<DOC>
[Hinds Precedents -- Volume I]
[From the U.S. Government Printing Office via GPO Access]
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Chapter IV.
PROCEDURE AND POWERS OF THE MEMBERS-ELECT IN ORGANIZATION.
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1. Forms of proceeding at organization. Section 81.
2. Status of House before organization. Section 82.\1\
3. Call of the roll of Members-elect. Sections 83-86.
4. Sessions, adjournment, etc., during organization. Sections
87-92.\2\
5. Adoption of rules. Sections 93-102.\3\
6. Participation of contesting delegations in organization.
Section 103.\4\
7. Fixing the hour of daily meeting. Sections 104-117.\5\
8. Illustration of a body called to order at organization by an
old member. Section 118.
9. The drawing of seats. Sections 119-121.
10. As to action by one House before the other is organized.
Sections 122-126.
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81. Proceedings and forms at the organization of the House in a new
Congress.
Election of Speaker and other officers, administration of the oath to
Members and officers, notification of the President and Senate, and
drawing of seats at the beginning of a Congress.
Forms of procedure at the opening of the second or subsequent
sessions of a Congress.
When a new Congress assembles on the first Monday in December, the
Members-elect are called to order at 12 m. by the Clerk of the
preceding House,\6\ standing at his desk. After prayer by the Chaplain
of the last House, the Clerk announces:
Representatives-elect: Under the provisions of the Constitution of
the United States this is the hour fixed by law for the meeting of the
House of Representatives of the------Congress of the United States of
America. The Clerk of the House of Representatives of the------Congress
will read the names of those whose credentials show that they were
regularly elected to this body in pursuance of the laws of their
respective States and of the United States.\7\ As the roll is called,
following the alpha-
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\1\ Status with reference to transaction of business. (Secs. 6647-
6650 of Vol. V.)
\2\ Adjournment for more than one day before organization. (Sec. 221
of this volume.)
\3\ A refusal to adopt rules until the Members-elect were sworn.
(Sec. 140 of this volume.)
\4\ See also cases of Letcher v. Moore (sec. 53 of this volume) and
Ingersoll v. Naylor (Sec. 803 of this volume).
\5\ Discussion as to why the House of Representatives meets at 12 m.
at its first sitting, before organization. (Sec. 210 of this volume.)
\6\ In accordance with section 1 of House Rule III. (See sec. 64 of
this work.) In case the Clerk can not for any reason officiate, the
duties devolve on the Sergeant-at-Arms, and next upon the Doorkeeper.
(See Revised Statutes, secs. 32 and 33.)
\7\ This roll is made up in accordance with section 31 of the Revised
Statutes.
Sec. 81
betical order of the States, those present will please answer to their
names, that we may discover if there is a quorum present.\1\
When the roll call has been completed, the Delegates being called
last, the Clerk presents a tabulated statement of the changes in the
membership that have occurred since the regular election.
Then, if a quorum be present, the Clerk announces the fact, and
declares that the next business in order is the election of a
Speaker.\2\ Nominations are made from the floor, simply by naming the
candidates.\3\
The House has for many years elected its Speaker by viva voce
vote.\4\ The Clerk appoints four tellers, from the Members-elect,
representing the parties making nominations,\5\ who, seated at the
Clerk's desk, make the record as each Member-elect, when the roll is
called, alphabetically, announces the name of his choice. The roll call
being completed, one of the tellers, usually the one first named,
announces the result of the vote, the Clerk having previously read over
the names of those voting for each candidate.
The Clerk, having restated the vote as reported by the tellers,
announces that--
Mr.------, a Representative from the State of------, having received
a majority of all the votes cast, is duly elected Speaker of the House
of Representatives of the------Congress.
The Clerk then designates certain Members, usually the other
candidates who have been voted for, to conduct the Speaker-elect to the
chair.
The Speaker-elect having taken the chair and addressed the House, the
Clerk designates the Member-elect present who has served longest
continuously \6\ as a Representative to administer the oath of office
to the Speaker-elect.\7\
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\1\ Form used by Clerk James Kerr, of the Fifty-third Congress, in
calling to order the House of the Fifty-fourth Congress, December 2,
1895. (Congressional Record, p. 2.)
\2\ See sections 6747-6750 of Volume V of this work for controversies
as to transaction of business before organization. Also see
Congressional Record, first session Fifty-first Congress, p. 80, and
first session Fifty-fifth Congress, p. 15.
\3\ Sometimes a resolution to proceed to election of Speaker is
adopted; but very early as well as very late precedents exist for
proceeding without the resolution. See case December 8, 1829, when,
without resolution or motion, the House proceeded to ballot for
Speaker. (First session Twenty-first Congress, Journal, p. 7.)
\4\ See section 187 of this work for rule relating to viva voce
election and its origin. The rules, however, are not adopted until the
House is organized.
\5\ See Congressional Record, first session Fifty-fifth Congress, p.
15.
\6\ This does not always seem to have been the custom. Thus, in 1815,
the oath was administered to Speaker Clay by Mr. Robert Wright, of
Maryland, who was much younger as a Member than either Nathaniel Macon,
of North Carolina, who had served since 1793, or Richard Stanford, of
the same State, who had served since 1797, and both of whom were
present. (First session Fourteenth Congress, Annals, p. 374.)
But on December 5, 1825, we find Speaker Taylor conducted to the
chair by Mr. Thomas Newton, of Virginia, ``the father of the House,''
who also administered to him the oath. (First session Nineteenth
Congress, Journal, p. 8; Debates, p. 795.) Again, in 1829, Mr. Newton
is spoken of as the father of the House when he administered the oath
to Speaker Stevenson. (First session Twenty-first Congress, Debates, p.
471.) Again, in 1835, Mr. Lewis Williams, of North Carolina, ``the
oldest Member in the House,'' administers the oath to Speaker Polk.
(First session Twenty-fourth Congress, Journal, p. 8; Debates, p.
1946.) Again, on December 16, 1839, Mr. Williams, ``the oldest
Member,'' administers the oath to Speaker Hunter. (Journal, first
session Twenty-sixth Congress, p. 80.)
\7\ This oath is the same as that administered to Members-elect. (See
sec. 128 of this work.) It does not seem to have been the invariable
custom for the Speaker to address the House first. Thus, in 1815, Mr.
Clay took the oath first. (First session Fourteenth Congress, Journal,
p. 7.)
Sec. 81
After the administration of the oath the Speaker administers the oath
to the Members-elect and Delegates,\1\ who are usually called to the
area in front of the Speaker's desk several at a time, by States. The
Delegates are sworn last. Members of whose election there is no
question, but whose certificates have not arrived, may be sworn in by
unanimous consent.
The election of the remaining officers of the House is next in order.
The rule prescribes that these elections shall be viva voce.\2\ It is
usually accomplished, however, by the adoption of a resolution of five
paragraphs, each in this form:
That------ ------, of the State of------, be, and he is hereby,
chosen------of the House of Representatives,
and relating to the Clerk, Sergeant-at-Arms, Doorkeeper, Postmaster,
and Chaplain, in the order named.
The minority party usually present their candidates in a similar
resolution, which they move as a substitute.
The Speaker having administered the oath of office to the officers
elected, the organization of the House is completed, whereupon the
following resolutions are presented and agreed to:
Resolved, That the Clerk be instructed to inform the President of the
United States that the House of Representatives has elected------ ----
--, a Representative from the State of------, Speaker, and------ ------
, a citizen of the State of------, Clerk of the House of
Representatives of the------Congress.
Resolved, That a message be sent to the Senate to inform that body
that a quorum of the House of Representatives has assembled; that------
------, a Representative from the State of------, has been elected
Speaker, and------ ------, a citizen of the State of------, Clerk; and
that the House is ready to proceed to business.
Resolved, That a committee of three be appointed by the Speaker on
the part of the House of Representatives to join the committee
appointed on the part of the Senate to wait on the President of the
United States and notify him that a quorum of the two Houses has
assembled, and that Congress is ready to receive any communication he
may be pleased to make.\3\
Resolved, That until otherwise ordered the rules of the House of
Representatives of the------Congress be adopted as the rules of the
House of Representatives of the------Congress.\4\
Resolved, That until otherwise ordered the daily hour of meeting of
the House of Representatives shall be 12 o'clock meridian.
