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The Constitution, on the subject of the rules, gives to each house the power to determine the rules of its proceeding. The very force of that word "determine" certainly is to put an end to any rule they may adopt. As to the joint rules it says nothing; but as part of the business of the two houses is concurrent, the power would be implied in each house to make rules for cases where its proceedings touch the proceedings of the other body as well as where they were confined to the action in the body itself. The power of each house to make rules having been expressly given by the Constitution, nothing more is to be implied; for I believe it is a safe rule that you are not to infer an implied grant of power from an expressed grant.

My present disposition is, with deference of course to the Senator from Vermont, to differ from him in regard to the power of the House at any time to retire from a joint rule on giving notice. Otherwise they would be tied up for the session irrevocably to a joint rule which, because it was a joint rule, had a binding effect which other rules could not have. The Senate cannot deprive itself of its power over its own rules; it cannot delegate any portion of this power to another branch of Congress; and it has no right to deprive itself of its power given to it for its own exercise in its sound dis

cretion.

Therefore it is that I believe it is within the power of the Senate-I mean within the constitutional power of the Senate-to retire from any joint rule at will, under the forms prescribed by themselves for amendment and alteration of the law. I believe this idea is in furtherance of the necessary independence of each house of Congress from the other, in order to form a check on the action of the other, for this was designed to be a Government in which various checks should constantly interpose upon the power of each house. Each house was created with particular powers for the purpose of preserving those checks and balances in the Government. But I am anxious that the question shall be considered, and considered now by the respective Committees on Rules of the two houses. I have no idea that there will be found any necessity for amending any of the rules but the twenty-second joint rule, and that, I believe, had better be tried, because it is leaving that subject under the machinery of a rule which ought to be dealt with only under the machinery of a law regularly enacted.

If it be the object of the Senate to repeal the twenty-second joint rule and to leave the naked language of the Constitution, insufficient and meager as it has been found to be, to stand in doubt and obscurity until the next count of the presidential votes, then I shall say they will fall very far short of their duty in my opinion.

Mr. EDMUNDS. I beg to assure the Senator that I have no such object. My object is to have the joint rules which are not embarrassed with the twenty second adopted, and then to provide by legislation, as we attempted to do at the last session, and I think my friend's opinion and my own came very nearly together on the general topic, for that contingency, and leave the joint rules disembarrassed of this one for the time being.

Mr. BAYARD. What is the objection to allowing this question of the rules to be settled by a report of the two committees, after conference? The subject of the power of each house over the joint rules is before us.

Mr. EDMUNDS. My objection is that the very substitute implies that the joint rules, the twenty-second and all, are now in force-a proposition from which I totally dissent. Mr. BAYARD. As a question of fact, I do not propose to join issue with my friend on that subject, because he is more apt to be right than I in regard to the action of the House. I was endeavoring to find by the Record the action of the House on the subject of rules. I find that other gentlemen near me have the same impression I have, that there was by the House an adoption of the joint rules as well as the rules of the House itself.

Mr. EDMUNDS. I have never seen it, if there is anything of the kind.

Mr. WITHERS. I ask the Senator from Vermont if an amendment was not incorporated into the report of the House Committee on Rules, inserting the words "with the consent of the Senate," when they notified us of the adoption of the rules? Mr. EDMUNDS. Does the Senator from Virginia ask me a question? Mr. WITHERS. I ask for the Senator's recollection.

Mr. EDMUNDS. As far as I have seen any evidence of the action of the House of Representatives at all which was in the Record, all I saw was that on the motion of a gentleman from Pennsylvania the rules of the last House of Representatives, excepting certain ones which they did not wish to adopt, were adopted as the rules of the present House, and no reference was made to the joint rules. There was none that I saw; I am sure of that.

Mr. WITHERS. My impression is different, arising from the fact (which I have not been able to verify by reference to the Record on the subject) that there was an amendment moved "with the concurrence of the Senate," which I thought implied that action had been had on the joint rules as well as the separate rules of the House. Mr. BAYARD. If there be no objection, I ask that the matter lie over informally. I think it is important.

