ARBITRATION. While the Journal does not reveal the fact, there is one instance of record where the Senate, in considering a provision in an appropriation bill, sat as a quasi court of arbitration. The history of the case is given quite fully in Senate Report No. 975, Sixtieth Congress, second session, as follows: "By the treaty of 1866 the United States agreed to investigate and determine the losses sustained by the loyal Creek Indians and freedmen during the civil war and to pay the amount or amounts found due. "Article 4 of said treaty provides as follows: 'Immediately after ratification of this treaty the United States agree to ascertain the amount due the respective soldiers who enlisted in the Federal Army, loyal refugee Indians and freedmen, in proportion to their several losses, and to pay the amount awarded each, in the following manner, to wit: A census of the Creeks shall be taken by the agent of the United States for said nation, under the direction of the Secretary of the Interior, and a roll of the names of all soldiers that enlisted in the Federal Army, loyal refugee Indians and freedmen, be made by him. The superintendent of Indian affairs for the southern superintendency and the agent of the United States for the Creek Nation shall proceed to investigate and determine from said roll the amounts due the respective refugee Indians, and shall transmit to the Commissioner of Indian Affairs for his approval, and that of the Secretary of the Interior, their awards, together with the reasons therefor.' (14 Stat., 787.) "In accordance with this treaty agreement, Gen. W. B. Hazen and Capt. F. A. Field, of the Regular Army, the latter having been detailed as union agent for the Five Civilized Tribes, were designated as commissioners to ascertain and determine the amount of such losses. This report was made with exhaustive care. (S. Doc. No. 420, 57th Cong., 1st sess., p. 18.) "These awards amounted to $1,836,430.41. Prior to this award the Government made advance payment of $100,000 (16 Stats., 341), but no further payments were made, and on March 1, 1901, the United States entered into the following agreement with the Creek Indians (sestion 26): 'All claims of whatsoever nature, including the loyal Creek claim, under article 4 of the treaty of 1866, and the self-emigration claim, under article 12 of the treaty of 1832, which the tribe or any individual thereof may have against the United States, or any other claim arising under the treaty of 1866, or any claim which the United States may have against said tribe, shall be submitted to the Senate of the United States for determination; and within two years from the ratification of this agreement the Senate shall make final determination thereof; and in the event that any sums are awarded the said tribe, or any citizen thereof, provision shall be made for immediate payment of same.' "The Senate of the United States on June 23, 1902 (S. Doc. 420, 57th Cong., 1st sess.), referred to the Committee on Indian Affairs the memorial of Isparhecher, ex-chief Muskogee (Creek) Nation, for himself as loyal Creek claimant, and as attorney in fact for others. Testimony was taken, arguments heard, and on February 16, 1903, the Indian Committee made the following report: 'In compliance with the requirements of section 26 of an act entitled "An act to ratify and confirm an agree ment with the Muskogee or Creek tribe of Indians, and for other purposes," approved March 1, 1901 (31 Stat. L., 869), and in conformity with the prayer of the memorial of Isparhecher, referred to this committee by the Senate, the Committee on Indian Affairs herewith submits the following report and recommendation.' "Then follows the statement of the case, and attention is called to the fact that the agreement of 1901 provides: 'That within two years from the ratification of said agreement the Senate shall make full determination of said claims.' "In 1902 Isparhecher, ex-chief of the Creek Nation, on behalf of himself and other loyal Creek claimants, had submitted his memorial to the Senate, asking that it should proceed as soon as practicable, as provided by said act, to examine said claims and to award the amount alleged to be due. Said memorial was referred to the subcommittee. The committee recommended to the Senate the payment of $1,200,000 by its report of February 16, 1903, aforesaid, to be passed on by the Senate as an award. (S. Doc. 3088, 57th Cong., 2d sess.) "The committee submitted to the Senate an amendment to the Indian appropriation bill in connection with this