Resolved, That the House do now proceed to draw seats for Members and
Delegates of the present Congress in pursuance of Rule XXXII of the----
--House, and when names of Members absent from the city or on account
of sickness are called, that seats be selected for them by their
colleagues.\5\
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\1\ This order is according to the old form. (First session Second
Congress, Journal, p. 434.)
\2\ See section 187 of this work. The rules, however, are not usually
adopted until after the officers are elected, the old rule that the
rules should continue in force from Congress to Congress having been
dropped in the Fifty-first Congress. See debate of May 15, 1797, where
the point was raised and discussed that the rules of the former House
were not binding in the election of a Clerk. (First session Fifth
Congress, Annals, p. 51.)
\3\ Such a resolution is in accordance with the most ancient
precedents of the House. (First session First Congress, Journal, p.
134.)
\4\ While this resolution is usually adopted, the House sometimes, as
in the Fifty-first Congress, proceeds under general parliamentary law
until rules are adopted permanently.
\5\ These resolutions are the forms used in organization of Fifty-
fourth Congress. (Congressional Record, first session, Fifty-fourth
Congress, pp. 5 and 6.)
Sec. 82
Before the drawing begins the Members usually permit by unanimous
consent one or two Members of long service to select their seats.\1\
Also, if the political parties are disproportionate in size an
understanding is usually arrived at as to the portions of the Hall
which they are to occupy.\2\
When the Congress assembles by proclamation of the President, before
the first Monday of December, the formalities are the same, excepting
that the Clerk reads the proclamation of the President instead of the
usual announcement \3\
At the opening of sessions other than the first the Speaker calls the
House to order, and, after prayer by the Chaplain, directs the Clerk to
call the roll of Members by States. This roll having been called and
the number of Members present having been ascertained, the Speaker
announces that a quorum is present, if such be the fact, and that the
House is ready to proceed to business.
Resolutions are then adopted providing for notifying the President
and the Senate, as follows:
Resolved, That a committee of three Members be appointed on the part
of the House to join the committee appointed by the Senate to wait upon
the President and inform him that a quorum of the two Houses has
assembled, and that Congress is ready to receive any communication he
may have to make.
Resolved, That the Clerk of the House inform the Senate that a quorum
of the House of Representatives has appeared, and that the House is
ready to proceed to business.\4\
82. A discussion as to whether or not the House is a House before its
organization.
Congress may not by law interfere with the constitutional right of a
future House to make its own rules.
A proposition to regulate the organization of the House by law.
On March 2, 1861,\5\ Mr. Albert G. Porter, of Indiana, made a report
from the Committee on the Judiciary on the bill (H. R. 867) ``to
provide for and facilitate
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\1\ These favors are generally divided between the two large parties,
and ex-Speakers are usually the recipients, but the favor may be
granted to any distinguished Member.
On February 13, 1847 (second session Twenty-ninth Congress, Globe, p.
418), while the House was in Committee of the Whole House on the state
of the Union, and while Mr. W. Hunt was speaking, Mr. John Quincy
Adams, of Massachusetts, for the first time since his attack of
paralysis, entered the Hall. The committee rose in a body to receive
him. Mr. Hunt suspended his remarks, and Mr. Andrew Johnson, of
Tennessee, arose and said: ``In compliance with the understanding with
which I selected a seat at the commencement of the present session, I
now tender to the venerable Member from Massachusetts the seat which I
then selected for him, and will furthermore congratulate him on being
spared to return to this House.'' Mr. Adams having briefly acknowledged
the courtesy, the business proceeded.
In the organization of the Fifty-fourth Congress, ex-Speaker Charles
F. Crisp (Fifty-second and Fifty-third Congresses) and ex-Speaker
Galusha A. Grow (Thirty-seventh Congress were accorded this favor.
(Record, first session Fifty-fourth Congress, p. 8.) Also, in the
Fifty-second Congress, ex-Speaker Thomas B. Reed and the two oldest
Members on the two sides, Messrs. Holman, of Indiana, and O'Neill, of
Pennsylvania, were designated by resolution for the favor.
\2\ The Republicans sit on the left of the Speaker and the Democrats
on the right. But when one of these parties is a small minority, the
excess of the majority party goes to the extreme left or right. (See
Congressional Record, first session Fifty-fourth Congress, p. 6.)
\3\ See Congressional Record, first session Fifty-fifth Congress, p.
13, when Clerk Alexander McDowell called the House to order.
\4\ Congressional Record, second session Fifty-fourth Congress, p.
12.
\5\ House Report No. 102, second session Thirty-sixth Congress.
Sec. 83
the organization of the House of Representatives of the United States
on the assembling of each Congress.'' This bill undertook to prescribe
the evidence which should authorize one who claimed to be a
Representative to vote; the mode by which that evidence should be
presented; the manner of voting for a temporary presiding officer, for
the Speaker, and other officers; the order of business previous to the
organization, and the number of votes requisite to elect the several
officers.
The committee came to the conclusion that these provisions prescribed
``rules of proceedings'' for the popular branch of future Congresses,
and to be, therefore, in contravention of Article I, section 5, clause
2 of the Constitution: ``Each House may determine the rules of its
proceedings,'' etc. The report continues:
It seems to have been thought by some persons that the term ``House''
in the clause just quoted applies to the House after it has been
organized by the election of a Speaker and other officers; in other
words, that it is not a House until thus organized. But a reference to
the clause in the same article which provides that ``the House of
Representatives shall choose their Speaker and other officers'' shows
this interpretation to be erroneous. That clause recognizes the body of
Representatives assembled as being a ``House'' before the Speaker has
been elected.4
The bill was suggested by the troubles at the organization of the
Thirty-fourth Congress. It seems never to have been acted on by the
House.\1\
83. With a single exception the call of the roll of Members at the
beginning of a session has been by States and not alphabetically.--On
December 4, 1893,\2\ at the beginning of the second session of the
Congress, the roll was called alphabetically, and not by States.
Mr. Joseph Wheeler, of Alabama, made the point of order that the roll
should be called by States.
The Speaker (Mr. Crisp) said:
No rule of the House requires the roll to be called or recorded in
the manner which the gentleman suggests; on the contrary, the rules
require that the roll be called alphabetically, except that upon the
organization of the House and when in the absence of the Speaker the
Clerk discharges the duty of calling the House to order, the rules
require him to have the roll called by States. In other cases the rule
is that the roll be called alphabetically.
In the Journal, however, the roll call appears as if called by
States.
On December 5 Mr. Wheeler presented to the House the precedents from
the foundation of the Government to show that at the beginning of a
second session the roll had always, with the exception of this
instance, been called by States.
84. The call of the roll of Members-elect may not be interrupted,
especially by one not on that roll.--On December 4, 1865,\3\ at the
time of the organization of the House, while the roll of Members-elect
was being called by States, Mr. Horace Maynard, of Tennessee (whose
name was not on the roll), rose and was proceeding to address the
Chair, when the Clerk \4\ declined to allow any interruption of the
roll call.
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\1\ Journal, p. 479.
\2\ Second session Fifty-third Congress, Journal, p. 3; Record, pp.
13, 36.
\3\ First session Thirty-ninth Congress, Globe, p. 3.
\4\ Edward McPherson, of Pennsylvania, Clerk.
Sec. 85
85. The House declined before organization to add to the roll the
name of a Member-elect whose credential had been lost; but after
organization permitted him to take the oath.--On December 4, 1905,\1\
at the organization of the House, and immediately after the roll had
been called by States to ascertain the presence of a quorum, Mr. Asle
J. Gronna, of North Dakota, stated that the certificate of his
colleague, Mr. Thomas F. Marshall, had been lost, and asked that his
name be added to the roll.
Mr. Sereno E. Payne, of New York, said:
That would not be in order until after the organization of the House.
The Clerk \2\ said:
It would be a matter of unanimous consent. The gentleman from North
Dakota asks unanimous consent that the name of his colleague [Mr.
Marshall] be added to the roll. Is there any objection?
Mr. John S. Williams, of Mississippi, said:
At this stage of the proceedings I shall object. At the proper time
that will be in order.
