10. VOTE OF THE, IN CASE OF A TIE ON ELECTION OF OFFICERS AND ON CONFIRMATION OF NOMINATIONS.

31st Cong., 1st sess.; J., p. 68.]

JANUARY 9,1850.

The Senate proceeded to consider the resolution submitted by Mr. Foote "that two chaplains, of different denominations, be appointed to Congress during the present session, one by each House, who shall interchange weekly;" and the resolution was agreed to.

The Senate proceeded to the election of a chaplain, and

It appearing that 60 votes had been given, 30 of which were for the Rev. C. M. Butler and 30 for the Rev. Henry Slicer,

The Senate being equally divided, the Vice President (Mr. Fillmore) voted for the Rev. C. M. Butler, who was accordingly elected. (See Cong. Globe, pp. 127-128.) During the debate on the right of the Vice President to vote for an officer of the Senate Mr. Calhoun, who had been Vice President, said: "As the very experienced Senator behind me (Mr. King) is mistaken on the subject of Executive nominations (he claiming the Vice President could only vote in legislative matters), I deem it my duty to say that I, in several instances when I occupied the chair, cast my vote on such nominations. I did so January 25, 1832, in the very celebrated case of Mr. Van Buren for minister to England, and in two or three others.' (See Cong. Globe, pp. 127-128.)

11. ON POWERS OF PRESIDING OFFICER TO DEMAND REASONS OF A SENATOR FOR FAILURE TO VOTE. 46th Cong., 3d sess.; J., pp. 386–388.]

MARCH 3,1881.

Mr. Lamar had secured consideration for a bill (H. R. 6061) "to incorporate the Cherokee and Arkansas River Railroad Company,” and, after amendments had been agreed to, the bill was reported to the Senate. Here it met considerable opposition. Mr. Burnside moved to lay the bill on the table, which was determined in the negative. Mr. Harris moved to postpone its further consideration and that, instead, the Senate should proceed to the consideration of another House bill (H. R. 6033). Efforts were made to lay this motion on the table. Then several dilatory motions were made, including one by Mr. Vance that the Senate proceed to the consideration of Executive business. A roll call was demanded and ordered, when a quorum was disclosed. A yea and nay vote upon Mr. Vance's motion showed a quorum of the Senate had not voted. Another roll call was ordered, when a quorum was found present. Another yea and nay vote was had upon Mr. Vance's motion, and a quorum was lacking. Before the announcement of the last vote, however, Mr. Williams raised a question of order, viz, that there were Senators present in the chamber who refused to vote, and demanded the enforcement of Rule 17 of the Senate, which required that when a Senator was present and declining to vote when his name is called, shall assign his reasons therefor.

The Presiding Officer (Mr. Cockrell) decided that the Chair had no authority, on his own motion, to require a Senator declining to vote to assign his reasons therefor. (See Cong. Record, 46th Cong., 3d sess., p. 2423.)

NOTE. The provision requiring a Senator to assign reasons for declining to vote on call of his name is contained in clause 2 of Rule XII, of the present standing rules of the Senate.

12. ON THE POWERS AND DUTIES OF THE CHAIR TO PRESERVE ORDER.

31st Cong., 1st sess.; J., pp.

248-252.]

APRIL 3,1850.

The Vice President (Millard Fillmore) asked the indulgence of the Senate, before proceeding to the orders of the day, to submit the following remarks in relation to his own powers and duty to preserve order:

On assuming the responsible duties as Presiding Officer of this body, I trusted that no occasion would arise when it would become necessary for the Chair to interpose

to preserve order in debate. I could not, however, disguise the fact, that by possibility such a necessity might arise. I therefore inquired of some of the Senators to know what had been the usage on this subject, and was informed that the general practice had been, since Mr. Calhoun acted as Vice President, not to interfere unless a question of order was made by some Senator.

I was informed that that distinguished and now lamented person had declined to exercise the power of calling to order for words spoken in debate, on the ground that he had no authority to do so. Some thought the rule had been since changed, and others not; but there still seemed to be a difference of opinion as to the power. Under these circumstances, though my opinion was strongly in favor of the power-with or without a rule to authorize it-I thought it most prudent not hastily to assume the exercise of it, but to wait until the course of events should show that it was necessary. It appears to me that that time has now arrived, and that the Senate should know my opinion on this subject, and the powers which, after mature reflection, I think are vested in the Chair, and the corresponding duties which they impose. If I am wrong in the conclusions at which I have arrived, I desire the advice of the Senate to correct me. I therefore think it better to state them now, when there is an opportunity for a cool and dispassionate examination, rather than wait until they are called into action by some scene of excitement which may be unfavorable to dispassionate deliberation and advice; for while I would shrink from no responsibility which the office with which I am honored imposes upon me, I would most scrupulously avoid the assumption of any power not conferred by the Constitution and rules of this body.

