2. INJUNCTION OF SECRECY NOT HAVING BEEN REMOVED FROM CERTAIN HEARINGS IN, THE MATTER COULD NOT BE DISCUSSED IN OPEN LEGISLATIVE SESSION AND WAS OUT OF ORDER.

62d Cong., 2d sess.; J., p. 589.]

AUGUST 20, 1912.

SECUNDINO ROMERO.

On motion of Mr. Reed, that the hearings had in the matter of the nomination of Secundino Romero, United States marshal for the district of New Mexico, be printed as a public document,

Mr. Heyburn raised a question of order, viz: That the injunction of secrecy not having been removed from the said hearings in executive session, the matter could not be discussed in open legislative session, and was therefore not in order.

The President pro tempore (Mr. Gallinger) sustained the point of order and said: "The motion relates to a matter belonging to the executive business of the Senate and manifestly can not be considered in open session when objection is made." From the decision of the Chair Mr. Reed appealed to the Senate.

The President pro tempore (Mr. Gallinger) stated the question to be, Shall the decision of the Chair stand as the judgment of the Senate?

It was determined in the affirmative. (See Cong. Record, p. 11347.)

3. VARIOUS RULINGS REGARDING.

33d Cong., 1st sess.; J., pp. 282, 283.]

MARCH 27, 1854.

The legislative as well as the executive sittings of the Senate were held with closed doors until the second session of the Third Congress, with the single exception of the discussion of the contested election of A. Gallatin, as Senator from Pennsylvania, during which discussion the galleries were opened by a special order of the Senate. On February 20, 1794 (3d Cong., 1st sess., J., p. 34), the Senate came to a resolution that after the end of that session of Congress the galleries of the Senate should be permitted to be opened whilst the Senate should be engaged in its legislative capacity, unless specially ordered otherwise. (See Note on pp. 15, 16, of Annals of Congress, vol. 1.)

A motion being made to go into executive session, and a motion being made by Mr. Mason that the doors of the Senate be shut for the consideration of this motion, the President pro tempore (Mr. Atchison) decided that the gallery should be cleared. From this decision Mr. Badger appealed. On the question, Is the decision of the Chair correct? yeas 29, nays 9. The galleries were cleared. The doors being shut, the question then being on motion of Mr. Mason to proceed to the consideration of executive business, after debate,

Ordered, That the doors be opened; and on the question that the Senate proceed to the consideration of executive business, it was determined in the affirmative. (See Cong. Globe, pp. 752-754, 756.)

40th Cong., 2d sess.; J., pp. 766, 767.]

JULY 25, 1868.

An amendment is proposed upon which the yeas and nays are ordered, the roll is called, and before the result is declared a question of order is raised as to the right of a Senator to vote upon the amendment in which his personal interests are involved; a debate ensued, pending which a motion is made to proceed to the consideration of executive business. Upon this motion a question of order is raised, and it is sustained by the Senate on an appeal from the decision of the Chair. The question then recurred upon the question of order raised upon the right of a Senator to vote upon a question in which he was personally interested, when a demand was made by a Senator that

the result of the vote upon the amendment be declared, and the Secretary being directed by the Chair to call over the roll, it was then announced. The question of order was then laid on the table. (See Cong. Globe, pp. 4453, 4457-4461.)

NOTE.-The effect of this ruling was to settle the point that neither a question of order nor a motion for executive business can be entertained after the roll is called until the result is declared by the Chair. 44th Cong., 1st sess.; J., pp. 816, 817.]

AUGUST 10, 1876.

Mr. Ferry, President pro tempore, decided that while the Senate was dividing on a motion to proceed to the consideration of executive business a motion to take a recess was not in order. (See Cong. Record, p. 5418.)

49th Cong., 1st sess.; J., p. 480.]

MARCH 26, 1886.

The resolution expressing the sense of the Senate on refusal of Attorney General to send to the Senate copies of papers called for by its resolution of January 25, 1886, being before the Senate, Mr. Van Wyck submitted an amendment at the end of the third resolution as follows: "And in all such cases of removal the matter shall be considered in open session of the Senate."