But after organization Mr. Marshall was permitted by the House to
take the oath, on the assurance given by his colleague that the
election was in no way disputed.
86. At the organization of the House a person whose name is not on
the Clerk's roll may not be recognized.--On December 4, 1865,\3\ at the
organization of the House, and after the roll of Members-elect had been
called by the Clerk, after the presence of a quorum had been announced,
and after a motion had been made to proceed to the election of a
Speaker, Mr. Horace Maynard, of Tennessee, whose name was not on the
Clerk's roll, sought recognition.
Objection being made by Mr. Thaddeus Stevens, of Pennsylvania, the
Clerk \4\ held:
The Clerk rules, as a matter of order, that he can not recognize any
gentleman whose name is not on the roll.
87. It has been held that the House is technically in session during
the period of organization.--On January 4, 1850,\5\ Mr. Speaker Cobb
decided that the House was in session during the twenty days while
unsuccessful votes were being taken for a Speaker. Mr. Robert C.
Winthrop, of Massachusetts, had suggested that the thirty days allowed
for the introduction of petitions should not be counted from the
meeting of Congress, but from the date of the organization of the
House.
88. On March 11, 1875,\6\ the point was raised in the Senate that at
a called special session it was not in order to take any action looking
to the transaction of legislative business, the House not being in
session. The point was debated at some length, but no determination was
reached.
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\1\ First session Fifty-ninth Congress, Record, pp. 40, 41.
\2\ Alexander McDowell, of Pennsylvania, Clerk.
\3\ First session Thirty-ninth Congress, Globe, p. 3.
\4\ Edward McPherson, of Pennsylvania, Clerk.
\5\ First session Thirty-first Congress, Globe, p. 101.
\6\ First session Forty-fourth Congress, Record, p. 25.
Sec. 89
89. The House may adjourn for more than one day before the election
of a Speaker.--On January 13, 1860,\1\ before the election of a Speaker
it was ordered that when the House adjourns it adjourn until Monday
next.
90. At the organization of the House in 1855 the Clerk ordered
tellers.--On December 7, 1855,\2\ during the protracted struggle over
the election of a Speaker, Mr. Benjamin F. Leiter, of Ohio, moved that
the House adjourn.
Mr. Edwin B. Morgan, of New York, asked for tellers.
The Clerk \3\ ordered tellers, and appointed Mr. Morgan and Mr. John
Letcher, of Virginia.
91. The yeas and nays may be ordered before the organization of the
House.
In 1855 the Clerk decided questions of order at the organization.
On December 7, 1855,\2\ before rules had been adopted or a Speaker
elected, Mr. Benjamin F. Leiter, of Ohio, moved that the House adjourn.
Mr. Benjamin Stanton, of Ohio, demanded the yeas and nays.
Mr. John Letcher, of Virginia, made the point of order that the yeas
and nays might not be demanded until after the organization of the
House.
The Clerk \3\ said:
It is in order to call for the yeas and nays.
The question being taken, the yeas and nays were not ordered.
But on many other occasions during the protracted period before a
Speaker was elected, the yeas and Days were ordered and taken without
question.
92. In 1839 the difficulties at organization prevented the daily
approval of the Journal until finally, on one day, the Journals of
several days were approved.--From December 2 to 6, 1839,\4\ the House
was prevented from settling difficulties as to its organization by the
refusal of the Clerk of the preceding House to put any question, except
the motion to adjourn, because the call of the roll by States had not
been completed, and the presence of a quorum ascertained. On December 5
Mr. John Quincy Adams, of Massachusetts, was chosen chairman of the
meeting of Members-elect. On December 6, as soon as the meeting
assembled, the Journals of the proceedings of Monday, Tuesday,
Wednesday, and Thursday, the 2d, 3d, 4th, and 5th, were read and
approved.
93. Instance wherein the rules were adopted immediately after the
election of Speaker.--On December 21, 1839,\5\ the House adopted rules
before proceeding to the election of any officers except the
Speaker.\6\
94. Before the election of a Speaker the House has adopted a rule
regulating debate.--On December 22, 1855,\7\ during the organization of
the House,
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\1\ First session Thirty-sixth Congress, Journal, p. 127; Globe, p.
444.
\2\ First session Thirty-fourth Congress, Globe, p. 10.
\3\ John W. Forney, Clerk.
\4\ First session Twenty-sixth Congress, Journal, p. 7; Globe, p. 20.
\5\ First session Twenty-sixth Congress, Journal, p. 95.
\6\ Usually, however, rules are not adopted until the officers have
been elected. See section 81 of this work.
\7\ First session Thirty-fourth Congress, Journal, p. 161; Globe, p.
69.
Sec. 95
and before the election of a Speaker or the adoption of rules, Mr. John
A. Quitman, of Mississippi, submitted the following resolution, which
was agreed to:
Resolved, That, until the organization of this House by the election
of a Speaker, no Member shall occupy more than ten minutes in debate on
any question before the House, nor shall any Member speak more than
once on any question before the House, until every Member desiring to
speak thereon shall have spoken; and, upon a motion to lay on the
table, there shall be no debate.
95. On January 19, 1856,\1\ before the election of Speaker or the
adoption of rules, Mr. Schuyler Colfax, of Indiana, offered the
following resolution, which was agreed to:
Resolved, That for one week, unless a Speaker is sooner elected, no
debate on any subject, or under the form of personal explanation, shall
be in order; but any Member attempting to speak shall be held out of
order, unless the unanimous consent of the House shall have been first
had, upon the question being submitted by the Clerk.
96. The House has adopted a rule relating to the privilege of the
floor before the election of a Speaker.--On December 4, 1855,\2\ at the
time of the organization of the House, and before a Speaker had been
elected or rules adopted, it was, on motion of Mr. George W. Jones, of
Tennessee--
Ordered, That the Doorkeeper be directed to enforce so much of the
rules of the last Congress as relates to the admission of persons
within the Hall of the House.
97. On January 30, 1860,\3\ before the election of the Speaker, the
House adopted the following:
Ordered, That the Doorkeeper be directed to execute the seventeenth
rule of the House of Representatives of the Thirty-fifth Congress, in
regard to the privileges of the Hall.
98. On December 27, 1855,\4\ before the election of Speaker or the
adoption of rules, a proposition for the drawing of seats by Members
was offered and entertained without any point of order raised, but
after debate was laid on the table.
99. Before the election of officers the House has provided for
opening its sessions with prayer.--On January 23, 1856,\5\ before the
election of a Speaker or the adoption of rules, Mr. James F. Dowdell,
of Alabama, offered a preamble and resolution reciting the propriety of
the House showing their reverence for God, and resolving that the daily
sessions be opened with prayer, and providing that the ministers of the
gospel in the city be requested to attend and perform the duty
alternately.
This motion was agreed to. Later in the session, after the
organization of the House, a Chaplain was elected.
100. On December 7, 1859,\6\ before the election of a Speaker, Mr.
Alfred Wells, of New York, by unanimous consent, offered the following
resolution:
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\1\First session Thirty-fourth Congress, Journal, p. 334; Globe, pp.
269, 270.
\2\ First session Thirty-fourth Congress, Journal, p. 4 , Globe, p.
18.
\3\ First session Thirty-sixth Congress, Journal, p. 149; Globe, p.
629.
\4\ First session Thirty-fourth Congress, Journal, p. 185; Globe, p.
89.
\5\ First session Thirty-fourth Congress, Journal, pp. 354, 582;
Globe, p. 282.
\6\ First session Thirty-sixth Congress, Journal, p. 21; Globe, p.
42.
Sec. 101
Resolved, That until this House shall be organized by the election of
a Speaker, the clergy of this city, of the various religious
denominations, be respectfully requested to open the daily session of
this House with prayer; and that such of the clergy as shall accept of
this invitation officiate, one each day, in alphabetical order.
Mr. William Smith, of Virginia, questioned the power of the House to
transact any business until after its organization, but withdrew his
objection, and the House agreed to the resolution.
101. Before the election of a Speaker the House has empowered the
Clerk and Sergeant-at-Arms of the last House to preserve order.--On
December 16, 1859,\1\ before the election of a Speaker, Mr. William E.