The question, then, presents itself, “Has the Vice President, as Presiding Officer of this body, the power to call a Senator to order for words spoken in debate?" The sixth rule of the Senate is in the following words:

"When a Member shall be called to order by the President, or a Senator, he shall sit down; 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."

It will be seen that this rule does not expressly confer the power of calling to order either upon the President or a Senator, but impliedly admits that power in each, and declares the consequences of such call.

The constitutional provisions bearing upon this subject are very brief. The first is: "The Vice President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided."

The next is:

"Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds, expel a Member." The first clause which I have quoted confers no express powers; yet the general powers and duties of a presiding officer in a parliamentary body were well understood by the framers of the Constitution, and it can hardly be doubted that they intended to confer upon the Vice President those powers, and require of him the performance of those duties. But the power expressly conferred to make rules to regulate its proceedings, clearly conferred upon the Senate authority to make rules regulating the conduct of all its members, including its presiding officer. What, then, are we to understand from this rule?

I have availed myself of the leisure afforded by the last recess to look into the history of this rule, that I might, if possible, gather from it the intent of the Senate in adopting it. I find that one of the first acts of this body in 1789 was to appoint a committee to "prepare a system of rules for conducting business in the Senate."

That committee reported a number of rules, which were adopted, and among the rest the two following:

"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; and every question of order shall

be decided by the President without debate; but, if there be a doubt in his mind, he may call for the sense of the Senate.

"17. If the 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."

These rules remained the same until 1828; but in 1826, Mr. Calhoun, then Vice President, declared that, in his opinion, he had no authority to call a Senator to order for words spoken in debate. In 1823 the rules were referred to a committee for revision, and were reported without any amendment to these rules; but when they came up for consideration in the Senate they were amended so as to read as they now do, namely: "6. When a Member shall be called to order by the President or a Senator, he shall sit down; 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.

"7. If the Member be called to order by a Senator for words spoken, the exceptionable words shall immediately be taken down in writing, that the President may be better able to judge of the matter.”

It will be seen by comparison that the proposed rule expressly recognized the authority in the President to call to order, and gave an appeal from his decision, which the former rules did not. It also makes a distinction between a call to order by the President and by a Senator for words spoken, by requiring, in the latter case, that the objectionable words should be reduced to writing, but not in the former. On this amendment a long and interesting debate sprung up, which may be found in Gales and Seaton's Register of Debates (vol. 4, part 1, pp. 278-341); and in this debate, though Senators differ widely as to the powers of the President to call to order without the amendment, and as to the policy of adopting it, yet all seemed to concede that, if adopted, he would have such power, and the amendment was finally agreed to by a vote of more than two to one; and thereupon it is reported that Mr. Calhoun, "the Vice President, then arose and said that he took this opportunity to express his entire satisfaction with that portion of the amendment giving to Senators the right of appeal from the decision of the Chair, as it was not only according to strict principle, but would relieve the Chair from a most delicate duty. As to the power conferred upon the Chair, it was not for him to speak; but he assured the Senate that he should always endeavor to exercise it with strict impartiality."

It appears to me, then, with all due respect to the opinions of others, that this rule recognized the power to call to order in the Vice President, and by implication, at least, conferred that power upon him.

The next question is: Does the possession of the power impose any duty to exercise it? The power, it will be seen, is conferred equally upon the Chair and every Member of the Senate, and in precisely the same language. Is the duty, then, more imperative upon the President than upon any and every Member of the Senate to perform the unpleasant but necessary task of exercising it? There is a marked distinction between this rule and the corresponding rule of the House of Representatives. By the twentysecond rule of that body a Member may call to order, but it is made the imperative duty of the Speaker to do so. The words are:

"If any Member, in speaking or otherwise, transgress the rules of the House the Speaker shall, or any Member may, call to order," etc.

It is perhaps to be regretted, if the Senate desires that its Presiding Officer should perform this delicate and ungracious duty, that its rule had not been equally explicit with that of the House. The reason why Senators so seldom interfere by calling each other to order is, doubtless, because they fear that their motives may be misunderstood. They do not like to appear as volunteers in the discharge of such an invidious duty. The same feelings must, to some extent, operate upon the Chair, unless his duty be palpable. But, upon mature reflection, I have come to the conclusion, though the

authority be the same, yet that the duty may be more imperative upon the Chair than upon a Senator; and that, if the painful necessity shall hereafter arise, I shall feel bound to discharge my duty accordingly. I shall endeavor to do it with the utmost impartiality and respect. I know how difficult it is to determine what is and what is not in order to restrain improper language, and yet not abridge the freedom of debate. But all must see how important it is that the first departure from the strict rule of parliamentary decorum should be checked, as a slight attack, or even insinuation, of a personal character often provokes a more severe retort, which brings out a more disorderly reply-each Senator feeling a justification in the previous aggression.

