286 CONGRESSIONAL RECORD-SENATE. APRIL 8, I withdraw the motion to adjourn and let us have a brief executive Mr. BOOTH (by request) asked, :md 11y unanimous consent ob- session. tained, leave to introduce a bill (S. ;No. 369) for the relief of Alexan Mr. DAVIS, of Illinois. Very well. der .McDonald; which was read twice by its title, and referred to the FREED~lA...."\ 1 8 SAV'rnGS ~D TRUST COMPA....~Y. Committee on Private Land Claims. Mr. CHANDLER asked, and, by unanimous consent obtained, ]eave Mr. IlRUCE. Before that is done I desire to offer a resolution: to introduce a bill (S. No. 370) granting a pension to Phoobe C. Dox Resolved, 'l'bat the Presidenli of the Senate appoint a select committee of five on the Freedman's Savings and Trust Company, to take into consideration all matters sie; which was read twice by its title, :i.nd, with t.he papers on the relating to saiil institution; that said committee be authorized to employ a clerk; file relatin~ to the case, referred to the Committee on Pensions. and that the necessary expenses be paid out of the "miscellaneous items " of the Mr. KIRKWOOD (by request) asked, and by unanimous consent contingent fund of the Senate. obtained, leave to introduce a bill (S. No. 371) to organize the Na The resolution was considered by unanimous consent, and agreed tional Railway Company of the United States, and for other purposes; to. which was read twice by its title, and referred to the Committee on EXECUTIVE SESSION. Railroads. • Mr. DAVIS, of Illinois. I move that the Senate proceed to the co:..i Ur. GROVER asked, and by unanimous con ent obtained, loave to sidera.tiou of executive business. introduce a bill (S. No. 372) authorizing the construction of a brid(J'e The motion was agreed to; and the Seuate proceoded to the con a.cross the Willamette River, at Portland, Oregon; which was re~d silleration of executive business. After fifteen minutes spent in ex twice by its title, and referred to the Committeo on Commerce. ecutive session the doors were reopened, and (at four o'clock and Mr. BURNSIDE asked, and by unanimous consent obtained, leave twenty-firn minutes p . •m.) the Senate adjourned. to introduce a bill (S. No. 3i:3) to aid in the protection of life and of the public buildings and property against loss a11d damacre by fire ; which wa ' read twice by its title, and referred to the Co~mittee on Pnblic Buildings and Grounds. Mr. HARRIS (by request.) n,sked, and by unanimous consent ob tained, leave to introduce a bill (S. No. 374) for the relief of James IN SENATE. A. Heard; which was read twice by its title, and, with the accom TUESD.A.Y, April 8, 1879. panying papers, referred to the Committee oi::t Claims. Mr. BAYARD asked, and by unanimous consent obtained, leave to Prayer by the Chaplain, Rev. J. J. BUI.LOCK, D. D. introduce a bill (S. No. 375) to repeal sections 20 nnd 821 of the Re The J onrnal of yesterday's proceedings was read and approvetl. vised Statutes; which was read twice by its title. FREED:\IA.' S SAYIXGS A:XD TRUST CO:.\tp~ry. Mr. BAYARD. Mr. President, I desire to ask the unanimous con sent of tho Senate to put this bill upon its passage at once and with The VICE-PRESIDENT appointer} Mr. BRUCE, Mr. CAMERON of out a reference to any committee. It repeals the two sections of the Wiscon!)in, Mr. Go1mox, Mr. WITHERS, and ,Mr. GARL~"D as the select Revised Statutes pa~sed in 1862 which provide test oa.ths and dis committee to take into consideration all matters rellliting to the qualifications for jurors in tho courts of the United States, the effect Freedman's Savings and Trust Company under the resolution of the of which practically is to exclude the great body of the citizens of Senate of tho 7th instant. intelligence and character from tho jury-box in the South£:Jrn States. JOIN'T CO:.\UIIT.rEE OX Plll.XfL,G. The Senate has already signified its approval to this measure of re The VICE-PRESIDENT appointed, under the provisions of section peal; and in view of th~ situation of public a.ffa.irs which is well 3756 of the Revised Statutes of the Uniteu State8, Mr. WIIYTE, Mr. known and comprehended in the Senate, I en.rnestly ask t hat no ob HANSOM, and Mr. A...'1'THo~ry as members on the part of the Senate of jection be made to the present consideration and passage of the bill. the Joint Committee on Public Printing. I do not desire to debate it, but offering it as I do in a spirit and for EXECVTITE CO:.\DICXICA.TIOX. the sake of justice and good feeling among our countrymen aurl. be tween the political parties of the two Houses of Covgress, I earnestly The VICE-PRESIDENT laid before the Senate a cor.nrimnicn.tion hope tha.t the unanimous consent, which I know is necessary for its from the Secretary of the Treasury, transmitting, in compliance with immediate passage, will be granted by the Senate. a resolution of the Senate of the 24th of March, 1879, information The VICE-PRESIDENT. Is there unanimous consent ' concerning the refunding of the public debt and the amount of public Mr. EDMUNDS. There i1:1 not unanimous consent, Mr. President. moneys held by national-bank depositories; which the Secretary pro I am not aware that the Senate has passed any bill to repeal section ceeded to read. 21. If the Sena.te has done so, it has esca.ped my recollection. I The VICE-PRESIDENT. The Chair calls the attenhion of the Sen should be glad to have the honorable Senator from Delaware inforill ator from Delaware [Mr. SAULSBCRY] to this communication, which us when it was that the Senate passed a bill to repeal section 821, is responsive to a resolution submitted by him. What disposition which is a section providing merely for a discretion in the court to shall be made of it f ' excuse a juror from serving who has been engaged or who swears Mr. SAULSBURY. Let it lie on the table. that he has been engagecl in an insurrection or rebellion. The VICE-PRESIDENT. The communication will be printed and There are circumsta.nces under which. section 8'21 as it stands would lie on the table, subject to the call of the Sena.tor from Delawa,re. be too broad theoretically. The time has been so long and people AR..'1T APPROPRIATIO:N' BILL. have grown up so much that I do not know that practically it would :Mr. WITHERS. I am instructed by the Committee on Appropria very often happen that it would work any injustice as it st!linds; tions, to whom were referred the bill (H. R. No. 1) making appropria but theoretic::i.lly it might in certain cases. In certain other cases it tions for the support of the Army for the fiscal year ending June 30, would be of great advantage to the interests of justice that sub 1880, and for other purposes, to report it without amendment. I ask stantially that provision should be there. The words of section that it be print.ad and placed on the Calendar, n.nd I give notice that 821 do not refer exclusively to the rebellion or insurrection that I shall call it up as soon as the present question of privilege before began in the year 1860 or ltl61, but they refer to and cover as they the Senate has been disposed of. stand now any act of violence by an armed concerting bod:v of men Mr. BLAINE. I offer an amendment to be proposed to the Army that, within the decisions of the courts, made long before the rebel appropriation billjust reported. • lion that wa are all so gla.d is over occurred, amoimt to an insur Mr. DAVIS, of Illinois, and Mr. INGALLS. Let it be read. rection against the laws of the United States; as if a. body of men The VICE-PRESIDENT. The amendment will be reported, if de- should combine together to resist the whisky laws, the internal sired. revenue laws, hundreds of them in some sections of the State of The Secreta.ry read the amendment, as follonTs: Vermont (I will not name 1my other State because I do not wish to Amend by adding at the end of section 6 the following: be invidious) a.nd some one of them at la.st is arrested. In that And any military, naval, or citil officer, or any other person, who shall, except small State and in that small district the whole body of the jurors for the purposes herein named, appear armed with a deadly weapon of any descrip· summoned may contain a certain percentage of the very accomplices, tion, either concealed or displayed, within a mile of any polling place where a gen· associates, and fellows in that very concerted insurrection for a. eral or special election for Representative to Congress is being held, shall on con viction be punished with a fine not less than $500 nor more than $5,000, or with breach of the law. As this law stands, it would authorize the judge imprisonment fo1· a period not less than six months nor more than fi've years, or in a given case to sift out the juror and to leave off from the panel with both fine and imprisonment, at the discretion of the court. the accomplices and fellow-criminals of the very man who was to be l\1r. BLAINE. I ask that the amendment be printed. tried. In such a case I suppose everybody would agree-I suppose so until I he~r otherwise-that a law of that kind would be ri~ht The VICE-PRESIDENT. The amendment will be printied and lie 0 on the table, subject to the call of the Senator from Maine. and tha.t what it requires ought to be done. · Then, ~fr. President, inasmuch 38 the Senatie bas never to my knowl IlILLS Th"TRODUCED. edge voted to repeal section 821. in toto, and inasmuch 38 very likely Mr. JOHNSTON asked, and by unanimous consent obtained, leave if this bill goes to the proper committee it is now so organized that to introduce a bill (S. No. 367) granting an increase of pension to Isa undoubtedly it would receive prompt action and due consideration, bel L. Evans; which was read twice by its title, and referred to the that committee might substitute for section ~21 a provision which Committee on Pensions. would be satisfactory to everybody would meet the ends of justice, Mr. LOGAN asked, and by unanimous conent obtained, leave to in and would escape the occasional evils1 that my friend from Dela.ware troduce a bill (S. No. :368) for the relief of Emanuel Klauser; which thinks would arise if the law were to sta.nti., I must ask, with great was read twice by its title, and referred to the Committee on Military respect to my friend, that the bill go to a committee: Affairs. As to section 820, that, as everybody knows, was repealed by both .1879. ' CONGRESSIONAL REOORD-SENA'J_'E. 287
Houses of Congress in the year 1870 or 1871, if I am not mistaken, this individual receh·eu us clerk of a court and in various other ca and got back into the Revisedl:)tatutcs by one of that numerous class pacities. Not being able to understand the motive of it I make n<> of accidents that we.know ran through the whole book. The Senate objection to it. ' has since passed an act to repeal that section, but the House of Rep The resolution was agreed to. resentatives at the last session found it convenie~t not to take it up, SEX.A.TOR FRO:\I XEW ILUIPSillJrn. or to speak more respectfully, found it inconvenient to take it up and to do anything with it, so far as we know. Therefore I hope the bill The VICE-PRESIDENT. lf there is no further business for the will take the usual coarse. It can be acted upon undoubtedly very morning hour the Senate will proceed to the consideration of its ltn soon. finished business, being the resolution reported from the ·committee Mr. DA.YA.RD. I am aware that nothing could pass the bill at this ~m Privil~ges anu Elections declaring ''that Hon. Charles H. Bell time but its acceptance by the entire body. Of course a motion to is not ent1~led to a seat s.s a S~nator by virtue of the appointment by carry it to the committee is regular; it is in accordance with the the executive of New Hampshire." Tho pending Cf.Uestion is upon the rules of the body; and therefore I ha>e nothing more to say. amen~ment proposed by the Sei;iator from Massachusetts [Mr. HOAR] The VICE-PRESIDENT. The bill will be referred to the Commit to strike out from the resolution the word "not" before the word tee on the Judiciary. "entitled." .Mr. DA. VIS, of Illinois, (by re!]_uest) asked and by unanimous con Mr. GA.RLA.},"D. Mr. President, the position that I take in refer sent obtained, leave to introduce a bill (S. No. 376) granting a pen en~~ to this matter, from my reading of the Constitution is that sion to Hiram Johnson; which was read twice by its title, and re Le~tslatures of 1.he States, being the original constituency of the ferred to the Committee on Pensions. P"mU:d States Senate, i;nu~t themselves by election place a Senator .1\Ir. INGALLS asked, and by unanimons consent obtained, leave to ii;i ~his body at th? begmmn~ acancy. Neither does the statute of 1866; referred to so fre': On motion of Mr. BECK, it was quently yesterday by the Senator from Delaware [Mr. BAYARD ]: Ordered, That the petition and accompanying papers in the case of T. T. Gar heip us at all in this investi~ation, becanse the lanC:uaO'e of the Co~ rard and others be taken from the tiles and referred to the Committee on Claims. stitution cannot be amplifiect, nor can it be narrow~d by any statut~. On motion of Mr. WALLA.CE, it was The Constitution, under which that statute purported to be enacted fro~1b':1u~h ~t [i;eNSe~~!~.on ha>e lea>e to witht.lraw his memorial and papers cannot be enlarged and it cannot be modified by that statute. It 0 wou~d not take ~ gr~at deal of time, ~ think, to show that that stat On motion of Mr. HARRIS, it was • ute is not. constitutional; but that is not one of the questions in Ordered, That the testimony faken by the committee to investigate and report volved here. Here we are remitted at last to the Constitution itself the best means of preventing the introduction and spread of epidemic diseases in to find out just .what is ou~ duty in this given case, and to ascertain the United States be withdrawn from the files of the 'enat.e and delh·ered to the whether the clatmant to thIB seat has been properly delegated by the National Board of Health. proper authority to fill a seat in the Senate. APPORTIO::\")IE.NT OF DEPART)IEXT E:llPLOYES. The first and second clauses of section 3 of article 1 of the Consti Mr. GARLAND submitted the following resolution; which was con tution mast be taken together and construed toO'ether · and when: sidered by unanimous consent, and' agree(l to: analy~ed, it. is al~ost rema~kable what a fitn~s, wh~t a perfect Ruolved, That the Committee on Civil Service and Retrenchment be instructed propriety eXISts all through m every word which is used in each of to inquire into the expediency of apportioning the clerks and other employes in the these clauses looking to the organization and continuation of the various Departments of the Government among the se>eral States according to Senate as a legislative body. It reminds one when investigating as.. ' their ratio of population, and to report by bill or otherwise. he must be constantly reminded when looking at this instrument' of ACCOUNTS OF JOUN I. DAVE:XPORT. the great diffi?ul~ if not the almos~ impos~ibility of ever taking ~n&
Mr. BA.YA.RD. I ask the Senate to take up the resolution offered word from this mstrument or addmg to it without destroyin(J'0 its. by me yesterday, which I now send to the desk. harmony and its effect: ~ The VICE-PHESIDENT. The Senator from Delaware calls for the The Senate of the United States shall be composed of two Senators from each consideration of the resolution submitted by him yesterday, whfch ~~t;:·o~:<;':~.by the Legislature thereof, for six yeds; and eaeh Senator shalL will be reported. The Chief Clerk read the following resolution, submitted by ~fr. According to the interpretation of the Senator from Delaware if BAY ARD April 7 : · the Legislature of any Sta1!e of the eleven that first ra.tified the C~n Resolved, That the Secretary of the Treasury be, and he is hereby, directed to stitution had failed to send two Senaiors here to. compose the Senate,. transmit to the Senate a statement of all sums of money which have, in 1870 and in the gov:ernor of the State could have sent two to compose the body. each year since, been paid out of the Treasury to John L Davenport, either as There 18 no half-way ground, because we have heard it enunciated• cJ>ief supervisor of elections, clerk of the United States circuit court, United States court commissioner, or in any other official capacity, or for any service or disburse ~ere by the Senator from Delaware and by the minority report that ment what.ever; distinguishing between payments as chief supervisor, clerk of the if the vacancy exists, by a robust and athletic construction of the Con circuit court, or United Stat.es commissioner, and for other services or disburse· s~itution somebody must fill it; it must not go unfilled·. That is the, ment; and to transmit to the Senate tranlicript,s of any aml all bills, accounts or purport of the Indiana decision, which I shall read after awhile but claims on which such sums were paid to the sni1l DaYenport, and all official co~e spondence respecting such accounts, claims, auditing, and payment. up?n a ~ection of their constitution totally different· from this. ' Let us imagme the State of Delaware through its governor, after she had The VICE-PRESIDENT. Will the Senate agree to the resolution? ratified the Constitution, sending two Senatol'S here to compose this. Mr. CONKLING. I should like to be permitted to read this reso body. It would be a very wonderful stretch of imagination to pict lution over for a moment. I did not notice that it was called up and u~e it, because it would be a sight at which men might weep if angels. I have not read it, which I will do in a single moment if I am allowed. m1ght not. [~pause.] Now ran this matter through farther. The second clause of section. I do not nnderstaml,-perhaps it is not important that I should or 3 of article 1 provides that- th~t any othei: Sen3'.tor except him who mo~es the resolution,-the Immediately after they shall be assembled in consequence of the first election obJect of several of its clauses. However, without nndersta.ndinO', I they shall be divided as equally as may be into three classes. The seats of tll.;_ do not feel called upon to object. The Senator wants to know what Senators of the first class shall be >a.cated at the expi.ration of the second year; of· 288 CONGRESSIONAL RECORD-SENATE. APRIL 8, the second class, at the expiration of the fourth year, and the third class, at the ing was indicted in this nC'w circuit and he was convicted, and he expiration of the sixth year. • carried the case to the Supreme C01ut on the ground that there was For what pnrposeY no proper tribunal before which he was tried. The court in passing So that one·third may be chosen e>ery second year. upon that say: . Not" appointed'~ every second year. If the construction of the op It is objected that the judge who presided was not properly tho judge of tlrn t circuit, because appointeii by the govornor instead of bein~ elected by the poople. posite side is correct it should have said "so that one-third may be The objection is not well taken. The act creating the circuit was declared in force chosen or appointed;" but we find not here the words "or appointed." from its passage, as a case of emergency. We have only the word " chosen,'' the very word which is used in the The Constitution has created the Senate under clause 1 of section 3 first clause of this section, when it says "chosen by the Legislature," of article I, and all it needs, according to that very language~ is that which means elected by the Legislature. It is hardly worth while it should be "composed." So the St.ate of Indiana created this cir for me to remind the Senator from Delaware how dangerous it is in cuit l>y an act which went into operation at once. The court say: the interpretation of any instrument, from the Constitution down to If there was a -vacancy, it existed independent of that declaration. If there was tho lowest and smallest written document, to incorporate words into no vacancy, that body could not create one by a declaratory enactment. The >a a statute or into a constitution which do not exist there; yet to make cancy flowed as a natural consequence of their doing what they ha cl a right to do his argument tenable yon must read, "so that one-third may be chosen to create a new circuit. There is no technical nor peculiar meanin" to the worrl "vacant" as u ed in the Constitution. It means empty, 11noccupied; as up-plied or appointed every second year." However, the: framers of the Co? to an office with011t an incumbent. There is no basis for the distincliou urged that stitution did not incorporate the word "appomted," but they said it applies only to offices >acated by death, resignation, or othefwise. An existin~ "chosen," to tally with the word ''chosen" used in the first clause of office without an incumbent is >acant, whether it be a new or an old one. * * * the third section of this article. The emergency which created tl1e office would imply that the vacancy in the office Now, we have the vacation of these seats by faw. When that is of judge in the new cil'cuit should be :filled immediately. done according to the fair interpretation of this instrument, the Leg Now, how does the governor fill it f The cifo-htoonth section, article 5, provides that the governor 1;hall by appoint islat~ro alone can step in. Then: 1 ment, fil a vacancy in the office of judge of any court. And if >acancies happen by resignation, or othenvise. That is all the constitution of Indiana says. Now will any one take That is "if .vacancies happen" after the seats have been filled, bi~ micrnscopo and see how much that varies from the provision of our after the' Legislature has chosen, " by resi O'nation, or otherwise," Constitution which we now have in hanr1. There tho governor was meaning by expulsion or by death. Those three are the only cases. empowered under the 9onstitution to fiil