Niblack, of Indiana, by unanimous consent, offered the following
resolutions, which were agreed to:
Resolved, That until the organization of this House by the election
of a Speaker, the Clerk of the last House shall be authorized and
empowered to preserve order on the floor of the House and in the
galleries, and as far as possible for that purpose he may exercise the
powers devolved on the Speaker, for the time being, under the rules of
the last House of Representatives.
Resolved, further, That until the organization of this House as
aforesaid, the Sergeant-at-Arms of the last House of Representatives is
hereby authorized to exercise the ordinary powers of his office for the
preservation of order, under the direction of the Clerk of the last
House of Representatives as aforesaid.
A question was raised as to whether or not these resolutions were
intended to allow the Clerk to decide questions of order, and Mr.
Niblack responded that they were not.
102. Before the election of officers or the adoption of rules, the
House has made a rule for enforcing order in the galleries.--On
December 15, 1849,\2\
before the House had been able to elect a Speaker and before rules had
been adopted, Mr. James Thompson, of Pennsylvania, offered, and the
House agreed to, the following rule:
Resolved, That the Sergeant-at-Arms and Doorkeeper are hereby
authorized and directed to enforce the seventeenth rule of the last
House of Representatives, and that no person be admitted to the ladies'
gallery unless accompanied by ladies or introduced in person by a
Member of Congress.
This resolution was agreed to without question as to the authority of
the unorganized House to adopt the rule.
103. Proceedings at organization of the House in the New Jersey, or
``Broad Seal,'' contest of 1839.
In 1839, at the organization of the House, the Members-elect did not
permit five persons bearing regular credentials to participate in the
organization.
In 1839 certain persons whose titles as Members-elect were contested
assumed to participate in the organization; but the meeting passed on
the vote of each after it had been given.
On December 5, 1839,\3\ the Members-elect of the House, having been
prevented from organizing the House by complications arising over a
contest as to the occupants of five of the six seats of the State of
New Jersey, Mr. John Quincy Adams, of
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\1\ First session Thirty-sixth Congress, Journal, p. 44; Globe, p.
165.
\2\ First session Thirty-first Congress, Journal, p. 102; Globe, p.
36.
\3\ First session Twenty-sixth Congress, Journal, pp. 6-80; Globe,
pp. 20-56.
Sec. 103
Massachusetts, was chosen chairman of the body and the rules of the
last House were adopted so far as they might be applicable.
Mr. Henry A. Wise, of Virginia, then offered this resolution:
Resolved, That the acting Clerk of this House shall proceed with the
call of the Members from the different States of the Union in the usual
way, calling the names of such Members from New Jersey as hold the
regular and legal commissions from the executive of that State.\1\
On the succeeding day Mr. R. Barnwell Rhett, of South Carolina, moved
that the resolution lie on the table.
On this question tellers were called for, and the Chair appointed
Messrs. George C. Dromgoole, of Virginia, and Edward Davies, of
Pennsylvania, tellers to count the House.
Mr. Dromgoole inquired of the Chair who were to be counted as Members
from New Jersey, and stated that he should, unless otherwise directed
by the House, count every person who presented himself.
The Chairman answered, and so decided, that those must be counted who
had been commissioned as Members of the House of Representatives of the
United States for the Twenty-sixth Congress from the State of New
Jersey by the governor of that State. The Chairman further stated that
he had expressed this as his opinion before he was placed in the Chair.
From this decision Mr. Aaron Vanderpoel, of New York, took an appeal
to the Members on the ground that the Chair had usurped to himself the
decision of the very question that the Members were trying to decide.
Pending the appeal the House adjourned. The session of the next day,
December 7, was occupied largely with proceedings for the correction of
the Journal, in the course of which a vote by tellers was had, and the
Chairman was asked who were to be counted as Members of the House. He
replied that ``the tellers will count whoever passes through; and if
any pass whose title to a seat is contested, they will report the fact
to the meeting, and the meeting will decide the question.'' But the
tellers, in reporting their vote, reported no votes by gentlemen whose
titles were contested.
Monday, December 9, was occupied largely with the reading of
documents relating to the case, and with questions relating to the
reading. It was not until December 10 that the question recurred on the
appeal of Mr. Vanderpoel.
Mr. Henry A. Wise, of Virginia, moved the previous question, and on
the question there were 110 ayes and 48 noes. Mr. John T. H.
Worthington, of Maryland, one of the tellers, reported that three of
the persons claiming to be Members from New Jersey, under the
commission of the governor, voted on the previous question.
The main question was then put: ``Shall the decision of the Chair
stand as the judgment of the meeting?'' and passed in the negative,
ayes 108, noes 114.
And so the decision of the Chair was reversed.
Mr. Worthington, one of the tellers, stated that four of the Members
from New Jersey, commissioned by the governor, voted on that question.
-----------------------------------------------------------------------
\1\ For these five seats there were ten claimants, five with
credentials from the governor and five with certificates from State
officials stating the vote.
Sec. 103
The Chairman here stated that it was now for the meeting to decide
who should be called as Members from New Jersey.
The question on the motion of Mr. Rhett, that the resolution of Mr.
Wise do lie on the table, was called for.
The Chairman decided that that question could not be put until the
preliminary question was settled as to who should vote as Members from
New Jersey.
Several propositions were made, among them a motion that neither set
of Members claiming seats from New Jersey should vote, until the
question ``Who shall vote from New Jersey?'' should be decided by the
House.
The Chairman decided that he was not competent to put the question on
this motion, nor was it within the competency of the meeting to pass
upon the motion, since in effect the motion was to decide that the
people of New Jersey should not be represented on the floor.
After incidental questions had been considered, the Chairman
suggested a course of procedure in the form of a ruling, but an appeal
being taken, he withdrew it. Thereupon Mr. George N. Briggs, of
Massachusetts, renewed the proposition in this resolution:
Resolved, That on the motion of Mr. Rhett to lay Mr. Wise's
resolution on the table, or on Mr. Wise's resolution itself, the
tellers shall count all the persons who may pass between them, and if
any pass whose right to vote is disputed, the tellers shall report
their names to the Chair, after the number of votes on both sides are
reported, for the decision of the House.
This resolution was agreed to without question as to those voting.
The question then recurred on Mr. Rhett's motion, and the tellers
reported that 115 had voted in the affirmative, and 114 had voted in
the negative, among which latter number was one disputed vote, that of
Mr. Charles Naylor, of Pennsylvania whose seat was contested by Mr.
Ingersoll.
The Chairman announced to the House that he voted with the nays,
whereby an equal division was produced, and the question on Mr. Rhett's
motion was lost.
Mr. Francis O. J. Smith, of Maine, challenged the right of Mr. Naylor
to vote, whereupon Mr. Naylor challenged Mr. Smith's right. Mr. Wise
moved that Mr. Naylor's vote be counted. The question was about to be
put on this motion under the operation of the previous question, when
the Chairman ruled that Mr. Naylor's right to vote could not be
questioned, since all controversy and proceedings had reference to the
New Jersey cases and none other. Therefore the resolution moved by Mr.
Briggs and adopted by the House had no relation to Mr. Naylor's right
to vote.
From this decision Mr. Hopkins L. Turney, of Tennessee, appealed to
the meeting.
Pending this appeal the House voted on a motion to adjourn, the
tellers reporting 116 in the affirmative and 113 in the negative and
that three disputed votes had been given on each side. The disputed
votes being equal on each side, and therefore not affecting the result,
the Chairman decided that the question was carried in the affirmative,
and the meeting accordingly adjourned.
On December 11 the question was taken on the appeal by Mr. Turney,
``Shall the decision of the Chair stand as the judgment of the House?''
and the tellers
Sec. 103
reported 112 votes in the affirmative, including in that number the
votes of Mr. Naylor, of Pennsylvania, and Messrs. Aycrigg, Yorke,
Maxwell, and Stratton, of New Jersey, commissioned by the governor of
that State, 118 votes in the negative, including in that number the
vote of Mr. Ingersoll, of Pennsylvania, claiming to be a Member in
place of Mr. Naylor, also the votes of Messrs. Kille, Cooper, and
Ryall, of New Jersey, claiming to be Members, in the room of Members
commissioned by the governor of that State.
