June 13, 1911

The Secretary proceeded to read the Journal of yesterday's proceedings.

Mr. BRANDEGEE. I ask unanimous consent that the further reading of the Journal be dispensed with.

Mr. BACON. Mr. President, I object. · I desire to have the Journal read.

The VICE PRESIDENT. Objection is made. The Secretary will continue the reading;

The Secretary resumed and concluded the reading of the Journal.

Mr. BACON. Mr. President, I note an omission in the RECORD. I do not know whether the same omission occurs in the Journal. It is an omission to put the name of the Senator from South Carolina [Mr. TILLMAN] at the end: o:t the last two roll calls as not voting.

The VICE PRESIDENT. The Secretary informs the Chair that it has been corrected in. both the RECORD and the Journal.

Mr. BACON. The omission occurs in the RECORD which has been furnish-ed to- us.

Now, Mr. President, as to another matter to which I desire to call attention before the approval of the Journal, and that is to that part of the Journal which recites the fact that the Senate, being evenly divided upon what we know as the Bristow amendment, the casting vote was given by the Vice President. I desire to say, Mr. President, that, in my judgment, not only was it a matter of · original impression, but upon reflection and examination, so far as the limited time has given me an opportunity to make an examination, in my opinion, with a ll defer - · ence to the Chair, which I am sure the Chair will not misunderstand, that the Vice President was not authorized to 'ote upon that occasion, and I want to give very briefly the rea.sonsin order that the matter may be of record.

I recognize, of course, Mr. President, that the vote of the Vice President was cast under the authority assumed to be conferred by the clause in the Constitution, which is in this language:

The Vice President of th~ United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

Of course, according to the letter of that phraseology the Vice President would have the right to vote when the Senate under any circumstances and upon any question should be equally divided, but I think the context, and when I say context I mean other parts of the Constitution, and the manifest purpose of it will necessarily confine the exercise of that function by the Vice President to an occasion in the ordinary business of the Senate, either a matter of legislation, in the enactment of law by Congress, or by any order which m~y be taken by means of a concurrent resolution between the two Houses as to the order of business, or as to the length of the session, or anything else which concerns in common the two Houses, or as to any order of the Senate which concerns the business of the Senate. For instance, undoubtedly upon a motion to adjourn, which concerns the orderly procedure of the Senate, if there was an equal division the Vice President would have the right to give the casting vote under that authority.

But my proposition, Mr. President, is this: I, of course, would yield to the opinion which upon this exact matter might be expressed in any previous act of the Senate if it could be shown that that act was the result of due deliberation and examination as to the correct method of procedure. My proposition is that as to matters which do not relate to the ordinary business of the Senate, matters which do not relate to measure of legislation by Congress or to the reciprocal or common business of the two Houses, or a matter which does not relate to any particular proceeding of the Senate, the Vice President, not being a Member of this body, has not the right to vote. While expressing that thus generally, my precise contention is that this particular resolution is one upon which the Vice President has no authority to vote.

Mr. President, the provision in the Constitution is without qualification or exception, and yet I want to call the attention of the Chair and of the Senate to the fact that a provision in the Constitution equally as explicit and equally as unqualified is universally held not to apply to a case outside of the particular class of functions I have enumerated. I will read that for the purpose of illustration of the fact that the mere want of qualification does not necessarily carry with it the conclusion that there is no qualification if other parts of the Constitution and the universal practice of the Government shall establish to the contrary.

There is this clause also in the Constitution without any qualification or limitation:

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States, and before the same shall take effect shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Mr. President, there could be no more explicit language than that. That language is not less absolutely free from qualification than is the language in the provision which I first read where it says that the Vice President shall vote when th~ Senate shall be equally divided. Yet it is a fact recognized by all lawyers, a fact universally recognized by all the departments of the Government, that such a resolution as that which we passed last night has not to be sent to the President, that it has not to have the approval of the President of the United States; that the President of the United States has nothing to do with it; that he can neither approve it nor disapprove it; and that neither his approval nor his disapproval will in any manner affect or qualify the action of the Senate and of the House in the passage of such a resolution.

