In the Blount case; there was a Senator Blount elected from the State of Tennessee, impeached by the House and tried by the Senate, and the impeachment proceedings were not concurred in because the Senate felt that they should not take jurisdiction, that the Senator was not an officer of the Federal Government. I believe that is correct statement of the facts.

The CHAIRMAN. May I interject there? It went also on another point and that was that in the section of the Constitution that provided for impeachment it designated specifically that the President, the Vice President or "civil" officers were subject to impeachment; whereas another section of the Constitution provided that each House shall make its own rules and may punish its members. And by counsel for Senator Blount it was very forcibly presented that that was the reason, not that he wasn't an officer, but that he wasn't a civil officer and that he shouldn't have been tried under the impeachment provisions as a civil officer when there was another provision of the Constitution by which each House could punish their own Members.

Senator GREEN. What was the distinction? officer, what kind of an officer was he?

If he was not a civil

The CHAIRMAN. He was an officer of the legislature, he was an officer of the Government.

Senator GREEN. What is the distinction between that and a civil officer? I am asking for information only.

The CHAIRMAN. Why should they say "civil" officers if they meant all officers, and why should they in another section of the Constitution provide for each House punishing their Members, if they wanted them impeached?

Senator GREEN. Unless "civil" officer was to distinguish it from a military officer.

The CHAIRMAN. It might have been that, or else it might have been to distinguish from a legislative officer.

Senator WHERRY. That point is raised later on in my remarks. I was only giving the quotation on the point raised by Mr. Maxey. I am glad you brought it up because it clarifies what I expect to state later.

The CHAIRMAN. I just wanted you to know that in the case counsel for Blount raised that question and, I think, very forcibly presented it. It didn't hinge on the assertion or claim that he wasn't an officer, but that he wasn't included in the group that could be impeached but was included within the provision of the Constitution that Members of both Houses could remove their own Members.

Senator WHERRY (continuing). Senator Maxey also discussed the question of the meaning of the language "or a President shall be elected," and concludes that it was the intent of the framers of the Constitution to have 4-year elections and not byelections.

Senator Beck received permission to insert in the record a paper by Mr. Murphy (the Reporter of the Senate) compiled in 1881, after the assassination of President Garfield, which gives the history of the controversy in the Constitutional Convention and also a story of what happened in the Second Congress, when the act of March 1, 1792, was passed. This act was title III, Revised Statutes, sections 146, 147, 148, and 149.

Mr. Murphy's report also goes into the Blount case, as follows: In 1798, the House of Representatives exhibited articles of impeachment against William Blount, who had been a Senator from Tennessee. Mr. Blount presented by demurrer the point that a Senator was not a civil officer of the United States, and the Senate, sitting as a court of impeachment, negatived resolutions declaring that a Senator was a civil officer of the United States, and therefore liable to impeachment. This has ever since been considered a decision that a Senator was not a civil officer within the impeaching power of the Constitution, and I presume the same reasoning would apply to a Representative. * * *. Mr. Murphy continues:

If a Senator or Representative is not a "Civil officer of the United States" within the impeaching clause of the Constitution, how can he be an "officer of the United States" capable of being designated to perform the functions of acting President of the United States in any contingency?

Senator Morgan, continuing the debate, argued that the Speaker of the House and the President pro tempore of the Senate were ineligible, because they are not "officers" of the United States. He also called attention to the fact that a person taking the Presidency by succession takes it for the remainder of the 4-year term for which the original President for that term was elected.

On December 17 the Senate resumed consideration of the bill S. 471 when Senator Evarts made this observation:

Now was it not a very precise way used by the framers of the Constitution when they said that all Congress could do was to declare what officer should fill the place? Did they not mean an officer of the United States? They certainly could not name an officer of a State, much less an officer of a foreign state. An officer of the United States unquestionably was meant; and then, having in their minds that Congress should not meddle with the constitution of the Presidency, they saw when they limited it to an officer of the United States that they excluded a Senator and a Representative, (that was his position) because in the same Constitution, using the same phrase, not pointed to any particular circumstance of this kind, there was this provision touching the question of who could by possibility and who could not by possibility be an officer of the United States: "And no person holding any office under the United States shall be a member of either House during his continuance in office."