report, on page 33, after line 22, as follows: 'In pursuance to the provisions of section 26 of an act to ratify and confirm an agreement with the Muskogee (or Creek) tribe of Indians, and for other purposes, approved March 1, 1901, there is hereby awarded, as a final determination thereof, on the so-called "loyal Creek claims" named in said section 25, the sum of $1,200,000, and the same is hereby appropriated, out of any money in the Treasury not otherwise appropriated, and made immediately available, etc., and providing in the proposed item for attorney's fees.”” This item will be found on page 2252 of the Congressional Record, February 16, 1903. It was quite thoroughly discussed on the floor of the Senate, and it was pointed out by a member of the Indian Committee (Mr. Quarles) that the action of the Senate would be an award of the United States, in the following language: "It has occurred to me, sir, that the Senate ought to be advised as to the nature of this amendment, and that it ought not to be passed, coming as it does solely from the committee, leaving the Senate entirely in ignorcane of the fact that in regard to this amendment, it is sitting as a court of arbitration and is not engaged in the ordinary method of legislation. Now, I rise to lay the facts before the Senate. This is a provision which arises out of the agreement made with the Creek Nation in 1891, whereby it is provided that the Senate shall, within two years, sit in the capacity of a court of arbitration and decide upon this claim, which arises from several treaties made by this Government with the Creek Nation. The determination of the Senate upon this proposition will amount to an award, upon which an action will lie quite independent of the fact of this provision in the other House of Congress." The Senate thereupon agreed to the item without objection. (See Cong. Record, 57th Cong., 2d sess., pp. 2252-2254.) ATTENDANCE. 1. Letters requesting. 2. Earlier action to compel. 3. Motion to direct, may be laid on the table. 4. In earlier practice could not compel. 5. Motion directing Sergeant at Arms to compel, not debatable. 6. Motion to request, must precede motion to compel. 7. On compelling, when quorum is present. 8. Pending proceedings to compel, other business not in order. 9. The summons for, disobeyed. 10. Quorum necessary to reconsider vote directing Sergeant at Arms to compel. 11. The Dolph resolution seeking to compel, by force if necessary. Section 5 of Article I of the Constitution provides: "Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide." Section 6 of the same article reads: "The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place." Jefferson's Manual, Sections VII and VIII, give the parliamentary law covering this subject, and following quite closely is the present Senate rule in force: RULE V. "No Senator shall absent himself from the service of the Senate without leave. "If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. "Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, shall be in order." 1. LETTERS REQUESTING. 1st Cong., 1st sess.; J., p. 5.] MARCH 11, 1789. The attendance of absent Senators was requested by a circular letter signed by the Senators present and addressed to each of the absentees. (See Absentees, this volume.) 2. EARLIER ACTION TO COMPEL. 5th Cong., 2d sess.; J., p. 489.] MAY 15, 1798. Resolved, That the Secretary of the Senate be directed to write to all such Senators as are absent without leave, or whose leave of absence has expired, requesting their immediate attendance. 19th Cong., 1st sess.; J., p. 402.1 A quorum of the Senate not being present, The following order was adopted and issued: MAY 21, 1826. Ordered, That the Sergeant at Arms forthwith summon and command the absent members of the Senate to be and appear before the Senate immediately; and that he take all practicable means to enforce their attendance. (A similar order was adopted May 29, 1830 (21st Cong., 1st sess.; J., p. 354). On March 2, 1841, the Sergeant at Arms was directed to summon the absent members (26th Cong., 2d sess.; J., p. 272).) The practice of "requesting" the attendance of Senators seems to have begun August 6, 1850, when the Sergeant at Arms was directed "to request the attendance forthwith, of the absent Senators." No return was made, as the Senate immediately adjourned. The Journals reveal numerous cases where the formal practice of requesting the attendance of Senators has been resorted to. There are several instances where motions and resolutions directing the Sergeant at Arms to request the attendance of absent Senators have been determined in the negative. (See Cong. Globe, 35th Cong., 1st sess.; Appendix, p. 118, for a decision of the Chair on the question of calling for excuses.) 