any and all vacancies in the The word;, happen," whether you enlarge it or whether you narrow judicial office. Here the Constit.ution, after providing what se.ats it in its construction, affects at last the incumbent in _the seat b_y shall be vacated by operation of law and when, then says if any of some acciuent or by some casualty. Hence the word '·happen" is these seats happen to become vacant by resignation or o4iherwise the used referrin{Y to something which takes him out of the seat, leaves governor may appoint temporarily. So it is nothing to the purpose both' an unfilku seat and a broken term. Tho precedents cited by to read this deoision. The decision of a court, though it is frequently the Senator irom Tennessee [Mr. BAILEY] and the Senator from Geor not the case in point of fact, is always supposed in law to have been gia [Ur. HILL] yesterday sustain this position. The debates in the made with reference to the particular fact.s oI the case before it; and case of Dixon, which was never referred to a committee but actetl that decision must be confined to the power ~ranted under section 1 upon by the Senate, sustain it, as do the reports in other cases to of article 5 of the constitution of Indiana, which has not the remotest which I shall refer before I conclude. That is the fair and the proper similarity to the provision of the Constitution of the United States construction of this instrument; and when you give it that construc we are now speaking of. tion you obey the first rule of const.ruing w1·itten instruments, which Both the reports, the majority and the minority, omit in their list is that everv word in the instrument must live and speak; you can of cases a very important case that was decided by the Senate iu tho not throttle· it and take one word out and put another in. very eru·ly history of the Government, in fact the very secoml case I say, then, on this point, that the Legislature being the original of this character, which I will now proceed to refer to, and I will constituency, that constituency must first act; and if the person thus reau it the more readily because it answers directly the question that chosen falls out of his seat by any accident, auy happening of an was put the other day by the Senator from :Wisconsin [Mr. CARPEX unforeseen event, then the governor steps iu and supplies the place TER] to the Senator from Massachusetts [Mr. HOAR] wheu he bad temporarily; says the Constitution, by "temporary appointments the tloor upon this (]_uestion. It is the case of Kensey Johns, of Dela until the next meeting of the Legislature." ware: In my humble opinion, the theory that the Senate must be full, and George Rea1l, esq, ha>ing resiJ!Iled his seat in the Senate on the 18th of Sep· that where the Legislature fails for any cause to fill a seat the gov tembcr, li93, the executive, on the l!Jth of March, 1794, appointed and comm1s ernor therefore, must do it, or somebody must do it, finds no support sioned the saitl Kensey Johns to represent the State in the Senate till the next in meeting of the State Legislature. th~ Constitution. It is a well-established principle of jurispru On tlte 24th of March, li!H, lli. Johns appeared in the Senate aml producetl his dence that when one tribunal has jurisdiction and fails to exercise it credentials of appointment. no other tribunal can assume it. The President sends in nomiuati:ons Whereupozf it was mo>ed that the:\" be refen-cd to the considerati011 of the Com to the Senate; the Senate advises and consents; but if the President mittee of Elections, before the said Kensey Johns should be permitted to qualify, who are directed to report thereon. fails to send them in, according to the argument of the Senator from And it passed in the affirmative-yeas 13, nays 12. Delaware the Senato must nominate and then confirm, because the On th.e 26th of March the committee made the followin~ report: offices mu'st be filled regardless of how! The House of Representa "Tho Committee of Elections, to which were referred the credentials of au ap· tives is to originate money bi~s and the Senate. may amend them ; pointmcnt by the.governor of the State of Delaware of Kensey Johns as a Senator of the United States, having had the same under consideration, report: but if from fail:Jre to perform its duty, fa om caprice, or what not, the "That Goorge Read, a Senator for the State of lJelaware, re igned his seat on House should neglect to originate them, the Senate then must come in the 18th day of September, 1793, and Mr. GARLAND. That is precisely what I stated. only until the meeting of the Legislature and the election or failure Mr. CAMERON, of Wisconsin. Allow me further to say that pre to elect of the .Degislature that intervened, and then what are yon to cisely the same question was discussed in the Phelps case. The Ken _do 'I According to the theory that is here zealously and emphatically sey Johns ca.se is referred to, I think, in both the majority and minor urged, the governor would have a right to appoint, but that is not ity reports in the Phelps case, and it is agreed to by the minority the theory, and by the decision of the Senate in the cases of Johns report, and we find no fault with that case, but we think that it is and Williams is not the legitimate theory growing out of the language not a case in point. of the Constitution. Mr. GARLAND. The Senator's statement of the Johns ca.se is pre Now we come to the case of Phelps, and that case let me call your cisely what I stated before I read the case. The Senator from Wis special attention to. The minority report against his taking his seat consin states t.he facts and the theory of the decision as I understand was adopted by the Senate, and I wish now to call the attention of them ; but in the name of the Constitution and all law pertaining the Senate not to the debate, but to the minority report. Two Sen thereto and made thereunder, if he agrees to that decision, what be ators who discussed the question yesterday on the side I am on re comes of this case that be is now advocating! It is a stronger case ferred to the debate, but I wish to call attention to a clause of this for admission by all odds than the claimants for this seat. Here, I re report signed by Senators Butler and Bayard : peat again, was an unquestioned vacancy and one by resignation, The Senate of the United States is composed of organized constituencies, the in the very word of the Constitution. It is true a Legislature did St.ate Legislatures; to them belong the power primarily of electing their Senators intervene and it failed to elect, but the minority report, as well as when they are in session at the happening of the vacancy and at their first meet inp: when it happens in their recess, and on them devolves the exclusive jurisilic those who have advocated the same doctrine on the floor, says it does tion of filling such vacancies. Their right and authority to fiU or supply yacan not matter how the vacancy occurs, if it is a vacancy, the governor cies which have been temporarily filled by executive appointment are as absolute must fill it the first chance be gets. and exclusive as W 'lS their power in an orip:inal election. When their power is Mr. CAMERON, of Wisconsin. If I do not interrupt the Sen brought into existence it must supersede all others, with this qualification, and that according to precedent, that they have a session to make the choice. In our .ator-- view it does not depend on the actual exertion of the power to elect, but on its ex Mr. GARLAND. No interruption. We are trying to get at the istence. A Senator under an executive appointment may, or may not, repre ent truth. the political views of his State; he may be the mere personal favorite of the gov Mr. CAMERON, of Wisconsin. Then I desire to call the Senator's ernor. The Senate, as far as practicable, should be made to represent its constitu tional constituency, and in this respect should prt:.Serve the republican feature of attention to the language of the Constitution: our Union. And if vacancies happen by resignation or otherwise, dnring the recess of the Legislature of any State, the executive thereof may make temporary appoint· There, Mr. President, is the ~rea.t reason which lies at the bottom ments until the next meeting of the Legislature. of the argument I am attemptmg to make. That is the overwhelm Now, the ground that that decision is put upon is that there was ing argument why a governor cannot thrust himself in and send a a meeting of the Legislature after the vacancy had occurred or hap person to represent his State in the Senate of the United States at pened, and consequently that the authority of the governor to make the beginning of a term, where there is not a concurrence of both an the appointment did not then exist. The governor undoubtedly unfilled seat and a broken term. There the power devolves on the could have made the appointment if he had made it prior to the original constituency whom the Senators are supposed to represent meeting of the Legislature; but the Constitution expressly provides immediately, that constituency representiug the State. We know in that he shall make temporary appointments "until the next meeting the history of this body how often it has been that the governor has of the Legislature." That meeting had occurred, and consequently sent his mere personal favorite for a few months to go home and be he bad no further right to make an appointment. ignored by bis constituency, and a man nearer and to exercise its jurisdiction the governor may come in and make him It is thus prescribed by the statute. The Le()'islature is com-· self the constituency of a Senator and send him here. manded, it is mandatory upon it; the Legislature is commanded te> Mr. President, I have occupied the attention of the Senate longer elect, and the specific Legislature is pointed out-the preceding one. than I intended; and to close just exactly where I began, I repeat· What is its duty Y Senators will notice that this is mandatory through that there is no authority in law, by my construction of the Consti out. "Shall proceed to elect." When Y What Y Elect "a Senator tution, for the admission of this applicant; there is no precedent to in Con~ress; " and the statute as enacted originally, but not now be found for it; there is no analogy upon which it can be rested. At found m the Revised Statutes, contains these words, "iu the place of the beginning of a new term the governor of a State cannot send a the outgoing Senator," showing clearly what was in the legislative Senator here on any ground. The governor cannot place on this :floor mind at the time of the enactment of the act of 1866. "Shall pro a Senator to begin a new term. There must be an unfilled seat and ceed t_o ~lect a Senator in the roo~ of the outgoing Senator" were a broken term previously begun and held by some in cum bent to allow the ongmal words, and of course it follows that the construction to . the governor to appoint. If Mr. Wadleigh had resigned on the 20th be placed upon section 14 is that they shall proceed to elect a Sen of February and the governor of New Hampshire had appointed Mr. ator in Congress in the room of the outgoing Senator. For how long f Bell to fill out the unexpired term, how long could he have retained Can there be any doubt about that f For a full term. The Con it 'I Till the 4th of March. 'l'hat is a sufficient answer to this whole stitution says so; the statute says so. The duty is cast upon th& case, it seems to me. Can it be said that he could then take him and Legislature and upon the organism of the State to elect a Senator for send him back here from the 4th of March to begin a new term 'I He a full term in the place of the outgoing Senator. It fixes beyond could not, because he under the Constitution, if it means anything, question the duty of the Legislature under this provision of the Con can only fill the breach that has occurred in the wall by putting in stitution to fill a term of six years. another l>rick or filling it up with mortar, as the case may be. ~ut go further. I turn to section 16. After section 15 has ap Mr. WALLACE. Mr. P1.'esident, I should regret but two things in pomted the mode and manner of electing the Senator, in section 1& this case, either that the Senate should l>e divided by party lines or I find these words: that the State of New Hampshire should be deprived of that which Whenever, o~ the meeting of ~he Legislature of any St.ate, a vacancy exists in she is entitled to on this floor, her just and equal representation. the representation of such State m the Senate, the Legislature shall proceed on But, sir, this case must be determined by the Constitution and the the second Tuesday after meeting and organization, to elect a person to fill s~ch law, and to that the State as well as we must submit. What I have vacancy- to say upon the subject shall be directed to a consideration of the How'I- constitutional provisions and the statute upon the subject. I take ~nf~i :~~er prescribed in the preceding section for the election of a Senator for the Constitution; I find in article 1, section 3, clause 1, thus: The Senate of the United States shall be composed of two Senators from each Now, is it possible to err in interpreting this statute f Can there State, chosen by the Legislature thereof, for six years ; and each Senator shall have be any question about the plain reading of the law Y Is it not plain one vote. that the fourteenth section and that which follows it, the fifteenth "The Senate shall be composed of two Senators from each State,'' command the election of a Senator by the Legislature, which Legis: and they shall be " chosen by the Legislature thereof ; " they shall lature is pointed out, for a full term, and that when a vacancy occurs. bold for a term of six years, and ''each Senator shall have one vote." under other circumstances the sixteenth section comes into play. Here are mandatory provisions in regard to all the subjects-matter What other vacancy could there be Y The evident answer is one that contained in this clause. The number, two Senators; no State shall has occurred under other circumstances than those which arise from have less than two; it is mandatory; the constituency the Legisla the existence of a full term to be filled. It is the only interpretation ture, "shall be chosen by the Legislature" of the State; their vote, that seems possible, and in my view it is the reasonable one. "each Senator shall have one vote." There is no ambiguity here as .Mr. CARPENTER. When that shall happen. to the const.ituency ; it is not the people in their individual capacity Mr. WALLACE. When that vacancy happens. Having notice of at the polls, nor is it in their capacity as a whole; nor is it the State; the time-the Legislature of the State of New Hamp hire had full nor is it the governor; nor is it any organism that may be called into notice of the time when it should act, in view of the expiration of being by the executive or people.; it is the law-making power of the the term-the Constitution placed upon it the responsibility pf ac Stn.te that is vested with this authority under the Constitution of the tion ; it was bound to take notice. Having full notice of the time to United States to elect Senators, not the people individually, not the act, it must act. It is bound to act, or it fails to perform its duty as. executive, not the people at the polls in their primary or any other a part of the famtly of States; it fails to carry out the Constitution. capacity save as they.are represented by the law-making power, the But it is said the State of New Hampshire would be without a Legislature of the State. They shall choose the Senators. I turn then Senator if this be the interpretation. The responsibility for that is to article 1, section 4, clause 1, and find thus : not upon this body; it does not come to our door. 'l'he States are The times, places, and manner of holilin,e; elections for Senators and Represent· members of the family which meet in this Chamber, and they have atives shall be prescribed in each State by the Le~islature thereof; but the Con responsibilities :ind duties, and they must perform them. If there gress may at any time by law make or alter sucn regulations, except as to the come a vacancy in this Chamber in a full term, by reason of the mis places of choosing Senators. · fortune or the :fault or the laches of the State of New Hampshire to· "But the Congress may by law at any time make or alter such reg act, it does not lie at our door, it lies at the door of the State of New ulations." Congress has acted, whether constitutionally or not I Hampshire, and to that extent she loses representation. Sir, the State ehall not attempt now to discuss; but upon the statute-book, under organization must act. It must acquiesce in the constitutional pro date of 25th July, 1866, is found a statute enacted uy Congress regu vision and in the statute that interprets and enforces it, or it loses its. lating the times and the manner of electing United States Senators. reprnsentation in this body. Why is this t Because the power that exists in the States to fill the We tarn next to clause 2 of section 3 of article 1 : seats in this Hall must be exercised by the Legislature, and Congress .And if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the executive thereof may make temporary appointments. bas thus prescribed the mode and the.manner of ~ercising the power until the next meeting of the Legislature, which shall then fill such vacancies. thus given. 'fhe Government is not to fail; the responsibility is upon the States-the Constitution and the statute place it upon the The statute of 1866 interprets this provision, and precedents are States. The words are, the States shall elect; Congress prescribes valuele~s if it has rightly enforcecl this clause of the Constitution. . the manner of the election and the time. Congress may make these It has in emphatic words said that the Legislature, a specific Legis regulations, and has done so. lature, a named Legislature, shall elect a Senator for a full term, and :Now, I affirm that the act of 1866 carried into the Revised Statutes no other interpretation can reasonably be given to the two sections. is an interpretation of the constitutional provision, and by it we are that I have read. That the Legislature of the State of New Hamp to be governed. Precedents fade away if this be a constitutional shire, that the organism that exists there to carry on the government interpretation of the Constitution itself. If it is, we are bound by of the State, may sit still and not perform a duty placed upon it by the statute thus enacted. It is found int.be Revised Statutes, begin constitutional requirement and statutory enactment, seems to me to ning at section 14. What are the provisions of this statute T Section be an absurd proposition. It must act, and failing to act, the result U is this: must follow that it has no representation in that term in this body., TheLeµ:islature of each St.ate which is chosen next preceilini:i: the expiration of But what of the words "happening during the recess'/" The the time for which any Senator was elected to represent such State in Congress words in this clause of the Constitution are, "happening during the shall, on the second Tuesday after the meeting and organization thereof, proceed recess of the Legi.slature," and they apply to a vacancy other than a to elect a Senator in Congress. full term. Assuming that the statute rightly interprets the Consti Here is the obligation placed peremptorily upon a "Legislature.'' tution, can these words apply to a vacancy to occur at a fixed date, What Legislature T The Legislature elected preceding the expira to be filled by a named body at a given date when in session, of tion of the term of a Senator in Congress, which term·is fixed by the which the State and the Legislature have full, clear, and distinct. other clause of the Constitution at six years, about which no man notice, and about which a plain, clear, and distinct duty is placed can err, about which the organism of the State must know, about upon them 'I which, if it intends to keep up its representation in the Senate, it is. These words cannot apply to this case if this statute be a faithful bound to know. Six years is the term, the foll term. This is a interpretation of the Constitution, and we for the present assume it mandatory provision of the Constitution; and the other thought is. l!'irst, it does not happen within the plain meaning of the word which comes by construction, that the Senate is a continuous body, "happen." "Happen," when both the law and Constitution point yields and gives place to the mandatory provision that a full term is out the time when the Senator. shall be chosen! "Happen," when for six years, of which the State in all its organism, of which the everything surrounding its duty in regard to filling up its member- Legislature, the power that elects the Senator, must take notice. ship in this body points out the hour when it must act! It cannot . • 1879. CONGRESSIONAL RECORD-SENATE. 291 be that the words "happen during the recess" can be applied to this who could assemble and act under a proclamation from the governor case. The term ''happen" cannot reasonably be applied to the occur of that State in any emergency which required legislation. In June, rence of an event for which the hour is fixe .• ·.'.I! 292 CONGRESSIONAL RECORD-SENATE. APRIL 8, This is clearly a restriction upon the power granted in the fourth senatorial terms is fixed by the ConstH·1tion !tJ.d laws, aud will occur section of the first article, that Congress may alter the State regula. with as much regularity as the sun wlll rise ani set, 1vhile the Gov tions except as to the place of choosing Senators. In other words, ernment lasts. There is, however, a class of vacancies, that may hap Congress can make no alterations of the regulations prescribed by a JJen, not regulated by law. Those vacancies which are not certain State, which shall have the effect to deprive such State of its equal to, but may" happen." What does the word "happen" mean f Turn representation in the Senate for a single day. A single day is as clearly ing to Wclbster's Dictionary I find th.