Now, Mr. President, what does that show? It proves, in the first place, that the contention that the Vice President had the right to vote can not be based solely upon ·the ground that there is the unqualified language of the Constitution stating that he shall vote in a case where the Senate shall be equally divided, because that language is not more explicit, it is not more unqualified, than is the language which says that every resolution when it passes Congress shall be sent to the President and shall not be of effect without the approval of the President, unless in the manner prescribed by law it shall receive the requisite two-thirds vote of the two Houses after having been returned by the President with his objections.

Here it so happens that the very resolution which, for the reason stated, is one not to be approved or disapproved by the President, upon which the Vice President voted, is the same re olution, and, I think, upon the same reason denies to the Vice President the right to give a casting vote.

Mr. President, the passage of a resolution proposing to the legislatures of the States the adoption of an amendment to the Constitution is not an act of legislation. It has none of the ' features of an act of legislation. It has none of the requirements of legislation, except so far as it must receive the affirmative vote of the requisite number prescribed ~n each House. But it has not the effect of law. It is simply the sentation of a proposition to the tribunal which ts to determine it, which is, at last, the legislatures of the States.

It was the design and purpose that the two Houses in their high capacity, one as the representative of States in this Chamber and the other as the representative of the people, should themselves determine it; that it should be, if a requisite num· ber of them so determined, presented to the legislatures; and there is, in my opinion, no proper construction by which it was intended that when less than the number prescribed by the Constitution were secured in support of a measure it could be supplemented by the vote of anyone who does not belong to this body.

Mr. President, I very greatly prize the feature tn our Gov· ernment which calls the second highest officer of the Government to preside over our deliberations. I would not have it otherwise. I am extremely glad of the fact that it is as it is. But, , Mr. President, we must look at the limitations. '!'he Vice President is the presiding officer, and it is only in a case where, as I contend, in the ordinary procedure a tie for the time arising by reason of the fact that the Senate is equa1ly divided that there has been the means provided for the unlocking of that temporary deadlock. But it does not come up at all-it does not in any manner reach into the same atmosphere as that which surrounds the Members of the Senate when they are called upon to perform this high function of proposing an amendment to the Constitution.

Mr. President, the Senate is intended to be here as the representative of the States, and there was the double precaution taken that before this instrument, held to be so sacred, should be changed, there must be two-thirds of the Senators to agree upon it-they were the parties selected-and it was never contemplated, in my judgment, that the absence ' of two-thirds could be supplemented by the vote of the Presiding Officer, who is not a Member of the body. I think the argument could be mado very much more manifest, Mr. President , in a. case where the final action was the action of a divided body than where it is the action upon one of the preliminary steps in reaching that final act.

But before coming to that I want to illustrate further the fact that there are occasions necessarily where the body may bo evenly divided where the vote of a Vice President would be manifestly improper. I will call attention to another provision of the Constitution for illustration of that suggestion. The Constitution, in the twelfth amendment, prescribes the manner in which a Vice President shall be elected in case the electors chosen by the people shall fail to make an election by a majority vote. It is provided in the Constitution that when that arises the Senate shall, of the highest two, choose the Vice President and elect him. If such a case were presented and the Senate were called upon to choose a Vice President and the Senate should be equally divided, is there any lawyer, is there any person, who would possibly suggest that the 'Vice President would have a right to vote in the choice of a Vice President under those circumstances?

Mr. LODGE. Mr. President--

The VICE PRESIDENT. Does the Senator from Georgia yield to the Senator from Massachusetts?

Mr. BACON. I do.

Mr. LODGE. In the suggestion the Senator has just made, of course the Vice President could not cast a vote, because there would be no Vice President.

Mr. BACON. The Senator is entirely mistaken.

Mr. LODGE. How so?

Mr. BACON. I think he is, though I may be mistaken myself.

· Mr. LODGE. Will the Senator state how the Vice President in such a case could cast a vote?

Mr. B..i\.CON. If the Senator will permit me, I will state.

Mr. LODGE. I should like to hear explained how that could arise if there was not a Vice President in the chair.