You have not only shut out the two Houses from meddling with the Presidency, but you have shut out the members of the two Houses from any possible succession, because they can not ever be officers of the United States. * **

Senator Evarts continued his discussion with his argument against the Speaker or President pro tempore assuming the Presidency by stating that they could not discharge their respective duties as well as the Presidency, because of the obvious embarrassment and the further fact that as legislators they were not impeachable, and as President they would be; that is, that acting as President pro tempore or Speaker, they would be embarrassed by the votes they would have to cast. There seems to have been no provision for their resignations from their offices, upon being called to the Presidency.

The bill, S. 471, passed without a record vote on December 17, 1885. Once again they argued this question which was fully discussed in the report of the Senate Judiciary Committee of 1856, which analyzed this bill. They wert clear back to the beginning and brought in a unanimous report that a Congressman and Senator were officers of the United States and as officers they came within the constitutional provision. There are debates there that you can read far into the night for weeks, if you want both sides of the question.

S. 471 came up in the House on December 18, 1885, under unanimous consent, was objected to, and then came up for reference on

January 5, 1886. It came to the floor from the Committee on Election of President and Vice President, when that committee was called on January 13, 1886. There were insufficient numbers of the majority and minority committee reports, so the bill went over until the next day, January 14.

The debate followed much along the same lines as in the Senate, but a speech by Representative Peters answers the allegations in the Senate that because of the Blount case a Senator or Representative was not an "officer" of the United States.

Said Mr. Peters, in part:

I submit, however, that the decision in the Blount case is not in point. A Senator or a Representative may not be an officer of the United States, but a President pro tempore of the Senate is something more than a Senator of the United States. A Speaker of the House of Representatives is something more than a member of the House. These positions are created by the Constitution.

It might be observed that the positions of Senator and Representative are also "created by the Constitution."

Following Mr. Peters was Mr. Seney, who gave arguments for the pending legislation. He based his talk on the temporary character of both offices of President pro tempore and Speaker of the House, and that they might both be vacant in event of a President's death during a recess of Congress. That, of course, was prior to the changes that were made in 1901.

The debate was continued on January 15, 1886, and passed that afternoon by a vote of 146 to 119, with 59 not voting.

Now coming up to the Seventy-ninth Congress, which is when the Sumners bill was passed, as mentioned previously in this statement, H. R. 3587 passed the House on June 29, 1945. There were other bills pending before the House, but the discussion in the Committee of the Whole on June 29 dealt almost exclusively with H. R. 3587. This bill as reported to the House provided, among other things, for an interim election in event the Speaker was called to act as President at a time more than 90 days preceding the next regular election. There was considerable debate on the floor concerning the constitutionality of this provision, and it was finally stricken from the bill as it passed the House. That is the original Sumners bill that went in, recommended by the committee on the floor.

In its present form, H. R. 3587 provides that:

* if, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall act as President until the disability be removed, or a President shall be elected.

The bill further provides that if the Speaker should be called upon to act as President because of the failure of a President-elect and Vice President-elect, then he is to act only until a President or Vice President qualifies. In the event there is no Speaker at the time of such a vacancy or if he fails to qualify as Acting President, then the President pro tempore of the Senate is to discharge the powers and duties of the President until the expiration of the then current Presidential term, but not after a qualified and prior entitled individual is able to act, and the House made the President pro tempore eligible to go in there when he qualified. I take that part as to prior entitled individual qualifying out in my bill.

Senator GREEN. Why did you take it out? Senator WHERRY. Because if the Speaker does not qualify, we want someone from the Congress to step in and be Acting President. So I chose the President pro tempore. Furthermore, if you are going to require the President pro tempore to resign-they don't require the Speaker to resign authough I think you should require him to resign. I think we should do it not only with the Speaker, but I think if we impose upon the President pro tempore the question of resignation, and he decides to do so, that he shouldn't be supplanted by a Speaker who does become qualified after the President pro tempore takes over the Acting Presidency. I think it is only fair.

The CHAIRMAN. Can it be provided that his oath of office as Acting President constitutes resignation?