The Chairman then stated that it was for the meeting now to decide,
name by name, upon the right to vote of each disputed voter whose name
had been reported by the tellers.
Mr. F. O. J. Smith, of Maine, objected that the determination of the
rights of the disputed voters would not affect the result; that the
Chairman's decision was overruled, no matter what decisions should be
given as to the challenged votes.
The Chairman held, however, that more Members were voting from
Pennsylvania and New Jersey than could be permitted to vote under the
Constitution and the laws; therefore the meeting must decide upon these
disputed rights.
The question was first taken on Mr. Naylor's right to vote, and the
tellers reported 119 votes in the affirmative, 112 votes in the
negative, and no disputed votes. So it was decided that Mr. Naylor's
vote should be counted.
The question was next taken on the vote of Mr. Aycrigg, of New
Jersey, and on the motion that it be counted the tellers reported 117
votes in the affirmative, including in that number the votes of Messrs.
Halstead, Maxwell, Stratton, and Yorke, of New Jersey, commissioned by
the governor of that State; 122 votes in the negative, including in
that number the votes of Messrs. Cooper, Kille, and Ryall, of New
Jersey, claiming to be Members, in the room of Members commissioned by
the governor of that State.
It was therefore decided that the vote of Mr. Aycrigg should not be
counted.
The question was next put, ``Shall the vote of Mr. Maxwell be
counted?''
And the tellers reported 116 votes in the affirmative, including in
that number the votes of Messrs. Halstead, Stratton, and Yorke, of New
Jersey, commissioned by the governor of that State; 122 votes in the
negative, including in that number the votes of Messrs. Cooper, Kille,
and Ryall, of New Jersey, claiming to be Members in the room of Members
commissioned by the governor of that State.
And so it was decided that the vote of Mr. Maxwell should not be
counted.
It was then agreed that the question be taken by one vote on Messrs.
Halstead, Stratton, and Yorke; and on the question the tellers reported
110 votes in the affirmative, 117 votes in the negative, and there was
no disputed vote on either side. And so it was decided that the votes
of Messrs. Halstead, Stratton, and Yorke should not be counted.
The next vote decided that the vote of Mr. Ingersoll, of
Pennsylvania, should not be counted, and then it was decided that the
votes of Messrs. Cooper, Kille, and Ryall, of New Jersey, should not be
counted.
The Chairman then announced that from the votes thus taken and the
decision thereby made the House had determined that the decision of the
Chair that Mr. Naylor's vote could not be questioned, should be
reversed, that Mr. Naylor's vote alstead, Stratton, and Yorke should
not be counted.
The next vote decided that the vote of Mr. Ingersoll, of
Pennsylvania, should not be counted, and then it was decided that the
votes of Messrs. Cooper, Kille, and Ryall, of New Jersey, should not be
counted.
The Chairman then announced that from the votes thus taken and the
decision thereby made the House had determined that the decision of the
Chair that Mr. Naylor's vote could not be questioned, should be
reversed, that Mr. Naylor's vote
Sec. 103
on the motion made by Mr. Rhett, that the resolution of Mr. Wise do lie
on the table, should be counted, and that therefore the motion of Mr.
Rhett had been determined in the negative.
The question then recurred on agreeing to the resolution offered by
Mr. Wise.
The previous question being moved, there were in favor of it 113
votes, against it 113 votes. The Chairman thereupon voted in favor of
the previous question and it was ordered.
On agreeing to the resolution there were 115 yeas and 118 nays; and
so the resolution moved by Mr. Wise was rejected.
Mr. Rhett then moved the following resolution:
Resolved, That the House will proceed to call the names of gentlemen
whose rights to seats are not disputed or contested; and, after the
names of such Members are called, and before the Speaker is elected,
they shall, provided there be a quorum of such present, then hear and
adjudge upon the elections, returns, or qualifications of all
claimants, Mr. Naylor and Mr. Ingersoll excepted, to the seats
contested on this floor.
This resolution being divided, the portion to and including the word
``contested'' was agreed to without a call of the roll. The second
portion was then agreed to, yeas 138, nays 92.
On December 12 the roll was called in pursuance of this order, and at
the conclusion of the roll call Mr. Randolph, of New Jersey, read in
his place a paper purporting to be a protest, signed by the five
gentlemen commissioned by the governor of New Jersey, against the
course adopted by the House in relation to their claim to be Members of
the House. This paper set forth--
That the determination of the State authorities, authenticated in the
manner prescribed by the State laws, is the only evidence of the
election of Members of the House of Representatives which can be
received prior to the organization of the House, and is final and
conclusive until reversed by the House itself, duly organized.
That no one who can not produce the evidence of his election,
prescribed by the laws of his State, is entitled to take a seat in the
House of Representatives; and no one who does produce such evidence can
be excluded before an investigation by the House, without a gross
violation of the Constitution of the United States and the rights of
the States themselves.
That the House of Representatives can not be constitutionally
organized, nor a quorum. formed, until all the States of the Union have
had an opportunity to appear by all their representatives; and that a
constitutional quorum is not merely a majority of the Representatives
elect after the arbitrary exclusion of other Members, on any pretext
whatever, but a majority of all the Members from all the States, after
each State has had an opportunity to appear by her Representatives, and
to constitute a part of that quorum.
That the body here assembled, having no judicial powers, possessing
no means for sending for persons and papers, not legally authorized to
examine witnesses under oath, and expressly forbidden by law to go into
the consideration of any business before the House is organized, and
the oath to support the Constitution administered to its Members, can
not exercise the highest judicial function belonging to the House of
Representatives, that of reviewing and reversing the decisions of the
State authorities in relation to their own elections; and that its only
power is to require the persons appearing here as Members to produce
the credentials prescribed by the laws of their respective States.
That, by the Constitution of the United States, each State has the
power to prescribe by law the time, place, and manner of holding
elections for its own Representatives in Congress, which power includes
the right of prescribing the time, place, and manner of ascertaining
and making known the result to Congress and the world.
Sec. 103
Therefore the protestants held that the failure of the House to
recognize their credentials was an outrage on the rights of their State
and a violation of the Constitution of the United States.
Mr. Randolph moved that the protest be spread on the Journal, and on
this question there appeared yeas 114, nays 117.
Mr. George C. Dromgoole, of Virginia, then submitted the following
resolution:
Resolved, That a select committee, to consist of nine, be appointed,
viva voce, by the Members of the House, to whom shall be referred all
the papers in the possession of the Clerk relating to contests for
seats on this floor from the State of New Jersey, and that they report
thereon.
This resolution was agreed to, yeas 123, nays 104.
Mr. George W. Crabb, of Alabama, then moved to reconsider the vote,
the point having been made that the first question was as to the
returns and not as to the election. By general consent, then, the House
reconsidered the vote.
Thereupon, Mr. Henry A. Wise, of Virginia, offered the following:
Resolved, That the credentials of the following Members: John B.
Aycrigg, John P. B. Maxwell, William Halstead, Charles C. Stratton, and
Thomas Jones Yorke, are sufficient to entitle them to take their seats
in the House, leaving the question of contested election to be
afterwards decided by the House.
The vote on this resolution was taken by yeas and nays, and there
were yeas (the Chairman voting with the yeas) 117, nays 117. The House
being equally divided, the question was lost.
A motion was then made by Mr. Smith, of Maine, that the House do come
to the following resolution:
Resolved, That this House proceed at this time to the election of a
Speaker.
Mr. Wise raised the question of order that it was not in order to
proceed to the election of a Speaker, since by the terms of the
resolution moved by Mr. Rhett the House had decided to proceed with the
contested cases before the election of a Speaker.
The Chairman decided that, while the resolution moved by Mr. Rhett
was in full force, the resolution proposed by Mr. Smith was still in
order.
After an appeal, which was subsequently withdrawn, and several roll
calls on incidental questions, the question was taken on Mr. Smith's
resolution, and it was agreed to, yeas 118, nays 110.
Then followed several ineffectual attempts to settle the status of
the five gentlemen having certificates from the governor of New Jersey
as to the vote for Speaker. A resolution presented by Mr. John White,
of Kentucky, that they were entitled to vote in the organization until
excluded by a majority of uncontested votes was laid on the table, yeas
119, nays 115.
