the senate, 124 ; motions for the repeal of, 124-125 ; repeal of, by the senate, 127. Tenure of Office Act of 1867, 128- 130 ; effect of, 128, 135 ; repeal of 131-135 ; charge of violation of, 164. Texas, annexation of, 151-152. Times, New York, on usefulness of secret sessions, 102 ; quota tion from, 120. Thomas, appointment of, as sec retary ad interim, 164, 165 ; charge of conspiracy with the president, 164, 165. Treasury, Secretary of the, duties of, toward congress, 88 ; impor tance of, 89 ; influence of, 90 ; annual reports of, 90. Treaties, plan of Hamilton for, 7 ; proposal to give to the senate the power to negotiate, 8 ; pow er to negotiate, given to the president and two-thirds of the senate, 8 ; rule imposing secrecy on, 99 ; removal of injunction of secrecy from, 101, 135-158; se crecy on treaties, 135 ; manner of framing, 136-140 ; consulta tion of the senate prior to the negotiation of, 139-143 ; appoint ment of special agents to nego tiate, 143-144 ; influence of the senateinthe negotiation of, 144- 145. 153 I abrogation of, 146-147 ; share of the house in, 148-151, 157-158 ; repeal of laws by stip ulations of a, 151 ; acquisition of territory by, 151-155 ; previous appropriation for the negotiation of a, 152-153 ; commercial regu lations iu, 155-157 ; regulation of the tariff by, 155-157 ; with the Indians, considered in open session, 136.; ratification uf In dian, 139-140 ; share of house in Indian, 148-149 ; law forbidding the negotiation of Indian, 149. Trumbull, Senator, on the use of conference committees, 37 ; on the object of the rule limiting debate, 62. Tyler, John, use of veto by, 87 ; re- nominations made by, in ; re fusal of the senate to act on nom inations of, 121 ; proposal to ask, for reasons of a removal, 127 ; message of, on a treaty, 155. Unanimous consent, use of, to limit debate, 62 ; ease of obtain ing, 64 ; refusal of, 73. Upper House, election of mem bers of the, 2 ; of most states, forbidden to originate money bills, 7 ; of the colonies, duties of, 13. Index. 197 Van Buren, Martin, 143 ; on the importance of the senate, 177. Vans Murray, nomination of, 107. Veto, use of. to control legislation, 86, 87 ; subjects for which used, 87. Vice President, objections to, and arguments for the, presiding in the senate, 1 1 ; independent of the senate, 21, 22 ; decisions of the, on his right to preserve or der, 21, 22 ; to be a member of the president's council, 22 ; in fluence of, on legislation, 22 ; probable effect of making, a member of the cabinet, 23 ; at tendance of the, 23, 28 ; power of,, to appoint a member to take the chair, 23, 24 ; appointment of the committees by, 30 ; decis ions of the, on the necessity of asking for leave of absence, 42 ; on excusing senators from vot ing, 47 ; on the 'Anthony rule, 63 ; casting vote of the, 13, 65, 123 ; titles for the, 92. Virginia, amendment proposed by the convention of, 9 ; instruc tions of, to her senators, 83, 85 ; motion of senator from, for pub lic sessions, 83. Voorhees, Senator, on the influ ence of the committees, 36. War, power to declare, 7, 8. Washington, George, 23 ; sugges tions of, as to the reasons for secret sessions, 39 ; manner of delivering his annual message, 86 ; suggestions of, on commu nications in nominations, 164- 105, 107 ; power of the senate in appointments under, 109 ; posi tion of, on appointments, 109 ; refusal of, to appoint Burr, 109- 110; nominations of, rejected, no; decision of, on appoint ments to original vacancies, 1 17 ; attends in the senate chamber, 137-139 ; reasons of, for discontinuing oral commu nications on treaties, 139; ex pectations of, regarding the mode of procedure in framing treaties, 136 ; on mode of com munication between the presi dent and senate on treaties, 137 ; consultation of the senate by, previous to the negotiation of treaties, 139 ; opinion of, re garding the ratification of In dian treaties, 140; consultation of the house by, on Indian trea ties, 148 ; on the right of the house to deliberate on treaties, 150. Webster, Daniel, on the character of senators, 177. Wheatou, Lawrence, on the rights of congress in carrying treaties into effect, 158. White, Hugh L., resignation of, 84. Wilson, James, on forbidding sen ators to originate appropriation bills, 7 ; on mode of appoint ment prescribed by the consti tution, 10. Wilson, Senator, on the success of all night sessions. 68. Works, list of, cited, 181-184. Date Issued UVtKMUHl RESEFVE - FALL rERM 75 YALE UNIVERSITY ,39002 00210'