Origin and development of the United States Senate

ORIGIN AND DEVELOPMENT

OF

UNITED STATES SE: 'ATE

CLARA KAN?TAtTKERR, PH.D.

ITHACA, N. Y.

ANDRTJS & CHURCH
1895

IN MEMORIAL
BERNARD MOSES

THE

ORIGIN AND DEVELOPMENT

OF THE

UNITED STATES SENATE

BY

CLARA HANNAH KKRR, PH.D.

ITHACA, N. Y.

ANDRUS & CHURCH

1895

JK 1 1

COPYRIGHT, 1895,

BY
CLARA H. KERR.

TABLE OF CONTENTS.

CHAPTER I.

THE FORMATION OF THE SENATE IN THE CONVENTION

OF 1787, 1-14

CHAPTER II.

EJECTION 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, I35-T58

CHAPTER V.
THE SENATE AS A JUDICIAL BODY, 159-172

CHAPTER VI.
CONCLUSION, 173-180

LIST OF WORKS CITED WITH DATE AND PLACE OF PUBLI-
CATION, 181-184

PREFACE.

IN the following study an effort lias 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 discussion 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 u Senate Journal." These are supplemented by
the u 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 made 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 ii'ii 'wliich &U : legislative
power was vested in a single, house, ha$, departed from
nearly all of their traditions of gt>verrmient. 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. I/ater, 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 in 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, pr-ovidecl :fof 'a [Secondary election : Pinckney's
for an election; by -the lower -house, Randolph's by the
lower house i'rorir 'nomination's 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 Gouverneur 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.

The direct election of senators by the people, proposed
and warmly supported by the committee to whom the
Randolph plan was referred, was objected to on the
grounds that the people could not safely be entrusted
with the power, and because it would give to the landed
interests an undue preponderance ; and the plan adopted
by many of the states in choosing members to the con-
gress of the confederation, namely, choice by the state

1 Under the first constitutions, of S. 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 representation 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 ques-
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 from 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 favor of that plan. Proposals for the
representation of the states in accordance with their im-
portance and in accordance with property3 were not well
supported. The method of representation for the lower
branch was first decided, the great struggle being over
the plan to be adopted in the senate.

The 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
of 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.

2 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 ;x 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

1 Elliot, V, 149.

2 Ibid., V, 179.

3 Ibid., V, 316.
*Ibid.t 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 senators held office five years ; Delaware's three ;
Virginia's four ; New York's four.

* Elliot, I, 451.

3 Rotation was adopted for the provisional council of Pennsylva-
nia in the "Frame of Government" of 1782-3, and forthe 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
were to be 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 diffi-
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 capita 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
national party, who wished the senate to be representa-
tive of 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

' 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 ;2 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." : 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

'Elliot, V, 415.
*Ibid., 427.
*Ibid., 529.
4 Ibid., 524.

United States Senate. 9

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.

2 Elliot V, 508, and 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.

3 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.

4 Ibid., 507.

United States Senate. n

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 case of a tie.3 It was
objected to as being an encroachment on the rights of the
senate, and because it mingled too 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 other 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

1 Elliot, V, 523.
*Ibid., 523-
* Ibid., 522.
•» Ibid.
blbid., 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 and second of its consti-
tutions, and in New Hampshire under its first constitution. In Penn-
sylvania the executive officer was elected by the assembly and council,
in Georgia by the assembly and in all the other states by the
people.

2 Elliot, V, 507, 520-524.

., 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 \vas 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, fearedthat 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

' Elliot, I, 361.

2 Elliot, V, 528.

3 Elliot, II, 286.
^ Elliot, ¥,513.
6 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
form 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 chposing its senators was regulated by each state, the
senators of some states being chosen by the two 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 all the 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 manner as
before to the choice of a senator.3

1 Article I, section IV.

2 In 1866 there were sixteen or seventeen states in which the sen-
ators were so elected (Congr. Globe, ist Sess., 39th Congr., p. 1571,
statement of Mr. Johnson.) though there were some distinguished
men, like Stunner and Kent, who thought that this was contrary to the
spirit of the constitution. (Sumner, Works, X, 381, 382.)

3 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 out 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.

4 Sen. Misc. Docs., ist Sess., 49th Congr., No. 47, p. I. This de-
cision was reaffirmed in 1853, Ibid., p. 23.

5 Ibid., p. 4. In the case of Samuel Smith.

6 This decision has since governed the action of the senate. (2d
Sess., 3ist Congr., Sen. Reports, No. 269.)

United States Senate. 17

lature to fill a vacancy. Afterwards trie 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 when 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 an(^ again in ^^5 it was held 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.

5 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 how
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 1 8, 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.

J49th Congr. ist Sess., Sen. Misc. Docs., No. 47, pp. 26, 36.

2 Congr. Globe, ist Sess., 39th Congr., pp. 1143, H47-

3 Federalist, No. 27.
4 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 ;* 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 ;3 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.

" Life of Pickering, IV, 52, 53.

3 Sutnner, Works, II, 426.

4 That of Nebraska of 1875.

2O 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 j1 while Harpers
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 i874.4
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 the 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,

1 Life of Coukling, p. 287.

2 Nov. 26th, p. 755.

3 111., Ind., Calif., Id., la., Kan., Ky., La., N. Y., Or., Wis.
4 43rd 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
has 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 : " When 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., 2oth Congr., vol. IV, Fart 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 f and Adams considered his ex-
clusion from the cabinet as a want of personal respect.6

1 Congr. Globe, ist Sess., 3ist Congr., p. 632.

2 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.

6 Jefferson, however, regarded a share in the executive deliberations
as inconsistent with his legislative duties.

United States 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 same
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 ]l 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 1886 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 tent-
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 r
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 1845. ^ne 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 chosen 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 sucn 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 president.6

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/
This interpretation of the clause of the constitution
which, reads : "The Senate shall choose a President pro
tempore in the absence of the Vice President^' was not
even questioned until 1861, when a resolution to reverse

1 No. 22 of those adopted in 1820,

2 Congr. Globe, ist Sess., 29th Congr., p. 96.

3 Ibid., 2d Sess., 29th Congr., pp. 161, 162,

4 Ibid.) ist 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.

7 Congr. Record, ist Sess., 5 ist 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 this 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, and, in
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 a^ 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 i849,2 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 1 86 1, 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

1 Congr. Globe, ist Sess. , 37th Congr., p. 436.
2Congr. Record, ist Sess., sist 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., i8th Congr., p. 140.
5 Congr. Globe, 2d Sess., 3oth Congr., p. 490.
6 Ibid., ist Sess., 32d 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 mQtion, 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

1 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, ist Sess., 46th Congr., pp. 48-60.

3 Senate Journal, ist Sess., ist Congr., p. 54.

4 Rule 22.

5 Rule 14.

6Sen. Jour., 2d Sess., gth Congr., vol. IV, p. 114, Dec. 17, 1806.
7 Ibid., ist Sess., loth Congr., vol. IV, p. 191, Nov. 4, 1807.

United States Senate. 27

the only standing committees appointed prior to 1816,
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 i8i9,4 and one on roads and canals
in i82O.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
commitjtees 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., T4th Congr.
(3d Sess., 37th Congr., Sen. Misc. Docs., No. 42, p. 3.)
aSen. Jour., 2d Sess., I4th Congr., p. 38.
3 Ibid., 49, 56.

4 Sen. Jour., ist Sess., i6th 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

1 Mr. Breeze said that between 1789 and 1820 it was not customary
for the senate to choose its own committees (istSess., 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., I9th 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 tern-
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., igth Congr., p. 3.

2 Sen. Journal, 2d Sess., 2oth 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 Sess., 23d Congr., p. 20.

4 Hugh L. White.

5 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 tempered Once, also, the appoint-
ment of all the committees was given to the vice presi-
dent ;2 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 ;5 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 2yth Con-
gress (Congr. Globe, p. u), the chairmen of the committees were
chosen by the senate, bnt 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 3ist 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., 2gth 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 wras
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., 3ist Congr., 39, 45 ; 2d Sess., 3ist Cougr.
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 whqse 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 Origin 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 ;* 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 : " 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

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.

1 Congr. Globe, ist Sess., 36th Congr., p. 178 ; Elaine, Twenty Years
in Congress, I, 323 ; 3d Sess., 37th Congr., Sen. Misc/Docs., No. 42.

2 Congr. Globe, 2d Sess., 39th Congr., p. 520.

3 Elaine, 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 coining 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 usually 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-
mon 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 t<3
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

1 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 te 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 ;G 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.
"Congr. Globe, 2d Sess., 25th Congr., p. 384.

aThe first instance was that of a committee appointed to investigate
the affairs of the United States bank. Benton, II, p. 305.

4 ist Sess., 3ist Congr., p. 61.

5 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.j 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. ":!
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(^ 1826 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

1 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.

3 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.

5 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 III.

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 jio other authority and which in 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 ;l 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 se^em that open sessions were expected. On
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.

2 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.
L,ee 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.1 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 and 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 OF 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

'Annals of Congr., 3d Congr., ist Sess., p. 34.

2 Annals of Congr., 2d Sess., 2d Congr., pp. 625, 626; ist Sess., 3d
Cougr., pp. 33, 34.
*Ibid>, ist Sess., 3d Congr., p. 46.
4 Sen. Journal, ist Sess., yth Congr., vol. Ill, pp. 165-166.

United States' Senate. 41

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 wpuld 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 " ;2 and, according to
Mr. Maclay, violation of this rule was to be punished by
writing on a slip of paper the name of Jhe 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.

2 Annals of Congr., ist Sess., ist Congr., p. 21, Rule XIX.
:! Journal of Maclay, 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. ;] 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

Kven 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 Wolc.ott : "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.