Finally, on December 14, the House proceeded viva voce to the
election of a Speaker, and while the first vote was being taken Thomas
Jones Yorke, John B. Aycrigg, William Halstead, John P. B. Maxwell, and
Charles C. Stratton, commissioned by the governor of New Jersey as
Members from that State, severally and respectively, rose in their
places, exhibited their commissions, and demanded that their votes for
Speaker be received; and each of them announced his vote for John Bell.
Sec. 104
The vote was then reported by the tellers, but before the result was
announced Mr. Wise inquired of the tellers if the votes of the New
Jersey Members who had claimed to vote had been received.
The tellers answered the inquiry in the negative.
There was no choice on this vote, and the voting was continued until
December 16, when, on the eleventh vote, Robert M. T. Hunter, of
Virginia, had 119 votes, a majority, and was elected Speaker.
104. At the beginning of each session the House fixes by resolution
the daily hour of meeting.--On December 6, 1859,\1\ before the election
of a Speaker, Mr. Sherrard Clemens, of Virginia, by unanimous consent,
offered this resolution, which was agreed to:
Resolved, That the daily session of this House shall be at 12 o'clock
meridian.
105. On December 4, 1855,\2\ on the first day of the session, and
when the House was about to adjourn after several unsuccessful trials
to elect a Speaker, Mr. George W. Jones, of Tennessee, offered the
following, which was agreed to:
Ordered, That the daily hour of meeting be fixed at 12 o'clock m.
until otherwise ordered.
106. On December 3 1860,\3\ at the beginning of a second session, the
House adopted an order fixing the hour of daily meeting, as was done at
the first session.
107. On December 6, 1886,\4\ at the opening of the second session of
the Congress, Mr. William S. Holman, of Indiana, offered and the House
agreed to the resolution establishing the hour of meeting of the House
at 12 o'clock noon.
108. On December 5, 1892,\5\ at the beginning of the second session,
the House adopted the resolution fixing the hour of daily meeting until
otherwise ordered.
109. On December 1, 1902,\6\ at the opening of the second session of
the Congress, Mr. John Dalzell, of Pennsylvania, presented the
following resolution, which was agreed to:
Resolved, That until otherwise ordered the hour of daily meeting of
the House of Representatives shall be 12 o'clock meridian.\7\
110. In the early practice a motion to change the hour of daily
meeting was made at any time, but as the order of business grew more
rigid the motion lost its privilege.--It was the custom in the early
days to agree to a resolution or order on the first day of a Congress
fixing the ``hour to which the House shall stand adjourned,'' and then
on motion during the session as circumstances required the hour would
be changed.\8\ In those days the necessity of making certain motions
privileged had not been felt, and this motion, like most other motions,
was offered when a gentleman got the floor.
-----------------------------------------------------------------------
\1\ First session Thirty-sixth Congress, Journal, p. 14; Globe, p.
16.
\2\ First session Thirty-fourth Congress, Journal, p. 18; Globe, p.
4.
\3\ Second session Thirty-sixth Congress, Journal, p. 8.
\4\ Second session Forty-ninth Congress, Journal, p. 10; Record, p.
14.
\5\ Second session Fifty-second Congress, Journal, p. 5.
\6\ Second session Fifty-seventh Congress, Journal, p. 6; Record, p.
4.
\7\ A similar resolution was agreed to in the Senate. Record, p. 1.
\8\ First session Sixteenth Congress, Journal, pp. 3, 364, 418 (Gales
and Seaton ad.).
Sec. 111
111. On March 28, 1834,\1\ the following resolution was moved and
agreed to, apparently without a motion for unanimous consent or to
suspend the rules:
Resolved, That 11 o'clock a. m. shall be the hour to which this House
shall stand adjourned until otherwise ordered.
112. On January 14, 1835,\2\ Mr. Patrick H. Pope, of Kentucky,
apparently by unanimous consent, submitted and the House agreed to a
resolution changing the hour of daily meeting of the House from 12 to
11 o'clock a.m.
113. On March 15, 1836,\3\ Mr. John Bell, of Tennessee, asked
unanimous consent for the consideration of a resolution changing the
hour of the daily meeting of the House. Objection being made, he moved
the suspension of the rules,\4\ and the rules being suspended for the
purpose, the resolution was considered.
114. On June 9, l846,\5\ Mr. Seaborn Jones, of Georgia, moved that
when the House adjourns this day it adjourn to meet at 10 o'clock
tomorrow morning.
Mr. Joseph R. Ingersoll, of Pennsylvania, raised the question of
order that, as the hour for the meeting of the House was fixed by a
standing order of the House, it was not in order to entertain a motion
to change the same at any time except when resolutions were in
order.\6\
The Speaker \7\ stated that, although the forty-seventh rule of the
House provided that ``a motion to fix the day to which the House shall
adjourn shall always be in order,'' it did not follow that a motion to
change the hour already fixed by the House was always in order; and he
therefore sustained the question of order raised by Mr. Ingersoll and
decided that the motion of Mr. Jones was not in order.
Mr. Jones having appealed, the decision of the Chair was sustained.
115. On January 8. I845,\8\ Mr. Jacob Thompson, of Mississippi, moved
the following resolution:
Resolved, That from and after this day the regular hour for the
meeting of this House shall be 11 o'clock a.m.
While a motion to amend this resolution was pending, Mr. Isaac E.
Holmes, of South Carolina, moved that the House adjourn.
-----------------------------------------------------------------------
\1\ First session Twenty-third Congress, Journal, p. 459.
\2\ Second session Twenty-third Congress, Journal, p. 217; Debates,
p. 988.
\3\ First session Twenty-fourth Congress, Journal, p. 515; Debates,
p. 2779.
\4\ The resolution fixing the daily hour to which the House shall
stand adjourned does not seem to have been considered in the light of
one of the rules of the House. Thus, on May 3,1828, a resolution to
change the hour to 10 a.m. was moved and at once considered. But a
motion to amend it by inserting a provision that it should not be in
order to move an adjournment before 5 p.m. was ruled out, on the ground
that it would be a change of rule, which could not be made except after
one day's notice, the rules so providing. (First session Twentieth
Congress, Journal, pp. 673, 674.) The House quite often changed the
hour of its daily meeting. Thus on March 5, 1828. (First session
Twentieth Congress, Journal, p. 379.)
\5\ First session Twenty-ninth Congress, Journal, p. 933; Globe, p.
950.
\6\ The rule providing for the introduction of resolutions has been
changed since then.
\7\ John W. Davis, of Indiana, Speaker,
\8\ Second session Twenty-eighth Congress, Journal, p. 186; Globe, p.
113.
Sec. 116
Mr. William J. Brown, of Indiana, moved that when the House adjourn
to-day it adjourn to meet at 11 o'clock tomorrow.
Mr. John White, of Kentucky, raised the question of order that,
although under the forty-eighth rule a motion to fix a different day
from that to which the House would adjourn took precedence of a motion
to adjourn, a motion to fix a different hour was not contemplated by
the rule and did not take such precedence.
The Speaker \1\ decided in favor of the question raised by Mr. White,
and the House acquiesced in the decision.
116. The resolution of the House fixing the hour of daily meeting is
a standing order rather than a rule.--On April 21,1880,\2\ Mr. John T.
Harris, of Virginia, raised a question of order as to the following
resolution, which he had offered as privileged:
Resolved, That on and after Wednesday next, until otherwise ordered,
the hour of daily meeting of the House be 11 o'clock a.m.
Debate arising as to the nature of the resolution, the then existing
rule was quoted as follows:
No standing rule or order of the House shall be rescinded or changed
without one day's notice of the motion therefor, and no rule shall be
suspended except by a vote of two-thirds of the Members present, etc.
The Speaker \3\ said, in relation to the resolution to change the
hour of meeting:
The Chair thinks that this is an order of the House and not a rule.
The latter part of the rule applies to a suspension of the rules by a
two-thirds vote, but that part of the rule is not applicable as against
an order in manner as provided for in first clause of the rule as read.
The Speaker therefore held that the resolution was included under the
first classification, being an order of the House requiring one day's
notice, and that the resolution was not before the House.