-ee definitions given of it. The in violation of this provision of the Constitution as five years. There first is, "to come by chance, to-come without one's previous expecta may be an extra session convened here to consider the question of a tion, to fall out;" the second is, "to come, to befall;" the third is, war with England and with the rest of mankind, and every State is "to light, to fall or come unexpectedly." In all the definitions of entitled to be represented on that question tbat day, and an act of this word "happen" the elements of chance is embodied, and this Congress which makes it impossible for her to have that representa shows that the word "happen" was used by the framers of the Con tion is an unconstitutional act of Congress, utterly void, of no force stitution with as much felicity as any other phrase found in that or effect, and binding upon the act.ion and conscience of no member instrument. of this body. The same word occnrs three times in the Constitution, and always Now, let us examine a little more critically this provision of the in connect10n with vacancies occasioned by chance or accident. Arti Constitution. In the first place, the regular terms are to be filled by cle 2, !Section 2, provides: Senators chosen by the Legislature; but when a vacancy happens~ The President shall have power to fill up all vacancies that may happen durinir the recess of the Legislature, the governor may make a temporary tl.te recess of the Senate, by p;ranting commissions which shall expire at the end of appointment. The governor cannot choose a Senator to fill such a their next session. vacancy; lience be appoi11t.s. The choosing relates to· the regular Article 1, section 2, provides: term, and is to be by the Legislature; but the temporn.ry vacancy that When vacancies happm in the representation from any State, [in the House of Representatives] the executive authority thereof shall issue writs of election to may happen in the recess of the Legislature may be filled by an ap fill such vacancies. poinhnen t by the governor to last until the next session of the Legis .Arid article 1, section 3, concerning the Senate, provides : lature of that State. And if vacancies happen by resignation or otherwise, during the recess of the In order to uphold this appointment and give Mr. Bell a seat, two Legisla.ture of any State, the executive thereof may make temporary appointments things must appear: first that a vacancy had happened within the until the next meeting of the Legislature, which shall then fill such vacancies. meaning of that clause of the Constitution, and second that it had The word" happen" appeared in the original draught of the Consti happened in the recess of the Legislature of New Hampshire. tution, and remained throngh all the changes and revisions of that When the Senator from Georgia [Mr. lIILL] announced bis con instrument by the convention ; and was manifestly selected as appro struction of that JJl'OVision which speaks of ''vacancies by resigna priate to the particular vacancies spoken of. tion or otherwise," I was inclined at that time to si •• 1879. CONGRESSIONAL RECORD-SENATE. 293 Mr. CARPENTER. I submit to my friend from Minnesota that if be a vacancy which bas bappe11ed "by resignation or otherwise," he will let me give my perhaps en·oneous view of this subject, when in other words, ''by resignation and so forth." That is, by resigna I conclude I will stand on my feet and be cross-examined to his heart's tion or some other unexpected cause. A very common phrase in stat content. utes iu the words 11 and so forth" which means what f Things of a Mr. Mc::\ULLAN. I have not said the Senator's views were erro similar kind. For instance, the statutes of several of the States ex neous. empt 11 to a mechanic, miner or other person" property to the a.mount Mr. CARPENTER. No, I say that. _ of $400, the courts; yes, the courts of Kansas-for I see the Senator Mr. McMILLAN. I have only expressed a circumstance to the Sen from Kansas [Mr. INGALLS] is rejecting this theory-his own courts ator which I desired him to explain, that I might form as correct a have held that under that statute exempting to mechanics, miners view as himself upon the subject. · and others $400, the word "others!' does not mean everybody, as the Mr. CARPENTER. And in the course of my explanation the Sen word would naturally mean standing alone; it means others of a like ator breaks in and asks me to explain. kind, falling within the Harne class, thus referring to and indorsing Mr. McMILLAN. I beg the Senator's pardon. the English decisions to which I have already referred. I think I can l\Ir. CARPENTER. I am arguing the precise question as well as lean refer the Senator to one or two cases in Kansas. A case in 9 Kansas, which be wishes me to argue, and be interferes with me and says page 30, follows this principle. A case in 2 l\linnesota, page 89, also "will you not go on with t.hat point" while I am going on with it. follows the same principle; and indeed thi'3 is but adopting the prin [Laughter.] ciple well established by the English courts, by Lord Ellenborough Mr. McMILLAN. I desired to suggest to the Senator merely a cir and by others, whose authority, without the support of any American cumstance which would qualify his explanation of theterm ''happen." courts, would be sufficient to settle this question, because they were Mr. CARPENTER. That is in the nature of a reply. adjudications pronounced and well known before the Constitution Mr. McMILLAN. I made a suggestion to the Senator which I de was adopted. A very strong case on this point is that of Cullen vs. sired him to answer. Butler, 5 Maule & Selwyn, 465; and I will also refer, in this connec Mr. CARPENTER. What is the suggestion Y tion, to the act of 1860 already referred to by the Senator from Penn Mr. McMILLAN. I have already stated it to him; but if he sees sylvania [Mr.WALLACE] and which is expressive of the understanding proper to avoid any answer, I am of course satisfied. of Congress upon this subject. Section 14 provides that : Mr. CARPENTER. Will the Senator be kind enough to state it The Legislature of each State which is chosen next preceding the expiration of once more, as I did not clearly understand him Y the time for which any Senator was elected to represent such ~ ta te in Congress M..r. McMILLAN. I thank the gentleman for bis remark in that shall, on the second Tuesday after the meeting anu organization thereof, proceed connecti6n. The expiration of the term of tho late Senator from New to elect a Senator in Congress. Hampshire occurred upon a certain day during the vacation of the What is the meaning of this section Y What tlid Congress intend Legislature, and when the Legislature which had been chosen prior to accomplish by it 1 The lawyers in this Chamber will tell you t hat to that time could not elect a successor. it is the tluty of every one oolled upon officially to const rue a statute, Mr. CARPENTER. If the Senator means the Legislature elected to so construe it, if consistent with its language, as to carry out tile in the fall of 1878, it was not a Legislature when l\Ir. Wadleigb's intention of those who enacted it. Was it not intended by that sec term expfred. tion to provide that the Legislature which sat next before the expi Mr. McMILLAN. Then the fact that no successor was elected to ration of the term should fill it 7 Was not that the meaning of it Y succeed Mr. Wadleigh created a vacancy which occurred during the The Legislature of each State which is chosen nex t preceding tho expiration of recess of t.he Legislature, and the fact that the Legislature of New the time, &c. Hampshire could not elect is the circumstance which occasioned that When that act was passed, I believe there was not a single State vacancy. That is the reason why the vacancy happened. in this Union, whose Legislature, elected next prior to the expiration Mr. CARPENTER. The Senator from Minnesota illustrates by his of the term, did ·not also meet and organize prior to the expiration of argument-for it is not a question at all, it is an argument-that he the term. The fact is that this case of New Hampshire bas arisen takes a different view of this subject from that which I take. I have since the act of 1866 was passed, it was not in the min • i 294 CONttRESSION.AL RECORD-SENATE. APRIL 8, There is another piece of evidence on this subject to which I wish from Delaware [Mr. BAYARD] says if that Legislaturo bad been .con to refer, ancl that is the record of proceedings in the Senate last June, vened on the 4th of March in extra session to elect a Senator and had when the bill to enable the Legislature of New Hampshire, then in been in actual session on that day for the express purpose of filling session, t o elect, was before the Senate. I understand (and as my that term it could not have done so. To that extent Senators must colleague is thoroughly posted in that matter he will be able to set go to maintain the power of the governor in this case to appoint. me right jf I am wrong) tpat the bill which was introduced by him Take it upon that ground. Suppose the Senator is right in that T was introduced for the express purpose of being defeated! for the Suppose that that Legislature, the old Legislature, could not elect a express purpose of enabling the Committee on Privileges and Elec Senator if they were sitting to-day-for that is what the Senator tions to make upon it an adverse report. from Delaware distinctly answered to my question yesterday-what Mr. CAMERON, of Wisconsin.· I introduced a bill, but I did not is the result ' .A recess of the Legislature which can make the ap introduce it for that purpose. pointment cannot occur until such Legislature is in existence; that Mr. CARPENTER. The Senator seems to have got sick of it soon is certain. The new Legislature of New Hampshire will have·no after introducing it. official existence until the first Wednesday of June next. Then the Mr. CAMERON, of Wisconsin. Not at all. governor must wait until that Legislature shall assemble and take a Mr. CARPENTER. My colleague reported against it, did he not 'I recess before he can make an appointment, upon the ground urged Mr. CAMERON, of W isconsin. I did not r eport it. I concurred in here that he is acting in a recess of the Legislature. I do not see any the report, however. · escape from this conclusion. So that, if these Senators are right in Mr. CARPENTER. Which was against it ? • the theory upon which they would give Mr. Bell a seat, they must go Mr. CAMERON, of Wisconsin. Which was against it. one step further and deny him a seat because the governor actecl pre Mr. CARPENTER. I have always understood that when a Senator maturely. It will not do to say there was on the 13th March last a concurs in a report, it is his report; in other words, it is the report of recess of the Legislature which was not then in official existence. all ~ose who concur in it. The Senator says when he introduced tho The Legislature elected in March, 1878, are to bold nntil next June, bill he meant t o pass it, but he changed his mind immediately, and when the new constitution goes into operation. Until that hour it reported against it. I undemtand, in other words, that it was de is as silent as though it had never been written. It bas no effect signed to bring this body to vote upon the question of whether that until that time. It is silent until the first Wednesday of June next, Legislature could elect, and to vote that it could not. I infer as much but the old constitution and the old Legislature continue until that from the RECORD. I find Senators here saying that that Legislature time. might elect ; a bill was introduced declaring that that was the true But by some provision of law the people, in the fall of 1878, chose meaning of the Revised Statutes; yet I find the very Senators who the persons who, after the first Wednesday of June next, are to com expressed such opinions voting against the bill. But I particularly pose the Legislature of that State. Until that time arrives the per refer to the RECORD to show that the o~inion I hold is confirmed by sons so elected are not members of the Legislature of that State. able Senators now on this floor. When this bill was before the Sen When the new conAtitution takes effect they will, in virtue of the' ate Mr. Wadleigh claimed that it ought to be passed. I read from action of the people last fall, become members of the Legislature; page 4357 of the Co:xGiillSSIONAL RECORD: · but at present they have no official existence. When Territories un · Mr. W A.DLEIGII. The Senator from Ohio would have us believe that there is some der enal>ling acts of Congress form constitutions of State government, doubt as to whether this Lf".~slatureorthenext is entitled to elect. That is a mat they elect their Senators; and the practice has been that such embryo ter which greatly concerns roe people of New Hampshire. It is desirable ~t tha;t Senators come to Washington to procure the admission of the Terri que tion should be settled at once so that they may not put themselves ma posi tion from which they cannot be extricated without great embarrassment. Ac tory as a State. But they are not Senators until the State is admitted. cordingly a bill was presented to this body by the Senator from Wisconsin, [Mr. If Congress should never admit the State they never would be Sena CAMERON,] and r efened to the Committee on Privileges and Elections, which re tors. If the State is admitted then the election of such Senators is ported unanimousl:v that this Legislature cannot elect the Senator, that the next cured by relation, and they become members of this body. L egislature must elect. That shows to us clearly that unless this bill passes there m ust be a vacancy in this Se?iate from the State of New Hampshire for three 'rlwnths Such precisely is the situation of those persons who have already in the next Congress. That is the reason why this proposition should pass. been elected to compose a Legislature under the new constitution of It was very clearly the opinion of Mr. Wadleigh at that time that New Hampshire. Until the new cons1iitution takes effect they are the governor could not fill that unfilled term at its commencement. not members of the Legislature of that State; nor could they, before Biit Mr. THURM:A:X inquired: that time, assemble and organize as a Legislature. If the governor I s there any probability of Congress being in session during those three months 1 of that State should to-day find it necessary to convene the Legisla Mr. WADLEIGH. I do not know about that. ture, in extra session, to meet a sadden emergency,.the old Legislature Mr. WnYTE. I ask the Senator from New Hampshire why the governor of New would respond to his call; because it is the body which now possesses, Hampshire cannot appoint for the vacancy until the Legislature meets in June ¥ and until the first Wednesday of June next will possess, the legisla Mr. B r,AL.'IE. H e cannot do that if the previous term has fully expired. Mr. WnYTE. Suppose this Legislature bas power t-0 elect and does not elect, is tive power of that State. On the 13th of March last, and to-day, there not that a vacancy¥ is no Legislature of that State, except the old one elected in March, '- :Mr. Br,AJNE. Then tho power of the governor does not come in. 1878. From this it follows that if on the 13th of March last there was Mr. Wnrn. It does, apparently. a recess of the Legislature of New Hampshire within the meaning Mr. BLAINE . Not at all. Mr. DA WES. ETery precedent of the Senate is against that. of the Fe would not the appointment of Mr. Bell thereby have been terminated, ~ents until the next meeting of the Legislature, which shall then fill snch •acan• even conceding its former validity 'I This certainly would have been mes. -so, apart from the act of 1866; certainly would have been so under If I understand the argument of my friend, he holds that a va the constitution. But the Senator from Delaware [:Mr. BAYARD] r.ancy occurring by the expiration of a term is not a vacancy within says Congress bas by the act of 1866 forbidden that Legislature to fue meaning of this clause of the Constitution. Then, if th':1t is the act. I think it a great error so to construe the act of 1866. But if case, this provision that the'Legislature "shall then fill such vacan it mu at be so construed then I have a short reply. The act forbids cie~" bas no application, because it is only in cases of vacancies the State of New Hamp8hire to exercise her rights as secured to it which the governor may fill by a temporary appointment that this by the Constitution of the United States. The act is therefore un- clause provides that the Legislature at the expiration of such tam- constitutional an cl utterly void. . porary appointment shall fill the vacancy. I submit that the State of New Hampshire has a right to an equal Mr. CARPENTER. That is undoubtedly so; but what is the oon- representation on this floor. She had a right to assemble her Legis- sequence; what does it prove Y lature in that State according to the forms of law by a proclama- Mr. THURMAN. It proves that the Senator's remarks have no ap tion of the governor on the 3d of March· to elect a Senator for the p~ication~ as it seems _to me, but it may be for want of comprehending term beginning on the 4th of March, and it is not within the prov- hls meanmg. That is the reason why I ask the question. It proves ince of the Senate or of both Houses of Congress to strip her of that that if the Legislature should now assemble, if the Senator's inter power. pretation of the Constitution is correct, that clause in the Constitu- Suppose the governor bad so convened the Legislature, and the tion which provides that the Legislature "shall then fill such vacan -0ld Legislature had met on the 3d day of March and on the 4th or cies" wonld have no application. 5th had proceeded to elect: what would have been the effect upon Mr. CARPENTER. That is giving to my remarks a most remarkable Mr. Bell's appointment? The Constitution says that if the vacancy turn. The Constitution here treats of two subjects; first, the election happens, and I pass by the meaning of that word now, the governor to fill the regular terms. There is no dispute among Senators about may make a temporary appointment until the next meeting of the that. That is to be done by the Legislature. Of course if the Legis Legislature, which shall then fill the vacancy. In the case I sup- lature is not in session on a certain day, whenever it is in sesiion it pose, I ask any lawyer in the Senate if the old Legislature, elected must then perform the duty. Nobody doubts that; but the appoint in March, 1878, convened by a proclamation, would not have been meats to fill vacancies happening in the recess of the Legislature are the Legislature which the Federal Constitution declares shall fill only to last until another meeting of the Legislature, and therefore that vacancy 'I thp Constitution provides that the appointment which tho governor To escape that conclusion Senators must say that New Hampshire shall make in the recess shall expire on the meeting of the next ses -0n that day had two Legislatures, one to do certain things and the sion of the Legislature. They are different subjects entirely. -other to do certain othel' things. But the most important thing that Mr. THURMAN. If my friend will permit me, I admit that if there New Hampshire had on hand on the 5th of March last was to elect a is a Legislature competent to elect and if it were to assemble now, it Senator, and if the governor had convened a session of the Legislat- would be its duty to fill the vacancy whether any appointment had ure for that purpose on that day, I want to ]s:nC'lw upon what au- been made by the governor or not, but it would not result from that thority, I want to know by what cfause in the Constitution, both" clause of the Constitution which the Senator read. Houses of Congress could pass a law which should deny her the 1t1r. CARPENTER. Not at all; I do not claim that it would. Tight to do so 'I But it is said the act_ of 1866 ha.a done that. Then Mr. THURMAN. It would result from the other clause, which re- the act of 1866 is unconstitutional and void, and passes out of this quires the Senator to be chosen by the Legislature. discussion entirely. Bui I submit that the act of 1866 has not done Jlflr. CARPENTER. That is precisely what I have f.or an hour been it. It is an unnatural anA an unreasonable construction of that act contending for. We agree entirely in regard to those two provisions to say that it means that the persons who would some time in the of the Constitution. One has relation to the vacancies t.hat may .future become members of the Legislature, it may be one year, it may chance or happen in the recess of the Legislature, whereas the other, be two years after the expiration of the term-that they, and they the general, provision applies to all the cases where the Legislature .alone, and not the Legislature in life and existence on the 4th of is required to elect for the term. March, shall ma,ke that election. Such a construction would make Mr. President, I have taken much more time than I intencled to the act unconstitutional, and therefore is not to be adopted unless its occupy when I commenced addressing the Senate. I have 110 parti- 1anguage imperatively leaas to that conclusion, and then the act sanship about this matter. I never saw l\Ir. Bell until he