5 Annals of Congress, 2d Sess., 5th Congr., p. 589, Rule 19.

United States Senate. 43

so as to give to the senate the u 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 i864,2 was repealed in 1875^ 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.4 This law, however, was re-
pealed in iSiy,5 and the law passed in 1818 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 the 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., sist Congr., p. 1437.)

2 Congr. Globe, ist Sess., 38th Congr., p. 2090.

3 Ibid., 2d Sess., 43d Congr., p. 1669.

4 Statutes at Large, vol. 3, pp. 257, 258, ist Sess., I4th Congr., chap.
XXX.

5 Statutes at Large, vol. 3, p. 345, 2d Sess., I4th Congr., chap. IX.

6 Statutes at Large, vol. 3, p. 404, ist Sess., I5th 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 diem 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/'5 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. u, 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, t 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 not yet having been elected, eleven wrere not con-
sidered a quorum. The next session, however, the op-
posite interpretation wras 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
1812 under similar circumstances this latter decision was
adhered to ;! 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

1 Congr. Globe, 2d Sess., 37th Cougr., 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

' Congr. Record, ist Sess., 53d Congr., p. 2536.

2 Rule XI.

3 Statement of the vice president in 1851, Congr. Globe, 2d Sess.,
3ist Congr., p. 248.

4 For example, in 1851, 2d Sess., 3ist Congr., p. 248 ; also $d Sess.,
4ist Congr., p. 1603, and ist Sess., 46th Congr., p. 2147.

5 Congr. Record, 3d Sess., 46th Congr., p. 2423.

United States Senate. 47

vote whether or not to excuse the member.1 There was,
however, no 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 one, 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 When 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., 3ist Congr., p, 248 ; 3d Sess., 4ist 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.
* Ibid., 2174, 2175.

a Congressional Record, 2d Sess., 5oth 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

1 Congr. Record, ist Sess., 5 ist Congr., p. 3468, statement of Mr.
Hoar.

2 Ibid., ist Sess., 5ist 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 could 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 : u 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., i8th 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.
? Annals of Congress, ist Sess., ryth Congr., p. 273.

3 Annals of Congr., ist Sess., iyth Congr., vol. I, p. 143.

4 Congr. Dab., vol. VII, 2d Sess., 2ist Congr., p. 334.

ft 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 u 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
not 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

1 Congr. Globe, ist Sess., 32d Congr., p. 1288, Rule 26.

2 Congr. Record, ist oess., 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 i6th and I7th rules.

5Benton, Thirty Years' View, I, p. 555.

United States Senate. 53

the session continued until 7 A. M. of March fourth •/ 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 throiigh 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., 3Oth Congr., pp. 686-692.

2 Ibid., 2d Sess., 3ist 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 in Parton's Ljfe 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 f 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
enctimbrance 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 Congr. 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 ^ na^ 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.1

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., 4ist Coiigr., p. 1819.)

5 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
rnet July 3, 1867, that such a limitation was adopted. 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 to 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. Though there is no
time set aside by the standing rules for their consid-
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., 4ist Congr., p. 1819; Congr. Globe, 2d
Sess., 46th Congr., p. 1403.

3 Congr. Globe, ist Sess., 4oth 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 i8833 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 1877, 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.

4 Statutes at Large, vol. 22, p. 485, 2d Sess., 47th Congr., chap. 116.

5 Congr. Globe, 2d Sess., 3ist Congr., p. 78.

58 The Origin and Development of the

the same may have been previously sanctioned by the
senate," and inserting u unless it 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 of 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
u 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 i868,6 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.

2 For example, Congr. Record, ist Sess., 48th Congr., p. 1077.

3 Sen. Journal, vol. I, 2d Sess., ist Congr., p. 107.

4 Congr. Globe, ist Sess., 3oth Congr., p. 1085.

5 Ibid., 3d Sess., 42d Congr., p. 2.

6 Rule 52.

7 Congr. Globe, 3d Sess., 4ist 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 not wait, or would require an entire day.

IV. ^IMITATIONS 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. i ; 3d Sess., 4ist 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.)

3 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 consequences."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 iipon 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 wrhich, 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

1 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 Sen. Jour., vol. IV, 2d Sess., 9th Congr., pp. 135, 138, 139.

7 See Benton on the subject, Congr. Globe, istSess., 27th Congr.,
p. 204.

b Congr. Globe, ist Sess., 27th Congr., p. 205.
9 Ibid. , p. 203.

United States Senate. 61

privilege of debate. The proposition met with so much
opposition that it was abandoned ; but the accusation of
factious opposition on the part of the minority, made at
that time/ 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 failed* 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., 3ist Congr., p. 1688,
and ist Sess., 32d Cong., p. 1609), for the introduction of the previous
question (Congr. Globe, ist Sess., 3ist Congr., pp. 1466, 1688), and
for the limitation of debate, during the remainder of the session, to
five minutes, except on 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,
2dSess., 37th Congr., p. 1557), or two-thirds (2d Sess., 4ist 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., 4ist Congr., p. 4128).

5 Congr, Globe, 2d Sess., 4 ist Cougr., 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, 2cl Sess., 4ist Congr., pp. 507, 508.

2 Ibid., 36 Sess., 4ist Congr., p. 1477.

3 Congr. Record, ist Sess., 47th Congr., p. 1907.

4 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, only, 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. Globe, 3d Sess., 4ist Congr., p. 28. The rule was inter-
preted as allowing objection to be made at any time. (Congr. Record,
2d Sess., 4oth Congr., pp. 1302-1304.)

- I 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.

3 Congr. Record, ist Sess., 47th Congr., 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 consent1
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 siich 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., 4ist Congr., p.
478 ; Congr. Record, ist Sess., 5ist Congr., p. 4129), and, according to
senatorial usage, a number less than a quorum could make the agree-
ment. (Congr. Globe, 3d Sess., 4ist Congr., p. 1589, statement of
vice president. )

2 Congr. Record, ist Sess., 5ist 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 ac-
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

1 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, 4yth 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 change in 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 for
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&

%

The constitution provides that " All bills for raising
Revenue shall originate in the House of Representatives ;

* Benton, Thirty Years' View, I, pp. 727-731.
2 Congr. Globe, pp. 999, 1002.
8 Congr. Globe, p. 1396.

United Slates 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 read "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 iS8i said that they would fill a volume. (3d Sess.,
46th Congr., House Reports, No. 147, p. 10.)

4 Sen. Jour., 2d Sess., 4th Congr., vol. II, p. 348.

yo 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 ;*
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.5

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., I4th 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 ;T 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.

2 North American Review, vol. 128, p. 117.

3 3d Sess., 4ist 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 ;* 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.

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 ;5 and, later, the
senate committee pn 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.6

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 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., 4ist Congr., Sen. Reports, No. 376, p. 7.

4 3d Sess., 4ist 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 Senate. 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 all re-
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, and 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 did 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 to have 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., 5ist 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 in 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.

7 6 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.

Later 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 of 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." 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
house. The same privilege was later extended to select
committees.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
Senate, proposing new items of appropriation, shall, one
day before they are offered, be referred to the Committee

1 Congr. Globe, vol. 23, 2d Sess., 3ist 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. ) A mo-
tion made 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." *

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 ;7but in the second session

1 Congr. Globe, ist Sess., 4oth Congr., p. 12.

2 Ibid.) p. 3518, decision of the Chair.

3 Ibid., p. 3520.

4 Ibid., 2d Sess., 330! Congr.

5 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., 4oth Congr., p. 3612.

7 Ibid., 2d Sess., 4oth Congr., pp. 2089, 2090, and 2d Sess., 4ist
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. Elaine 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.. 426. 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.

4 Ibid., ist Sess., 4yth 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 j1 and in the Forty-eighth Congress, Mr. In-
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 period,
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 the house 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.
2Congr. 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. Si

he had been elected directly. Of the extent 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." l

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 ;2 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
malicious, tending to defame the Senators of the United
States, to bring them into contempt and disrepute, an$

1 Works, vol. IV, p. 191.

2 Davis, L,ife 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 the 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." This system of party dic-
tation was continued. In 1809, Story, giving his reasons
for refusing a re-election to the senate, writes : u I found
an entire obedience to party projects required such con-
stant sacrifices of opinion and feeling, that my solicitude
was greatly increased to withdraw from the field."

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-
sjgned, but as the rest of the cabinet declared that they

1 Williams, Statesman's Manual, I, 244, quoting Bradford, History
of Federal Government.

2 Life of Story, I, 194, 195.

3 In the ist session of the 4oth 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 its decisions.

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 no
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 : u 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 Snmner
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 conies 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 Union, 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., loth Congr., p. 267. Tenn. and N. J. passed
resolutions against this.

3 Art. II, sec. III.

86 The Origin and Development of the

written. 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 and 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 than 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 the 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 ; but, as under Johnson the majority
was large enough to override his vetoes, 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 legisla-
tion ;2 and the popular appeals on the subject, beginning
in 1832 and running down to 1844, resulted in 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 right to ex-
ercise this power on a 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., 3oth 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 1/arge, 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, butBenton 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 an 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-

1 Works, ed. by J. C. Hamilton, III, pp. 447, 588. Report of Feb. 6,
1794-

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 not 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 made by 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

1 As for a rule requiring all calls to be referred to a committee before
they were voted upon (Congr. Globe, 2d Sess., 4oth 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 on 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, parti, u, 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 opinions. (Congr. Globe,

Pp. 58, 59-)

3 For example, the Mills Tariff Bill, the Fishery Bill, 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 OF 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 Congr., Seu. 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 Aimals of Congress, ist Sess., ist Congr., pp. 34, 35, 36.
8 Journal of Maclay, pp. 64, 65.