Senator WHERRY. I thought that over. That is a question that might have to be looked into by the committee. I first amended the bill to provide exactly what you say, thinking that the time between when the man would resign and the time he would take his oath of office might be an interim period in which the Speaker might pass out of the picture.

The CHAIRMAN. We had that close split-second question with the Governor of West Virginia appointing his successor, and it was a very close decision in the senate, and I don't think it has been settled yet. So if it can be done I would think that the oath of office mightif it constitutionally and legally can be done that the administration of the oath constitute resignation. Then there would be no lapse.

Senator LODGE. Perhaps a personal note at that point would be of interest. When I resigned from the Senate I resigned with one hand and got my orders to go the service with the other. Worth Clark, President pro tempore of the Senate, was on my right, and an officer of the War Department was over here on my left. So there was no interim period of time there.

Senator WHERRY. The President pro tempore is always qualified. He is elected for 6 years. If you say "until he takes the oath of office," and if there is trouble in electing a Speaker after the Congress convenes, you will have the President pro tempore always available. The question you raise is answered by the President pro tempore being available, in case the Speaker becomes unavailable for any disability, or is not qualified during that interim period. You always have that to rely upon. The only difference would be that it might deprive a Speaker from being Acting President, and I am for the Speaker being the President because he is closer to the people, instead of the President pro tempore. But there isn't anything lacking in the legislation to provide for the circumstance that you mentioned might

arise.

Senator GREEN. What is your idea as to what would happen where the President pro tempore dies when the Congress is not in session? Senator WHERRY. Dies while the Congress is not in session? Senator GREEN. Yes.

Senator WHERRY. Then you would have a vacancy until a new President pro tempore is elected, but in that case you would simply go to the Secretary of State.

Senator GREEN. I understood you to say several times that there might not be a Speaker of the House always, but that there was always a President pro tempore of the Senate?

Senator WHERRY. If I said that, that is an excessive statement and I would like the record to show a correction. What I meant to say is that the office of President pro tempore continues during his election for 6 years, and in that respect he is more permanent than a Speaker. In other words, a President pro tempore is elected President pro tempore at the pleasure of the Senate.

Senator GREEN. But they could be changed every week.

Senator WHERRY. If you wanted to, but if you changed them every week you would not have a new President every week.

Senator GREEN. But you wouldn't have a President pro tempore every week if the Congress was not in session.

Senator WHERRY. If you elected a new President pro tempore it would be almost instantaneous. How could it be otherwise, unless a man dies? If you are not in session and the President pro tempore dies, and you don't have a Speaker-that probably would never arise, that situation, because the death of those two men would be rather remote. But if it should happen then we provide that the Secretary of State qualifies.

Here is another thing that is different in this bill from the House bill. If a Secretary takes over he cannot be supplanted by a Secretary who is a grade above him. He is supplanted by either the President, the Vice President, the Speaker, or the President pro tempore. That certainly takes care of the situation.

The CHAIRMAN. Do you wish to complete your statement before it is necessary to adjourn to the floor?

Senator WHERRY. I would be glad to. I realize that it is very difficult in an hour and a half to present this question. I have tried to boil it down and bring up both sides of the question so that the committee would be informed. If you have to wade through all this history and dig it out, it is quite a job.

Senator GREEN. It has been under discussion for 50 years, and as a Nation we seem to wobble back and forth.

Senator WHERRY. We didn't wobble for a hundred years.
Senator GREEN. We are talking about wobbling in a shorter interval

now.

Senator WHERRY. That is because we have no Vice President and there is an emergency, and it has always been an emergency that brought this matter up for discussion.

Senator GREEN. To make it clear, the difference between the present law and what you propose is this-I am sorry to use illustrations because I don't think temporary politics should enter into it; this is permanent legislation without regard to who is in control of the Presidency or the Senate or the House-but if President Truman should die today General Marshall, as Secretary of State, would become President; is that correct?

Senator WHERRY. That is right.

Senator GREEN. Then suppose that this law were in effect, in that event Representative Martin, as Speaker of the House, would become President.

Senator WHERRY. If he could qualify.

Senator GREEN. Yes; and if not, then Senator Vandenberg would become President?