came here~ must be declared ~oid. but he seems to be a gentleman, he is a republican, and I would be We must distinguish between that which is orclained by the Fed- very glad to have New Hampshire represented by two Senators. I .eral Constitution, and that which is establii~hed by State constitu- sympathized deeply with the sentiments of tho Senator from Dela. tional laws. The Constitution of the Union guarantees to every ware yesterday, who was so anxious to preserve the integrity of the State the right of perpetual representation in this body. Although Union and the peace a.nd prosperity of the American people that he a senatorial term may expire on the 4th of March, the President may wanted to let Mr. Bell in. I am equ::i.lly anxious to preserve the .convene Congress in extra session on the 5th, to consider the most Union aud to preserve the prosperity of the people and the integrity important questions ; question& of peace or war; questions deeply of the Constitution, and for that reason I cannot vote to seat Mr. affecting every State of the Union; and every State is entitled to be Bell; believing that to do so would be to violate the Constitution. «represented in such session. An act of Congress which makes it im- I mamtain and believe that the construction which has been put pos~ible for a State to enjoy this right, deprives the State of that upon the act of 1866 caused the evil in this chse. The old Legislature which the Constitution secures to it, and is therefore null and void. had the power in my judgment to elect a Senator and ought to have .If the act of 1866 must be so construed as to deprive New Hampshire elected one at its session in June last. As it did not, the State must ()f her constitutional right of representation, then it is void. It take the consequences and be partially unrepresented until the Leg should not be so construed if its language will admit of any other islature shall be in session to elect a Senator. In this matter the -construction. The Senator from Delaware [Mr. BAYARD] in the dis- Legislature represents the State; and when the Legislature last in .cussion yesterday, attempted to parry the effect of questions I put to session previous ~o the expiration of a senatorial term, qaving power him by saying it was wrong to reduce matters to the reductio ad ab- to make an election, refuses or ne~lects to do so, then until an elec surdmn. I suggest to that Senator, not only with deference to his tion can be made, in coMormity with the Constitution of the Union, opinion but with affection for him personally, that that depends en- the State, by its Legislature, has consented to waive its right of tirely upon whose argument is reduced to it. It is perfectly legiti- equal represent:i.tion in this Chamber. .mate, perfectly consistent with courteous debate, to show that the The action of t}le Senate at its last session, is claimed to have in .argument of an opponent leads to such conclusion. I asked that Sen- fiuenced the Legislature of New Hampshire in session in June last, ator yesterday whether, if t.he new Legislature of New Hampshire not to make an election; and therefore it is claimed that a strong should not be in official existence for ten years, it would be in th~ equity exists for admitting Mr. Bell to a seat under this appointment. .power of Congress to declare that such Legislature, and not the one If this question were to be determined, not by the constitutional laws in existence at the expiration of a senatorial term, should elect the of the Union and of that State, but by good nature and official gal -.successor. He complained that the question involved a reductio ad lantry, Mr. Bell might found some claim upon this ground. But the absurdmn. Yet I submit to that Senator that if Congress could defer most igu<>rant person in the land is presumed to know the law, there- - the power of election from a Legislature in existenoe "when the term fore I think the Legislature o_f New Hampshire must be subjected to -expired to one which would be in existence three months afterward, the same presumption. If other Senators can feel justified in absolv- it could as well confer it upon a Legislature which would be in exist- ing themselves from obedience to the constitutional laws, and admit ence ten years afterward. Conceding the power of Congress to post- Mr. Bell upon the ground that the act'bon of the Sebate last year mis pone the power of electicm beyond the commencement of a new term, led and deceived the Legislature which ought to have filled this term, it would clearly be within the discretion and power of Congress to they will be justified in voting to seat him, and their doing so will determine how long such power should be postponed. cause me no regret. But I cannot yield to such considerations with- Mr. THURMAN. Will my friend allow me to .ask him a question out do'ing that which in my opinion would violate the Constitution I .here, in order that I may get the right understanding of his remarks' have, as a Senator: sworn to support. And while I pass no criticisms Mr. CARPENTER. Certainly. upon those who differ with me, I must perform my duty as I under- Mr. THURMAN. Speaking of the Leg_islature that would have stand it. .power to elect, if the Legislature were convened, the Senator reads I Mr. GROOME. l\'lr. President, I rise not to argue at length the this clause of the Constitution: question now before the Senate, but to explain very briefly the rea .And if vacancies happen by resignation or otherwise, during tl>e recess of the S?ns which wil~ infl?ence me in casting my vote upon it. There is no Legislature of any State, the executive thereof may make temporary appoint- . right of more mest1mable value secured to the smaller States by the • 296 CONGRESSIONAL RECORD-SENATE. APRIL 8r Constitution than that of equal suffrage in the Senate. It is the only is to deprive the State of its equal suffrage in the Sen3ite without its right of which they cannot be deprived even by a constitutional consent. amendment., unless it is assented to by all the States, without the But it has been contended in substance that the people of New grossest breach of the national faith, because the Constitution declares Hampshire must be presumed to have been aware of the provisions of that "no State, without its consent, shall be deprived of its equal the United States law regulating the election of Senators at tho time suffrage in the Senate." ' they adopted their organic law; and that, as by that organic law the The manifest intent of the framers of the Constitution in employ Legislature chosen next preceding the termination of a senatorial term ing the language they have used was to provide the machinery by cannot meet until after the beginning of the new term, they must be which both senatorial terms in each State should be kept :filled and presumed to have intended and consented to the necessary result of· the equal suffrage of the State in the Senate maintained, unless the their own act in adopting that orga.nic hw. Legislature of the State, representing its sovereignty, should by its But I answer that there are some presumptions which lead to rt- own default permit one or both of them to become vacant. We ought sults so unjust that no tribunal which has full discretion to reject not, therefore, to put such a construction upon the Constitution, un them, and to decide the question at issue upon its merits, will adopt less its language imperatively requires it, as in effect to declare that them as a mere matter of law. It will at least exercise its discretion while the intent of its framers, as expressed on its face, was that "no this far: to require some proof that the presumption which the law State, wit.bout its consent, shall be deprived of its equal suffrage in would draw is true as a matter of fact. Now it is absolutely incon the Senate," its provisions in regard to choosing Senators by the Leg ceivable, as a m8.ttar of fact, thn.t the people of a small State like New islature and in regard to making tell'.lporary appointments by the Hampshire have, with full knowledge of its effect, adopted a consti executive to :fill vacancies are so inaptly expressed as to defeat that tution under which, so long as it remains in force, as often as a sena intent. We ought rather to so construe it as to give full effect to torial term expires by limitation, the vacancy must continue for three the manifest intent of its framers, that each State shall be enabled months. at all times and under all circumstances to be represented by two In cases where the executive of a State bas the unquestioned right Senators on this floor. to make temporary appointments the Constitution declares that such The Constitution provides that the Senators to represent a State appointments shall expire with "the next meeting of the Legisla shall lie chosen by its Legislature ; and that " if vac!lllcies happen by ture." Yet from the very foundation of the Government the Senate,_ resignation, or otherwise, during the recess of the Legislature of any in order to prevent a vacancy and to preserve the equal suffrage of State, the executive thereof may make temporary appointments until the States in this body, bas construed that language to mean tbatthe the next meeting of the Legislature, which shall then :fillsnch vactn temporary appointment shall remain in force until the next meeting· cies;" an cl it provides that" the times, places, and manner of holding of the Legislature and election by it of a Senator, or until it shall elections for Senators and Representatives shall be prescribed in each meet and adjourn without making an election. I confess this is a State by the Legislature thereof; but the Congress may at any time liberality of construction which I would have hesitated to be the first by law make or alter such regulations, except as to the places of choos to suggest, but as it is perfectly well established and as it greatly ing Senators." Congress in pursuance of the power thus bestowed upon aids in keeping the seats in this body filled, and thus in prel!erving the it has provided by law that the Legislature chosen next preceding the equal suffrage of the States therein, I should be extremely reluctant expiration of a senatorial term shall elect a Senator to fill such vacancy. to see it abandoned. The Legislature of New Hampshire chosen next preceding the 3d of In view, then, of the liberal construction always placed by the Sen March last, when Mr. Wadleigh's term expired, bas not met and can ate on the phrase "until the next meeting of the Legislature," it not meet under the provisions of the constitution of that State until ought to have no difficulty, in order to effectuate the same important June next. object, in construing the word" happen" as equivalent to" occur ;'r The question we have to decide is whether or not under these pro which, indeed, is the word substituted for. it by Congress in the sec visions of the Constitution and law of the United States and of the tion of the law providing for the election of Senators to fill vacancies. constitution of New Hampshire the governor of New Hampshire had If such a meaning be placed upon the word "happen," there is no the right to fill the vacancy caused by the expiration of Mr. Wad difficulty about construing the Constitution and United States laws leigh's term until the next meeting of the Legislature "I made in conformity therewith to mean what I have already claimed · Construing the provisions of the Constitution relating to this sub is their meaning-that whenever a vacancy occurs in the recess of the ject and the law providing for the election of Senators together, and Legislature, and which no Legislature of the State is in default fof" with a view to carrying into effect their principal intent, thatthe equal not having filled, it can be :filled by an executive appointment, whether suffrage of each State in the Senate shall be maintained if it can be the vacancy occurred by reason of the expiratioh of a term or by done without doing violence to the language of the Constitution, I reason of the resignation, or otherwise, of the person selected to fill it. unden;tand the meaning of that instrument and of the law passed in Believing this to be the construction which ought to prevail I shall, accordance therewith to be this: unless my views in the com-se of this discussion undergo an entire That whenever a Legislature is charged by law with the duty of change, vote to seat Mr. Bell. filling a senatorial term, and refuses or neglects to discharge that Mr. KERNAN. Mr. President, in the discussion of this question it. duty, that term must remain vacant until the Legislature which rep is b~rdly conceivable that there can be tho least party feeling or bias. resents the sovereignty of the State chooses to discharge the duty The Seating of the cla.imant, Mr. Bell, will make no political change which the law devolves upon it. Such a vacancy is not one which the in this body; and whether he be seated or not, a successor to Mr. executive of the State can :fill by a temporary appointmenf made Wadleigh will be chosen by the Legislature of New Hampshire, of either before or after the vacancy actually occurs, because the State the same political party to which he belongs, next June. The im through the Legislature has decided to deprive itself for the time being portance of the matter, therefore, it seems to me, arises only from the of its equal representation in the Senate, but when a vacancy occurs fact that this will be a precedent on the precise question whether in the recess of the Legislature-I ask especial attention to this prop the governor of a State, when the regular term of a Senator expires osition-I repeat when a vacancy occurs in the recess of the Legisla during the recess of the Legislature of that State, can appoint a Sen ture and no Legislature is in default because of not having filled it, ator for that State. It is well that we 3ire called upon to decide this · then the executive can make a temporary appointment; whether the question under circumstances when there can be no partisan or po vacancy is one caused by the expiration of a term or by the resigna litical feeling as to the result; but it is important that we should de tion, or otherwise, of the person chosen to fill it. cide it according to the true in tent and meaning of tb.e Cons ti tu ti on, This construction is perfectly consistent with the language of the as our decision will have weight as a precedent. Constitution, unless a narrow and technical meaning is to l>e placed I have given my best attention not to preparing an argument on on tlle worcl "happen" and makes the constitutional provision such this question, hut with a view of satisfying myself of the correct rule that no State can ever be deprived of its equal suffrage in the Sen on the subject according to the Constitution. I ha.ve come to a con ate unless by the default of its Legislature, of its executive, or of clusion, and with great respect to othera I will say n.s ~o the conolu-. the person selected to act as one of its Senators. On the other hand, sion at which I have arrived that I have no doubt in my own mind if the word "happen" is to be construed as necf!ssarily involving that the Constitution does not confer power upon the governor to· the element of casualty, and consequently as forbidding under any appoint a Senator to commence a new term of six yen.rs. I shall con circumstances the filling by a temporary executive appointment of tent myself with stating very briefly the conclusion to which I have a vacancy caused by the expiration of a term, then we are driven to come apd the reasons which have led me to that conclusion. I shall the alternative of depriving a State of its equal representation iu not endeavor to make an elaborate argument. I concur in the views the Senate when its Legislature is in no default in not having filled so well expressed by the Senator from Tennessee, [Mr. BAILEY,] by the vacancy, and when its executive has attempted to :fill it by a the Senator from Georgia, [Mr. HILL,] and the Senator from Wiscon- temporary appointment. So harsh a construction of the Constitu sin, [Mr. CARPE~TER.] . tion-one reflecting so seriously upon its framers by reason of their I wish, however, to ask the attention of the Senate to whn,t has inapt use of language to render effective their declared intent seemed to me to be entitled to weight. I wish to call attention a ought not to be adopted by the Senate unless the language of that little more particularly to the language of the Constitution on the. instrument is so unambiguous as to admit of no other interpretation. question whether the governor ca.n appoint a Senator to commence Every constitution and code of laws contemplate the filling of a new term on the expiration of the prior term of six years. I ·first every vacancy in an existing office with all convenient speed, and ask the a,ttentiou of the Senate to the language of the Constitution. where an instrument or statute without violence to its language is If the last pad of the clause of the provision of the Constitution capable of two constructions, that one should never be adopted which wherein the word "vacancy" is used had been left out, would there requires an existing office to remain vacant; and this is especiaUy so be any doubt that it was the exclusive right and the duty of the in a case like the present, where to keep the office of Senator vacant Legislature to choose a Senator for the term of six years on the ex- • • 1879. CONGRESSIONAL RECORD-SENATE. 297 piration of a. prior term¥ The language of section :3, article 1, is which the Legislature a.lone is authorized to choose an incumbent, . that- I am content to leave this question. The Senate of the United States shall be composed of two Senators from each Now, a few suggestions about the precedents. I conceive there is State, chosen by the Legislature thereof, for six years. nothing very significant in the precedents down to the year 1825. In The section then provides that the Senators first elected shall be that year tho t.erm of .Mr. Lanman, from Connecticut, expired on the divided into three classes, and that- 3cl of March. The governor of that State, by an appointment dated Tho seats of the Senators of the first class shall be vacatell at the expiration of the 9th of February, reciting that he had been notified that there the second year; of the second class, at the expiration of the fourth year, and of would be an extra session of Congress on the 4th of March, ancl that the third class, at the expiration of the sixth year, so that one-third may be chosen the Legislature would not meet for some months after tho meeting every second yµr. of the extra session, did appoint Mr. Lanman a Senator until the Chosen by whom 41 By the Legislature unquestionably. Therefore, next meeting of the Legislature. I concede that there is a difference. if you leave out all as to" vacancies," and the word is used twice in in fact in that case and this in this particular, that the governor of this subsequent part of the paragraph, you will have the power con Connecticut did appoint before the vacancy had actually occurred, ferred and you will bav~ the power conferred coupled with the duty but I fail to find any evidence which is reliable that the decision of imposed upon the Legislature, to choose Senators on the expiration of that case was at all influenced by that fact. Had the objection been terms of six years. The Legislature under this provision has ex made that the appointment was made before the vacancy occurred, clusive power to fill all vacancies caused by t.he expiration of the the governor of Connecticut could have made another appointment terms of six years. on the 4th of March and be would have been admitted to a seat. He But it is said that the word "vacancies" in the subsequent part of did not become an appointee unt.il the 4th of March, for the executive this provision covers the vacating of a seat in the Senate caused by of Connecticut could not appoint till then. No such objection was the expiration of an incumbent's term. Does it do so¥ I shall not made, and therefore I believe that it was decided on the broad ground. stop to repeat what has been so ably said by the Senator from Georgia that the governor could not appoint a Senator to commence a new and the Senator from Winconsin as to the significance of the words term. "happen by resignation or otherwise," but I wish to call attention My friend from Delaware says it is not so regarded by Judge Story. to the "vacancies" which the Legislature may till as contradistin I know Judge Story puts it on something else; but I call attention guished from choosing a Senator for a full term. The first part of to what was the opinion of men, some of whom were active political this section provides fully for choosing a successor to a Senator whose men in 1825, some of whom I believe voted for the decision in 1825 term has expired. What, then, are the "vacancies" which the Legis excluding Mr. Lanman from a seat. My friend from Connecticut well lature shall fill and which the governor may temporarily appoint an says that Judge Story gives no reason or authority for his opinion. incumbent to' The provision is: When the question came up again in 1854, in the Phelps case, this If "'°acancies happen by resignation, or otherwise, during the rece-ss of the Legis was the interpretation put upon the decision in the Lanman case. I lature of any State, the executive thereof may make temporary appointments until have looked into t.he debate of 1854. The point under adjudica,tion the next.meeting of the Legislature, which shall then fill such vacancies. there was not, I concede, the point here; but it involved the question The "vacancies" which the governor may temporarily appoint to of the governor's power to appoint. I will not read what has