Mr. BACON. The provision refers to the Vice President, who is to be inducted into office on the 4th of March, and, of course, the election would be held in the Senate prior to the 3d of March, when that Vice President is still in office. That is what I refer to.

Mr. LODGE. Is that the provision of law, that such election shall be held prior to the Vice President going out?

l\Ir. BACON. Most undoubtedly it would be.

Mr. LODGE. Because at 12 o'clock on that day the old Vice President is out of office. I should like the Senator from · Georgia to look at the case which arose in 1825 and see when they voted. ·

Mr. BACON. That does not change the fact, for they could vote before.

Mr. LODGE. How could they vote before?

Mr. BACON. It does not say--

1\Ir. LODGE. How could they vote before the new Senate came into existence. The old Senate, the outgoing Senate, could not elect a Vice President for the new Senate, for the new government.

Mr. BACON. Possibly not. The Senator from Massachusetts possibly is correct ill that; but, Mr. President, I will put it then as a supposititious case. Suppose it were possible that the election were to be held at n time when the Vice President was still in office. The Senator from Massachusetts may be correct in his criticism; I recognize that. For the moment that had es caped me. But for the purpose of illustration it can be used in the same ~y. Suppose it were provided that the old Senate should elect before the 4th of March in order to prevent an interregnum-we ca.n very readily understand the reason for such a proyision-would anyone contend that the Vice President could vote upon such a question as that?

But I will come to another case that would be more directly within the probabilities. The Senate elects its own committees. It is true we do not usually have elections formally because of the fact that generally the majority of one party is recognized by the minority, and it is done by a simple motion and upon a vote not in the nature of an election; but suppose, as I have seen it in the Senate, the two parties were equally divided and did not agree as to the distribution of the committees, and there should be a contest as to the election of committees; the one side presents one set of Senators to form committees and the other side presents another set of Senators for committees, and there omce. is nn election held. Will anybody hold that the Vice President would have the right to vote in the formation of those committees?

When we elect the officers of this Chamber, the Secretary or the Sergeant at Arms, does anybody hold that if the Senate were equally divided on the choice of those two the Vice President would have the right to vote? I do not think, Mr. President, anybody would contend that such was the case. While the criticism of the Senator from Massachusetts may be correct, and I stand corrected on it for the moment, that thought had not presented itself to me. For the purpose of illustration it is just as strong as if it were true that the old Senate elected prior to the 4th of March.

l\Ir. President, the strong proposition, to my mind, is this: I presume it will be conceded by everyone, coming back from the general illustration to the particular joint resolution in point, that when this joint resolution sh.all have been agreed upon by the two Houses the President of the United States, under the general provision of the Constitution which I have read, which says that every resolution must be sent to the President and approved or disapproved by him, will not have the function of approving or disapproving of this joint resolution because of the fact that it is one in which the function has been peculiarly confided to Senators and requires that there sh.all be a certain majority of Senators agreeing thereto. It is not a matter of ordinary legislation. The same reason which has caused it to be universally recognized that the President of the United States can neither approve or disapprove of a resolution pro-­ posing an amendment to the Constitution, I respectfully submit, will apply to the question of whether or not the Vice President has a right in the case of a tie to give a casting vote; and, in my opinion, it precludes him from the exercise of that right I presume that it will be said that the vote cast by the Vice President was not upon the final passage of the joint resolution, but upon an intermediate proposition. I do not think that in any manner changes the conclusion which can properly be reached in the question. I think that the consideration of a joint resolution to amend the Constitution is still a peculiar function in which every step is one vital to the last step, and :In which all the steps are those confided to the judgment and decision of Senators, which can not be added to or subtracted from by the aid of one who is not included among the number of Senators.

Mr. HEYBURN. Mr. President, will the Senator permit me to call his attention to an authority?

The VICE PRESIDENT. Does the Senator from Georgia yield to the Senator from Ida.ho?

Mr. BACON. I do.

