ONLY TWO-THIRDS OF SENATORS PRESENT REQUIRED TO PASS ON AMENDMENTS TO THE CONSTITUTION.

36th Cong., 2d sess.; J., p. 383.]

MARCH 2, 1861.

Mr. Trumbull raised a question of order whether, the joint resolution being proposition to amend the Constitution of the United States, it did not reire an affirmative vote of two-thirds of the members composing the Senate pass the same. The President (Mr. Polk) decided that it required an irmative vote of two-thirds of Senators present only. On appeal the decision s sustained; yeas 33, nays 1. (See Cong. Globe, p. 1403.) The same day, same page, the joint resolution was passed.

SENATORS DECLARED TO BE IN.

57th Cong., 1st sess.; J., pp. 179, 180.]

FEBRUARY 22, 1902. The Senate having under consideration the bill (H. R. 5833) “temporarily to provide revenue for the Philippine Islands," etc., and the question being on an amendment proposed by Mr. Patterson, and pending debate, an altercation resulting in a personal encounter occurred between Mr. Tillman and Mr. McLaurin of South Carolina.

On motion by Mr. Foraker, the Senate proceeded to the consideration of executive business.

While the doors were closed the injunction and seal of secrecy was removed from the following proceedings:

Mr. Foraker submitted the following order:

Ordered, That the two Senators from the State of South Carolina (Mr. Tillman and Mr. McLaurin) be declared in contempt of the Senate on account of the altercation and personal encounter between them this day in open session, and that the matter be referred to the Committee on Privileges and Elections, with instructions to report what action shall be taken by the Senate in regard thereto.

Mr. Bacon demanded a division of the question; and

On the question to agree to the first branch thereof as follows:

"That the two Senators from the State of South Carolina be declared in contempt of the Senate on account of the altercation and personal encounter between them this day in open session." Yeas 61, nays none.

The second branch of the order was then agreed to.

Mr. Blackburn raised a question that inasmuch as the Senators from South Carolina had been adjudged to be in contempt it would not be in order for either of them to address the Senate.

The President pro tempore (Mr. Frye) sustained the question, but decided that it would not be in order for them to proceed without leave of the Senate, which, if granted, must be upon motion;

Whereupon,

On motion by Mr. Blackburn that the Senators from South Carolina be permitted to address the Senate,

It was determined in the affirmative.

Ib.; J., p. 182.]

FEBRUARY 24, 1902.

The roll call having been concluded on the amendment by Mr. Patterson, Mr. Turner raised a question of order, namely, that the names of the Senators from South Carolina not having been called they had thereby been deprived of their constitutional right to vote, and that they were entitled so to do.

The President pro tempore (Mr. Frye) overruled the question of order and decided that the two Senators having been adjudged by the Senate to be in contempt could therefore not vote. Mr. Turner appealed from the decision, but it was not acted on. (See Cong. Record, 57th Cong., 1st sess., pp. 2087, 2090, 2124, 2131.)

COURT OF ARBITRATION.

The Congressional Record reveals one instance where the Senate acted as a quasi court of arbitration.

In 1901 Congress enacted into the statute an agreement made by the Dawes Commission with the loyal Creek Indians whereby their claim was to be submitted to the Senate of the United States for determination," the Senate acting as a court of arbitration. The act provided that whatever sum was awarded "provision shall be made for immediate payment of the same." (31 Stat. L., 869, sec. 26.)

In pursuance of that act the claim of the loyal Creeks was duly submitted to the Senate and sent to the Committee on Indian Affairs for investigation. The committee examined treaties and records, heard testimony from the claimants, both oral and by depositions, heard counsel, who submitted briefs, and finally reported its findings to the Senate as an item on the Indian appropriation bill, which read as follows:

"In pursuance of the provisions of section 26 of an act to ratify and confirm an agreement with the Muscogee or Creek tribe of Indians, and for other purposes, approved March 1, 1901, there is hereby awarded, as a final determination thereof, on the so-called loyal Creek claims,' named in said section 26, the sum of $1,200,000, and the same is hereby appropriated, out of any money in the Treasury not otherwise appropriated, and made immediately available,” etc. (See Cong. Record, 57th Cong., 2d sess., pp. 2252-2254. See also "Arbitration " in this volume for more complete history of the case and the discussion thereon.)

329

CREDENTIALS.

1. Senators sworn without.

2. Consideration of, a question of privilege.

3. Consideration of, may be laid on the table, etc.

4. During consideration of, may go into executive session.

5. During consideration of, an amendment which is simply a declaration of principles not in order.

1. SENATORS SWORN WITHOUT.

Cases are numerous where Senators were sworn in who were not in possession of. James Lloyd, junior, appointed a Senator by the legislature of the State of Massachusetts attended, stating that he was elected, but not in possession of his credentials. He was sworn in March 4, 1809, special session of the Senate, after adjournment of Tenth Congress. (J., pp. 365, 366.)

