in the Senate because the Virginia legislature had instructed him to vote in favor of the expunging resolution, which he could not conscientiously approve.20

These doctrines are now abandoned. The senators consider themselves as members of an ordinary legislative body. They pay no more attention to the instructions of State legislatures than do members of the House; and in fact since their terms are longer they are more inclined to disobey them.2

21

A survey of its position throughout the history of the United States shows that the Senate has maintained, almost without interruption, the respect of the American people, and that it has vindicated the wisdom of its creation; 22 while State senates are usually more despised than State houses of assembly. It has been shorn of but a single power, that to originate general appropriation bills, which the House has, by their continuous rejection when sent there, refused to permit it to exercise successfully, although the Senate has more than once recorded a protest asserting its prerogative; 23 but in practice, through its power of amendment, the loss is rather nominal than real.24

20 Schurz, Clay, vol. ii, p. 199. 21 The latest illustrations of this are the action of Senator Lamar of Mississippi, in 1882, when he refused to vote for free silver though so requested by his State legislature, and notwithstanding secured a reelection; and the recent action of Senator Stewart of Nevada, who, although elected as a Republican, announced that he had joined the Populist party without resigning his seat. Kentucky house of representatives in 1894, passed a resolution instructing their senators to vote against the nomination of Wheeler H. Peckham for a place in the Supreme Court of the United States (Park City Times, Bowling Green, Ky., Feb. 1, 1894).

The

22 Mr. Bryce says: "So far as a stranger can judge, there is certainly less respect for the Senate collectively, and for most of the senators individually now than there was eighteen

years ago," in 1870. (American Commonwealth, Part I, ch. xii, note. See also The Senate in the Light of History, The Forum, November, 1893.) The writer is unable to observe that the Senate has fallen in public respect as much as the House and the State legislatures since that time; and he attributes the decadence of all to the fact that of late years the country has been so fortunate as to have few political questions of sufficient gravity to withdraw the ablest minds from business enterprises and legal controversies.

28 Furber, Precedents of Privileges in the Senate, pp. 282-310. See The Conduct of Business in Congress, by Senator George F. Hoar, North American Review, vol. cxxviii, pp. 113, 115119; infra.

24 Senator Hoar believes that through the House rule which, upon the report of a conference between

Secure in the confidence that the people who entrusted them with power will not mistrust their use of it, senators have been unmoved by the threats of the House to withhold the supplies, before which other second chambers have always quailed; and have only in a single instance yielded their judgment to such intimidation.25 They have had more than one conflict with the executive concerning the prerogatives that they claimed, of which the first was at the opening of Washington's administration, and but one, President Jackson, has finally triumphed. Their encroachments upon the power of appointment to office have subjected them to more criticism than any of their other actions; 28 but they have been in the main successful; and though they have thus undoubtedly excluded a few who would have done good public service, and in minor cases have often compelled the appoint

the two bodies, allows to its consideration immediate precedence of all other business, and no debate, the Senate has actually more influence upon appropriations than the House which originates them (ibid., pp. 118, 119).

25 When they permitted the passage of the act of June 18, 1878 (20 St. at L., p. 145), in relation to the use of the army as a posse comitatus. See Cox, Three Decades of Federal Legislation, p. 630; infra, Ch. XVI, and supra, § 45.

26 Supra, note 8. President Grant paid more deference to this custom than perhaps any other executive. For a recent history of his sacrifice of a cabinet officer, in order to obtain votes in support of the treaty for the annexation of San Domingo, see How Judge Hoar ceased to be AttorneyGeneral, by Jacob D. Cox. Atlantic Monthly for August, 1895, vol. lxxvi, p. 162. In 1893 Senator Hoar said: "When I came into public life in 1869, the Senate claimed almost entire control of the executive function of appointment to office. Every senator, with hardly an exception, seemed to fancy that the national officers in his

26

State were to be a band of political henchmen devoted to his personal fortunes. What was called the courtesy of the Senate' was depended upon to enable a senator to dictate to the Executive all appointments and removals in his territory. That doctrine has disappeared as completely as the locusts that infested Egypt in the time of the Pharaohs" (Cong. Record, 53d Congress, vol. xxv, p. 137, April 8, 1893). This was before the late conflict between the Senate and President Cleveland.

27 In the expunging resolution which is discussed, infra, under the head of the Journal.

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 lxiilxvii; Story on the Constitution, Book II, ch. x; Wilson, Congressional Government, 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." 1

§ 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

1

§ 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 journal 1 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.