*Ibid., p. 1 6.

6 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.4 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 to a report
on the same subject made in the house of representatives

1 Sen. Jour., I, 66.
* Ibid., I, 66, 67.

3 Jefferson's Manual, sec. XVII.

4 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 everywhere, this prohibition
against reference to debates practically amounts to noth-
ing ;2 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 w^ere 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 in the house was given, in the senate, as a reason for its imme-
diate passage (Congr. Globe, ist Sess., 26th Congr., p. 375); and in
the first session of the Forty-first Congress Mr. Potneroy 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.

5 As committee on engrossed bills, committee on the library.
c Congr. Globe, 2d Sess., 4ist 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 which 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 the house, 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 the 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 accoants of the debates given

1 Congr. Deb., vol. IV, part I, ist Sess., 2oth Co^gr., p. 690.
2 Ibid., p. 691.

g6 The Origin and Development of the

in u Maclay's Journal."1 The senate, however, did not
long leave to the house such a preponderating part in
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.
*Congr. Record, ist Sess., 52d Congr., 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 j1 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, $d Sess., 46th Cougr., 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."

3 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 attained, 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., 9th Congr., p. 203, 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 u 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.

2 Exec. Jour., vol. IV, pp. 122 ff.

3 Congr. Deb., vol. II, p. 147.

* Ibid., p. 146, and J. Q. Adams, Works, vol. VII, p. 117.

5 Annals of Congress, 2d Sess., 7th Congr., p. 49.

6 Exec. Jour., II, 374, 392.

7 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 eacvh^ senator
telling how he had himself, ^otea.1

The removal of the injunction. «£ rsfecietyts tioV/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 in 1831 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-

' Exec. Jour., IV, 122, Committee Report. Clayton said in 1854 that
the principles laid down in this report had since 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. m Nor
did this art become better understood as time went on.
In 1869;'- vhe Ney,y {V'ork 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 1844* 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., 2ist 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., i ith Congr.,
pp. 67-83. )

United States Senate. 103

to suffer expulsion from the body."1 Later 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-
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., 4oth 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 unawed 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, when 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 seems to have
been in favor of oral communications.4 To the com-
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." l

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 writing 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

1 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
rr.les.

io6 The Origin and Development of the

be advisable. .Had the other method been followed, the
influence of the president would undoubtedly have been
increased, and 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, " wThen 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 appointment.2

A proposal, made in 1822, to refer all nominations to the
appropriate standing committee was tabled.3 With the in-
creasing mvmber of nominations, the number of nominees
regarding whom nothing was known naturally increased,

1 Statement of Mr. Johnson. (Congr. Debates, 2d Sess., 2oth
Congr., p. 91.) The early senators also frequently consulted mem-
bers of the other house regarding nominations. (Annals of Congr,,
ist Sess., loth Congr., p. 348.)

2 Congr. Globe, 2d Sess., 2oth 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., 4oth Congr., p. 1630, Rule 37.

2 Annals of Congress, ist Sess., 1st Congr., p. 61.

3 Exec. Jour., I, 6, 7.

loS 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 ; m 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 : u 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 cannot themselves choose — they 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. )

3 Exec. Jour., II, p. 382.

4 J. Adams, Works, VI, p. 535-

United States Senate. 109

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." l

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-
tors of the state for which the appointment was 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.

2 Exec. Jour., I, 16, 17.

1 10 The Origin and Development of the

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 him 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, which* 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.

4Niles' 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."

ii2 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 on 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
Platt 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., 2dSess.,
23d Congr., 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.

* 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 needed. In 1861, 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 : " 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

The disbursement of the patronage came to occupy a
third of the working time of senators4 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, 2dSess., 4ist 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.

1 14 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. Sunnier 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 1871, 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., 4ist Congr., p. 1997. This was regarded by the
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 Congr.

United States Senate. 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 of 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.

3 Ibid.

4 Congr. Record, 26. Sess., 45th Congr., p. 4; 2d Sess., 46th Congr.,
p. 3 ; 3d Sess., 46th Congr.

5 Ibid., 2d Sess., 4yth 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.

5 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 a public minister. (Annals of Congr.,
ist Sess,, I3th Congr., pp. 751-753, and Congr. Deb., vol. II, part i,
rst Sess., igth Congr., pp. 609-614.)

¥ 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-
iials of Congr., ist Sess., I3th Congr., pp. 704, 720, 721, 752 ; Congr.
Deb., ist Sess., I9th Congr., p. 614.

3 Exec. Jour., II, 416.

n8 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 ;5 and in 1826

1 Congr. Debates, 2d Sess., 2ist Congr., p. 310, yeas 25, nays 18.

2 Madison, Works, IV, 369 ; III, 268.

3 3d Sess., 37th Congr., Sen. Reports, No. 80, p. 8.

4 Statutes at I/arge, vol. i, p. 200, 3d Sess., ist Congr., chap. 15,
sec. 4.

5 Annals of Congress, ist Sess., I3th 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
i845,3 kut tne 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

1 Congr. Debates, vol. II, part i, ist Sess., igth Congr., p. 607.

2 Congr. Debates, vol. VII, 2d Sess., 23d Congr., p. 225.
:! 4 Opinions, 363.

4 3d Sess., 37th Congr., Sen. Reports, No. 80, pp. 9, u.

5 12 Opinions, 457.

6 Cougr. Globe, 2d Sess., 39th Congr., pp. 407-409. Also, 3d Sess.,
37th Congr., Sen. Reports, No. 80, p. 9.

7 3d Sess., Sen. Reports, No. 80.
b ist Sess.

9 ist Sess.

I2O 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 imable 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 subsequent
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 in opposition
to the president, has curtailed his power, is by refusing
to act upon his nominations at the 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 Congr., chap. 47.

2 Madison, Works, vol. Ill, p. 400.

3 3d Sess., 37th Congr., Sen. Reports, No. 80.

4 Ibid., pp. 9-12; Congr. Record, ist Sess., 5ist Congr., p. 176.

5 Digest of Opinions of Attorney Generals, in House Misc. Docs.,
2d Sess., 48th Congr., No. 15, pp. 288-294, %$ 3, 13, 34, 35, 59, 66, 78,
79, 88, 89; and Opinions of Attorney Generals, vol. 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 dis-
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 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 ;3 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 Pierce, 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.

3 In the 2d Sess., 39th Congr. (Congr. 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 I think there have been — that
the President might select such persons as he pleased to be member?
of his cabinet — the general idea of the Senate has been, whether they
liked 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. 188.

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-
shaw2(Exec. Jour., VI, pp. 210, 211, yeas 8, nays 34).

2 Annals of Congress, ist Sess., 1st 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 support 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.)

2 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 zj..2 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."3

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 in

1 J. Q. Adams, Works, VII, 424.

2 Annals of Congress, ist Sess., i6th Corjgr., p. 674.
</ » Works, III, 200.
-. "Jefferson, Works, VII, 190.

5J. Q. Adams, Works, VI, 520, 521.

6 Benton, Thirty Years' View, I, 82.
/ 7J. Q. Adams, Works, VII, 425.

8 Congr. Globe, ist Sess., 29th Congr., p. 819.

9 Ibid., vol. II, part ii, ist Sess., i9th 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 i6,! 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 remains 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,
u 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., 230! Congr., p. 576.
8 Ibid., isf Sess., 29th Congr., pp. 833, 834.

3 Benton, Thirty Years' View, I, 82. Congr. Debates, vol. VII, part
i, p. 370. Exec. Jour., II, 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 coining 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 in 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.

2 Exec. Jour., IV, 70, 76.

3 Congr. Deb., ist Sess., 2ist Congr., p. 457.
4J. Q. Adams, Works, VIII, p. 189.

5 Congr. Debates, ist Sess., 2ist 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 u 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 Ve the only case prior to 1867 in
which such a resolution was adopted. Similar ones
during the administrations of Tyler6 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.y p. 468. He held that " the President, in cases of this na-
ture, possesses the exclusive power of removal frani office."

4 Ibid., p. 481.

'•> Ibid., pp. 519, 528, 529.

6 Exec. Jour., V, p. 401.

7 Congr. Globe, ist Sess., 3ist 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 ; except that, in the recess of the
senate, the president might suspend an officer who had

1 Congr. Globe, ist Sess., 2gth Congr., p. 959.

2 Ibid., 2d Sess., 39th Congr., p. 1517, statement of Mr. Howe.

3 Mr. Edmunds, the chairman of the 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 on 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 recom-
missioning of an officer by the president, without asking
the consent of the senate, by providing that a vacancy,
lawfully happening during the recess, might 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 an 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 i3.2 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 finally 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 removal by and
with the advice and consent of the senate.* ' The bill

1 Congr. Globe, 2d Sess., 39th Congr., p. 382.
tlbid., p. 548.

3 Ibid., pp. 944, 969.

4 Ibid.t p. 1514.

130 The Origin and Development of the

thus amended was adopted in the senate by a vote of 22
to 10, and, being vetoed by President Johnson on the
ground of its unconstitutionality,1 was passed over the
veto without debate.2

Considering the opinions expressed in the senate, dur-
ing the debate on the bill, against compelling the presi-
dent to retain unwelcome cabinet officers, and the hold-
ing of such views by a majority of the senate, as shown
by their votes ; their action in refusing to concur in the
removal of Mr. Stanton from the office of secretary of
war can only be accounted for by the personal quarrel
with the president, and, therefore, too much importance
should not be attached to this interpretation of the law
by them. Their action on this subject, as well as the
later repeal of the law and the remarks then made, dis-
credit their earlier statements that, in passing the law,
they were influenced only by general views regarding
its expediency and constitutionality.