been and the" vacancies" which the Legisln.ture shall :fill at its next ses read already in this debate, but I ask Senators, n.s better than my sion are "vacancies" happening or occurring during the running of own opinion, to permit me to read a few sentences from what was the six-year term for which the Legislature alone can choose a Sen said first by Judge Butler, chairman of the Committee on the Judi ator. Is it not, then, true, in the plain language of the Constitution, ciary and an able lawyer. He said in the debate in 1 54 on the that the governor may temporarily appoint in the recess of the Leg Phelps case: islature to fill only such" vacancies" as the Legislature by the Con It seems to be conceded, that the authority to choose a Senator to commence a stitution shall fill the first time they meet after the "vacancies." new term of six years, after the efflux of a regular term, is exclush-cly vestell in The provisions of section 3, article 1, of the Constitution, prior to the State Legislature. this in which "vacancies" are mentioned and provided for, conferred He said further : full power on the Legislatures to keep the Senate full by choosing In 1825 Lanman's case came up for consideration, involving both tlle questions .. Senators to succeed those whose terms expired by constitutional lim In that case, after a very full debate, it was solemnly decided that it was not competent for the governor of a State to put a member ou this floor at the com itation, by the expiration of the six years. mencement of a. term. In other words, it was decided that his power of appoint This last part of the clause t0 which I have alluded provides that ment could not be substituted for the election of the State Legislature. Even if where "vacancies" happen during a recess of the Legislature the such bad not been the decision in the case of Lanman, I take it for granted that; governor may appoint and the Legislature shall fill such "vacan such would be and must necessarily be the decision now. cies" n.t t.heir next meeting. I submit that the plain meaning of this, He is speaking of the case that had stood unchallenged since 1825, its spir;t, its intent, is that they are vacancies occurring during the and }le speaks of it as settling, not the question whether because effiux. of the term of six years, and they are not vacancies which exist Lanman's appointment was dated before the vacancy ho was not to when the six-year term has expired. , be admitted, but it was put by him upon the ground that thero was. I appreciate the force of the argument (and I mean to give it due not power in any governor under the Constitution to appoint a man weight) that we should give that construction to the Constitution if to begin a full term as successor to a Senator whose term has expired. we fairly can which will t.end to keep the representation of the States Mr. Badger, of North Carolina, who has the reputation, and I be in the Senate full; L>ut I cannot do that against the language of the lieve justly, of having being a very able lawyer, n.nd who differed Constitution, what I believe to have been the intent of its makers. from Judge Butler in politics, said: I think it is manifest they were solicitous that the men sitting here Now, my friend from Kentucky has suggested one or two questions, which I as Senators should not be selected by one man in a State but that think will be sufficiently answere<:l by this statement. The vacancies which the they should be selected by the representatives of the people of the executive of a State is authorized to fill are ne•er >acancics that happen by th& State in the Legislature. Hence the "vacancies" which the governor efflux of time; they are not foreseen vacancies; they are vacancies that "happea can fill . temporarily by appointment must occur during a recess of by resignation, or otherwise." the Legislature. If the vacancy occurs while the Legislature is in Here is a great lawyer of the party opposed to Judge Butler and session, although it is the last day of its session, the governor cannot others who spoke, saying: appoint at all. It is conceded that such a vacancy must occur during Mr. President, from an exceecling: desire to gh-e to this clause of the Constitu the recess. If tho Legislature is in session when the vacancy occurs tion such a construction as would keep the Senate always full, I lauored hare.I, a. year or two ago, when wo bad questions of thls kind before us, to find out some and fails to choose a Senator, the governor can never appoint a per method of supporting, in my own mind, the construction that a •acancy happen son to till the vacancy. If the governor appoints temporarily and ing by the efflux of time, and not filled beforehand by the Legisla.turo, might be the Legislature meets and for any cause or for no cause does not :fill brought within this limited power conferred upon the executi>e; but, sir, I have the vacancy which had occurred and which the governor bad filled been obliged to abandon it. by appointment, the Senator so appointed goes out of office at the He, a good lawyer, having in mind the importance of keeping the expiration ·of the first session of the Legislature, and there can be no Senate full, says be labored hard to come to the conclusion that an one to take his place till the Legislature fills the vacancy. executive could :fill the vacancy occasioned by the expiration of a. I allude to this only to show that the framers of the Constitution six-year term, but he bad to abandon it. intended to limit and restrict the power of the governor to put a man "By resignation, or otherwise," is the language. Wo mast oxpound the word. upon the floor of the Senate as a representative of the State. I think "otherwise" to apply to vacancies happening by similar events t that is, unfore seen events-death, resignation, appointment to an office which aisqualifies-and: the meaning of the language of the Constitution is that the vacancy it can never be applied to the expiration of the term of a Senat-0r which leaves a. which is made in this body by the expiration of the six-year term of seat vacant on this floor. My opinion, therefore, is, that the governor of a State a Senator must be filled by the Legislature, and this is not a vacancy has no power to fill a vacancy in this body which is brought a.bout by the expira which happens by resignation, or otherwise, within the meaning of tion or efllux of the time for which a. Senator was elected-in other words, at the determination of his term in the Sena.ta. It must be a vacancy in the term bap the Ccnstitution. The vacancy which the governor may fill is one peniag during the recess of the Legislature; it must bea. vacancy in tho term hap which occurs durin<>" the running of a six-year :term, and which the pening by restgnation or other ca.siialty. That I understand to havo been the ex Legisln.ture must fill, not for six years, but for the unexpired portion press and solemn decision of the Senato in Mr. Lanman's case, in 182.3, overruling of tho term. one or two earlier decisions, which bad passed, perhaps, without full consideration. Without arguing further the point, relying upon the arguments I read this because it had and should have great weight. It was ma.de by other gentlemen upon this question, asking each Senator to said in the p.resence of able statesmen who were lawyers. This wa.s examine the Constitution and see if tho vacancies to which the gov in the Phelps case, where this point was deb'.1-ted fully. The gov ernor may appoint are not only thoso which occur during the term of ernor in the ca-se of Phelps appointed temporarily to a vacancy occur six years, and not thoso made by t.be expiration of the prior term.to ring during a term; the Legislature came together, and after sitting ·298 CONGRESSIONAL RECORD-HOUSE. APRIL 8, ..a, few days, adjourned without filling the vacancy, and the Senate that is not the fault of Congress, but it is their misfortune, and I am held that the appointee could not continue to sit beyond the session frank to say, though I never had my attention called to it till yester -a pretty close construction as to a vacancy clearly within the mean day, that I think they could have called together ~be Legislature ·ing of the last part of the clause of the Constitution in question. I elected in March, 187 , and elected a Senator. I ag1ee with the Sena call attention to it to show that Senators desiring to construe the tor from Wisconsin in that. What is the language T clause so as to keep the Senate full would not construe it to keep that The Legislature of each State which is chosen next :Preceding the expiration of seat full, though there was a clear vacancy during a recess; and yet the time for which any Senator was elected shall cbooso a successor. the governor could not keep the man here if the Legislature met and What is the Legislature of the State of New Hall}pshire to-day' ·did not elect. Is it the one that l>y the new constitution was elected la.st November, Now, Mr. President, in regard to the Sevier case I need not add to and is not to eome into legal existence until next June, or is it that what the Senator from Georgia so well said. The very men who voted body in which is vested the law-making power to-day in New Hamp upon it said they did not mean to shake the Lanman case. Although shire, and the only bocly that can make a law to-day, for, as I under .J might not agree with that decision, they decided it saying they held stand, the old Legislature elected in March, 1878, is continued in be ·the Lanman case correct. ing for a year, and the new one, as it is called, is not a. Legislature Then, I ask, is it wise to depart from what these Senators say in until the constitution makes it such in June. next¥ But I do not at 1854 has been the uniform construction of the Constitution, based tach importance to this. I do not think we can change the construc 'Upon the Lanman case down to that time, which they all approve; tion of the Constitution of the United States on this subject to ac .and although I have not read all the debate I believe no Senator dis commodate it to the action of States. The Constitution' I think vests i>uted the propositions put forth by Mr. Bayard, by Judge Butler, the exclusive power of choosing Senators for six years, of choosing a ·and by Mr. Badger. Judge Butler stated that it was a conceded Senator who is to succeed an incumbent whose term expiI'es, in the point, and that it must have been decided the same way then if the Legislature; and that is the case before us. There is no vacancy in Lanman case had never been decided, and a leading whig lawyer and the sense of the Constitution to which the governor could appoint. jurist said that he had striven to come to the conclusion that some I say such a vacancy is one happening during the running of a six of our friends now come to here, with a view of keeping the Senate year term, and not one which occurs when a term expires. full, but that he had to abandon it, and his deliberate conclusion is, The Legislature elected in March, 1878, as I understand, held their first, that the Lanman case solemnly decided it, and second, that he regular session bylaw last June. Why did they not choose a Sena tor has come to the same conclusion that the expiration of a term, the then to succeed Mr. Wadleigh f They were then the Legislature ·ending of a term of six years, is not a vacancy to which the governor elected under their constitution and laws last before the vacancy, and ·can appoint. if they had elected I have no· doubt the election would have been Mr. EDMUNDS. Will the Senator from New York permit me to held valid. ask him a. question for information f Suppose there being now a I have said, Mr. President, all I desire, and I have submitted my vacancy (which I presume we all agree there is) in the senatorial views as those very earnestly entertained by me after examination representation of the State of New Hampshire, the Legislature of the and believing that we ought to adhere to what ha.s been the under State of New Hampshire were now in session and were to proceed to standing ever since 1825 by all that we find in the debates or in ac fill that vacancy, under what clause of the Constitution would they tion, because where there was a departure from it they affirmed that get the authority to fill it Y the correct decision of this question was made in the L::i.nman c::i,se. l\Ir. KERNAN. Choosing a Senator to. a term which had been Mr. SAULSBURY. ?ilr. President, perhaps everything that I could vacated by the efflux of time, I should say. say on this subject has already been said and much better said th::i.n Mr. EDMUNDS. Then I understand from my friend that they get I could hope to say it; but as the member of the committee who re it under the fu·st three lines of section 3. ported the resolution under consideration to the Senate, perhaps it is 1\.lr. KERNAN. And what is in the residue, na.mely: "so that one incumbent upon mo to express some views in regard to it. third may be chosen every second year." This aids the first clause, I Mr. DAVIS, of Illinois. Would the Senator prefer to go on to think. morrow~ Mr. EDMUNDS. Then my friend perceives that under the first Mr. SAULSBURY. I have no choice on that subject. clause, by the express language of the Constitution the Legislature :l\ir. DAVIS, of Illinois. It is late now. I move that the Senate must choose for six years. That is plain because it says so in terms, adjourn. and there is not any noscitur a sociis or anything else that can get it Mr. SAULSBURY. I have only taken the floor now because no out of that. Now the next clause is that the Senators shall be divided body else claimed it, as I supposed the debate was about closing. into cla~ses so that one-third of the Senators ma.y be chosen every The PRESIDING OFFIC~R. Does the Senator from Delaware yield second year. This third to which the New Hampshire class belongs for the motion to adjourn. cannot be chosen every second year, for a part of it has gone by. .That Mr. SAULSBURY. Yes, sir. '(lower of choosing every second year is lost in its exact continuity. The PRESIDING OFFICER. The Senator from Illinois moves that There is a vacancy. That is admitted. Now when that vacancy is the Senate do now Mjourn. filled up, it is filled np as a vacancy; the term does not begin in June 'fha motion was agreed to; there being on a division-ayes 22, noes when the Legislatme begins. 18; and (at three o'clock and twenty minutes p. m.) the Senate Mr. KERNAN. I do not want to detain the Senate; I will only adjourned. state my view. Mr. EDMUNDS. I beg the Senator's pardon. I merely wished to ask him whether he did not come down at la-st to the power to fill vacancies. Mr. KERNAN. It is a fair question, and I do not complain of it. HOUSE OF REPRESENTATIVES. I understand if this Legislature chooses a Senator now, it chooses him for the term of six years from the 4th of March, lb79, and no TUESDAY, April 8, 1879. other, and I say further that while I admit that the vacating of a The House met at twelve o'clock m. Pra.yer by Rev. D. T. PHILLIPS, seat in this body by the retirement of Senator Wadleigh, of New of Parsons, Pennsylvania. Hampshire, leaves in one sense a vacancy in this body, a vaca.ncy in The Journal of Saturday last was read and approved. the representation of that State, I have argued and I feel very strongly the conviction that it is not the vacancy which the Consti CHANGE OF NAME OF SCHOO~Il. tution meant to allow the governor to fill. Mr. LOUNSBERY. I send to the Clerk's desk a resolution which Mr. EDMUNDS. That is another question. I merely wished to I ask the courtesy of the House to pass at this time. I present the know whether there was a vacancy now. resolution at the request of the officers of the New York custom-house, Mr. KERNAN. I do not think there is, within the meaning of va for the benefit of the owner of a vessel in my district. cancies which are to be appointed to temporarily by the governor, The Clerk read as follows: 1 and filled ·not for six years, but filled for a portion of a term under the Resolved by the Senate and House of Rep1·esentatives of the Unit,ed Stat.es of.A.1nerica last clause. But, Mr. President, I will not detain the Senate further. in Oo-npress assembled, That the Secretary of tbe Treasury be, and be is lieroby, I only wanted to do justice to my colleagues on the committee, with anthonzed to permit the owners of the schooner Isle of Pines to change the name to whom I fully concurred, by expressing my strong conviction that the George S. Sleight. .conclusion of the majority of the committee is correct. ' Mr. REED. I object. One word on another subject. The Senator from Delaware, [Mr. HENRY VOELTER. BAYARD,] for whose opinions I always have great respect as I have a Mr. SPRINGER. I ask unanimous consent to offer for present con very high regard for him, argued as though there was something in sideration the resolution which I send to the desk. this case that Congress was to blame for, and therefore we should The Clerk read as follows : give the construction he contended for to the Constitution. He said in Resolved, That the Clerk of the Houso ca.use to be print.ell for the use of tho -substance, alluding· to the act of Congress of 1866, when before has Honse the reports of the Commissioner of Patents and the examiner upon tho ap Congress by its law prevented a State from having its representation plication of HonryVoelterfor a reissue of his patentfor malring wood paper-pulp. in the Senate Y I do not understand that we have prevented it. The Mr. CONGER. I object. law of 1866 was made long before New Hampshire chani?;ed its consti Mr. SPRINGER. Allow me to state to the gentleman from Michi tution, and it was made when it suited them precisely under their old g::m that last session a resolution calling upon the Commissioner of constitution. If they have changed their constitution and laws by in Patents to send papers in this case to the House of Representatives advertence so that they have not the right Legislature there t.o elect, was passed, and that in. tead of sending copies he sent the whole of 1879. CONGRESSIONAL RECORD-HOUSE. 299 the original papers in the case, while the House did not desire to have The SPEAKER. It is not a rule. printed any papers except the report of the Commissioner on the Mr. McCOOK. I know that; but it has been a custom for many .subject. And now those original papers are here and the Comm.is Congresses. sioner desires them to be returned to the Department. The object of Mr. CLYMER. That was the practice of the Honse during the this resolution is to authorize the Clerk to copy the paper desired and period of the Speakership of Mr. BLATh"E, and it was the practice dur- print that and return the rest to the Department, in order that it ing the :Porty-third Congress. · may not be deprived of its record. Mr. COX. This custom grew up during the war; the war made it Mr. CONGER. They will probably be safe here for t wo or three a military necessity. days more. Mr. McCOOK. I suggest, Mr. Speaker, without a wish to discuss Mr. SPRINGER. They have been here for months. the question, that the rule has now been in practice for fourteen or Mr. CONGER. And they have not been destroyed yet. That is a fifteen years, and that the matter be referred if necessary to the Com good reason why there is no hurry in this matter. mittee on Rules. Mr. SPRINGER. The Commissioner's request is that they be re The SPEAKER. It has been a subject of discussion among the turned. members of the Committee on Rules, but, the Chair thinks, not in The SPEAKER. The gentlemaµ from Michigan objects. That is committee. ~onclusive for the Chair. Mr. GARFIELD. I suppose that there is no doubt that it rests in Mr. SPRINGER. Objections are sometimes made without reason. the discretion of the presiding officer to recognize members, and that AMENDMENT OF RULES. the presiding officer shall have knowledge of those who desire to speak, and if it is necessary that he shall have a memoranclum of Mr. BUCKNER, by unanimous consent, submitted the following those persons who desire to speak; that is only clecent and proper. I resolution; which was read, and referred to the Committee ~n Rules: do not suppose that th~ presiding officer is bouncl by a rule that says Raolved That the rules be amended so that Saturday of each week be set apart for the coi:i.sideration of bills commitred to the Committee of the Whole on the that he shall not have a list. state of the Union other than the regular appropriation bills. The SPEAKER. When the late Speaker Kerr occnp iecl this chair he stated that he only bad a list for his own convenience. Tbe Chair PERSONA'L EXPLANATION. presumes that that was the purpose of all Speu.kers in luwing a list. Mr. FRYE. Before the gentleman from Ten_nessee [l\Ir. A.T~s.J Mr. MITCHELL. I came in since this question was ra i"led; and I proceeds, I desire to speak a moment on a question of personal privi- do not understand how any custom shall a,\Jrogate thL rnles in the 1ege. recognition of a member who is entitled to tue floor. If that be the In the debate a. few days since I 'took occasion to quote from the rule there ought to be some notice to members of who is to occupy ·-Okolona 8tates, a paper publishecl in Mississippi, and I stated that it the chair. Now, so far as this measure is conccrneu, iL must have its was a paper of respectability and reflected the sentiments of the Mis first consideration in Committee of the Whole, anu tlrn House has not sissipni democracy. Thereupon a gentleman, whose name I do not yet resolved. itself into Committee of the Whole. The Speaker has •.remember, said that its editor was a "carpet-bagger," and the gen not yet exercised his power under the rules to clesiguate the person tleman from Illinois [Mr. SPARKS] said the editor was a sutler in a who shall preside. I submit that