Mr. Hoar raised a question of order, viz, "that the amendment would operate as a change in the standing rules of the Senate; it was not in order except on one day's notice, as required by the fortieth rule."

The President pro tempore (Mr. Sherman) sustained the point of order, and decided that as the thirty-sixth rule provides that when acting upon confidential or executive business the Senate Chamber shall be cleared of all persons except certain officers specified, and as the communications referred to in the resolutions are executive communications, known to be such, the proposed amendment would change the rule to a certain extent and was not in order under the fortieth rule, which requires one day's notice in writing, specifying precisely the rule or part of rule proposed to be modified or amended. An appeal from this decision was laid on the table; yeas 31, nays 28. (See Cong. Record, pp. 2806–2809.)

53d Cong., special sess.; in J., p. 178, of 52d Cong., 2d sess.] MARCH 29, 1893. The Vice President (Mr. Stevenson) decided that, pending the consideration of a resolution for the admission of a Senator, which was privileged, it was in order to move to go into executive session. (See Cong. Record, vol. 25, part 1, pp. 48, 49.)

4. TREATIES IN.

From the organization of the Congress it has been almost the uniform practice to consider treaties in executive sessions, and there have been but few attempts to change the practice.

December 22, 1800, the President communicated to the Senate the instructions to the envoys to the French Republic with a request that they be considered in strict confidence. The Senate thereupon adopted the following:

Resolved, 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. (Executive Journal, vol. 1, p. 361.)

NOTE. For early attempts to have treaties and general executive and confidential business transmitted by the President considered with open doors, and proceedings generally regarding executive sessions, see vol. 1, Ex. J., pp. 178, 181, 190, 191, 192; Ex. J., vol. 8, p. 433; 9th Cong., 1st sess., p. 67; 37th Cong., 2d sess., Journal, p. 130; 41st Cong., 2d sess., Journal, pp. 89, 94 220, 348, 383, 399, 465 492; 48th Cong., 1st sess., Journal, p. 195; 50th Cong., 1st sess., Journal, pp. 65, 244, 427, 428, 524, 525, 694, 852.

5. NOTWITHSTANDING A UNANIMOUS-CONSENT AGREEMENT, A MOTION TO ADJOURN OR TO PROCEED TO THE CONSIDERATION OF, WOULD BE IN ORDER.

62d Cong., 2d sess.]

FREIGHT CLASSIFICATION.

AUGUST 16, 1912.

Mr. CUMMINS. There is a unanimous-consent agreement which takes effect immediately after the disposition of the wool bill. I assume that automatically we enter upon the consideration of that bill, Senate bill 6099.

Mr. CULBERSON. I call attention to the fact that there is a special order by a vote of the Senate for to-morrow morning. I object to any unanimous-consent agreement that will interfere with it.

Mr. CULLOM. I move that the Senate proceed to the consideration of executive business.

Mr. CUMMINS. I rise to a question of order.

The PRESIDENT PRO TEMPORE (Mr. Gallinger). The Senator will state it.

Mr. CUMMINS. The unanimous-consent agreement is in force and there is nothing in order save to fulfill it, as I understand the procedure of the Senate. Mr. OLIVER and others. Regular order!

The PRESIDENt pro tempore (Mr. Gallinger). The Chair is of opinion that a motion to adjourn or to proceed to the consideration of executive business would be in order. (See Cong. Record, pp. 11081, 11082.)

6. SAME PROCEDURE IN OPEN EXECUTIVE SESSION, AS IN.

62d Cong., 2d sess.

MARCH 7, 1912.

The Senate having the general arbitration treaties under consideration, The VICE PRESIDENT (Mr. Sherman). Without objection, the amendments recommended by the Committee of the Whole are concurred in.

Mr. BACON. I understood that the Senator from Massachusetts [Mr. Lodge] would offer a resolution.

Mr. LODGE. I am going to offer it now.

The VICE PRESIDENT (Mr. Sherman). Without objection, the amendments recommended by the Committee of the Whole are concurred in. Are there amendments to be offered to the treaty in the Senate?

Mr. LODGE. If the Chair will allow me, I think we are as in open executive session and not as in Committee of the Whole.