The denial by Mr. Stanton of the right of the presi-
dent to suspend him from office under the constitution
and laws of the United States, without the consent of
the senate, is also remarkable, inasmuch as when the
law was before the cabinet he was loudest in declaring
it to be unconstitutional ; and because it seemed to be
taken for granted that the law would not apply to mem-
bers of the cabinet appointed by Mr. Lincoln.3

Mr. Stanton was suspended from office during the re-
cess of the senate, and when, on the assembling of con-
gress, President Johnson notified the senate of his action,
it refused, by a vote of 31 to 8, to concur in the suspen-
sion.4 About a month thereafter the president removed
Mr. Stanton, stating in his message to the senate an-

1 Congr. Globe, 2d Sess., 39th Congr., p. 1964.

*fdzd., p. 1966.

3 Bxec. Jour., vol. 16, p. 99.

4 Ibid., p. 129.

United States Senate. 131

nouncing it, that he had done so in the exercise of the
power and authority vested in him as president.1 The
senate at once passed a resolution declaring the act to
be unconstitutional,2 and the president, in his reply, up-
held it on the ground that Mr. Stanton was appointed
by his predecessor. After the trial of the president on
impeachment, which followed in consequence of this
act, and his acquittal, President Johnson nominated a
successor to Mr. Stanton whom the senate confirmed,
stating, however, that they considered the former incum-
bent illegally removed, but as he had relinquished his
place they agreed to the appointment of a successor.3

In the second session of the Fortieth Congress, while
the Stanton case was before the senate, a bill was
reported as an addition to the tenure of office act, dis-
cussed, and passed in the senate, which further limited
the exectitive power by forbidding the appointment by
the president .of most of the general and special agents
before allowed, and by requiring the confirmation of the
senate in the appointment of officers who before had
been appointed by the president or his secretaries. The
avowed purpose of this act was to decrease the ex-
penses of the government. The bill passed the senate
by a large majority.4 In the house it was referred to a
committee, and not called up.

At the third session of the Fortieth Congress a bill
for the repeal of the tenure of office act was hurried
through the house, under the previous question, without
debate, and passed by a vote of 121 to 47.5 In the sen-
ate a substitute was reported by the committee which,
instead of repealing the act, provided for its amendment
so as to except cabinet officers and not to require the

1 Exec. Jour., vol. 16, p. 170.

-Ibid., p. 172.

3 Ibid., pp. 236, 238, 239.

4 Congr. Globe, 2d Sess., 4oth Congr., p. 1037.

3 Ibid., 3d Sess., 4oth Congr., p. 283.

132 The Origin and Development of the

president to give his reasons for suspension. This was
discussed on two different days and the senate then
refused to take it up.

At the next congress the repeal was again passed in
the house without debate and sent to the senate. Mean-
while a bill to repeal the act had been introduced in the
senate and indefinitely postponed, and one to amend the
bill had been referred to a committee. On receipt of
the house bill this was taken up. An attempt to pass
it in the senate, without reference or discussion, failed,
and it was amended so as to provide for the repeal of
the first and second sections of the act and the substitu-
tion of a section which required the consent of the
senate for the removal, during the session of congress,
of an officer appointed by and with its consent ; giving
to the president, however, the right to suspend an officer
during vacation. Such a suspension had to be reported
to the senate within thirty days after its assembling, and
a person nominated to the office thus left vacant. If
the senate refused to consent to the nomination so
made, and also to the suspension, then the suspended
officer was entitled to resume his office.1

According to the interpretation of this given in the
house during the discussion of the report, its essential
difference from the original law lay in the fact that, un-
der the law of 1867, the reasons for which the officer was
suspended must be given, while according to the law
proposed by the senate this was not necessary. The
house refused to agree to the senate amendment, and
the bill went to a committee of conference where it was
further amended by striking out the portion regarding
the result of the refusal of the senate to agree to a
suspension, and inserting : " Then, and not otherwise, the
President shall nominate another person as soon as
practicable to said session of the Senate." The effect

1 Congr. Globe, ist Sess., 4ist Congr., p. 246.

United States Senate. 133

of this amendment, according to those who explained it
in the house, was " to leave to the President, under the
limitation of law, all the power that was ever claimed
for the President under the Constitution of the United
States, the suspension under the bill amounting practi-
cally to a removal." With this understanding the bill
was agreed to in the house. In the house it had also
been held that, if at the end of the session no person
had been confirmed to fill a vacancy created by a suspen-
sion, the office would remain vacant ; but in the senate
it was maintained that the removed officer would again
take his place. The interpretation of the senate was
upheld by the attorney general, and was the one which
prevailed. Practically, however, it made no difference,
for the president could again suspend the officer re-
moved upon his reinstatement in his office.

President Grant was not satisfied with this, and in his
first annual message he recommended the repeal of the
law, declaring it to be " inconsistent with a faithful and
efficient administration of the government." Twice
the repeal was passed in the house, and not acted on in
the senate.1 In the third session of the Forty-sixth%
Congress, President Hayes, while speaking of civil ser-
vice reform, urged its repeal ;2 and in 1877 Garfield, in
advocating the repeal, said : " The President can re-
move no officer without the consent of the Senate, not
often given unless the appointment of the successor is
agreeable to the Senator in whose state the appointee
resides."3

In the first session of both the Forty-eighth and Forty-
ninth Congresses, a bill for the repeal of the law was
again introduced in the house ; and, in the first session
of the Forty-ninth Congress, there was a long discussion

1 ist and 2(1 Sessions of the 426. Congress.

2 Congr. Record, p. 3.

3 Taken from Eaton, Secret Sessions, p. 41.

134 The Origin and Development of the

of the subject in the senate, brought on by the refusal
of the attorney general, under the direction of President
Cleveland, to comply with a resolution of the senate
calling for " copies of all papers and documents that
have been filed in the Department of Justice, since the
first day of January, 1885, ^n relation to the manage-
ment and conduct of the office of the district attorney
of the United States of the Southern District of Ala-
bama ;"! the senate having under consideration the nom-
ination of a person to take the place of the one suspended.
In the majority report of the committee of the judi-
ciary, to whom the message was referred, it was stated
that, since the passage of the act of March second,
1867, it had always been the practice of the committee
of the judiciary, whenever a nomination was made pro-
posing the removal from office of one person and the
appointment of another, to address a note to the head of
the department having such matter in charge, usually
the attorney general ; asking that all papers and informa-
tion in the possession of the department, touching the
conduct and character of the officer proposed to be re-
Amoved, and of the person to be appointed, be sent to the
committee for its information. This practice had been
followed throughout all administrations with the unani-
mous approval of all the members of the committees,
although the composition of the committees had been
sometimes of one political character and sometimes of
another.2 When, in the present instance, there was de-
lay in sending the information, a resolution passed the
senate, without division, calling for such information.
The senate declared the action of the attorney general
to be " in violation of his official duty and subversive of
the fundamental principles of the government and of a
good administration thereof," and that consequently it

1 Congr. Record, ist Sess., 49th Congr., p. 1585.

2 Ibid.

United States Senate. 135

was their duty to refuse the confirmation of a successor
to the officer removed.1

The papers were refused on the ground that they were
private, but at the same time the president said : " I am
also led unequivocally to dispute the right of the Sen-
ate, by the aid of any documents whatever or in any
way, except through the judicial process of trial by im-
peachment, to review or revise the acts of the Executive,
in the suspension, during the recess of the Senate, of
the Federal Officials."2

It had frequently been asserted that, since its amend-
ment, the tenure of office act had had no practical
effect. This would certainly be the case if Cleveland's
interpretation were to prevail, and, at the next session, a
resolution for its repeal was introduced in the senate,
and passed by a considerable majority.

III. TREATIES,

Though treaties were regarded as part of the execu-
tive duties of the senate and, therefore, even after 1794,
still considered in secret, there was no general rule for-
bidding disclosures concerning them until December 22,
1800. It is evident that, previously, they were not con-
sidered secret, since, when it was deemed expedient to
keep secret the Jay treaty, a special order was passed
placing it under the injunction of secrecy.3 This rule,
which provided " 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,1'4 was interpreted as extend-
ing the injunction of secrecy to all the proceedings
of the senate, including the fact that a treaty had been

1 Congr. Record, istSess., 49th Congr., pp. 1587, 2810, 2814.

s/Wrf., p. 1903.

3 Exec. Jour., I, 178,

4 Ibid., p. 361.

136 The Origin and Development of the

submitted to the senate, and its provisions.1 In 1868
the rule was made more definite by providing that " all
remarks and proceedings thereon, shall be kept secret,"
and in 1877 votes were included in the enumeration.2

The efficacy of these rules regarding treaties has been
no greater than similar ones regarding nominations.
The very first time an injunction of secrecy was imposed it
was violated, and, in 1846, it was said in the senate that
secret sessions on treaties amounted to nothing, since,
whenever treaties were of sufficient importance to attract
attention, they became known just as well as if consid-
ered in public.3 This was one of the reasons urged in
the frequent proposals for the abolition of secret ses-
sions, in consideration of all or certain classes of treaties.
In 1870 it was agreed that, thereafter, Indian treaties
should be considered in open session, except when trans-
mitted by the executive to the senate for its confidential
consideration.4

The first treaty to be considered in open session,
though proposals for such a course had often been made
before in special cases, was the fisheries treaty with
England. This innovation was due to the fact that the
treaty was made a campaign issue, and neither party
dared to risk the inference which might be drawn from
their refusal to discuss it in public.

The expectations of Washington, and probably of the
first senate also,5 regarding the manner of procedure and
the relation of the president and senate in the formation
and consideration of treaties, have not been realized ; it
being apparent, even during the First Congress, that they
would not be fully carried out.