117. On April 21, 1884,\4\ Mr. William R. Morrison, of Illinois,
claiming the floor for a privileged report, presented the following
from the Committee on Ways and Means:
Resolved, That on and after April 22, 1884, the hour of daily meeting
of the House for this session be 11 o'clock a.m.
Mr. John A. Kasson, of Iowa, asked if this was privileged.
The Speaker \5\ said:
The Chair will state that this is not a rule of the House which it is
now proposed to change. The rules of the House do not fix the time of
meeting, but the House by resolution at the beginning of the session
provided that the daily session should begin at 12 o'clock until
otherwise ordered.
118. The Senate having assembled and there being no presiding
officer, by mutual consent one of the older Members took the chair.
-----------------------------------------------------------------------
\1\ John W. Jones, of Virginia, Speaker.
\2\ Second session Forty-sixth Congress, Journal, p. 2612.
\3\ Samuel J. Randall, of Pennsylvania, Speaker.
\4\ First session Forty-eighth Congress, Record, p. 3184.
\5\ John G. Carlisle, of Kentucky, Speaker.
Sec. 118
The Senate, following the act of 1789, declined to administer the
oath to Members-elect until it had chosen a President pro tempore,
although a precedent for the proposed action was cited.
Argument that the law of 1789 as to organization of House and Senate
by administration of the oath to Members-elect is directory merely.
On Monday, October 10, 1881,\1\ the Senate assembled in special
session, convened by proclamation of the President, who as vice-
President had succeeded to the Presidency on the death of President
Garfield, on September 19. When the Senate had met on March 4, 1881, it
had been evenly divided politically, its committees having been
organized by the casting vote of the Vice-President. No President pro
tempore had been chosen; therefore when the Senate met this day there
was no presiding officer.
Mr. Isham. G. Harris, of Tennessee, rising after the prayer of the
Chaplain, stated that he had been requested by a number of Senators on
both sides of the Chamber to call the Senate to order. He stated that
if there was no objection he would do so, in order that they might
proceed with business. There being no objection, Mr. Harris took the
chair.
The proclamation of the President was then read.
Thereupon Mr. George H. Pendleton, of Ohio, offered a resolution that
Thomas F. Bayard, of Delaware, be chosen President pro tempore.
Mr. George F. Edmunds, of Vermont, here presented the credentials of
Messrs. Warner Miller and E. G. Lapham as Senators-elect from the State
of New York, vice Messrs. Roscoe Conkling and Thomas C. Platt,
resigned; and Mr. Nelson W. Aldrich, of Rhode Island, vice Ambrose E.
Burnside, deceased. Mr. Edmunds declared that under the seventh rule of
the Senate the presentation of credentials was always in order except
during certain business such as reading of the Journal, etc.
The credentials having been presented, Mr. Edmunds moved that the
oath be administered to them by Mr. Henry B. Anthony, the oldest member
of the Senate in continuous service.
On motion of Mr. Pendleton, this motion was laid on the table--yeas,
36 nays 34.
Thereupon Mr. Edmunds moved as a substitute for the resolution of Mr.
Pendleton a proposition that the credentials be placed on file, and
that the oath be administered to the Senators-elect by Hon. Henry B.
Anthony.
Mr. Edmunds said he had heard it stated that--
the law of Congress requires that the oath of office of a Senator-elect
should be administered by the President of the Senate, either the Vice-
President, the Constitutional President of the Senate, or the President
pro tempera acting in his absence, and that this law is an exclusive
law, by implication forbidding any other administration of such an
oath, and hence that it is impossible legally to admit these gentlemen
until there shall be a President pro tempera who can fulfill the
statute and administer the oath.
Mr. Edmunds thereupon called attention to the fact that the act of
1789 was passed by a Senate and signed by a President pro temporal not
one of whom had taken the oath prescribed by the Constitution.
-----------------------------------------------------------------------
\1\ Special session of Senate, Forty-seventh Congress, Record, p.
505.
Sec. 119
Therefore Mr. Edmunds argued that
this body as well as every other parliamentary body is entitled, when
the just exigency of the case arises, to receive members who otherwise
are a part of it, and to act, if there be no means of acting otherwise,
on the very first question as well as the last one that may be
presented to the body, without taking an oath at all.
Mr. Edmunds then referred to the Senate precedent of March 4, 1853,
in a similar case, when it was ordered that ``the oath required by the
Constitution be administered'' by Hon. Lewis Cass, the oldest member of
the Senate. After that had been done, a President pro tempore was
elected. Mr. Edmunds argued that the Senators of 1853 viewed the act of
1789 as a
directory provision for the convenient and orderly administration of
the Government, which the two Houses of Congress were expected to
follow, unless the absence of the convenient means of following it
would put them back upon their own inherent powers. I need not tell my
honorable friend from Ohio, and I need not read to him the authority to
show it, that by the ancient constitution of 211 parliamentary bodies
the power to administer oaths respecting their own proceedings (I limit
it to that, of course) is inherent, and part of their power and
existence as a body.
Mr. Augustus H. Garland, of Arkansas, admitted that by unanimous
consent the course urged by Mr. Edmunds might be followed; but the law
of 1789 and Rule 63 of the Senate that the oath ``required by the
Constitution and prescribed by the act of June 1, 1789, shall be taken
in open Senate,'' etc., constituted a rule which the Senate should
follow, and the act of 1789 required that the ``President of the Senate
for the time being'' should administer the oath.
Mr. Edmunds's amendment was rejected--yeas 33 nays 34--and a
President pro tempore was elected before the oath was administered.\1\
119. Form and history of the rule for the drawing of seats by Members
(Rule XXXII, secs. 1 and 2).--The drawing of seats by the Members is
provided for by the rule of the House No. 32:
1. At the commencement of each Congress, immediately after the
Members and Delegates are sworn in, the Clerk shall place in a box,
prepared for that purpose, a number of small balls, of marble or other
material, equal to the number of Members and Delegates, which balls
shall be consecutively numbered and thoroughly intermingled, and at
such hour as shall be fixed by the House for that purpose, by the hands
of a page, draw said balls one by one from the box and announce the
number as it is drawn, upon which announcement the Member or Delegate
whose name on a numbered alphabetical list shall correspond with the
number on the ball shall advance and choose his seat for the term for
which he is elected.
2. Before said drawing shall commence each seat shall be vacated and
so remain until selected under this rule, and any seat having been
selected shall be deemed forfeited if left unoccupied before the call
of the roll is finished, and whenever the seats of Members and
Delegates shall have been drawn no proposition for a second drawing
shall be in order during that Congress.
In the early years of the House seats were evidently selected by
Members in accordance with a system of mutual agreement. On February
16, 1826,\2\ Mr. Robert Taylor, of Virginia, proposed a rule that the
seats be numbered, and that on the first or second day of each session
Members should select their seats by drawing pieces of paper bearing
those numbers. This proposition was laid on the
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\1\ Special session Forty-seventh Congress, Record, pp. 505-509.
\2\ First session Nineteenth Congress, Journal, pp. 263, 265.
Sec. 120
table. On July 2, 1838,\1\ the House agreed to a resolution that in the
new arrangement of the Hall which was to be made the Members should be
entitled, as nearly as possible, to the same relative positions which
they then held. A proposition by Mr. Horace Everett, of Vermont, that
seats be drawn by lot was not considered seriously. On June 1, 1841,\2\
an effort was made to establish a permanent rule providing for drawing
of seats by lot. It was urged that Members living near the seat of
Government obtained an undue advantage of others by making early
choices. The rule was not adopted. On December 8, 1841,\3\ the House
was called on to decide which of two Members was entitled to a certain
seat, one Member having attempted to transfer it to another. Finally,
on December 1, 1845,\4\ Mr. Howell Cobb, of Georgia, proposed to remedy
the unfairness of the old method of selection by having a drawing by
lot. This was agreed to, and on December 4, seats were drawn for the
first time.
From 1845 until 1880 seats were drawn in accordance with a resolution
adopted on each occasion. At the time of the revision of 1880 the
Committee on Rules reported a plan for having the names of Members
written on slips of paper, which were to be drawn from a box by the
Clerk. But Mr. Walter L. Steele, of North Carolina, having recited an
instance in the House where such a plan had not proved satisfactory,
offered as an amendment the present form of section 1.\5\ The amendment
was adopted.
