ment of unworthy candidates, in some notable instances they have saved the country from disgrace.

The action of the Senate upon treaties has usually been conservative, has at times protected the interests of the United States, and has never caused serious mischief. In its legislative action it has fulfilled the hopes of its creators. There has been occasional impatience at its deliberations over measures of reform demanded by a large majority of the people, but upon the whole there has been a feeling that little harm has been done by the delay, while many noxious measures that have passed the House have been thus defeated, and upon reflection no attempts have been made at their resurrection.29

In one respect alone is there any sign of a popular demand for a change in either the functions or the construction of the Senate. A movement is now on foot to secure a constitutional amendment transferring the election of senators from the State legislatures to the people; and on account of the facilities for intrigue and bribery which are afforded by the present method it is not unlikely that such a change would be beneficial.30 But the Senate of the United States will probably endure as long as any second legislative chamber upon the earth.31

29 As early as 1793 a non-importation bill passed the House and was defeated by the Senate (Morse, Jefferson, p. 167). The defeat of the Force Bill is a recent instance.

30 An amendment to the Nebraska constitution, adopted in 1875, ordains: "The Legislature may provide that at the general election immediately preceding the expiration of a term of a United States Senator from this State, the electors may by ballot express their preference for some person for the office of United States Senator. The votes cast for such candidates shall be canvassed and returned in the same manner as for State officers." For arguments in favor of such an amendment see the speeches of Senators Turpie, Palmer

and Mitchell (Cong. Record, 1st Session, 52d Congress, pp. 76, 1267, 1270, 3192-3198, 3202, 3204, 7032). On the other side is the speech of Senator Hoar (53d Congress, ibid., vol. xxv, p. 137).

31 England's last prime minister, Rosebery, himself a member of the House of Lords, has said that the Senate is "the most powerful and efficient Second Chamber that exists" (Wilson, Congressional Government, p. 228). For discussions of the Senate, see The Federalist, Numbers IxiiIxvii; Story on the Constitution, Book II, ch. x; Wilson, Congressional Gov. ernment, ch. iv; Bryce, American Commonwealth, Part I, ch. x-xii; Maine, Popular Government, Essay IV.

CHAPTER XII.

THE PRESIDENCY AND OTHER OFFICERS OF THE SENATE.

§ 81. Constitutional Provisions concerning the Presidency and Officers of the Senate.

THE Constitution ordains:

The Vice President of the United States shall be President of the Senate, but shall have no Vote unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States."

§ 82. History of the Provisions as to the Presidency and Officers of the Senate.

The presiding officer of the House of Lords is the Lord Chancellor, who may or may not be a peer, who has no vote unless he has a seat there, and cannot enforce order, that power being vested in the house at large. In the New York Constitution of 1777, the president of the State senate was the lieutenant-governor, who was elected by the people in the same manner as the governor, whom he succeeded in case of a vacancy.2

In the Federal Convention the Committee of Detail inserted in their report, without previous instructions, the section:

"The Senate shall choose its own President and other officers; and another by which the president of the Senate was to fill a vacancy in the chief executive office until a new election, or, in the case of a disability, until its removal. These provisions were

§ 81. 1 Constitution, Article I, Section 3.

§ 82. 1 Poore's Charters and Constitutions, vol. ii, p. 1336.

2 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 377.

3 Ibid., p. 380.

4 Ibid., p. 401.

at first adopted without dissent. The election of the President by the legislature was then contemplated. The office of VicePresident was invented afterwards as a device which it was believed would secure a better choice in the election of a President. The reasons for making him also president of the Senate were thus stated by Roger Sherman :

"If the Vice President were not to be president of the Senate, he would be without employment; and some other member, by being made president, must be deprived of his vote, unless when an equal division of votes might happen in the Senate, which would be but seldom." 5

§ 83. Powers of the Vice-President over the Senate. The Senate has shown great jealousy of the Vice-President, and has limited his powers so far as was permitted by the Constitution. The powers to supervise the journal1 and to appoint committees with which he was once invested have been taken from him.2 Calhoun, when Vice-President in 1826, at the time when John Randolph of Roanoke was abusing the license of debate by gross personal abuse, declared that in his opinion he had no power to call a senator to order for words spoken in debate. New rules were afterwards adopted, the construction of which was doubtful as to this point, although in 1850, when the compromise of that year was under discussion and personal controversies not infre

5 Madison Papers, Elliot's Debates, 5d ed., vol. v, p. 522.

§ 83. 1 January 22, 1824, the Senate adopted the rule that "The presiding officer of the Senate shall examine and correct the journals before they are read." This rule was rescinded April 14, 1826 (Furber, Precedents Relating to Privileges of the Senate, p. 103).