'Exec. Jour., IV, 123, Report of Committee of 1830.

2 Congr. Record, 2d Sess., 4oth Congr., p. 1630, Rule 39; and 2d Sess.,
44th Congr., p. 1877, Rule 67.

3 Congr. Globe, ist Sess., 29tli Congr., p. 988.
4 Ibid., 2d Sess., 4ist Congr., p. 1099.

5 It seems to have acquiesced in his view.

United States Senate. 137

Washington, when waited upon to ascertain his opin-
ions regarding the mode of communication which should
be observed between the president and senate on nomi-
nations and treaties, said : " In all matters respecting
treaties oral communications seem indispensably neces-
sary ; because in these a variety of matters are con-
tained, all of which not only require consideration, but f
some of them may undergo discussion, to do which by
wrritten communication would be tedious without being
satisfactory."1 Recognizing that different circumstances
might require different means of communication and that
the opinion of both the president and the senate regard-
ing the best mode might change, he suggested that the
rules of the senate should be accommodated to either
oral or written communications, and this was accord-
ingly done ;2 the senate thereby indicating their concur-
rence with the ideas of Washington and their expectation
of holding personal communication with him.

It seems to have been expected that treaties would be
gone over clause by clause, and modelled, by the presi-
dent and senate together,3 this being the course pursued
in the formation of the first treaty. On August 21, 1789,
Washington sent a message to the senate informing
them that, on the next day, he would meet them in the
senate chamber to discuss concerning the terms of an
Indian treaty. As this is the only instance in which
such a course was pursued, and as Washington evidently
expected that the usual mode of communication on
treaties would be oral, it seems worth while to give a
portion of the interview, an account of which is found
in Maclay's Journal, that the reason for the discontinua-
tion of the practice may thus, if possible, be discovered.

Washington, Works, vol. XI, p. 417.
2 The rule still remains the same.
3J. Adams, Works, III, 409, statement of Mr. Butler in a senate

debate.

138 The Origin and Development of the

At the appointed time Washington appeared in the
senate, accompanied by General Knox ; and, having
stated the reason for his coming and that he had brought
General Knox because he was well acquainted with the
affair, a paper which he had brought with him, contain-
ing an account of the relations with the Indians and
having annexed to it seven questions, was read, after
which the vice president read the first question and put
it to vote. As no one moved, Mr. Maclay tells us that,
after a pause, and just as the vice president was about
to put the question, he rose, and, speaking of the im-
portance of the treaty and the lack of information, asked
for the reading of the treaties and other documents
mentioned in the paper. At this, he says : " I cast an
eye at the President of the United States. I saw he
wore an aspect of stern displeasure." There seemed
evident reluctance to proceed. The first and second
articles were postponed and then a commitment was
proposed. Objections were made to this. It was said :
" We were acting as a council. No council ever com-
mitted anything." Mr. Maclay spoke in favor of a
commitment, and " as I sat down," he writes, u the Pres-
ident of the United States started up in a violent fret.
' This defeats every purpose of my coming here,' were
the first words that he said. He then went on that he
had brought his Secretary of War with him to give
every necessary information ; that the Secretary knew
all about the business, and yet he was delayed and could
not go on with the matter. He cooled, however, by de-
grees. Said he had no objection to putting off this
matter until Monday, but declared he did not understand
the commitment."

The president withdrew soon after, Mr. Maclay says,
" with a discontented air ; " and he writes further, " I
can not now be mistaken. The President wishes to
tread on the necks of the Senate. Commitment will

United States Senate. 139

bring the matter to discussion, at least in the commit-
tee, where he is not present. He wishes us to see with
the eyes and hear with the ears of his Secretary only."
When Washington attended on the next day the differ-
ent points were taken up, debated, and decided without
further misunderstanding.1

That Washington wished to " tread on the necks of
the Senate," as Mr. Maclay suggested, but found himself
unable to do so and therefore discontinued the practice
of oral communications, does not accord with his char-
acter or treatment of the senate. It is more probable
that the practice was discontinued because Washington
saw that it restrained the freedom of debate ; and, per-
haps, as he suggested in the case of nominations, he
found it unpleasant to have his propositions discussed
and criticised in his presence.

Though giving up oral communications with the sen-
ate regarding treaties, he still continued, in most cases,
to take the advice of the senate previous to the negotia-
tion of a treaty.2 His failure to do so in the negotia-
tion of the treaty with Great Britain was held by some
to be a violation of the constitution, but by others to be
perfectly proper.3

On Indian treaties there was a question as to whether

'Journal of Maclay, pp. 128-133.

2 In the negotiations with Spain, he asked the senate if they would
consent to the extension of the powers of the minister lately appoint-
ed to that court, and would ratify a treaty made in conformity to
those instructions (Exec. Jour., I, 106). In the negotiations with
Algiers, he asked the senate if they would agree to a treaty of a cer-
tain form (Exec. Jour., I, 122) ; and before taking steps relative to
the settling of the boundary between Nova Scotia and Maine, the
senate was consulted. In regard to Indian treaties, it had been the
unanimous opinion of his cabinet that a previous consultation of the
senate was not necessary. Washington, nevertheless, frequently con-
sulted the .senate regarding such treaties (Exec. Jour., I, 21, 36,
55, 60, 88, 98).

3 Williams, Statesman's Manual, I, p. 88 ; Life and Letters of
Cabot, pp. 241, 243.

140 The Origin and Development of the

the final ratification of the government was necessary,
or if the signature of the treaty by the negotiator should
be considered binding, as had been the previous prac-
tice. Washington favored the first plan. A committee
of the senate, to whom the question was referred on the
receipt of the first Indian treaty, reported in favor of
the old practice ; but the report was set aside by the
senate and the treaty submitted, ratified in due form.1

Adams, who disapproved of the executive powers
entrusted to the senate, would naturally be inclined to
interpret the constitution so as to limit them as much
as possible ; and, during his presidency, the advice of
the senate, previous to the negotiation of a treaty, was
never requested.2

The practice of Adams has been followed since with
but few exceptions. The first of these is that of Jack-
son, who consulted the senate previous to the negotiation
of a treaty with the Choctaws. In the message asking
the senate for its advice he said : " I am fully aware that
in thus resorting to the earlier practice of the Senate in
the discharge of this portion of my duties, I am depart-
ing from a long and for many years an unbroken usage
in similar cases. But being satisfied that this resort is
consistent with the provision of the Constitution ; that
it is strongly recommended in this instance by consider-
ations of expediency ; and that the reasons which have
led to the observance of a different practice, though very
cogent in negotiations with foreign nations, do not apply
with equal force to those made with the Indian tribes, I

1 Exec. Jour., I, 27, 28.

2 Soon after entering office Adams asked Wolcott if certain instruc-
tions to a foreign minister should be laid before the senate for their
advice and consent before being sent to Europe, and Wolcott re-
plied that he did not think it wise to consult the senate on treaties,
previous to their negotiation, as it did not possess sufficient informa-
tion to enable it to act wisely, and because such a course would render
secrecy impossible. (Gibbs, Administration of Washington and
Adams., I, 516, 517.)

United States Senate. 141

flatter myself that it will not meet with the disapproba-
tion of the Senate."1

The report of the committee of the senate to whom
the message and treaty was referred contained only
vague recommendations ; and even these were not
adopted by the senate, the committee, in accordance
with its request, being discharged,2 and no further action
being taken on the subject, the senate thus showing it-
self less eager to extend its influence than the president
seemed to expect. Yet Madison, writing about this
time, gives the claim of a right to be consulted, previous
to the negotiation of a treaty, as among the innovating
doctrines of the senate,3 and Benton says that the view
was held by many senators.4

The previous consultation of the senate by Polk in
negotiating the treaty with Great Britain for the settle-
.ment of the Oregon controversy, was undoubtedly due
to a desire to throw the responsibility for the treaty on
the senate. He declared in his message, however, that
he approved of the practice on momentous questions,
because it would secure harmony in the actions of the
executive department ; and, in this case, was especially
advisable since peace or war might depend on the decis-
ion of the question.5

The same question was also the occasion of the next
consultation of the senate previous to the negotiation of
a treaty. The treaty of 1846 was not decisive on cer-
tain points concerning the boundary between Oregon
and the English possessions ; and, after several unsuc-
cessful attempts at settlement, the president submitted
the question to the senate, and asked if they would
agree to a treaty of arbitration with certain specific fea-

1 Exec. Jour., IV, 98.

2 Ibid., 112, 119.

3 Works, IV, 370.

< Thirty Years' View, II, 675.
* Ibid., pp. 673, 675.

142 The Origin and Development of the

tures.1 The senate adjcnirning before it had taken ac-
tion on the subject, and Lincoln coming to the presi-
dency, the senate sent to him a copy of the message of
his predecessor, and Lincoln, in acknowledging this,
says : u I find no reason to disapprove of the course of
my predecessor in this important matter, but, on the con-
trary, I not only shall receive the advice of the Senate
thereon cheerfully, but I respectfully ask the Senate for
their advice.-" 2 This the senate accordingly gave.3

Lincoln again consulted the senate in December, 1861,
regarding a convention with Mexico, submitting to that
body for its advice a copy of a draft for a convention
proposed to the government of Mexico by Mr. Corwin,
the minister of the United States.4 Later he communi-
cated a letter of the minister, asking for instructions,
and requested the advice of the senate on the pending
treaty.5 The senate adopted a resolution expressing its
disapproval of the treaty, and making general sugges-
tions regarding another, while stating that the lack of
information made it impossible to go into details.6 Presi-
dent Johnson in 1869 submitted a protocol with Great
Britain to the senate for its advice as to the expedi-
ency of concluding a convention based thereon,7 and
President Grant asked the advice of the senate regard-
ing the indemnities in the Alabama affair.