if there be any such rule there Michigan regiment. The gentl~man from Mississippi [Mr. MULD~O'Y] ought to be some prescription of it; and it ought not to lie in the said that the paper represented no respectable element of the MisslS- breast of a man not yet designated. · sippi democracy. The SPEAKER. The proposition of the gentleman from Maryland Now, sir, I do not wish to misrepresent anything in any remark does not apply to any particular member, but applies to whoever which I made, and in justice to myself, in justice to the gallant sol may be chosen as chairman. ·dier on the other side, I desire the Clerk to read the letter which I Mr. MITCHELL. I did not understand the remark of the gentle ·send up. man from Maryland and was not addressing myself particularly to The Clerk read as follows : it, but to the remark which dropped from the gentleman from Ohio, OKOLONA, MlssISSIPPI, April 3, 18W. which I understood to relate to a practice in this House that may be DEAR Sm: In the discussion in the House on the 1st instant, Mr. MuLnROW, of this State, is reported as saying that our paper (the States) "represented no re proper enough in the case of the Speaker, but whether it be proper .spectable element of the Mississippi democracy." in the case supposed or stated is, I think, an entirely different ques I wish that yon could then and there have confronted him with the following; tion. I understand that some seventy or eighty gentlomen have had larly1 even though the immediate result was to deprive me of the Now, I agree that this is a delicate question. You can hardly opportunity of answering that outrageous attack upon the city of change the present arrangement without infringing upon the rights. Philadelphia in reference to the exercise of the elective franchise of the Speaker, the necessary rights which he must ha·rn and must a city where no man is deprived of his right to vgte, or ever has been exercise. I know it has been the custom to put the names down on while the republicans have had control. This is all I desire to say. a list, although following that list sometimes works hardships to [Laughter.] members. Preparing a new list beforehand~ before the chairman is Mr. COX. :Mr. Speaker, there are difficulties connected with this appointed, and having names entered upon it, som~times - before it is matter, and I think it would be well if the Committee on Rules should known whether the House will go into Committee of the Whole and consider them. It is aJmost imperatively necessary that the Speaker who will be its chairman, evidently works sometimes wrong. For· of the House should have ample discretion as to who shall have the instance, in this last session, I among others found fifty to. sixty floor, or, as they say in the Spanish chamber, who shall have "the names on the list of speakers in the Committee of the Whole so that word." Members of the House who are chairmen or members of cer I was not reached at all. A good many others were, however, reached tain committees are reasonably entitled to preference with regard to and had their opportunity. When I came to look for the list this recognition when the particular subject-matt.er coming from that com time I found seventy or eighty names upon it, while my name is not. mittee is before the House. In the same way members who have pe upon it at all. Other gentlemen are upon it wh()have the same right culiar interests in certain questions are entitled to preference. Dis I have and somewhere some one of them will give me some of his. cretion in regard to this matter ought to be left if possible with the time, I have no doubt, if I should desire to speak upon the question .. Speaker. Yet, sir, we are bound in some way to have a list of this If this resolution is acted on at all it should go to the Committee on. kind. In the French Legislative Assembly no man can take the tribune Rules. until he has his name enrolled. That rule in the French chamber Mr. MONEY. It is immaterial to me whether the rule or the cus grows out of the very necessity of the case. It will be found that the tom nuder the rule shall be observed, but I do insist on one thin~, . same necessity exists in this House. Let us, then, have this matter and that is, that if the rule is to prevail it shall be observed, and if referred to the Committee on Rules for consideration; but so· long as the custom is to prevail of having a list that also shall be observed. the rule remains, and gentlemen insist on its observance, it will have I say this because in a late discuesion gentlemen whose names were to be observed by the Chairman of the Committee of the Whole. My upon the list in the hands o-f the Chairman were not recognized in.. friend from Maryland, I suggest, might make a motion to have this the order in which they were enrolled there. The Chairman recog:- matter referred to the Committee on Rules, with the view of having nized gentlemen at his own pleasure without any regard to the rule the rule in this regard amended if necessary, or of making some fur and without any regard to ti.le custom . . That is what I object to. I ther provision for its execution. have as much right to the att.mtion of this Honse as any other man Mr. McLA1'TE. My motion is altoget.her misapprehended by the gen on this floor, and I say my name was on that list for five minutes tleman from New York, [Mr. Cox,] and I think also by the v;entle only, (which were denied me by the objection of the g~ntlemanfrom man on the other side from the State of New York, [Mr. McCOOK.] Michigan,) aml I never had the opportunity of getting that five min I have made no motion to adopt a new rule. Nor have I made aoy utes because the gentleman who occupied the chair at that time chose motion to dispense with the customary list. That list is a mere aid to recognize before me gentlemen who were not down on the list at all. to the Speaker or the Chairman; and as an aid I have no objection to And this has become .the custom until gentlemen on this floor are it. It bas been the universal practice in tllis House to have such a, simply at the mercy of the gentleman· who happens to occupy that list, not only within the last ten years but for the last forty years. I chair. Now, I object to that. He should either follow the rule 01' had the honor to sit in this House over thirty yeare ago; and we had he should drop the rule and follow the custom-it is immaterial to then precisely the same custom as now; but this list was regarded mo which-but one or the other should be observed in fairness to merely as an aid to the Chair, not as imperatively binding upon him; men who have constituencies to represent here. Aud I do object, and the Chair never regarded it except at his own will and pleasure. shall object, and, if necessary, shall go further than I do to-day in And now the reason why I make this motion is because the Chair objecting to being ruled off the floor by the arbitrary power of the man of the Committee of the Whole has communicated the fact that gentlema.n who occupies the chair. I insist on eitherthe rule or the he will regard the rule absolutely, or rather the custom under the custom being observed. Having equal rights here, we should havEr rule. I do not mean the chairman of this particular committee which an equal hearing in the House. is about to be formed, but the chairman of the past committee; :1Dd Mr. HOOKER. I desire to say a word in reference to this motion. . I have every reason to know that the chairman of tho committee I entered the Hall as the gentleman from Maryland was addressing· about to be formed will administer tho duties of the Chair in that the House, and I understand that this question comes up as a ques way; that he will treat the list as an absolute direction to him, so tion of privilege in reference tot.he construction which shoulcl be that no man on this floor can take it unless he takes it in the order placed upon the rules of the House, and especially how far Rule 59 in which his name stands upon that list. It thus becomes a rule, and shall govern the Speaker when debate is progressing in the Honse as a rule I t•hink it a bad one . upon any subject-matter before it, ancl how far the Chairman of the .As a suggestion to the Chair I have no objection to it at all. There Committee of the Whole, upon any question which the Honse may be fore my motion was that the Chairman of the Committee of the Whole considering in committee, shall be governed by that rule anu by· should be instructed to govern himself by the rules of the House ; no general parliamentary law. more, no less. He will have the same discretion as tho Speaker has I think there can be no question, 1\-Ir. Speaker, that Rule 59, which• in the House, and he will be held to his proper responsibility for the I believe has already been read in the hearing of the House, plainly manner in which be discharges that duty. indicates that when these rules were adopted it was the parpose I need not say to this House that any Speaker or any Chairman of the members of the House of Representatives of the Congress who sat there and recognized partially one side of the House rather of the United States to conform to general parliamentary law with than the other would lose the confidence and the respect of the House. reference to the conduct of the debate upon any question pending· We have no fear of any such thing like that suggest.ad by the gentle before it; and I understand, Mr. Speaker, that the custom of allow man from Tennessee. Any Chairman, any Speaker, is bound l>y the ing the occupant of the chair to indicate by a list of names upon his. rules The SPEAKER. The Chair has allowed this motion to be made other, and I hope that no delay or red-tapism will be applied to this. really by unanimons consent, and it has been discussed. The subject simple proposition to conform to the rules of the House, and that the matter can be referred to the Committee on Rules, and if that is done Honse will decide the question for itself. of course the motion itself would drop. 1 1\fr. O'NEILL. I suppose that this discussion or conversation has Mr. SCALES. My motion was that the whole subject-matter be arisen from the fact that we are about to take up in Committee of the referred to the Committee on Rules. Whole the legislative appropriation bill. Now I do not think there Mr. FORT. Then I want to move an amendment. will beatalldifficulty for gentlemen whohavenotalreadyspoken upon Mr. COX. I did not make the motion to refer; the gentleman from the Army bill to get an opportunity to speak upon this bill. The North Carolina [Mr. SCALES] made it; but I think it should be great orators of the House who have spoken on the Army bill will of adopted. course give way to those members who have not yet been heard; and: Mr. FORT. I clesire to move an amendment, to except from the the Chairman of the Committee of the Whole will not allow to mem motion to refe1· the rule or custom of keeping a list for motions to sus bers who have already spoken a priority over those who have not pend the rules on Mondays. I think that ought to remain as it is taken part in the debates. I think this is a solution of the whole now. difficulty: let those who have not spoken on the Army bill come in The SPEAKER. The Chair desires to state that he himself likes first on the legislative bill. the practice of keeping a list, because it -relieves him from a great Mr. ATKil{S. :Mr. Speaker, is not this debate proceeding by unani many personal controversies between members as to who shall be :first mous consent 'f recognized by the Chair. If the Chair has a list he has then some The SPEAKER. The proposition came in by unanimous consent~ thing to go by, and in addition he has also an exact knowledge of who and is being discussed in consequence. The Chair will remark that desires to speak. The Chair thinks that no real hardship has ever he really thinks the House ought to decide this matter; but of cours~ resulted from the practice of keeping a list. it can be decided upon a report from the Committee on Rules. The Mr. REAGAN. I would like to have the Committee on Rules re rule now in question was originally adopted in the First Congress, in port some regulation by which we can know what to depend upon in 1789, and has continued in force from that day to this. . regard to these lists. Mr. STEPHENS. I wish to say only a few words. I agree, Mr. The SPEAKER. The Chair has aJready said that he knows nothing Speaker, with a great deal that has been said by the gentleman from., about the insertion of names upon the list to which reference has Maryland [Mr. McL~""E] and the gentleman from Mississippi [Mr. been made. The Chair has given a great deal of reflection to this HOOKER] about the proceedings under the rule. I shall therefore subject, and bas often thought it would perhaps be well to adopt a vote to refer this question to the Committee on Rules, t.hat they may· · suggestion which lrns been made to him. It is th:l.t members be recog consider whether the rule upon this subject should be modified or not, nized by States, and then the delegation from each State~ or t.lie Chair, and if modified how. Let the subject be considered by that commit- could select the member from the State, so that every State might tee. \Vhether I should vote for a modification of the rule, I am not have an opportunity to be heard in the debate. Ilut t.he subject is prepared to say. Since I :first became a member of this House, in 1 43, environed with many difficulties. It is one of the unpleasant features this subject of getting the :floor has been a matter of complaint. The-· of the duties of the· Chair to choose who sliall be recognized as enti Speaker of the House and the Chairman of the Committee of the tled to speak. This same controversy has continued at periods ever Whole must exercise a discretion ; and it is an arbitrary discretion. since the adoption of the rule in 1789. · Where there are fifteen or twenty members all rising at once, it is. :Mr. CONGER. I desire to make a remark more in the nature of a impossible for the Speak1.1r to say who first addressed the Chair. suggestion than anything ell>e to the Committee on Rules, if this mat Throughout the term of my ezj>erience in this House, the discretion ter should be referred to them. It is that they inquire whether it of the Speaker or the Chairman of the Committee of the Whole has. would not better meet the case to provide tliat all the names which determined this question. may be placecl upon any list be written separately on slips or cards Mr. McLANE. That is the way I want it decided-by the discre and placed in a Lox, and when the time comes to speak one of those tion of the Chair. names lie drawn from that box. Iu that way all would have au equal Mr. STEPHENS. Let the whole matter be referred to. the Com chance-the chance of the lot-of obtaining tlie floor. mittee on Rules. Let that committee determine whether or not, after The SPEAKER. Some member might not be drawn; for instance, these many years of experience, it is better to make a change :1.n the the gentleman from Michigan [Mr. CONGER] might not be drawn. rule upon this subject. It may be that some better plan can be sug Mr. CONGER. "The gentleman from Michigan" has not his name gested. It may be that some members would prefer the suggestion on that list. of the gentleman from Michigan, that the right of the floor should The SPEAKER. The Chair always desires to recognize the gentle- be decided by lottery. I am not in favor of that proposition; but man from Michigan when he can. . let the committ.ee hear suggestions from all sides and mak-e their re Mr. CONGER. Voluntarily, I hope' port. I hope the question will be taken and the matter referred to Mr. NEWBERRY. The suggestion made by the Speaker is perhaps that committee, to be reported upon in connection with·other matters the very ground of the complaint which is made, that the Speaker does now before them in relation to the proceedings of the Honse. al ways recognize somebody that be perhaps ought not to. I do not The SPEAKER. The gentleman from North Cn.rolina [Mr. SCALES} refer to the gentleman from ?t'.µchigan [Mr. CONGER] particularly, moves that the Committee on Rules. be- instructed. to inquire what [laughter.] But the complaint is that the Speaker selects whom he modification, if any, is necessary to govern.recognition· in Committee chooses, and the rest must submit, as of course we all do. of the Whole on the state of the Union, and also in.the House under Mr. HUMPHREY. The gentleman from Mississippi [Mr. HooKER] the :fifty-ninth rule. forgot that Mr. :Marshall, of Kentucky, when he was in the Honse Mr. HOOKER. Before the question is put on the motion of the· said that when the rule was in force of permitting the Speaker to gentleman from North Carolina, whom l understand to be in favor recognize the one who first caught his eye, the fact was that the very of the proposition aa it came from the gentleman from Maryland, I · last one who caught the Speaker's eye was the one who thought he desire to say that I have never yet understood the Chairman.of the· ought to be recognized. Committee of the Whole was not as much. bound to observe the- rules Mr. STEELE. If the list on the SpeakeiJs table is to control it will of the House as the Speaker is; and this is a motion simpfy to en not give an opportunity to modest men like the member from North force the existing rule and to add t<> its furce. The Committee on Carolina who is now addressing the House, and the gentleman from Rules, therefore, if this matter be referred to them will have no func the Kiskiminetas district of Pennsylvania. tion to perform other than to report what the five members consti A MEMBER. And the Conemaugh district. tuting that committee think upon the· subject of the enforcement or Mr. STEELE. Yes, and the Conemaugh district, and other gentle this rule. They would not be able, I respectfully submit, to enlighten-· men who have shown by their conduct that they believe there is a the House by any investigation of facts or· by any knowledge they great deal of wisdom in the old saying that it is well to "remain at might convey by their report as to the modes and methods of proced Jericho until your beard is grown." As is seen by members, I have ure which have heretofore been in practice .. This is a simple naked not much myself. [Laughter.] proposition to enforce the rules of the House as they now stand ; and The general parliamentary law ought to govern us. Very clearly I think the House is as ready to act upon the question now as it will. there is no parliamentary law known anywhere which recognizes the be when it shall have received protracted and.elaborate consideration practice prevailing here since I have been a member of this House. from the Committee on Rules. I submit that the House ought tc» It is a miserable practice, one which, as my friend from Mississippi take this matter into its own hands. [Mr. Hoo.KER] says, is much more honored in the breach than in the I have stood here, Mr. Speaker, Congress after Congress, and seen observance. the power of the House virtually centralized in certain great com The SPEAKER. The gentleman from North Carolina [Mr. SCALES] mittees, and I for one am tired of it. I want to see each member, as moveR that the whole subject-matter be referred to the Committee on he rises on this floor to utter the voice of the constituency he repre- Rules. sents, recognized in his right to be heard under the rules. Whatever Mr. CANNON, of Illinois. I desire to make a single suggestion. I may be said about the policy of the existing practice in order to ex suggest that the Committee on Rules consider also the qnestion how pedite legislation, I sometimes think it would be better if legislation two hundred and ninety-two members of this House can talk for an were not so hasty. We should not then have occasion so often to· hour each in twenty-five hours. Perhaps the corumitteo may devise correct mistakes such as have· been brought to the ·attention of the some means by which that can Le done. House this morning and such as were· noticed. in. the last session of.. Mr. HOOKER. Mr. Speaker, I hope the House will decide this Congress. Let the powers of the Honse be divided1among the great' quest~on ~or itself without reference to any committee. The simple committees constituting it, giving to the Committee on Appropria question is whether we aro to adhere to our rules in one form or an- tions and the Committee of Ways and Means the.prominence which. • - . 1879. • CONGRESSIONAL RECORD-HOUSE. 303 the rules intended they should have, but not the exclusive, absolute would be ultimately saved by allowing debate to run to its natural control of all matters of legislation. Let those committees have, I termination; anrl I hope now that the House without a formal vote, say, tl:ie position and importance which legitimately and properly or rather that the memberH, will conclude that such will be the wiser belong to them. Upon one of those committees is devolved the duty course on the pending bill. The discussion had on the .A.rmy bill was of looking after the ways and means for carrying on the Government. pretty animated, and, j adging by my correspondence and that portion And that "ways and means," Mr. Speaker, is a significant term; it of the correspondence of oth~r gentlemen which l have seen, the.tem means the modetand method and manner of taxation by which the per on the part of the people of the country and the fears of the more money of the people shall be taken from the pockets of the people timid of them have been aroused by the temper of the debate; and I for the purpose of being used in supporting the Government. 