2 The committees were originally elected by the Senate. December 9, 1823, it was resolved that "all committees shall be appointed by the presiding officer of this House, unless ordered otherwise by the Senate." April 15, 1826, this rule was rescinded. December 4, 1828, a rule was adopted

by which committees were appointed by the president pro tempore, or when that office was vacant, by ballot. Different rules were adopted from time to time, by some of which the VicePresident was authorized to make the appointments. The present rule was finally adopted, which provides that unless otherwise ordered, the standing committees shall be appointed by ballot in the manner therein directed (Rule XXIV). It is customary, however, to suspend the rule and appoint them by resolution (Furber, Precedents Relating to Privileges of the Senate, pp. 317, 335-341).

8 Ibid., pp. 118, 119, 121.

quent, Fillmore expressed the opinion that they granted this power to him. The present rules provide:

"If any Senator, in speaking or otherwise, transgress the rules of the Senate, the Presiding Officer shall, or any Senator may, call him to order; and when any Senator shall be called to order he shall sit down and not proceed without leave of the Senate, which, if granted, shall be upon motion that he be allowed to proceed in order; which motion shall be determined without debate." 5

The Senate has always refused to permit the Vice-President to designate a senator to take his place during a temporary absence; but has usually elected by unanimous consent the man whom he selected.

Otherwise the Vice-President or the President pro tempore of the Senate has all the powers usually exercised by presiding officers at the time of the adoption of the Constitution; including the right to recognize a senator who wishes to speak, and thus to give him the floor, and the right to put the question, so far as they are not limited by rules of the Senate which are in conformity with the Constitution. In 1894, when Lieutenant-Governor Sheehan had refused to put the question as ordered by a majority of the New York senate, that body held that he had thereby abdicated his position for the time, and the question was put by the leader of the majority. The New York Constitution of 1894, on account of these proceedings, ordains that the temporary president of the senate shall preside "in case of the absence or impeachment of the Lieutenant-Governor, or when he shall refuse to act as President or shall act as Governor." 7

The senator who thus put the question was chosen by the people to the position of Lieutenant-Governor that same year.

The Vice-President may give the casting vote upon the decision. of a contested election to the Senate.8

The office of Vice-President, with the mode of his election and the proceedings upon his succession to the presidency, will be discussed later.

4 Ibid., pp. 120-122.

5 Rule XIX.

6 Furber, Precedents Relating to Privileges of the Senate, p. 167.

7 Art. III, Sec. 10. May, Law of Parliament, 10th ed., p. 186.

8 Louisiana Cases, Spofford v. Kellogg, Taft's Senate Election Cases,

§ 84. The President pro tempore of the Senate.

At the first session of the Senate, they proceeded by ballot to the choice of a president, for the sole purpose of opening and counting the votes for President of the United States. After the withdrawal of the House, they then proceeded to the choice of a president of their body pro tempore. The length of the term of the president pro tempore was at first unsettled; and the custom arose after the passage of the act, since repealed, which placed the president pro tempore in the line of succession to the presidency of the United States, for the Vice-President to vacate the chair immediately before the close of each session, in order to enable the Senate to choose a president pro tempore.2 By the uniform prac tice of the Senate until 1890, the term of the president pro tempore was treated as terminated upon the resumption of the chair by the Vice-President; and it was understood that it was also determined at the meeting of the Senate after the first recess.3 The Senate has, however, come to the following decision upon the subject:

"That the tenure of the President pro tempore does not expire at the meeting of Congress after the first recess, the Vice-President not having appeared to take the chair." "That the death of the VicePresident does not have the effect to vacate the office of President pro tempore of the Senate." "That the office of President pro tempore of the Senate is held at the pleasure of the Senate." 4 "That it is com

continued by Furber, pp. 471, 490; Corbin v. Butler, ibid., 541, 543.

§ 84. 1 Journal of Senate, vol. i, p. 7; Furber's Precedents Relating to the Privileges of the Senate, 167.

2 First Session 43d Congress; Senate Miscellaneous Documents, No. 101; Furber, Precedents Relating to the Privileges of the Senate, 172.

3 Jefferson's Manual, § 9; 1st Session, 44th Congress, Senate Report, 3; Furber, Precedents Relating to Privileges of the Senate, p. 176.

4 The first two of these resolutions were adopted unanimously; the last by a vote of 34 to 15; after the rejection of a proposition to amend the

same by adding the clause: "Until the happening of the contingency provided for in the 9th Section of the act of Congress, approved March 1, 1792, when he is authorized to act as President of the United States. (January 10th and 12th, 1876, 1st Session, 44th Congress, Journal of Senate, pp. 90, 99; Cong. Record, 311-316, 360-373, Senate Report, 3; Furber's Precedents Relating to Privileges of the Senate, pp. 173-182, where all the previous precedents upon the subject are collected.) A State case of doubtful authority holds that a court may, in an information on the nature of a quo warranto, determine the title to the