There is, therefore, no point so proper to interpose for the preservation of order as to check the first violation of it. If, in my anxiety to do this I should sometimes make a mistake, I am happy to know that the Senate has the remedy in its own hands, and that by an appeal my error may be corrected without injury to anyone. Or if I have wholly mistaken my duty in this delicate matter the action of the Senate will soon convince me of that fact, and in that event I shall cheerfully leave it to the disposition of the Senate. But I have an undoubting confidence that, while I am right, I shall be fully sustained.

I trust I shall be pardoned for making one or two suggestions on some points of minor importance. This body has been so long and so justly distinguished for its dignity and decorum that I can not but apprehend that some neglect on my part renders these remarks necessary. We all know that many little irregularities may be tolerated in a small body that would cause much disorder in a large one. The Senate has increased from twenty-six to sixty Members. The natural tendency of the increase of Members is to relax the discipline; so that when the strict observance of rules is most essential to the dignity and comfort of the body it is the most difficult to enforce it.

The second rule is a very salutary one, but perhaps too stringent to be always strictly observed in practice. It reads as follows:

"No Member shall speak to another or otherwise interrupt the business of the Senate or read any newspaper while the Journals or public papers are reading, or when any Member is speaking in any debate."

Mr. Jefferson, in his manual, page 140, which seems to be a code of common law for the regulation of all parliamentary bodies in this country, says that no one is to disturb another in his speech, etc., nor to pass between the Speaker and the speaking Member. These are comparatively trifling matters, and yet the rules and law of the Senate would seem to require that its Presiding Officer should see them enforced. I trust, however, that it is only necessary to call attention to them to insure their observance by every Senator.

But a practice seems to have grown up of interrupting a Senator when speaking by addressing him directly instead of addressing the Chair, as required by the rule.

The manual declares that it is a breach of order for one Member to interrupt another while speaking, unless by calling him to order if he departs from it. It seems to me that the case should be a very urgent one, indeed, that can justify one Member in interrupting another while speaking, and that all would find it to their advantage if this rule were more strictly enforced than it has been, and that in all cases the Senator rising to explain should address the Chair, as required by the rule.

As Presiding Officer of the Senate I feel that my duty consists in executing its will as declared by its rules and by its practice. If those rules are too strict it would be better to modify than violate them. But we have a common interest and feel a common pride in the order and dignity of this body, and I therefore feel that I can appeal with confidence to every Senator to aid me in enforcing these salutary regulations. NOTE. The provisions relative to transgressions "in speaking or otherwise," have been somewhat modified from time to time. They are now incorporated in Rule XIX of the standing rules of the Senate.

VIEWS OF THE MINORITY.

THE, NO PART OF A REPORT OF A COMMITTEE.

62d Cong., 2d sess.]

FEBRUARY 19, 1912.

PROPOSED PENSION LEGISLATION.

Mr. BRYAN. I present my individual views from the Committee on Pensions on the bill (H. R. 1) granting a service pension to certain defined veterans of the Civil War and the War with Mexico (S. Rept. 355, pt. 3).

The VICE PRESIDENT (Mr. Sherman). The Senator from Florida presents the views of himself, as a part of the minority of the Committee on Pensions, on House bill No. 1. It will be printed and lie on the table.

Mr. BRYAN. I ask that it be printed along with the majority and other minority reports from the same committee.

The VICE PRESIDENT (Mr. Sherman). Without objection, it will be printed as part 3 of the report.

*

Mr. HEYBURN. Mr. President, I rise to a question of views. I inquire whether or not a minority report is any part of the report of a committee. We are falling into a habit of treating it as though it were a part of the report of a committee. I understand that it is not.

The VICE PRESIDENT (Mr. Sherman). Really it is not a report at all; it is the views of certain minority members of the committee.

Mr. HEYBURN. Then it should not be given a number that would indicate that it was a part of the report. There is but one report, and that should be the only report. The other might be denominated views of certain members, naming them; but I think we fall into an error by treating it as a part of the report and giving it a number. The VICE PRESIDENT (Mr. Sherman). The Chair thinks the custom has been to print such matters as are now presented as parts 1, 2, and 3, whatever the case may be, of the report. (See Cong. Record, pp. 2187, 2188.)

571