Mr. HEYBURN. Mr. President, on page 451 of PrecedentsDecisions on Points of Order in the United States Senate, a volume which all Senators have, there appears a decision right in point in regard to the right of the Vice President to vote in the case of the election of an officer of this body where there is a tie vote, and if it would not interrupt the Senator too much I would call attention to it

Mr. BACON. I would be very glad to hear it.

Air. HEYBURN. It is as follows:

[31st Cong; 1 Ist sess., Journal, p. 68. Jan. 9, 1850.J

The Senate proceeded to consider the resolution submitted by Mr. Foote, "that two chaplains, of different denominations, be appointed to Congress during the present session, one by each House, who shall interchange weekly,” and the resolution was agreed to.

The Senate proceeded to the election of a chaplain ; and

It appearing that 60 votes had been given. 30 ot which were for the Rev. C. M. Butler and 30 for the Rev. Henry Slicer,

The Senate being equally divided, the Vice President (Mr. Fillmore) voted for the Rev. C. M. Butler, who was accordingly elected. (See Cong. Globe, pp. 127-128.)

During the debate on the right of the Vice President to vote for an officer or the Senate Mr. Calhoun, who had been Vice President. said : "As the very experienced Senator behind me (Mr. King] is mistaken on the subject or Executive nominations (he claiming the Vice President could only vote in Legislative matters), I deem It my duty to say that I, in several instances when I occupied the chair, cast my vote on such nominations. I did so January 25, 1832, in the very celebrated case of Mr. Van Buren for minister to England, and in two or three others." (See Cong. Globe, pp. 127-128.)

That would seem to throw some light on the power of the Vice President to vote.

Mr. BACON. That is a precedent; but, Mr. President, I confess that, while I would not be greatly surprised to hear of a precedent of the Vice President voting upon the election of an officer of the Chamber-which is a matter of comparative insignificance and probably not given very much attention and thought to-I am very greatly surprised to know that it has ever been held that the Vice President had a right to vote upon the question of the nomination of an officer for appointment to

Mr. HEYBURN. In executive session.

l\Ir. BACON. In executive session. I say I am surprised to hear that; but the Senator will mark that what I have said in regard to those matters has been by way of illustration. They do not come up to the vital question as to the right of the Vice President to vote in case of a tie in a matter which is set apart from the usual functions of the Senate, an office to be performed o:f an entirely different character from the ordinary • duties of the Senate, something which is intended to be determined by the votes of those who are the representatives of the States in the one instance and of the people 1n the other, in which the peculiar function is so marked that it has been always recognized that the President of th~ United States has no right to either approve or disapprove of a resolution proposing an amendment to the Constitution of the United States. If the President of the United States ha.s no right to approve or disapprove of such a resolution, although the constitutional requirement is that every resolution must be sent to him, it seems to me the argument is irresistible that it is a function separate and apart from an ordinary functions; it is one in which the requisite number <>f the Senate must be had to give force and effect to the action; and it is one so entirely separate and apart that it can not be judged of by any other function which the Senate may be called upon to perform.

Mr. President, I do not know that there is any practical way to reach this matter, and it is not my purpose to make any proposition with that view. I simply desired that the matter should be put upon the record in order that the action of the Vice President may not be considered as a precedent which has , passed unchallenged.

When the Senator from Missouri [Mr. REED] rose last night I rose at the same time-I happened to be standing back of the desks at the time-for the purpose of making the same suggestions which he made, and I would at that time have supported wha.t he said but for the very prompt interposition of the Senator from New Hampshire [Mr. GALLINGER] with the statement that upon an examination of the precedents it would be found all the other way. I supposed, of course, that the Senator had some direct precedents, and I deemed it proper to look at them before making any statement to \be Senate. I ha-ve inquired of the Senator from New Hampshire this morning, and he tells me he knows of none.