When, as has happened on a few occasions, the presi-
dent has asked for an appropriation of money for the

1 Exec. Jour., XI, 279, 282.

2 Ibid., pp. 307, 308.

3 Ibid,, p. 314.

4 Ibid., XII, p. 24.

5 Ibid., p. 102.

6 The communication of the opinion of the senate by the president
to Mr. Corwin failed to reach him, and the proposed treaty was,
therefore, negotiated. When received, Lincoln submitted it with an
explanation of the circumstances to the senate, by which it was
tabled. (Exec. Jour., XII, pp. 370, 401.)

7 Exec. Jour., XVI, pp. 441, 477.

United States Senate, 143

purposes of the negotiation of a treaty, the senate has
thus had an opportunity, incidentally, to say whether it
wished such a treaty negotiated.1 Similarly the senate
in confirming a minister for the purpose of negotiating
a treaty gives its consent to that negotiation. In most
cases, however, even this opportunity for the expression
of an opinion, prior to the negotiation of a treaty, is not
given to the senate ; for most of our treaties have been
negotiated by the ministers resident in the country with
which the treaty was to be made, or by secret agents of
the president who were private citizens or officers of the
government commissioned for that purpose. In 1888 the
number of persons who had been so appointed by the
president was four hundred thirty-eight while but thirty-
two had been appointed with the advice of the senate ;
and, between 1827 an(^ 1880, none were so appointed,
although many of the appointments during this time
were made when the senate was in session.2

Objections have, on several occasions, been made to
the employment of private agents for the negotiation of
treaties, and considerable discussion has taken place ; but
on one occasion only has the senate adopted a resolution
expressive of its disapproval of such a course. This
was in i83i,3 and, when three years later a similar reso-
lution was introduced, it was at once tabled ;4 while in
1838, when Van Buren was about to commission our
charge d'affaires to Peru to stop on his way at Ecuador
to negotiate a treaty, and communicated this fact to the
senate in order to give it an opportunity, if it wished,

'Such an appropriation was made in 1803 (Annals of Congr. , 2d
Sess., yth Congr., pp. 91-96, 102, 103, 106-255), and in 1806 (Exec.
Jour., II, 36-43), and was asked for in 1846 (Exec. Jour., VII, p. 133)'

2 Report of Committee on Foreign Affairs, ist Sess., soth Congr.,
Sen. Misc. Docs., vol. 2, No. 109, pp. 103, 104.

3 Congr. Debates, vol. VII, 2d Sess., 2ist Congr., p. 310, yeas 25,
nays 18.

4 Exec. Jour., IV, 445.

144 The Origin and Development of the

for the expression of an opinion on the exercise of such
a power by the executive,1 no action was taken beyond
the reference of the message to a committee ; and a
treaty, presumably negotiated in the manner suggested,
was afterward adopted.

A resolution of Mr. Chandler of July 20, i888,2
denying the right of the president to appoint private
citizens as special agents, called forth the report which
showed how frequently this had been done.

Though the senate, through its power of confirmation,
does not often have an opportunity to say whether a
specified treaty shall be negotiated, and only in a few
instances has been requested to give its advice previous
to or during a negotiation, it nevertheless frequently,
especially of late years, exercises a considerable influence
in the formation of treaties. Ordinarily it may obtain
any information regarding negotiations, during their
progress, by the adoption of a resolution calling for such
information,3 which the president, knowing that he
must finally obtain the consent of the senate to what-
ever is done, will be inclined to communicate, if it can
be done without prejudice to existing negotiations.
Then the senate has, occasionally, though it has been
objected to by some as unconstitutional, adopted resolu-
tions requesting the president to pursue a certain policy.
These, however, are of rare occurrence, and had the
influence of the senate depended upon them alone, it
would have been slight ; but the president, in view of
the fact that all his negotiations must eventually be
passed upon by the senate, finds it necessary to defer to
their wishes to a certain extent ; consequently, there is a
great deal of informal communication between the pres-
ident or secretary of foreign affairs and senators or com-

1 Exec. Jour., V, p. 119.

2Congr. Record, ist Sess., 5cth Congr., pp. 6568.

3 Ibid.y ist Sess., 49th Congr., pp, 2216-2220, for list of such calls.

United States Senate. 145

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
any foreign power on his own motion, or from his own
sense of fitness or expediency. The relations between
him and the Senate 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.

2Cougr. Record, ist Sess., soth 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.
-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 congress
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 notice 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 unani-
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-

1 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. ; i 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 been caused
by a proposal made in executive session and favorably
reported by a committee, for the abrogation 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 case of the Denmark treaty has not
been made a precedent, and, though there are still 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 congress 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.

2 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, istSess., I4th Congr., chap. 107,
sec. 6). A law of 1817 (Ibid., vol. Ill, p. 344, 2dSess., I4th Congr., chap.
3, sec. i), 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., 2 Curtis,
454 ; and Cherokee Tobacco Case, n 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 claimed 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.

Kspecially in Indian treaties has the house claimed,
and exercised, a considerable influence, since nearly all
such treaties involve the payment of money or 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., 4oth Congr., p. 374, and ist Sess., 4ist Cougr., 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 ;2 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 the pay-

1 Congr. Globe, ist Sess., 4istCongr., p. 57, statement of Mr. Julian.

2 Ibid., pp. 147, 166 ; and ist Sess., 4oth Congr., p. 374, statement of
Mr. Sherman.

3 Statutes at Large, vol. XV, p. 9, ist Sess., 4otli Congr., chap. 13,
sec. 6.

4 Ibid., p. 18, chap. 34.

5 Ibid., vol. XVI, p. 566, 3d Sess., 4 ist Congr., chap. 120.

150 The Origin and Development of the

merit 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 was finally adopted by a large majority.2
Washington, with the approval of his cabinet, refused
to comply with the request, stating among his reasons
for doing so that the house had no right to deliberate on
a treaty, it having become obligatory when ratified by
the president and senate.3 The appropriation was finally
voted by the house, a resolution being previously adopted,
which, while disclaiming for the house any agency in
making treaties, declared that, "when a treaty stipu-
lates regulations on any of the subjects submitted by the
Constitution to the power of Congress, it must depend
for its execution, as to such stipulations, on a law or
laws to be passed by Congress." 4

Jefferson, the leader of the Republicans, when he be-
came president, recognized the claims of the house.
Speaking of the instruments for the transfer of Louisi-
ana he said : " When these shall have received the con-
stitutional sanction of the Senate, they will, without
delay, be communicated to the House of Representatives
for the exercise of their functions, as to those conditions
which are within the powers vested by the Constitution
in Congress."5 He also on one occasion requested con-
gress to make a secret appropriation for the negotiation

1 Annals of Congress, ist Sess., 4th Congr., pp. 426 ff.

2 Ibid., ist Sess., 4th Congr., p. 759, yeas 62, nays 37.

3 Ibid., ist Sess., 4th Congr., pp. 760, 761.

4 Ibid., ist Sess., 4th Congr., pp. 771, 782, 783.
5 Ibid., ist Sess., 8th Congr., p. 12.

United States Senate. 151

of a treaty ;T and, at another time, when, without his
formal request,2 such an appropriation had been made
by congress,3 he stated that he considered it as convey-
ing the sanction of congress to the acquisition proposed.4

In 1816 the position of both houses was clearly set
forth in connection with the convention of 1815 with
Great Britain, which was in contradiction to certain
of our revenue laws. The senate held that these laws
were repealed by the treaty and that no act of congress
was necessary ; but the house thought otherwise and the
senate finally yielded and consented to the passage of an
act repealing the laws, it being agreed that it should not
be taken as a precedent.5 The position of the senate
has been upheld by an attorney general,6 but the supreme
court takes the opposite view.7

The right to acquire or cede territory by means of
the treaty-making power has also been questioned.
Jefferson thought that this power did not reside in any
part of the government The purchase made by him
and that of i8i9,8 however, were acquiesced in and their
legality confirmed by a decision of the supreme court in
favor of the power of the government to " acquire new
territory either by conquest or by treaty ; "9 but the
question again came up for discussion when the annex-
ation of Texas was under consideration.

1 Exec. Jour., II, 36-43.

2 ist Sess., 33d Congr., p. 1563, statement of Mr. Benton.

3 Annals of Congr., 2d Sess., yth Congr., pp. 90, 104.

4 Ibid,, ist Sess., 8th Congr., p. 12.

5 Ibid., ist Sess., I4tli Cougr., pp. 46 ff.
(; 13 Op., 355.

7 Foster v. Neilson, 2 Peters, 314.

8 The treaty was adopted unanimously, but at the next session Mr.
Clay introduced a resolution, which excited much debate, declaring
that no treaty for alienating the territory of the United States was
Valid without the consent of congress. It was held then that the
consent might be given after the ratification. (Clay, Works, V, 206.)

9 Am. Insurance Co. et al., v. Canter, i Peters, 542.

152 The Origin and Development of the

Some held that the settlement of boundary disputes,
only, belonged to the treaty making power,1 and that
for the acquisition or cession of territory the consent of
congress was necessary. This view was based on the
clause of the constitution which gives to congress the
right to dispose of territories or other property of the
United States and that which gives congress power to
admit new states.2 There were a greater number who,
while acknowledging that foreign territory might be
acquired by treaty, denied the right to incorporate an-
other nation by treaty.3 The annexation of Texas by
treaty was also objected to because it would be the adop-
tion of the war with Mexico, and it was held that the pres-
ident and the senate had no right to make war either
by declaration or adoption.4

So many reasons, other than the constitutional ones,
operated to secure the rejection of the treaty that it is
impossible to infer from it that there was a majority in
the senate who held the acquisition of this territory, by
treaty, to be unconstitutional ; just as it is impossible to
infer from the adoption of the jjOint resolution intro-
duced in the house5 for the acquisition of Texas, that a
majority of both houses considered that the constitu-
tional mode of acquiring foreign territory.