'l'he believe it will be well to let discussion have free course, so that when other committee very properly occupies this position in the Rouse all who desire to speak shall .have been heard the country will see having the right to determine in what mode, in what way, and to that members on this floor are not preparing for a coming rebellion what extent the money of the people, thus collected together by the or to take part in the suppression of one, and may thus be restored devices of the legislation· adopted by the Ways and Means Commit to a sound nervous condition. Can gentlemen speak on the impor tee, shall be paid out in the support of the Government. But I say tant questions which will arise, such as the abolition of sup~rvisors for the purpose of practical legislation your Military Committee, and of elections, &c., with anything like a fair statement of premises and your Naval Committee, and your Indian Committee, and every other argument, in twenty minutes Y No, sir. committee of the Honse, ought not only to be int.rusted with the duty And if there are only to be :flashes of temper, only brilliant appeals of considering the questions in reference to the mode and manage to the passions and the fears of the people, why, sir, they can be as ment of the particular subjects referred to them, but they ought to well condensed into• ten minutes as into twenty minutes; and I consider as well the requisite appropriations belonging to the partic should say if we are going to restrict the time that it be to ten min ular branch of the governmental service confided to them, leaving, utes. But if there are to be statements of premises, argument, illus however, tho general appropriation bills to be considered by the Com tration, and conclusion given, I have no fear that an ext ended debate. mitt~e on Appropriations. I say this proposition is a plain and simple will not have great effect in tranquilizing the country. one, and that is the enforcement of the rule as to the method of debate; We have nothing to do but to discuss these two bills and their and the House is as ready to decide it now aa when it shall be consid riders. It is very evident that a majority of the House composed of ered and reported back to the House from the Committee on Rules. gentlemen on both sides are determined that there shall be no Mon Mr. PRICE rose. day session in which to initiate legislation; in fact that :i.ll legisla Mr. ATKINS. I desire t.o inquire whether the House was not in tion is to be confined to these two bills. the process of executing the motion of the gentleman from North Now, let us fight it out and let the country know how thoroughly Carolina [Mr. SCALES] when the debate sprang up, and whether it Pickwickian is the cry of revolution on the one hand and the an not now proceeding by unanimous consent¥ nouncement on the other that bridges have been. bmned. [Applause. J The SPEAKER. The motion of the gentleman from North Caro Mr. RE.A.GAN. I shall sustain the motion made by the gentleman• lina would be debatable, but he demanded the previous question from Maryland, and trust that in sustaining it the practice of the upon it. House may.receive in the respect referred to the construction which Mr. ATKINS. And the House wasactuallydividingwhen the gen that gentleman places upon it. If the list which is made out is kept tleman from Illinois [Mr. FORT] interrupted that division. up I would have it only a.a suggestive to the presiding officer that The SPEAKER. 'l'he gent!eman from Tennessee is correct. The gentlemen wish to speak upon the question. There are proprieties of Chair, however, bas been desirous of allowing the widest latitude of debate that are denied by the arbitrary list: I understand now that debate on this subject because it concerns the personal privileges of this practice of having a list is regarded as imperative upon whoever members in occupying the floor for debate on pending questions. may be presiding at the time the debate is to go on, and it is denied Mr. PRICE. I wish tomakeasuggestion totheHouse. The great by members of the House and the Speaker or the person presiding in trouble in this matter arises from the fact there are more gentlemen Committee of the Whole that he should depart from that list. But upon the floor than can get time to speak. When the list is made I we know that when bills are reported to the House, though there· suppose it is all right and proper, but the trouble is it is made out may be two lists of members who are to speak, yet the proprieties of. weeks before the bill comes before the committee and long before debate require the presiding officer to assign the :floor in the first in most of the members have known anything about it; and as my friend stance to the gentlemen who compose the committee for the discus from Tennessee [Mr. WmTIHORNE] has suggested, such young and sion of the particular measure, those whose business it has been espe modest members as himself and myself by such an arrangemeilt are cially to inform themselves upon the subject-matter before the House overslaughed and we do not get our appropriate share of the floor. I or the committee. There may be other reasons to cause the presid suggest whether we cannot harmonize the matter in this way: limit ing officer to put some member forward in a discussion, for the pur- the debate on the bill now in Committee of the Whole, because it in pose of eliciting special information or because the particular mem volves very important questions; say that no speech shall be longer ber might be so situated with reference to the question before the· than twenty minutes; and instead of allowing members to speak an Honse as to make it proper for him to discuss it. hour ea.ch, limiting each speech to twenty minutes will give a larger We will get no rule either by determination of the House or by the number of members the chance to be heard before the debate closes. action of the Committee on Rules which can give satisfactton to all If I am in order, Mr. Speaker, I should like to make that motion. the members of the House, which shall give to each member the priv The SPEAKER. The Chair will now submit the question. He has ilege of speaking at any time when be desires to speak. That is an. allowed ample debate because the question relates to the privilege of impossibility, and it is useless for us to att.empt to overcome that members, and those who wish to speak on it ought to have the oppor difficulty. If, therefore, we determine to adhere to the rules of the tunity of being beard. Does the gentleman from North Carolina in Honse and allow the list to be made as a suggestion to the presiding sist on the demand for the previous question T officer of who is to speak, but with the distmct understanding that Mr. SCALES. I do not. be is not confined in assigning the floor to the list, then we have, it Mr. BLOUNT. The gentleman from Mississippi, [Mr. HOOKER,] in seems to me, accomplished everything we can reasonably expect to discussin~ the proposition now before the House, has seen :fit to refer. accomplish on this subject. to the pnvileges which the Committee of Ways and Means and the _But besides that, Mr. Speaker, I feel there has been ground of com Committee on Appropriations have on the floor. The question before plaint in the way in which these lists have been made up. I know, the House is as to t.hc enforcement of the rule in reference to the sir, that upon the bill which is now before the House there were two order of debate. The particular privileges given to those commit lists made up-one made up by the gentleman who it wa.s understood. tees have been conferred by the rules of the Honse, and are not de was to preside in the committee, and another made up as ordinarily pendent upon custom. Therefore, all reference to those two com by the Clerk at the Speaker's desk. If there is to be a list as a sug mittees in that regard is entirely outside of the question before the gestion to the Speaker or the presiding officer in the Committee of House. It has nothing to do with it. the Whole, there should be a distinct and clear practice that that list .A.gain, the gentleman says the only question is whether the rule shall at some particular time be open for members to put their names. shall be enforced or not. Now, sir, I submit that there is a good deal upon it, and it should never be made up until the time or about the ·. more than that naked question involved. For many years the ope time the discussion is to take pla.ce. ration of the rule under debate has been found objectionable, so ob The SPEAKER. It is always open. The moment a subject is in jectionable indeed that this House has adopted a custom which has trodncecl to the attention of the House or reported from a commit prevailed against the rule itself. That custom baa been running tee, then gentlemen are in the habit of coming up and inserting through a period of years. It has been so long sanctioned that the their names in the list to speak on that subject. That has been the rule itself, as against the custom, has in a measure become obsolete. practice for years and years. It does not appear to me under the circumstances, therefore, that the Mr. RE.A.GAN. I have no objection to that practice; but what J.. Committee on Rules should consider the matter as to why the rule nrge is that it ought not to be an arbitrary rule to control the dis- was abandoned, why this custom has obtained, and all the reasons cretion of the presiding officer. which led to it, and then we could act on the report of that committee Mr. SCALES. I renew the demand for the previous question. to the House. We should not dispose of. this matter in the hasty Several members called for the regular order. manner proposed. The previous question was seconded and the main question ordered Mr. KELLEY. I hope, Mr. Speaker, that no such restriction will Mr. HOOKER. I ask the Chair what is the precise question Y be put on debate on the coming bill as has been suggested by my The SPEAKER. · The question is on agreeing to tho proposition~ friend from Iowa. When it was proposeJ. to limit debate on the that the Committee on Rules be instructed to inquire what alterntion, Army bill I concurr~d in the opinion you then expressed, that time if any, there should be in Rule 59, touching the recognition of mem- • :304 CONGRESSIONAL RECORD-HOUSE. APRIL 8, • bers to speak by the Speaker of the House and the Chairman of the Mr. ATKINS. I shall make that motion when we are in Committee ..Committee of the Whole on the state of the Union. of the Whole; that would be the proper time, but this is the tii;ne for Mr. MITCHELL rose. the House to fix such limitation to general debate as it sees p'toper, The SPEAKER. The main question having been ordered the ques and until we reach this clause of the bill, so far as I am concerned, I tion is not debatable. shall make no suggestion to the limitation of debate. · Mr. MITCHELL. I do not rise to debate. I wish to ask the Speaker Mr. GARFIELD. I suggest to the gentlem::m tha~these objection 'how we shall sta.nd if this resolution is adopted t Shall we act under able sections might be passed over, for general debate, and tl1at we the rule laid down in the Manual, or will the custom which has been goon with all the money part of the bill, coming under the five-minute under 1879. CONGRESSIONA.L RECORD-HOUSE. 305 (After a pause.] The present occupant of the chair is ad nsed by the tion of the House made a report that this additional force was neces Speaker's clerk that there is here a list embracing the names of some sary. seventy-odd members of this committee. The Chair also is advised. The amendment was adopted. of the action taken recently by .the House in referring to the Com Mr. ATKINS. In view of the amendment just adopted, I move to mittee on Rules this matter or practice of recognizing members ac- amend the paragraph embrace(l in lines 141to144, so as to read a fol cording a"8 their names appear upon the list. . lows: The present occupant of the chair has had nothing to do with the For compensation of the officers, clerks, messengers, and others receiving an an· list which has been made, nor has it ever been seen by him. He de nual salary, in the service of the House of Representatives, 197,015.20, namely. sires to deal with exact fairness. Acting in the light of the discus The amendment was agreed to. sion and the action had by the House but a few moments ago, the The Clerk read as follows: Chair deems it but fair and proper to recognize such custom as has For superintendent of the folding-room, s-2,ooo; three clerks in the folding - ro~ , been in existence for so many years in this House. At the same time one at $1 1800, and two at $1,200 each; superintendent of the document-room, $2,000; he consi ( • 1879. CONGRESSIONAL REOORD-Hff0SE. 307 has always occurred to me where ports of entry are in the interior we appropriate in this bill all that was asked for; andif the gentle and not on the frontier that the Government has found it necessary men have information in regard to this bureau, it seems to me that to pay out more money than they collect. I believe there are several it would be proper that they should have laid that information. be· ports of entry in Missouri and perhaps some in the State I live in fore the Committee on Appropriations when the bill was made up. which are a thousand miles from the boundary line and which collect How is the Committee on Appropriations otherwise to ascertain what no duties; not even enough to pay their postage. The city of Quincy is required We have given the estimates, and I repeat, how is the is a. port of entry in my Rtate. There are many ports of entry in the Committee on .Appropriations to ascertain what is the amount that interior that collect nothing. The object of having these ports, Inn- is necessary to discharge the duties of this bureau unless the estimate 1erstand, is to prevent smuggling; but how they can do any good in is laid before the Committee Ou Appropriations ? that v:;ay I have not been able to see. How the Government should Now I have no doubt that the gentlemen who received this informa persist in maintaining these ports of entry in the interior and keeping tion belong to the party that would be glad to have an increase in officers there at great expense, I cannot understand. I think the the clerical force of this bureau. There is this man or the other who amendment of the gentleman from Tennessee is worthy of considera would like tog-et an office; and there is a move along the whole line tion, and that, if found to be practicable, it should be adopted. in favor of au increase in the clerical force of this office. Mr. DUNNELL. I think the gentleman from lliinois [l\Ir. FORT] I hope that this House at this extra session will not now nnder is mistaken when he speaks about ports of entry in the interior of take to override the investigation and the critical examination of the country. There may be some ports of entry on some of the most this subject made at the last session of Congress by the Committee important rivers of the country. on Appropriations and the Committee of the Whole. If so, then we Mr. FORT. I presume there is one at Saint Paul. will have m:my applications for increase of clerical force. I have Mr. DUNNELL. Undoubtedly, for that is the on1 y port of entry had since it lias been known that I was in chargo of this bill verbal in the State. applications in a dozen instances, to which I have in general turned Mr. DIBRELL. The gentleman from Illinois is right. There are a deaf ear. two on the Missouri at which about $400 is paid but where we do not There are some amendments which I shall move at the proper time, realize a cent of revenue. · and for which I will give good and sufficient reasons if demanded bv Mr. DUNNELL. This whole question has been brought before the the committee. But I trust this committee will decline to go into Committee on Commerce, and while it was plausible that officers may this large increase of the clerical force, so large an increase as pro be abolished where the pay wa'8 les than the receipts, yet when the posed by the gentleman, especially when we have given all the De whole question was examined we saw how important it was that a partments what they asked for. We have given to this bureau every just and correct enforcement of the revenue laws should be made, single clerk of class 1 which was asked for, and the entire amount to and I hope the amendment will not be adopted. a dollar which was asked for. I hope that in the early part of this Mr. REED. It seems to me, Mr. Chairman, that the amendment bill the example will not be set of increa.sing this force, and that we which has been offered is founded on a miscalculation of the duties will not drift away from om: moorings. I bad hoped the House would of a collector of customs. If I understand aright the gentleman who confine itself to the bill as agreed upon by the committees of confer introduced it made reference to some customs officers in~aine where ence of the two Houses at the last session, and that we wonJd not larger payments are paid than the gross receipts of the office. I enlarge theS(' appropriations. have no doubt that that is true in the instances which the gentleman The question was taken upon the amendment mo"'\'"ed by Mr. NEAL; mentioned, and true in many other instances, but the duties of the and it was not agreed to. customs officers are not confined to receiving duties upon importa The Clerk resumed the reading of the bill and read the following: tions alone. The duties of a custom-house officer include the keeping For the force employed in redeeming the national currency, namely: For super out of goods that do not pay the duty, and on a long sea-coast like intendent, $3,500; two principal tellers and one principal bookkeeper, at .,. 2,500 that of .Uaine there will ha.ve to be a great many officers stationed each; one assistant bookkeeper, $2,400; and two assistant tellers, at $2,000 each; two clerkaof cla s 4; four clerks of class3; four clerks of class2; thirty-six clerks along the coa'8t to a very great extent to keep out imports that do of cla s 1; thirteen clerks, at 1,000 each; twenty-six clerks at $900 each; one mes not pay the duty. senger; four assistant messengers; and two employes, -at $432 each ; in ' all, The Secretary of the Trea'8ury has sent agents there who have re 117,184. peatedly traversed the coast of Maine seeking an opportunity to reuuce Mr. BAILEY. I move to amend by striking out of line 581 "S2,500" the expenses; and there are cases in the State of Maine in which the and inserting" ·3,000 ;" so that it will read "two tellers, at $3,0.00 expenses have been largely reduced, and where, if the custom-houses each." I do this because I believe it is perfectly understood by the were abolished, the revenue would be defrauded to an amount beyond members of this committee-- . the saving now suggested. It is said that there are too many ports Mr. ·ATK!fS. I object to going back; we have passed that para- of entry and too many collectors. That may be; and if the Secretary graph. · of the 1.'reasnry were allowed the privilege of consolidating them and The CllAIR1.1A.l~, (Mr.MILLS.) The amendment is not in 01·der. preventing this whole evil I would be ready to vote for it, but I doubt Mr. BAILEY. I hope the gentleman will not make a point of order. very much if it would result in any decrea~e of expenditures. I hope Mr. ATKINS. I do make it. the House will remember that there is a second part of the duties of l\Ir. BAILEY. Does the chairman of this committee decide that at a custom-house officer, and I hope the House will not cut off officers the end of a section au amendment cannot be offered uy a member of who are absolutely necessary to the Government. the committee 1 The question was taken upon the amendment; and on a division The CHAIRMAN. .An arfl.endment can be offered to a paragraph there were-ayes 25, noes 63. when it has been read, but after it has been passed and another para ·So the amendment was not agreed to. graph read it is not iu order to offer an amendment. The Clerk resumed the i:eading of the bill and read as follows: Mr. BAILEY. I ask for information; is not this a.t the end of the Second Auditor: paragraph f For Second A.uditor, . ,600; depnty auditor, .... 2,250: five chiefs of dhision, at ?t:lr. ATKINS. It is not. $2,000 each; six clerks of class 4 ; twenty-fiye clerks of class 3; fifty-five clerks of The ~H.AIRMAN. The reading of the bill has es:. tended to line 60;), class 2; thirty-fi"'e clerks of cla.<1s 1; eight clerks, at 1,000 each; two assistant messengers, and eight laborers ; in all, .. 200,370. a paragraph succeeding the one which the gentleman proposes to amend. · Mr. NEAL. I move to amend that clause by striking out the word Mr. BAILEY. The reading bas extended to the end of the lntra "eight,"·in line 52!