Mr. EDMUNDS. I suggest to my friend that this is merely a proposition to the House of Representatives to adopt these rules, which we all agree ought to be adopted, except the twenty-second joint rule. If they have already adopted the joint rules, it is a proposition to them to adopt them again without that one. I am sure, as a matter of fact, that my friend will not find in the Record any action of the present House of Representatives upon the joint rules.

The PRESIDENT pro tempore. The question is on the amendment of the Senator from Delaware, [Mr. Bayard.]

The amendment was rejected, there being on a division-ayes 22, noes 26.

Mr. BAYARD. I move to amend the resolution by adding to it

"And that the Committees on Rules of the Senate and House of Representatives be, and they are hereby, instructed to examine and, after conference, to report whether any, and what, legislation is expedient in regard to the matters considered in the present twenty-second joint rule."

That relieves the resolution which I first offered from the embarrassment which the Senator from Vermont seemed to apprehend, and merely requires the committees to report their views to Congress.

Mr. EDMUNDS. I suggest to my friend from Delaware that, if he will offer that as an independent proposition after this matter is disposed of, so as to get some joint rules to act under now, his proposition, except so far as it relates to the legislative branch of the affair, would meet my entire concurrence. I have not the least objection to it; but it seems to me to be embarrassing a perfectly simple question in adopting the old joint rules by adding an amendment which does not provide for their adoption and leaves the whole thing open until we shall have, in the course of a month, an inquiry. While I am up, if the Senator will pardon me, because I am taking his time, I will say that I have found, through the kindness of my friend from Massachusetts, [Mr. Dawes,] on page 9 of the Congressional Record for the 7th of December, an entry of the action of the House of Representatives upon the rules, and I hope in reading the proceedings of the House of Representatives I shall be pardoned on this occasion, although, except on a question of joint rules, it might be out of order. "Mr. RANDALL. I submit the following resolution:

"Resolved, That the rules of the House of Representatives of the Forty-third Congress shall be the rules of the House of Representatives until otherwise ordered, except Rule 166 and Rule 167.'"

Then he provides for a committee on rules it is not necessary to read. Therefore the Chair will perceive, as well as my friend from Delaware, that there can be no question at all that that action of the House of Representatives related to its own rules, and not to the joint rules. It says so in its terms. And if it were possible to hold that the rules of the House of Representatives included the joint rules, that possibility is excluded by the fact that two of the rules referred to are named as the rules of the house proper, Rules 166 and 167. This resolution, after discussion, was adopted on the statement of the Chair, with the assent of all hands, that nothing in the shape of rules of any preceding session, whatever they were, could have any force at all in that house until they were agreed to by the fresh body of men who had come in.

Mr. BAYARD. Do I understand the Senator from Vermont to consider that the action of the Senate in adopting certain joint rules, excepting the twenty-second joint rule, is interfered with by the amendment I have offered?

Mr. EDMUNDS. I understand it so. I understand that we are left with no other question open on the whole joint rules, except that not adopted, until both parties agree. The amendment is that on that we shall have an investigation. I may not have understood the amendment, perhaps.

Mr. BAYARD. I think the Senator has not understood the amendment. The amendment does not interfere with the action proposed by the Senate. His resolution proposes to do away with the present joint rules, except the twenty-second. I simply propose that the two committees shall report what legislation shall take the place of that joint rule.

Mr. EDMUNDS. But the trouble is that the House of Representatives may not be willing to have a joint committee consider the rules, whereas we need joint rules every day; and if we send over a proposition there, it must be taken in solido. They cannot adopt the joint rules without debate, and the proposition to have a committee may there lead to discussion. Some gentlemen there may have views that differ from those we have here, and in the mean time we have no joint rules and the thing drags along. If the Senator proposes this as an independent proposition, as far as I can now see it will certainly get my vote.