The request of President Polk, prior to the negotia-
tion of the treaty with Mexico, for an appropriation to
be used, if necessary, in the negotiation, does not seem
to have been regarded by him as a request for a previous

1 Congr. Globe, ist Sess., 2Stli Congr., p. 656, and p. 658, note.

2 Ibid., ist Sess., 28th Congr., p. 656, note ; 2d Sess., 28th Congr.,
p. 280.

3 Ibid., ist Sess., 28th Congr., App., pp. 539, 682, 722.

4 Ibid., ist Sess., 28th Congr., App., p. 474. For arguments for and
against, see pp. 539, 558, 559, 685, 695.

3 The senate committee on foreign relations reported against the
adoption of the house resolution on the ground that it was unconsti-
tutional, holding that foreign territory could be acquired only by
treaty. (2d Sess., 28th Congr., Sen. Misc. Docs., vol. III» No. 79,)

United States Senate. 153

legislative sanction.1 The senate, however, took the
opportunity to advise the president to take all proper
measures to secure peace, and signified its willingness to
make the appropriation required.2

When the Gadsden treaty, which appropriated a large
sum for the purchase of foreign territory, was under
consideration, the acquisition of foreign territory with-
out authorization from congress was again declared to
be a breach of the privileges of the house,3 the assertion,
however, being warmly contested.4 Nearly all seem to
have conceded the right to grant or withhold the ap-
propriation, though the call for papers was not made, it
being resisted by the president's party.

The next discussion on the subject was over the ap-
propriation for the treaty of 1867 with Russia for the
purchase of Alaska. The fourth article of the treaty
provided : "But the cession, with the right of immedi-
ate possession, is nevertheless to be deemed complete
and absolute on the exchange of the ratifications ;"5 and
the actual delivery of the territory had taken place be-
fore the appropriation for executing the treaty was made,6
and the president in his message assumed that the house
must pass the appropriation.7

In the house this invasion of its rights, as it was
called, was discussed quite as much as the expediency
of the treaty. An amendment to the bill making the

1 Exec. Jour., VII, 133.

'/«£, vii, 137,139-

3Congr. Globe, ist Sess., 33d Congr., vol. 28, part ii, pp. 15, 19.

4 Ibid., ist Sess., 33d Congr., vol. 28, part ii, pp. 1561, 1563.

5 Ibid., 2d Sess., 4cth Congr., p. 1871.

c Ibid., 2d Sess., 4oth Congr., p. 1871.

7 " It will hardly be necessary to call the attention of Congress to
the subject of providing for the payment to Russia of the sum stipu-
lated in the treaty for the cession of Alaska. Possession having been
formally delivered to our commissioner, the territory remains for the
present in care of a military force." (Annual Messages ed. by Poore>
1867, p. 23.)

154 The Origin and Development of the

appropriation, providing that thereafter no purchase of
foreign territory should be concluded until after provi-
sion had been made by law for payment, and denying
that the president and senate had, by the constitution, a
right to complete the purchase of foreign territory be-
fore the necessary appropriation had been made by an
act of congress, was lost in the house by two votes
only ;x and it was agreed, by a vote of 98 to 49, to prefix
to the bill making the appropriation a preamble stating
that, inasmuch as the payment of money, the accepting
of the cession of territory, and the stipulation that the
Russians should have all the rights and privileges of
American citizens, were subjects submitted to the powers
of congress, to which, therefore, the consent of congress
was necessary to give to them full force and validity,
congress had taken into consideration the said treaty
and agreed to its stipulations.2 This was stricken out
in the senate without debate ;3 and the subject going to
a conference committee a preamble was substituted
which, while acknowledging that the subjects referred
to were within the power of congress, and that they
could not be carried into full force and effect without
the consent of both houses of congress, struck out that
portion of the preamble, adopted by the house, which
stated that congress had taken the treaty into considera-
tion, and also the first section of the bill which declared
the assent of congress to the treaty.4 In the senate this
report was accepted without debate and in the house by
a vote of 91 to 48. This was advocated both because
of the necessity of passing the appropriation, it being
thought that the house had sufficiently defined its posi-

1 Congr. Globe, 2d Sess., 4otk Congr., p. 4055, yeas 78, nays 80, 40
not voting.

2 Ibid., 2d Sess., 4oth Congr., p. 4055.

3 Ibid., p. 4159.

4 Ibid. , p. 4404.

United States Senate. 155

tion,1 and because it was, in effect, the same as the
resolution first adopted.2

As has been seen, the senate in 1816 held that no act
of congress was necessary to render valid commercial
regulations contained in a treaty. In 1832, when a
convention with France which contained an article reg-
ulating the duties on French wine was under considera-
tion,3 a resolution, introduced in the senate by Mr. Clay,
stating that the senate entertained objections to that
article which would have been decisive against its
provisions if the article had stood alone, and that
they did not think that it should be taken as a prece-
dent in the future exercise of the treaty making power,
was tabled.4

When in 1844 the commercial treaty with the Ger-
manic Zollverein was submitted to the senate, it changed
its position and took ground as extreme as any ever urged
in the other house.5 Tyler, in submitting the treaty,
said : " Inasmuch as the provisions of the treaty come
to some extent in conflict with existing laws, it is my
intention, should it receive your approval and ratifica-
tion, to communicate a copy of it to the House of Rep-
resentatives, in order that the House may take such ac-
tion upon it as it may deem necessary to give efficiency
to its provisions." 6

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. Globe, 2d Sess., 4oth Congr., p. 4393, urged by Mr. Lough-
bridge.

* Ibid., p. 4394, urged by Mr. Banks.

3 Statutes at Large, vol. VIII, p. 432, Art. VII.

4 Exec. Jour., IV, 209.

5 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

1 Bxec. Jour., VI, p. 333.

2 Winsor, Narrative and Critical History, vol. VII, p. 512, citing
Lawrence, Wheaton's International Law, ed. 1863, P- ^v'

3 Bxec. 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, 1776-1887, p. 548, Art. V.

* Ibid., p. 718, Art. VIII.

5 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 Wheaton that,
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 Gushing, 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., Gushing,
1854.)

CHAPTER V.

THE SENATE AS A JUDICIAL BODY.

THE judicial functions of the senate have rarely been
exercised, there having 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.
Documents containing evidence of his guilt were trans-
mitted by the president to both houses at the same time,
and the senate was considering his conduct when the
resolution for impeachment was received from the house.
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 western
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 not 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-

1 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.

i6o The Origin and Development of the

peacliment 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
Blouiit 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.3 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
woiild " 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 s. up-
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.

2 Ibid., p. 331.

3 Ibid., p. 333-

4 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 month, when the vote was
taken and the judge acquitted, there being but two arti-
cles 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 law, 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., 2ist
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 2Oth to Jan-
uary 3ist, 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 irf 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., 2ist Congr., App., pp. 251-321.

2 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 in favor of an im-
peachment,1 but the resolution was rejected by the house ;2
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., 4oth Congr., pp. 791, 792.

2 Ibid., 2d Sess., 4oth Congr. , pp. 67, 68.

3 Ibid., ad 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 declaring 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 tenure 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 Stan ton'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 not 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 66 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, which were 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, noth withstanding 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 case,
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 Belkuap, 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 the 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 point.1

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., 4oth 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 an 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/

1 Rule 3.

2 Congr. Globe, 2d Sess., 4oth Congr., p. 1644.

3 Annals of Congress, istSess., 5th Congr., p. 44.

4 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.

2 In the trial of Peck they did not attend all the time.

3 Congr. Globe, 2d Sess., 4oth Congr., p. 1595.

4 Annals of Congress, 5th Congr., vol. II, p. 2197.

United States Senate. 171

of a motion, only when a third of the members present
required it ;T 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.

7 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., 4oth 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 de1-
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, in 1821, to become mayor of Boston, and DeWitt Clinton to
become mayor of New York.

3 Webster, Works, III, 12.

4 Life of Story, I, p. 158.

5 Thursday, March I2th, 1789.

6 John Adams, Works, I, 571.

7 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 u slan-
derous assertion ; m 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 iipon.

The senate in its mode of conducting business was
most orderly and dignified. A Nova Scotia paper, in
1791, 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 10, 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 that 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." ]
Greeley, in 1836, said that the senate was the " ablest
body of its numbers on earth " ;2 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 : u A place in the Senate of the
United States, in point of honor and 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
no dictation f 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.

* Clay, Works, IV, 343.

6 Webster, Works, III, 274.

1 78 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." *

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 president ;
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 come
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 power
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 admission
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 Surnner, 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
it enjoyed 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
boldly 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.

As all attempts by the majority in such instances to
change 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 been 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

'i8o 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 Ivight of History."

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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.)

184 List of Works Cited.

SUPREME COURT. (See United States.)
TIMES, New York Daily, 1860, 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,
1893-

UPHAM, CHARGES W. (See 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.

WILUAMS'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,
10.

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, 9-11, 12 ; opin-
ions regarding influence of the
manner of making, upon there- '
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,

US-
Articles of Confederation, lack of

war power under the govern-

ment of the, 8.
Attorney Generals, opinions of,

BANK, United States, re-charter
of, 84.

Belknap, W. W., impeachment
and trial of, 166-167.

Bentoii, 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 ; on
claim of the seifate 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 their 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.