3. MOTION TO DIRECT, MAY BE LAID ON THE TABLE. 35th Cong., 1st sess.; J., pp. 258, 259.] MARCH 15, 1858. The Senate had under consideration the bill (S. 161) for the admission of the State of Kansas into the Union. Repeated motions were made that the Senate adjourn and they were repeatedly voted down. On such a motion, made by Mr. Wade, the yeas were 6, the nays 24. The Vice President (Mr. Breckinridge) stated to the Senate that the number of Senators voting did not constitute a quorum of the Senate, but that, in the opinion of the Chair, a quorum of the Senate was present in the Chamber, and directed the Secretary to call the names of those Senators who had not voted, and, this being done, a quorum was present. On the question to agree to the motion of Mr. Wade, it was determined in the negative; yeas 15, nays 24. On motion by Mr. Hale, that the Sergeant at Arms be directed to request the attendance of absent Senators, a motion was made by Mr. Green, that this motion lie on the table. Mr. Stuart raised a question of order, viz, that the motion of Mr. Green was not in order. The Vice President decided that it was in order. From this decision Mr. Stuart appealed. After debate, on motion by Mr. Pugh, that the appeal lie on the table, it was determined in the affirmative; yeas 26, nays 15. So it was Ordered, That the appeal lie on the table. On the question, to agree to the motion of Mr. Green, that the motion of Mr. Hale lie on the table, it was determined in the affirmative; yeas 25, nays 15. (See Cong. Globe, 35th Cong., 1st sess.; App., pp. 97, 100. It will be noted that the last order was made by a quorum of the Senate.) 4. IN EARLIER PRACTICE COULD NOT COMPEL. 42d Cong., 2d sess.; J., pp. 580-582.] APRIL 20, 1872. On motion by Mr. Scott, that the Senate proceed to the consideration of the bill (H. R. 174) repealing the duty on tea and coffee, the yeas were 22 and the nays were 7. The number of Senators voting not constituting a quorum of the Senate, the Sergeant at Arms, by a vote of 16 yeas to 8 nays, was directed to request the attendance of absent Senators. After debate, the Presiding Officer (Mr. Ferry of Michigan in the chair) announced that the Sergeant at Arms had reported that he had executed the order of the Senate to request the attendance of the absent Senators, but that it still appeared by the vote just taken that a quorum of the Senate was not present. Whereupon Mr. Howe submitted a motion that the Sergeant at Arms be directed to compel the attendance of such number of absent Senators as would make a quorum of the Senate. Mr. Pomeroy here made a point of order, viz, that, the Senate having made no provision in its rules for compelling the attendance of absent Senators, which could be made only by a quorum of the body, it was not in the power of a minority of the Senate by adopting the proposed order to change the existing rule on the subject, and that the motion of Mr. Howe was therefore not in order. The Presiding Officer (Mr. Ferry of Michigan in the chair) sustained the point of order, and ruled the motion of Mr. Howe not in order. (See Cong. Globe, pp. 2627, 2629.) 5. MOTION DIRECTING SERGEANT AT arms to COMPEL, NOT DEBATABLE. 43d Cong., 2d sess.; J., pp. 340, 341.] FEBRUARY 24, 1875. On motion by Mr. Cameron to postpone the present and all prior orders, and that the Senate resume the consideration of the bill (H. R. 4681) in relation to a national cemetery at York, Pa., The yeas were 10 and the nays were 16. The number of Senators voting not constituting a quorum of the Senate, on motion by Mr. Thurman, at 7 o'clock and 10 minutes p. m., that the Senate adjourn, it was determined in the negative; yeas 4, nays 22. So the motion was not agreed to. But it appearing by the vote just taken that a quorum was not present, on motion by Mr. Edmunds that the Sergeant at Arms be directed to request the attendance of absent Senators, Mr. Thurman rose to debate the motion; when the Presiding Officer (Mr. Ferry of Michigan in the chair) decided that debate on the motion was not in order. From this decision of the Chair Mr. Thurman appealed to the Senate; and On the question, Shall the decision of the Chair stand as the judgment of the Senate? the yeas were 24 and the nays were 3. So the Chair was sustained although a quorum was wanting. (See Cong. Record, pp. 1692, 1693.) |