Section 2 is in the form reported in the revision of the Forty-sixth
Congress.\6\ It was in form a new rule, although a portion of it comes
from Rule 163 of the old rules of the House, which provided:
Whenever the seats of Members shall have been drawn, no proposition
shall be in order for a second drawing during the same Congress.
This restriction dates from February 8, 1872,\7\ when it was proposed
by Mr. Samuel S. Cox, of New York, to prevent obstruction of the public
business by the presentation of resolutions for new drawings of
seats.\8\
120. At the time of the organization of the House the motion relating
to the drawing of seats is privileged.--On December 5, 1856,\9\ a
resolution for the drawing of seats at the beginning of a session was
offered and admitted as a question of privilege.
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\1\ Second session Twenty-fifth Congress, Journal, p. 1207; Globe, p.
489.
\2\ First session Twenty-seventh Congress, Journal, pp. 20, 21, 34;
Globe, pp. 9, 10.
\3\ Second session Twenty-seventh Congress, Journal, pp. 27, 28;
Globe, p. 9,
\4\ First session Twenty-ninth Congress, Journal, pp. 13, 55; Globe,
p. 4.
\5\ See Congressional Record, second session Forty-sixth Congress, p.
1204.
\6\ Congressional Record, second session Forty-sixth Congress, p.
207.
\7\ Congressional Globe, second session Forty-second Congress, pp.
831, 904.
\8\ Speaking in the House on March 3, 1880 (second session Forty-
sixth Congress, Record, p. 1283), Mr. Alexander H. Stephens, of
Georgia, indicated that the Members of the Whig party used to select
seats in the portion of the Hall to the left of the Speaker, where
members of the Republican party now sit, while Members of the
Democratic party then as now selected seats on the side to the right of
the Speaker. Members of third parties usually sit with the minority.
\9\ Third session Thirty-fourth Congress, Journal, p. 59.
Sec. 121
121. Precedents as to drawing of seats where a large portion of the
majority is to be accommodated on the minority side of the main
aisle.--On December 4, 1905,\1\ at the organization of the House, a
question arose as to the selection of seats, and Mr. James A. Tawney,
of Minnesota, asked and received unanimous consent for agreement to the
following:
That in selecting seats the precedents of the Fifty-second and Fifty-
fourth Congresses be followed whereby the section of seats next to the
main aisle on the minority side were given to the majority side,
leaving any further excess of majority Members to be accommodated in
the seats on the extreme left of the minority side.
Mr. Tawney in debate referred to the precedents in the Fifty-second
\2\ and Fifty-fourth \3\ Congresses.
122. Before an organization of the House has been effected the Senate
has not usually proceeded to general legislation.
In the earlier practice of the House the Senate was notified of the
election of Speaker, but not of that of other officers.
In 1839 \4\ the House met in the first session on December 2, but the
organization was not completed until December 21. On that day, the
Speaker having been elected, the rules adopted, and the Clerk and
Sergeant-at-Arms elected--which steps occurred in the order
enumerated--a message was sent to the Senate informing that body that a
quorum of the House had assembled, that Robert M. T. Hunter, of
Virginia, had been elected Speaker, and that it was now ready to
proceed to business.\5\ The Doorkeeper and Postmaster were not elected
until the day after this message was sent.
On December 23 a message was received from the Senate informing the
House that the Senate, on December 2, formed a quorum, and was ready to
proceed to business. The message also communicated a resolution adopted
by the Senate for appointing the customary joint committee to await
upon the President and inform him that the two Houses were ready to
receive any communication from him. The House at once concurred in
this.
The Senate had adopted these resolutions on December 2. On the 4th
Mr. Thomas H. Benton said that he understood that, as the other branch
was not organized, it would not be proper to transact legislative
business, yet he thought some resolutions of inquiry might be adopted
in order to obtain a basis for future action. But, on the succeeding
day, doubts as to the propriety of this being raised, Mr. Benton
decided not to proceed.
On December 9 a resolution was adopted to inform the President that a
quorum of the Senate had assembled, and that they were ready to receive
any communication of an executive character which he might make.
Thereafter, until the organization of the House and the receipt of
the President's message, the Senate transacted no business but
executive business, not even bills
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\1\ First session Fifty-ninth Congress, Record, pp. 43, 44.
\2\ First session Fifty-second Congress, Record, pp. 9, 10.
\3\ First session Fifty-fourth Congress, Record, p. 6.
\4\ First session Twenty-sixth Congress, Journal, pp. 79, 95-101;
Globe, pp. 1-78.
\5\ It was not then the custom to transmit to the Senate information
as to the election of other officers than the Speaker.
Sec. 123
being introduced. Of course the election of its officers and
appointment of its committees occurred.
123. In the Thirty-first Congress the organization of the House was
delayed for twenty days by the failure to elect a Speaker. During this
time the Senate did no general legislative business. On December 11,
1849,\1\ while the House was still unorganized, Senator Joseph R.
Underwood, of Kentucky, gave notice of his intention to introduce a
bill.
A question being raised, and the opinion of the Vice-President \2\
being asked, he said that the impression of the Chair was that no
proceeding connected with legislative business could be had until both
Houses were organized. As notice of the introduction of a bill was a
necessary antecedent step to the introduction of a bill, and one which
related to the business of legislation, in the opinion of the Chair it
was not now in order to give such notice.
On December 15 the Senate adopted a resolution appointing a committee
to wait on the President and inform him that the Senate was organized
and ready to receive any communication he might think proper ``in
relation to matters which are within the sphere of their separate
constitutional action.'' Mr. Henry Clay approved this, saying that it
was in accordance to precedent, and did not seem wanting in courtesy to
the other body.
124. In the session of 1855-56,\3\ while the House was unable to
organize because the election of a speaker was not effected until
February, the Senate did not proceed to legislation, but on December 4
notified the President that it was ready for communications of an
executive character; on December 31 \4\ received the annual message of
the President of the United States; organized its committees, etc.
125. On January 18 and 19, 1860,\5\ while the House was endeavoring
to elect a Speaker, the Senate debated at length whether or not it
might proceed to general legislative business, it being contended on
the one hand that the Congress consisted of an organized Senate and an
organized House, and that while one remained unorganized there was no
Congress. On the other hand, it was contended that the Senate might
proceed with business. A proposition declaring that the Senate might
not proceed to legislative business until the House should be organized
was laid on the table, and then, by a vote of 45 yeas to 7 nays, the
Senate voted to allow a bill to be referred to a committee. During the
discussion the constitutional questions and the precedents were
examined carefully.
126. At the beginning of a second session of a Congress the House
proceeded to business, although a quorum had not appeared in the
Senate.
A message from one House that a quorum has appeared is not delivered
in the other until a quorum has appeared there also.
On November 4, 1794,\6\ at the second day's session of the second
session of the
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\1\ First session Thirty-first Congress, Globe, pp. 15, 35, 36.
\2\ Millard Fillmore, of New York, Vice-President.
\3\ First session Thirty-fourth Congress, Globe, p. 4.
\4\ Globe, p. 107.
\5\ First session Thirty-sixth Congress, Globe, pp. 494, 517.
\6\ Second session Third Congress, Annals, p. 870.
Sec. 126
Third Congress, a quorum appeared, and a message announcing that fact
was sent to the Senate.
On November 5 Mr. Jonathan Dayton, of New Jersey, said he saw no
reason for awaiting the attendance of a quorum in the Senate, and
submitted a motion for the appointment of a committee to examine
unfinished business.
Mr. Benjamin Goodhue, of Massachusetts, objected to the motion as
improper, but the Speaker \1\ put the question on Mr. Dayton's motion.
The House thereafter proceeded to business, no quorum of the Senate
appearing until November 18,\1\ when the joint committee was authorized
and appointed to notify the President that a quorum of the two Houses
had assembled.
The Journal indicates that no message was sent to the Senate until
the quorum had appeared, excepting the message of November 4. That
message was not delivered in the Senate until the quorum had appeared,
on November 18.\2\
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\1\ Annals, pp. 787, 890; Journal, pp. 232, 233 (Gales and Seaton
ed.).
\2\ Senate Journal, p. 120 (Gales and Seaton ed.).