Blaiue, 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, 62-63 ;
transaction of, 38 ; crowding of,
to end of the session, 49-52 ;
unfinished, 58-59 ; 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 ; organization,
122 ; nominations to the, (see
Nominations).

Cabinet Officers, dictation of, by
caucus, 82 ; duties of, toward
congress, 88 ; responsible only
to the president, 88 ; attendance
of, in the senate, 88-89 J report
in favor of giving seats in con-
gress to, 89 ; annual reports to
congress from, 90 ; calls by con-
gress for special reports from,
90 ; calls for 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 ; on 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, Si ; 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, 109.

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 the 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, 1 68 ; on 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,
1 14 ; adoption and failure of,
114; obstacles to, 114; extent
of, 115-116; recommendations
of, by the presidents, 115 ; sup-
port of, 116; limitation of the
power of the senate in nomina-
tions by, 178.

Civil 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 j
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 ot 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-
faire, roads and canals, com-
merce, manufactures, military j
affairs, naval affairs, militia, pub- |
lie 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 on the, 31-32 ;
permanence of the, 33 ; corrup-
tion in the choice of, 33 ; 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 of, 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 departments 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-
dentjohnson, 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 for 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 ; objects of 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, 179 ; on
motion to take up, prohibited,
6 1 ; 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 imani-

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 charge"
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, 1 6, 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.

Foote, 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, on leg-
islation, when secretary of treas-
ury, 89 ; nomination of, as sec-
retary, J2I.

Garfield, James A, death of, 115 ;
urges repeal of tenure of office
act of 1867, 133.

Germanic Zollverein, treaty with,

155-
Georgia, I ; seats of senators from,

38.

Gerry, Elbridge, on responsibility
of the president in nominations,
ii ; on making the vice-presi-
dent president of the senate, n.

Grant, Ulysses, on civil service
reform, 115 ; recommends repeal
of 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, on character of
the senate, 177.

Gotham, N., proposed rotation for
senators, 5 ; proposal of, for the
appointment of judges, 10.

Governor. See Executive.

HAI,E, Senator, on crowding busi-
ness to the end of the session,

50-5.1.

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

inent adopted by the constitu-
tion, 39 ; manner of making his
report, 88 ; influence of, in con-
gress, when secretary of the
treasury, 89 ; reports of, as sec-
retary of the treasury, 90 ; on
agency of the senate in appoint-
ments, 108-109 ; leader of the
Federalists, 1 10 ; 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 j
service reform, 115; urges re-
peal of the tenure of office act
of 1867, 133.

Hoar, Senator, on advantage of
introduction of appropriation I
bills, 71 ; resolution introduced j

by, 93-

Hornblower, rejection of nomiua- |
tiou of, 112.

House of Representatives, reasons !
for giving to, choice of presi- ;
dent, when tie or no one a ma- j
jority, 12 ; opinions as to the |
relative powers of the, and sen- i
ate, 13; resolution of, for)
amendment providing for the
direct election of senators, 20 ; !
rule of, for preserving order, 22; j
rules of, regarding: legislation i
on appropriation bills, 73-75, 79; i
position of, on the right of the j
senate to introduce a bill for the i
repeal of a revenue law, 72 ; re- |
lation of house to senate in j
legislation, 92-97 ; iudepend- i
ence of the senate, 93-94 ; mini- |
ber of bills introduced in the, j
95-96, 173 ; number of house j
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 j
money, 148-155. 157-158 ; rights j
of, in the acquisition of terri- 1
tory, 151-155 ; rights of, in com- 1
mercial treaties, 155-157 ; at- j
tendance of, at the trial of im-
peachments, 170; reports ofj

proceedings of the house in the
papers, 173 ; preference of a
seat in 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 tent pore 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 ot, 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 make removals, 127;

i go

Index.

consultation of the senate by, i
previous to the negotiation of a I
treaty, 140.

Jay, John, advice of, regarding ap- j
pointments to original vacan-
cies, 117; treaty negotiated by,
42 ; injunction of secrecy on,
135 ; action of the house on,
149-150.

Jefferson, Thomas, on the compo-
sition of the committees, 31 ; on
the morning hour, 53 ; on use of |
the previous question, 59-60 ; on
intensity of party feeling, 81 ; I
on Hamilton's influence over
congress. 90 ; waited upon by a
committee of the senate, 107 ; ;
surprise at the rejection of Short,
108 ; nominations of, no; the;
leader of his party, no; influ- j
ence of the senate on the nomi-
nations of, in; appointments1
of, to original vacancies, 117 ;
cabinet nominations of, 121 ; re-
movals made by, 123 ; on the
tenure of office bill of 1820, 124 ; i
idea of, on removals, 125 ; posi- j
tiou 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, 1 6.

Johnson, Andrew, use of veto by, j
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, 142 ; impeach-
ment and trial of, 163-166 ;
adoption of rules for the trial of,
108 ; attendance of the house at j
the trial of, 170; limitation ofj
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, j
97 ; secrecy of, 99.

Judges, appointment of, in the j
Randolph plan, 9 ; in the Pinck- i
ney plan, 10.

Judiciary, national, to try itn- j
peachments, 9.

KENT, James, on the power of the
senate in 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

refer certain 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 treat}-,

I3?-I39-

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, in ; influence of the
senate on nominations of, in ;
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 ap-
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 ; i
negotiation of a treaty with, i
1 52-i 53 ; treaty of 1803 with, |
157.

Minority, representation of, on I
committees, 32 ; relation of the !
minority of a committee to the |
majority, 34 ; factious opposi- \
tionof the, 61, 64-65, 66, 67, 179; i
restraint of the rules for the lim- I
itation of debate upon the, 64 ; i
attempt of, to control the order i
of business, 66 ; given all the j
time for speaking in the all j
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, no ; on ap I
pointments, during the recess, I
to vacancies occurring in the j
previous session, 120; cabinet j
nominations of, 121 ; military j
nominations of, 126.
Morgan, Senator, on the power of
the senate in the negotiation of !
treaties, 145.

Morris, Gouverneur, 011 the choice j
of senators, 2 ; on the means oft
making the senate a check on j
the house, 4 ; on the cornposi- |

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, n ; on the mode of
appointment adopted by the
constitution, n ; unpopularity
of, with the Republicans, 109.

Nation, The, on the power of the
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 Kngland, 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, i ; elec-
tion of senator of, by a plurality
vote, 15.

New York (city), meeting of the
First Congress at, 38.

New York (state), amendment pro-
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,
114, 128, 178; limitation by the
senate of the president's power
in, 110-114, 120-12 1 ; increase
in the number of, to be made,
113; for the cabinet, 121-122.
See Appointments.

Nominee, provision for giving to
a, opportunity to defend him-
self, IOT.

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, how 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,
40, 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 committess,
30-32, 33; influence of, in the
senate, 80-85 ; intensity of, pas-
sions, 8r. 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, i ;
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.

Piuckney, Charles, suggested ro-
tation of senators, 5 ; plan of, pro-
vides for two houses, i ; 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.

Platt, 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,

152-153-

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, ID; to
be chosen by the national legis-
lature, ii ; 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 on
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,, 107-108 ; power
of, in appointments, 108, 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, 118-119; to
fill, during the recess, vacan-
cies which had occurred during
the previous session, 120; to
fill vacancies created during the
recess by removals, 1 20 ; 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, ir, 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, 30; 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, 61.

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 ; what 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, i ; 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, 1 60.

Reed, Speaker, decision of, 80.

Removals, 122-135 ; opinions re-
garding the power to make, 122,
123, 126 ; calls upon 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
and 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 hurry 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- 1
136 ; for the trial of impeach-
ments, 167-169.

Rules, of Maclay, 32, 38, 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,
JSS-JS6. I7o-i7it J73 J 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, in 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, n ;
to choose president if no candi-
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 in the, 21, 22,
iyS-1?^ ; 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,
175 ; 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,
49, 50 ; 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 impeachments,
168-169, (see Impeachments) ;
importance of the, 173, 176, 177;
reports of the proceedings of, in
the papers of the day. 173 ; called
41 The Rich Man's Club ", 175;
debate in the, 175, 176, 178 ; de-
corum and dignity of the, 176-
177 ; importance of a seat in
the, 173-174, 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 ; in-
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,
1 6 ; appointment of, by the gov-
ernor, 16, 17 ; of the seceded
states, 1 8 ; 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 non 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, 1 60 ; number of,
165 ; resignation of, to become
mayors, 174; election of, as
representatives, 174 ; wealth of,
I74~I75) 180 ; 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 in the senate, 75 ; on gen-
eral legislation on appropriation
bills, 78 ; on secret sessions, 103.
Sherman act, bill for the repeal
of the purchasing clause of the,
66-67.

j Short, rejection of nomination of,
1 08, no.

! Slavery, importance of the ques-
tion of, 176.

I 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 ;

196

Index.

length of term of senators of the, f
5 ; provision of the constitutions j
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 j
senators, 17 ; on party influences |
in the senate, 82 ; on the power
of the senate in nominations,
ii ; 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, j 9 ; 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, on 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, 1 20.

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
senate in the negotiation of, 144-
T45) T53 J 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 in, 155-157 ; regulation
of the tariff by, 155-157 ; with
the Indians, considered in open
session, 136; ratification of 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 BUREX, 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 j
arguments for the, presiding in j
the senate, i r ; independent of
the senate, 21, 22 ; decisions of'
the, on his right to preserve or- :
der, 2r, 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 j
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 inle,
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 ; j
motion of senator from, for pub- I
lie sessions, 83.

Voorhees, Senator, on the influ- J
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, 104-

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,
117; 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.

Wheaton, 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.

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