Mr. MORTON. I think it is too important to get clear of the twenty-second joint rule to let this opportunity pass. The adoption of the resolution, as amended now, strikes down the present twenty-second joint rule, and we are done with it. The adoption of the amendment offered by the Senator from Delaware will be construed to have the effect of an acquiescence in all the joint rules, including the twenty-second, and refers all of them to the action of the Committee on Rules hereafter. These commit

tees may never agree, and there may never be an opportunity so favorable to strike down the twenty-second joint rule. Let us now strike down that rule by adopting the resolution, and then I am willing to vote for the proposition of the Senator from Delaware, and refer all the rules to a committee for revision. I think that is the safe thing to do.

The PRESIDENT pro tempore. The question is on the amendment proposed by the Senator from Delaware.

The amendment was rejected.

The PRESIDENT pro tempore. The question recurs on the resolution.

The resolution was agreed to.

Mr. CONKLING. Unless some Senator has business, I move that the Senate do now adjourn.

Mr. BAYARD. I would ask unanimous consent to consider the resolution offered by me, and which has been discussed at the present time as an independent proposition. Mr. EDMUNDS. Let us hear it read.

The resolution was read, as follows:

"Resolved by the Senate, (the House of Representatives concurring,) That the Committees on Rules of the Senate and House of Representatives be, and they are hereby, instructed to examine and, after conference, to report what amendments, if any, should be made in the present joint rules of the two houses, and also whether any, and what, legislation is expedient in regard to the matters considered in the present twenty-second joint rule."

Mr. CONKLING. I have no objection, as I think I intimated before, to this action as an independent proposition in the language of some other Senators. I suggest, however, that we are about to do an unwise thing if we adopt this; for this reason: We have adopted rules, and to which, so far as we know, there is no objection in either house. After the House of Representatives shall have adopted these rules, then I see no more objection than other Senators do to this resolution; but we send now to the House, if this resolution should go there as well us the other, two resolutions, one proposing to adopt the joint rules, and at the same time a resolution proposing to refer the whole subject to the committees of the two houses on rules. What impression does this convey? In place of this coming afterward as an independent proposition to take effect, it may be now, that for the time being we have adopted these rules, it goes as part of our action; and the result may be to defeat what we have just been doing, and that probably will be the result. Now, I suggest that we send to the House the resolution we have just passed. If the House concurs in that, then we shall have the state of case to which the resolution of the Senator from Delaware is applicable. But if we arrest, as I think we probably shall do, the action already taken, by passing this resolution, it seems to me we defeat the very purpose we have in view.

As I have risen to make this suggestion, I venture to make also another. The whole theory of this, it seems to me, is contrary to parliamentary practice. The Senator from Delaware proposes virtually a conference committee; for so it becomes. What is the mission of a conference committee? To reconcile differences between the two houses. Now surely until we know that there is a difference between the two houses, we do not need a conference committee; and then we do not need it as to any matter upon which the two houses are agreed. Therefore I suggest to the Senator from Delaware, being entirely friendly to his purpose, that he allow this resolution to lie over for the time being. If the House concurs in the resolution we have already adopted, his resolution needs no change whatever. If on the contrary it turns out that the House has objection to other of these joint rules which we have now adopted, that we ought to know; and in the presence of that fact we ought to adopt this resolution. So it seems to me, and therefore I suggest that as the sense of the Senate has been taken on the rules as they stand, no objection having been made to any of them save one, we send that resolution to the House. When the House shall concur, then they will be joint rules, as they are not now, and then I shall see no objection to the resolution of the Senator from Delaware, and then I submit to him it will take the whole effect which he wants to give it whereas now I think it premature and likely to anticipate what has always been expressed as the judgment of the Senate.

Mr. BAYARD. My object in proposing a conference in this resolution was simply to secure consultation between the two houses in regard to measures for their joint proceedings. I used the words perhaps unnecessarily, and they certainly seem open to the technical objection of the Senator from New York, for the objection is technical. If the committees were by joint resolution to be instructed, that very fact would signify that they had the opportunity of mutual consultation before they made the report, and the use of the word "conference" suggests to them that the rules to be reported to the respective houses should be the same. The only object was to secure consultation. The words were put in, perhaps, unnecessarily.