>, and inserting in lieu thereof the word'' eight graph rolating to the treasurer. I supposed it would not be proper een ;" so that it will read ''eighteen clerks at 1,000 each." to interrupt the reading of the Clerk until the end of that paragraph My object in offering this amendment is this: there are scores of had been reached. applications from those who served in the Mexican war, and in order l\Ir. ATKINS. Does the gentleman appeal from tlie decision of the to enable the Second Auditor of the 'l'r~aslll'y t,o dispose of the~e Chair¥ claims promptly and satisfy the claims of those who fought in that . The CHAIRMAN. As each paragraph is ~ead, if no ameml~nt is war, it is necessary that he should have an increase of clerical force. offered the paragraph is regarded as adopted. The Chair rules that I I presume that there is not a member of this House on either side the proposed aruendmen t is no11 now in order. of it who has not received some letters from soldiers who fought in Mr. BAILEY. I desire to ask the Chair one question for informa that war, and asking how they should receive the compensation voted tion. I desire to know whether a member of this committee on the to them. It is impossible that they should do this unless the force is floor of the House, if he be one not entirely conversant with all the increased. rules of the House, if he be a modest man, as bas been said by some Although there might not ue a great many of these claims, yet gentleman ; if he be one who did not get into the rush and whirlpool every man who was in the war and has received information that he to put his name down ou the list of those who are to be allowed to is entitled to the extra pay writes to the Second Auditor for informa speak-I desire to inquire if he is to be deprived of his representative tion. This requires an examination to be made on the subject of privilege in a respectful manner and at a proper time to move an whether he is or iR not entitled to the money, and also the address amendment '! I desire to know if we are to be governed by the ticks ing of a letter to him showing him just what his rights are. This of the clock in offering amendments which we believe to be just and will save him from the claim agents, who ru:e like vultures in this proper l Are we to be prohibited by a technical objection that it is country, using all their endeavors to get a portion of their claims, not at the end of one line or of a second line T and in order tbat they might get a large portion of the money which The CHAIRMAN. The gentleman is prohibited by tlle rules of the has been voted by the last Congress. House. he rules prescribe that whenever a paragraph is read for Mr. ATKINS. I dislike very much to oppose any necessary appro amendment, the amendment can then be offered. priations or any increase in the clerical force of the Department, hut Mr. BAILEY. I would like to have that rule reported which cloes 308 OO~GRESSIONAL RECORD-HOUSE. APRIL 8, not allow me to offer this amendment when the reading ha-s reached Mr. ATKINS. Oh, no; the gentleman is mistaken about tha,t. the end of this section or paragraph. The CHAIRMAN. The paragraph has not been i1assed. The CHAIRMAN. The Chair has decided the question. Does the Mr. "ATKINS. Mr. Chairman, this subject was gone over with the gentleman appeal from the decision of the Chair ' Commissioner of Internal Revenue l>y a subcommittee of which Mr. Mr. BRIGHT. I would sug~est to the gentleman from New York Durham, lately a member from Kentucky, and myself were the ma [Mr. BAILEY J tbat he can obviate the difficnlty by asking unanimous jority, and Mr. Foster, of Ohio, the representative of the republicans. consent. Upon inquiry being put the Commissioner as to the propriety of re ~fr . ATKINS. I have made objection, not through any discourtesy ducing the per diem of gaugers, he expressed the opinion that $5 a to the gentleman. day was little enough in order to secure the right sort of men for this Mr. BAILEY. I know that. duty. The position is one in which a man may shirk his duty to the Mr. ATKINS. I would make the same point of order on any other injury of the Government; aud the Commissioner thought that $5 meml>er upon this floor, on even the best personal friend I have on per day was little enough to enable the Government to get the right the floor. kind of men. He made a good many arguments to convince the com ?vlr. BAILEY. I only <.lesire to know what the rule is, that I may mittee that the per diem should remain at $5. I care nothing about be guided by it in the future. the matter so far as I am concerned. Mr. ATKINS. I hope, unless the gentleman appeals from the de Mr. DIBRELL. Has the gentleman ever seen the head of any De ci.'ion of the Chair, that we will proceed in order. partment that was willing to have the s1:tlary of any officer reduced T Mr. BAILEY. May I not be informed of the rule ' Mr. ATKINS. My colleague must not put such a question as that The CHAIRJ.\'1AN. It has been the universal practice of the House to me. I have been putting that question myself. ever since the present occupant of the chair has been a member of Mr. DIBRELL. Do not two dollars of the five go to campaign the House. . purposes-to help carry the elections t Mr. BAILEY. I understood the Chair to say that I was to be gov- 1\fr. ATKINS. I will let republicans answer that question. · If the . erned by the rules of the House. · gentleman will convince me that any portion of this money goes to The CHAIRMAN. Does the gentleman appeal f campaign purposes, ·1 shall be in favor of reducing it. Mr. BAILEY. I ask, for information, what is that rule of the Mr. DIBRELL. If the gentleman has 'ever seen a gauger who was House! · not active in campaigning, I have not. The CHAIRMAN. The Chair is not able to give the gentleman all Mr. FORT. Perhaps the whisky itself is used for campaign pur the information perhaps he wants on that subject. The gentleman poses. [Laughter.] can get informa,tion from the House if be appeals from the decision Ur. CANNON, of lliinois. Five dollars a day is little enough for of the Chair. . a competent gauger. The amount ought to be increased instead of Mr. KEIFER. I think that the rule referred to applies to a section diminished, if any change is made. The duties of the office are im rather than to a paragraph. portant. By the incompetency or dishonesty of a gauger the Gov The CHAIRMAN. Is there an appeal from t he decision of the ernment may lose ten times or one hundred times the amount of the Chair f [After a pause.] If not, the Clerk will.proceed with the read salary. • ing of the bill. 1tlr. DIBRELL. The salary 1.1.oes not make the man honest. The Clerk read as follows: Mr. CANNON, of Illinois. I understand that; but the gentleman F or salarie and expenses of agents and surveyors, for fees and expenses of must know that, in reference to the employment of individuals in gaogers. for saillries of storekeepers, and for miscellaneous expenses, $1,500,000 ; private life or by the Government, it is prudent to pay reasonable or andn ereafter the compensation of gaugers shall not exceed · ~ per day while actu dinary compensation for the discharge of important duties requiring any employed. skill and fidelity. You thus remove the temptation to become dis :Mr. DIBRELL. I move to amend by adding to the paragraph just honest. If the gentleman were carrying on for himself a busines • rnad the following : requiring this kind of service, he would no more think of employing Aud the salaries of storekeepers shall not exceed 50 per month. a man at $:l a day for this duty t han he would do any otµer improba I understand that the present pay of theBe officers is $100 per month, ble thing; because he would say that it waa not wise to subject an and they are not engaged one-fourth of the time. Many of the small employe in such a re ponsible position to the constant temptation distilleries do not make rnvenue enough to pay the storekeepers and to carelessness or dishonesty. I hope the amendment will not be gangers. agreed to. }.ilr . .l\IcCOOK . . Do the distillers pay thn storekeepers T Mr. BLOUNT. I move to am.end the amendment by striking out Mr. DIBRELL. No, sir; the Government pays them. • · the last word. I trust the amendment will not be adopted. During :Mr. McCOOK. Is not an assessment levied upon the distillers to the Forty-fourth Congress this whole subject of salaries was ~one into pay t he e officers ! and large reductions made. In the Forty-fifth Congress also these . l\lr. DIBRELL. A tax of ninety cents per gallon is levieu upon questions receh:•ed careful consideration. This is an important branch spirits ; and the Government pays the salaries of storekeepers, gaugers, of the public service; and it seems to me that before tho House un &c. dertakes to make a change iu a matter of this sort, it should be care l\lr. McCOOK. Is not provision made that distillers ball pay a fully considered by a committee and reported upon for the informa per diem to the storekeepers ? . tion of the House. During the last Congress this subject was consid Mr. DIBRELL. The pending paragraph reads : ered by a committee whose report was accepted by the House. I trust we are not going to depart from the deliberate action of the Honse For fees and eA.·penses of gaugers, for salaries of storekeepers, &c. upon a matter of this kind without some good reason. The gentleman In this bill we appropriate for the payment of the salaries of these from Tennessee [Mr. ATKINS] has aheady stated that the action storekeepers. already had on this subject was not hastily taken. The Commissioner Mr. KELLEY. When the rate of tax was in.creased from seventy of Internal Revenue was called and consulted, and after consultation t;entH to ninety cents the Government assumed the payment of these with him the gentleman having charge of this matter under direction officers. · of the House reported this amount. I hope we will have no hasty over Tlie \).mendment of Mr. DIBRELL was agreed to. ruling of the action of the Commissioner of Internal Revenue. When the Mr. COFFROTH. I move to amend in the last clause of this para House shall come to l>e organized,to have its committees, if these salaries graph by striking out "five" and inserting ''three; " so a.s to read: arc too large, then will be the time for us to undertake to. correct Here:>Jterthe compensation of gaugers shall not exceed $3 per day while actually them. But I insist, sir, we should not now undertake it. I trust the employed. House will vote down all amendments in antagonism to the action of ·From my observation of the duties performed by these gaugers the last House, uuless it is plain and clear there is some imperative (and I live in a county containing quite a number of distilleries) I necessity for adopting them. think that $3 per clay is quite sufficient compensation. Mr. COFFROTH. I wish to reply to· my friend from Georgia by Mr. McCOOK. Is not this amendment subject to a point of order, stating that the House has already adopted the amendment fixing the the same point made a few moments ago upon my colleague, [Mr. salary of storekeeper& at $50 u. month. Now, to fix the salaries of BAILEY ~ ] gaugers at $3 a day in my judgment is snfficient. I say yon can get The CHAIRMAN. Does the gentleman make a point of order? competent men all over the Union to do the duties now performed Mt'. McCOOK. No, sir; I will not make any point. by gaugers at $3 a clay. Yon can get the best young men in the Mr. CANNON, of Illinois. Do I understand the gentleman from country, young meu of education, men of integrity, who will gladly New Yerk to make a point of order T accept ·3 a· day to perform the duties required of these gau for any kind of printing herein authorized until the laws passed by the Legislative for the absence of any legislation on that subject, and the Committee Assembly shall nave been printed and bound; for incidental expenses of tlieLegis lative Assembly, (including not more than $1,000 for the secretary's office,) $2,000; on Appropriations in perfecting the bill seem to have taken the same · for per diem of officers and others, ~2,200; for extra per diem of the president of view, and they have provided in the bill as reportecl that thsse claims the council and the speaker of the house, $160; in all, 15,460. shall bo investigated, but they have not provided that there shal 1 be any funds to perfect the investigation. Mr. DO'°VNEY. I offer the following amendment: Mr. ATKINS. I submit that the amendment proposes new legisla- In line 1177, strike out the word "six" and insert "nine;" strike out the word "four" and insert the word "six.'' · tion and increases the expense by $15,000. • In line 1180, strike out the word "provided.'' The CHAIRMAN, (Mr. BLACKBURN.) In the judgment of the Chair Strike out lines 118l, 1182, 1183, and part of line 1184, including the word the amendment certainly proposes an appropriation not authorized "bound." by law. The Chair therefore sustains the point of oder. Strike out the words in line 1185 after the word ·!a embly. ' Strike out line 1186. Mr. HUNTON. I desire to inquire of tho geutlemn.n in charge of In line 11137, after the word "thousand·~ insert the words "five hundred." this bill [Mr. Arn:rx ~ ] what he nnderstands to be me:::i.nt by the word In line 1190, strike out the word "fifteen" and insert "eighteen.'' "supernumerary" preceding the words "officers of the Army " In line 1190, strike out the word "four" and insert "seven." Mr. DIBRELL. I have an amendment to move which will perfect I ha'"°e understood that this qnestiou has been passed on repeatedly this para~raph. · by Congress, but our people in the Territory of Wyomin~ believe Mr. HUNTOK. I was going to move to strike out the word "su that&! a day for members of the Legislature is not sufficient com pernumerary." penR!.ltion. In obedience to their wishes, I have the honor to offer Mr. ATKINS. I have no objection to that. This provision was this amendment which would raise the per diem from $4 a day to $6 offered at the last session by my colleague [I\Ir. DIBRELL) as an amend ni Mr. WHITTHORNE, It was not known at the time the estimates relief be granted John B. Tucker-to the Committee on Military Af were made that the records of the Department would be transferred fairs, when appointed. from one building to the other. I trust the committee will concur in By Mr. W .ARNER: The petition of James McSwords, that bounties the amendment. be granted t hose who served less than two years in the Army-to Mr. ATKINS. I trust it will not. the same committee, when appointed. The amendment was not agreed to. By M~. YOUNG, of Tennessee: The petition of Hayden & Co., of The Clerk resumed the reading of the bill and read the following: l\Iemphis, Tennessee, to be i:efllJlded taxes illegally paid by them on For one superintendent of the building occupied by tho Navy Department ($250) cotton-to the Committee of Cfaiims, when appoint.ad. and for five watchmen and two laborers ; in all, $5, 170. . For incidental labor, fuel, lights, and mh;cellaneous items for said building, $5,000. Mr . .ATKINS. I move that the committee now rise. The motion was agreed to. The committee accordingly rose; and the Speaker having resumed IN SENATE. the chair, Mr. BLACKBUR.i..~ reported that, pursuant to the order of the House, the Committee of the Whole had had under consideration WEDI'i~SD.AY, April 9, 1879. the bill (H. R. No. 2) making appropriations for the legislative, ex ecutive, and judicial expenses of the Government for the fiscal year Prayer by the.Chaplain, Rev. J. J. BULLOCK, D. D. ending June 30, 1880, and for other purposes, and bad come to no The Journal of yesterday's proceedings was read and approved. resolution thereon. EXECUTIVE COl\11\I U~"ICATIOX. LEAVE OF ABSEXCE. The VICE-PRESIDENT laid before the Senate a communication from the Postmaster-General, transmitting for the information of the By unanimous consent, leave of absence was granted as follows: Senate a copy of a letter forwarded by him to the Speaker of the To Mr. CmTTENDEN, until Tuesday next ; House of Representatives showing the necessity for an increase of the To lilr. HEIL1\:IAN 1 until the 15th instant ; To Mr. SMITH, of Georgia, for six days; and clerical force in the office of the Third Assistant Postmaster-General; which was referred to the Committee on .Appropriations. To Mr. HARRIS, of Massachusetts, until Mo~day next. PETITIONS A.ND ME~WRIALS. :E ' OLDL~G OF DOCIDIENTS. l\Ir. HAMLIN presented the petition of Hannah L. Stearns, of Cas Mr. .ATKINS. I move that the House now adjourn. tine, Hancock County, Maine, praying for the passage of a law grant Mr. CHALMERS. I am informed by the clerk of the folding-room ing her a pension on account of services rendered by her late hus that there is great difficulty in getting rid of the immense mass of band, Benjamin F. Stearns, a.g a teamster in the war of 1812; which speeches now there to be folded. I del'ire to ~sk permission that he was referred to the Committee on Pensions. b~ authorized to employ an additional number of operatives to be Mr. MAXEY presented the petition of T. E. Nixon and others, mem paid by the piece. bers of Mount Zion Grange, No. 806, of Lamar County, Texas, pray The SPEAKER. The gentleman had better present a resolution ing for the passage of a. law regulating interstate commerce, and pro upon that subject; and that would have to go to the Committee of hibiting unjust discriminations by common carriers; which was re Accounts under the rules. ferred to the Committoo on Commerce. Mr. .ATKIN~. Do that to-morrow morning. He also presented the petition of Mrs. Ann Barnes, of Fort Stock Mr. CHALMERS. Very well. ton, T.-:as, praying for the passage of a law authorizing the refund The motion of.Mr. .ATKIKS was agreed to; and accordingly (at four ing to her of certain money alleged to have been unlawfully taken o'clock a.nd twenty minutes p. m.) the House adjourned. from her husband during the late war; which was referred to the Committe on Claims. PETITIONS, ETC. PRL.~TING OF THE CENSUS ACT. The following petitions, &c., were presented at the Clerk's desk, Mr. WHYTE. I am instructed by the Committee on Printin~ to under the rule, and referred as stated : report with a favorable recommendation the following resolution, By Mr. CULBERSON: The petition of Marcos Radich, for payment asking, however, unanimous con.sent to make a clerical correction: of vouchers for rent of property in Texas used by the United States Resolved, That there be printed for the use of tho Senate 1,000 additional copies of i:iublio aot No. 98, an a-0t to provide for the tenth and subsequent censuses, said Army-to the Committee of Claims, when appointed. copies to be delivered to the Senato document-room. By Mr. DE LA MATYR: The petition of citizens of Jay County, Indiana, for the passage of the Reagan interstate-commerce bill-to The Senate, by unanimous cons~ n t , proceeded to consider the reso- the Committee on Commerce, when appofuted. lution. - By Mr. ERRETT : The petition of 66 ladies of Allegheny County, Mr. WHYTE. I ask lea>e to insert after the word "for" the word Pennsylvania, f0r the enforcement of the laws against polygamy-to "taking," so as to read "for taking the tenth and subsequent cen the Committee on the Judiciary, when appointed. suses." .Also, the petition of 131 ladies of the thirty-second ward, Pitts The VICE-PRESIDENT. That clerical correction.will be made as burgh, Pennsylvania, of similar import-to the same committee, when suggested. appointed. The resolution was agreed to. By Mr. HASKELL : The petition of citizens of Douglas County, PORTRAIT · OF JOSEPH HEXRY. Kansas, for the passage of the Reagan interstate-commerce bill-to M.r. ANTHONY. I am instructed by the Committee on Printing, the Committee on Commerce, when appointed. to whom wa-s referred the joint resolution (S. R. No.17) authorizing tho By Mr. JAMES: The petition of Lydia E. Buckley, that her name printing of a portrait of the late Joseph Her9y, to accompany the be restored to the pension-roll-to the Committee on Invalid Pen memorial volume heretofore ordered, to report it without amendment, sions, when appointed. and I a-sk for its present consideration. Also, the petition of Eliza Berry, for a pension-to the same com By unanimous consent, the Senate, a-s in Committee of the Whole, mittee, when appointed. proceeded to consider the joint resolution. It appropriates $500 for Dy Mr. JONES: The petition of Peter Eldridge, for an increase of the printing of the portrait of Professor Joseph Henry, to accompany pension-to the Committee on Revolutionary Pensions, when ap the memorial volume already ordored by Congress. pointed. The joint resolution was reported to the Senate, ordered to be en .Also, the petition of Andrew Jones, for bounty on account of serv grossed for a third reading, read the third time, and passed. ice in the United States Navy-to the Co.mittee of Claims, when appointed. BILLS INTRODuCED. By Mr. KEIFER: The petition of members of Rush Creek Grange, Mr. HARRIS asked, anu by unanimous consent obtained, leave to Logan County, Ohio, for the passage of the Reagan interstate-com introduce a bill (S. No. 382) granting a pension to Ellen W. P. Carter; merce bill-to the Committee on Commerce, when appointed. which was read twice by its title, and, with the accompanying papers, · By Mr. McCOOK: The petition of George C. Jenks, of New York referred to the Committee on Pensions. City, for compensation for the use by the United States Post-Office He also (by request) asked, and by unanimous consent obtained, Department of a patent letter-box-to the Committee on Patents, leave to introduce a hill (S. No. 383) for the benefit of the public when appointed. schools in the District of Columbia, and for other purposes; which By Mr. RE.AG.AN: The petition of Spring Run Grange, Whitley was read twice by its title, and referred to the Committee on the Dis County, Indiana, for the passage of the Reagan interst.ate-commerce trict of Columbia. bill-to the Committee on Commerce, when app9intecl. Mr. GORDON (by request) asked, and by unanimous consent ob By Mr. SINGLETON, of Illinois: Resolution of the Legislature of tained, leave to introduce a bill (S. No. 384) to aid the Great Southern Illinois, favoring appropriations for the protection of the navigation Railway Company (consolidated) to construct a line of railway in the of the MiE;sissippi River in Madison and Saint Clair -Counties, Illi Stat.es of Georgia and Florida; which was read twice by its title, and nois-to the Committee on Commerce, when appointed. referred to the Committee on Railroads. By Mr. TOWNSHEND, of Illinois: The petition of citizens of illi Mr. DAVIS, of Illinois, asked, and by unanimous consent obtained, nois, for the improvement of the Ohio River at Hurricane Island-to leave to 'ntrodnce a bill (S. No. 385) granting a pension to Ivory H. the Committee on Commerce, when appointed. Pike; which was read twice by its title, and referred to the Commit- Also, the petition of 62D citizens of Illinois, that a pension or other tee on Pensions. ·