CONGRESS, UNITED STATES. 



155 



FIous-j of Representatives in force at the close of the 

 .tioii of Congress, excepting tlie twunty-Mo- 



"ii.l joint rulu, bo, imd tliu HUIIIO uro hereby, iulo|,t. d 

 !->int rules of tliu two Houses for the present 

 "U. 



Mr. Bayard, of Delaware, said : " Mr. Presi- 

 di'iit, tin- fffect of n joint rale is a question of 

 r \rri-diiig interest, und I confess, for one, my 

 want of knowledge of the precedents of the 

 body on this subject. The effect of the pres- 

 ent amendment to this resolution, so fur as I 

 !i:i\.> heard it, is to abrogate by the action of 

 the Senate one of the present joint rules of the 

 two Houses, adopted on the (ith of February, 

 1865. It relates to the exceedingly important 

 subject of the count of the electoral votes. I 

 am one of those who have always believed that 

 this joint rule was unwarranted by the Consti- 

 tution ; that by it powers are assumed distinc- 

 tively by the two Houses of Congress which 

 are not only not expressly given, but which I 

 do not think are fairly to be implied by the 

 very scant language of the Constitution on the 

 subject. At the last session of Congress, the 

 honorable Senator from Indiana (Mr. Morton) 

 proposed an amendment of this joint rule. I 

 think it was in the shape of a new joint rule, 

 or perhaps it may have been a bill." 



Mr. Morton : " The first movement was a 

 rule, and afterward a bill was presented." (See 

 ANNUAL CYCLOPAEDIA, 1875, CONGRESS.) 



Mr. Bayard : " The subject then under- 

 went consideration in very little proportion to 

 its importance. I said then, and I think still, 

 that no time would be so fortunate for the set- 

 tlement of joint rules between the two Houses 

 of Congress as when the two Houses should 

 bo under the control of different parties. A 

 subject like this should rise far beyond the pos- 

 sibility of partisan heats, and the propositions 

 in regard to it and the settlement of those 

 propositions should be made free from any- 

 thing like the color of party advantage. 



"Independent, however, of the question of 

 the power of the two Houses of Congress over 

 this counting of the votes, comes at once the 

 question whether a joint rule adopted by the 

 two Houses falls and becomes void by the ex- 

 piration of the Congress in which that rule 

 was adopted. So far as the Senate is con- 

 cerned it will not, I think, be suggested, be- 

 cause this is a continuing body; there is always 

 and at all times a quorum continuing from one 

 Congress to another. It is not so with the 

 House of Representatives, the termination of 

 whose legal existence is at the end of every 

 two years. I should like to learn from those 

 \vlio have examined this subject, and are there- 

 fore much more competent to speak of it than 

 I um, whether this has been the understanding 

 or the action of the Senate ; because from cus- 

 tom invariable, long-continued, reasonable, and 

 just, the force of law almost is obtained. Cer- 

 tain it is that, under this rule adopted in 1865, 

 the electoral votes for President and Vice- 

 President have three timea been counted ; and 



therefore it i a question of great importance 

 for the Senate and the other House- to nettle 

 whether u joint rule has a longer life than the 

 Congress in which it u adopted, and whether 

 upon the expiration of that Congress ipw facto 

 the rule dies. So far as the Senate is con- 

 cerned, we ull know thut the Senate's rules 

 continue, but the question it* what effect the 

 different constitution of the other House of 

 Congress has upon a joint rule. It is true thut 

 there is a very customary resolution of the 

 House, made, I believe, at the opening of each 

 new Congress, respecting the rules, und I be- 

 lieve at the present session of Congress the 

 usual resolution was passed adopting the ruled 

 of the former Congress with two exceptions; 

 but in the Senate I have no knowledge of any 

 such practice, and the peculiar constituency of 

 this body would make such a practice unneces- 

 sary, if not irregular." 



Mr. Merrimon, of North Carolina, said : " I 

 simply wish to say that the Committee on 

 Rules were unable to ascertain that there was 

 any departure on the part of the Senate from 

 the uniform custom of continuing the joint 

 rules from Congress to Congress. The long 

 experience of our Chief Clerk, embracing about 

 thirty-eight years, knows of no exception, and 

 as far as he has been able to learn, on exami- 

 nation, there has been no exception." 



Mr. Morton: "No exception to what?" 



Mr. Merrimon : " No exception to tire prac- 

 tice that the joint rules continue from Con- 

 gress to Congress on the part of the Senate. 

 But when the matter was brought to the at- 

 tention of the Committee on Rules, we could 

 not see how any rule, whether joint or other- 

 wise, of one Congress could be binding upon 

 a subsequent Congress, for the Congress as a 

 Congress lasts but two years. As a legal prop- 

 osition, if a joint rule is not binding upon the 

 House, how could it be binding upon the Sen- 

 ate? We thought one House of Representa- 

 tives could not by its own mere construction 

 imply an engagement on the part of a subse- 

 quent Congress. The committee went on the 

 ground that if a joint rule was not binding on 

 a subsequent House, it could not be binding 

 upon the Senate in connection with a subse- 

 quent House, for an engagement with one Con- 

 gress is no engagement with another Congress." 



Mr. Frelinghuysen, of New Jersey, said : " I 

 agree with the Senator from Delaware, that 

 the twenty-second joint rule is very objection- 

 able. Therefore, it seems to me to be the part 

 of wisdom to adopt the joint rules, leaving out 

 the twenty-second, which is not agreeable gen- 

 erally, I think, to the Senate, and then adopt 

 some rule as a substitute for it. If we leave 

 the rule as it is, everything is unsettled ; we 

 must have another rule. It is uncertain, as 

 the matter is left in the twelfth article of amend- 

 ment to the Constitution, whether the Presi- 

 dent of the Senate acts merely ministerially, or 

 whether he acts judicially. The law says he 

 is to open the certificates, and the votes then, 