Tuesday, May 23, 1809, Mr. Lloyd produced his credentials, which were read. (11th Cong., 1st sess.; J., p. 374.)

22d Cong., 1st sess.; J., p. 5.]

DECEMBER 5, 1831.

Mr. Dudley stated that the Hon. William L. Marcy had been appointed a Senator by the legislature of New York for the term of six years, but that his credentials had not been forwarded; and Mr. Bell stated that the Hon. Josiah S. Johnston, who had been appointed a Senator by the legislature of the State of Louisiana for the term of six years, had not received his credentials. prescribed by law was thereupon administered to Mr. Marcy and Mr. Johnston, and they took their seats in the Senate.

42 Cong., 3d sess.; J., pp. 600, 601, 605.]

The oath

MARCH 4, 7, 1873.

Mr. Hamlin stated that Mr. Roscoe Conkling had been elected a Senator by the legislature of New York but that his credentials had not yet been received. Whereupon, on motion of Mr. Hamlin,

The oaths prescribed by law were administered to Mr. Conkling and he took his seat in the Senate. On March 7, 1873, Mr. Hamlin presented the credentials of Mr. Roscoe Conkling, elected a Senator by the legislature of New York for the term of six years, commencing March 4, 1873, which were read. (Special session of the Senate.)

2. CONSIDERATION OF, A QUESTION OF PRIVILEGE. 35th Cong., 1st sess.; J., pp. 215, 216.]

FEBRUARY 25, 1858.

The question was raised whether the presentation of credentials and papers involving the right of a State to representation in the Senate was a privileged subject, but before a decision thereon the matter involved was referred to a committee. (See Cong. Glebe, pp. 861–867.)

45th Cong., 1st sess.; J., pp. 16, 17.]

OCTOBER 17, 1877.

Mr. Thurman presented the credentials of Henry M. Spofford, elected a Senator by the legislature of the State of Louisiana for the term of six years, commencing March 4, 1877. The credentials were read. Mr. Thurman then submitted the following resolution and asked for its present consideration:

"Resolved, That Henry M. Spofford, whose credentials as a Senator from the State of Louisiana have been this day read, be now sworn and admitted as such Senator."

Mr. Edmunds objected to the consideration of the said resolution this day, and raised the point of order that under the thirty-third rule of the Senate, which requires that all resolutions shall lie over one day for consideration, the resolution could not now be considered.

The Vice-President (Mr. Wheeler) overruled the point of order raised by Mr. Edmunds, and decided that under the seventh rule of the Senate the presentation of the credentials of a Senator being a question of privilege, all questions and motions arising thereon were in order at this time and that the consideration of the resolution could now be proceeded with. (See Cong. Record, p. 78; special session.)

45th Cong., 1st sess.; J., p. 101.]

NOVEMBER 28, 1877.

Mr. Wadleigh rose to a question of privilege and moved that the Senate proceed to the consideration of the resolution yesterday reported by the Committee on Privileges and Elections to admit William Pitt Kellogg to a seat in the Senate as a Senator from the State of Louisiana.

Mr. Thurman objected to the consideration of the motion at this time and raised a question of order that, under the eighth rule of the Senate, until the business of the morning hour shall have been concluded and so announced from the Chair, the motion was not in order and could not be entertained unless by unanimous consent.

The Vice-President (Mr. Wheeler) overruled the question of order, and decided that the motion was a question of privilege within the meaning of the seventh rule of the Senate and was in order at this time, and the question of proceeding to the consideration of the resolution could be determined by a majority of the Senate. From this decision Mr. Thurman appealed to the Senate, and on the question, 'Shall the decision of the Chair stand as the judgment of the Senate?" it was determined in the affirmative; yeas 29, nays 28. (See Cong. Record, pp. 728–730.)

On the next day (November 29) the Vice-President (Mr. Wheeler) in reply to a parlimentary inquiry that the question of the consideration of a resolution to seat a Senator was a question of privilege which can be dispensed with only by unanimous consent (Record, p. 749), and the Senate thereafter proceeded day after day to consider the pending resolution until disposed of, immediately after the reading of the Journal.

46th Cong., 1st sess.; J., p. 124.]

MAY 6, 1879.

The Senate having under consideration the resolution reported from the Committee on Privileges and Elections May 1, 1879, instructing said committee to inquire into the matters alleged in the petition of Henry M. Spofford, relating to the right of Hon. William Pitt Kellogg to a seat in the Senate, pending debate, the Presiding Officer announced that the morning hour had expired. Mr. Houston raised a question of order that the resolution, being a privileged question, must be proceeded with without motion and to the exclusion of other business.

Mr. Houston having proceeded to read a decision of the Vice-President, Mr. Wheeler, made November 29, 1877, Mr Conkling raised a question of