But the Senate need not treat this as a matter of conference unless a committee of conference shall be found to be necessary. Every resolution that is to be acted on by the two houses on a matter like this would seem to make a consultation between the

committees necessary before they report. Otherwise there would be no use of the re ports to each house. However, this resolution is to be considered by unanimous consent to-day or not at all. If objection be made from any quarter, it must go over. I was aware of that when I called it up; but at the same time, after there had been examination by a committee upon a very important subject, I trusted there would be no objection. The question ought to be considered of the power of each house over the joint rules, especially in regard to matters embraced in the twenty-second joint rule which has just been excepted by the Senate. I thought no more important question could be brought to the attention of this body, and that the report of a committee of each house ought to be had upon it in order that we might know what proper action to take.

Mr. CONKLING. I do not like to interpose an objection against the resolution of the Senator from Delaware, but as he seems not to be strenuous about it at this time, I prefer that it lie over. I should like to have a concurrence of the two houses on all these rules of which they are really agreed, to the end that we may have a completed record of these rules until we change them. We have adopted a mode of getting at them. I fear that if at the same time we send a resolution proposing a conference committee, or whatever it may be called, the force of our action may be mistaken by the House, and therefore although I do not like to interpose an objection I prefer that this resolution should lie over and be considered at what I think will be a more convenient and at all events a more wholesome time.

The PRESIDENT pro tempore. An objection being made, the resolution goes over. Mr. CONKLING. I move that the Senate adjourn.

The motion was agreed to; and (at three o'clock and twenty-two minutes p. m.) the Senate adjourned.

INDEX.

Remarks on resolution to count vote of Missouri..

Remarks on counting vote of Missouri

Acts of Congress-

1792, regulating election of the President and Vice-President..

March 26, 1804, supplementary to the act of 1792...

January 23, 1845, for the appointment of electors on the same day.

Archer, Stephenson, of Maryland-

Moves to postpone same

Archer, William S., of Virginia-

Alabama, State of-

Page.

9

34

78, 151

53

53

54

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Amendments to resolution to amend Constitution in regard to election of President

310

Anthony, Henry B.-

Remarks on resolution to amend Constitution in relation to election of President......
Brearly, Hon. Mr.-

[blocks in formation]

Resolution to prepare rules for the government of the House for the election of President
in 1801..

Remarks on resolution to repeal 22d joint rule

16

16, 691

31

Bayard, Thomas F.-

Remarks on bill of 1875, to regulate counting vote for President..

Remarks S. B. No. 1...

President of Senate.

Resolutions in regard to Massachusetts electors, 1809..

444, 787, 790

472

.520, 541, 545, 664, 678

Remarks on same...

Barbour, Philip P.-

Burr, Aaron-

Elected Vice-President

Bacon, Mr.-

[blocks in formation]

Remarks on resolution that electoral vote of Indiana, 1817, be counted...

Barbour, James-

Resolution for meeting of the two houses.

Remarks on resolution for meeting of two houses.

33

36

38, 39

38, 39

47

49

49

51

Benton, Thomas H.-

Proposed amendment to Constitution

721

Remarks on proposed amendment to Constitution in regard to electors........

57, 722

Benton, Jacob-

Remarks on resolution that counting the vote of Georgia in 1869 was an invasion of the
rights of the House......

309, 311

Butler, Andrew P.-

Remarks at meeting of two houses, 1857. in regard to vote of Wisconsin.
Remarks in Senate in regard to vote of Wisconsin....

90

110

Resolution declaring election of President in 1857..

120

Butler, Benj. F.-

Amendment proposed by, to above resolution, that the 22d joint rule be rescinded.
Remarks

Resolution that counting vote of Georgia was an invasion of the rights of the House..
Remarks by...

[blocks in formation]

Remarks at meeting of two houses, 1857, in regard to vote of Wisconsin..
Report as teller of election, 1857..

Bingham, John A.-

Remarks on electoral vote of Wisconsin, 1857..
Remarks on electoral vote of Georgia, 1869.

Boyce, William W.-

Bell, John-

90

109

104

289

104

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