Mr. BACON. I was about to make the same point.

The VICE PRESIDENT (Mr. Sherman). The rules provide for the same procedure in executive session as in open session. But the matter is disposed of to a point where a resolution of ratification is in order. (See Cong. Record, p. 2954.)

7. SECRET LEGISLATIVE SESSION.

RULE XXXV.-Session with closed doors.

On a motion made and seconded to close the doors of the Senate, on the discussion of any business which may, in the opinion of a Senator, require secrecy, the Presiding Officer shall direct the galleries to be cleared; and during the discussion of such motion the doors shall remain closed. (Jefferson's Manual, Sec. XVIII.)

[In accordance with the provisions of this rule many measures of a secret legislative character have been considered by the Senate with closed doors.]

Article I, section 5, clause 3, of the Constitution of the United States reads: "Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy."

37th Cong., 2d sess.; J., pp. 154, 158.]

JANUARY 29, 30, 1862.

In the Thirty-seventh Congress, second session, the following joint rule, No. 22, was agreed to in both Houses:

"Resolved (the House of Representatives concurring), That the following be added to the joint rules of the two Houses:

"22. When, during the present rebellion, any Member of the Senate or House of Representatives shall rise and, in his place, state that the President desires the immediate action of Congress upon any matter pertaining to the suppression of the present rebellion, the galleries of the House in which the statement is made shall be immediately cleared; and after such Member shall state the action desired by the President and the reasons for immediate action, such House shall determine, without debate, whether the proposed measure shall be considered. If decided in the affirmative, debate shall be confined to the subject matter, and be limited to five minutes by any Member: Provided, That every Member shall be allowed five minutes to explain or oppose any pertinent amendment: And provided, That this rule shall not affect the operation of the previous question in the House of Representatives.

"During such session no communication shall be received or made to or from any person not a Member then present, except through the President of the Senate or the Speaker of the House. If any Member of the Senate or House of Representatives shall betray, publish, disclose, or reveal any debate, consultation, or proceeding had in such secret session, he shall be expelled; and if committed by any officer of either body, or other person, such punishment shall be inflicted as the body to which he belongs may impose."

FLOOR.

1. When entitled to the, on privileged question.

2. Regular order can not be demanded while in possession of the.

3. A Senator having the, objection being made, may yield only for a question.

4. A Senator may take another Senator off his feet at any time to suggest the absence of a quorum.

5. Can not yield the, to another.

6. A Senator can not yield the, if objection is made.

7. Senator can be taken from the, on a question of order.

8. A Senator may not be taken from the, in the midst of a speech on a point of order.

9. Not in order to admit persons to the, to present any petition.

10. Not necessary for resolution to lie over one day excluding persons from privileges of the.

11. Can not be taken from the, by asking a parliamentary inquiry, and then make any motion.

12. A Senator may be taken from the, under Rule XXXV, when a motion is made and seconded to close the doors of the Senate.

13. When the unfinished business is laid before the Senate it does not take a Senator from the.

14. Clerks to Senators, when not in actual discharge of their duties, not entitled to privileges of the.

15. Ladies admitted to the.

1. WHEN ENTITLED TO THE, ON A PRIVILEGED QUESTION.

35th Cong., 2d sess.; J., p. 305.]

FEBRUARY 11, 1859.

The report of a committee relating to the Senators from the State of Indiana being under consideration, pending debate (Mr. Seward on the floor), the morning hour expired, when a Senator called for the special order of the day. The Vice President (Mr. Breckinridge) ruled that Mr. Seward was still entitled to the floor on a privileged question. (See Cong. Globe, p. 957.)

40th Cong., 2d sess.; J., p. 217.]

FEBRUARY 25, 1868.

A Senator can not be taken off the floor by a privileged question. (See Cong. Globe, pp. 1405, 1406.)

2. REGULAR ORDER CAN NOT BE DEMANDED WHILE IN POSSESSION OF THE.

42d Cong., 2d sess.; J., p. 921.]

JUNE 1, 1872.

The regular order, being informally laid over subject to the demand of any Senator can not be demanded while a Senator is in possession of the floor. (See Cong. Globe, p. 4151.)