I desire to say, Mr. President, that in a matter of such farreaching and vital importance the simple fact of a precedent should not of itself be controlling. I will say, however, that it Senators can show a well-considered precedent that has been the result of the examination of able lawyers who have been in this body, such men as Senator George, of Mississippi, or Senator Edmunds, of Vermont, or the former Senator from Indiana, M.r. Turpie, or, still later, the very brilliant and able Senator from Wisconsin, Mr. Spooner-if it could be shown that they and others whom I could mention, Mr. Hoar and numbers ot other able lawyers, Mr. Platt, of Connecticut, and others who have been in this body and who have honored it, or, as has been suggested to me, that lawyer second to none, Mr. Thurman, of Ohio-if such men as these had examined this precise question and had come : to a conclusion, I would yield my judgment; but, Mr. President, with the limited time I have had to consider this matter, I am very strongly of the opinion that the Vice President had not the authority to vote; and if he did not vote, of course the decision would have been the other way, because the tie vote would have lost the affirmative.

Mr. GORE. Mr. Pre ident--

The VICE PRESIDENT. Does the Senator from Georgia yield to the Senator from Oklahoma?

Mr. BACON. I yield.

Mr. GORE. Mr. President, I came into the Chamber in the midst of the Senator's remarks, and I do not know whether or not he has touched upon the point I am about to suggest. If not, I would like to have his opinion upon the question whether, if upon the final passage of the joint resolution on yesterday the vote had stood 65 to 33, the Vice President could have voted in the affirmative, thus furnishing the requisite twothirds majority and have passed the joint resolution; or whether, if the vote had stood 33 to 66, the Vice President could have voted in the negative, raising the negative vote to 34, and by that means have defeated the joint resolution? · l\Ir. BACON. I think not; and I do not think the Vice President himself would so claim, because the language of the provision in the Constitution does not refer to a case of that kind. That makes it, I say again, Mr. President, the more surprising to me that Mr. Calhoun should have made the statement in the Senate which the Senator from Idaho [Mr. HEYBURN] read, because the matter of the confirmation of an officer--0r was it a treaty? I was thinking of a treaty which would require two-thirds--

Mr. SHIVELY. It was on the confirmation of Van Buren.

Mr. BACON. That makes it a different thing altogether.

Mr. SHIV:ELY. If the Senator will permit me, the reference recalls a very interesting political incident Jackson was President and Calhoun Vice President. A decided coolness had • arisen between the two. Henry Clay was very far from being disposed to compose their differences. In the vacation of Congress President Jackson had nominated Martin Van Buren as minister to England. Van Buren had gone to his post of duty at the Court of St. James. When the nomination came on for confirmation the forces in the Senate were maneuvered to produce a tie. The tie was produced. Calhoun, as Vice President, broke the tie, and broke it against the confirmation of Van Buren. Within a few minutes after the vote was announced a Senator said to Calhoun, "You spoiled a minister to England, but made a President of the United States."

Mr. BACON. Mr. President, it may have been the result of some political maneuvering. Of course we have no presentation of that kind here at all. It may be that such things arise frequently, and precedents are made in some such way as that narrated by the Senator from Indiana. Many precedents have no value, because they are made by Senators voting on small matters on party lines.

I was about to say, Mr. President, that I do not know of any practical way in which this matter can now be dealt with. The proper time, of course, to have made the point was when kind. the Vice President announced the vote. If the view which I take of it is correct, the vote should have been announced the other way. It should have been announced, according to the view I take of the authority of the Vice President, that there being a tie, the affirmative failed and the amendment of the Senator from Kansas [.Mr. BRISTOW] was lost. That I think was the proper parliamentary situation, and then was the proper time to have raised the point of order that the Vice President did not have authority under the law to vote, and that the tie vote must be announced as a failure of the amendment.

I beg pardon for having taken so much time, but I think it is an important question, and I want to say this: First impres­ agreed to. sions are very dangerous things in law, and I recognized that fact and gave due weight to it in the thought which I have given to it since then, and outside of the illustrations I have attempted to present as to the fact that there were functions performed by the Senate in which the Vice President could not properly take a part-those of themselves would not have been controlling-the thing which has brought my mind to its final conclusion and about which I should like those who differ with me to show the incorrectness of the conclusion is the particular one I have mentioned, that this is a joint resolution o separate and apart from all other acts by the two Houses of Congress that while it falls within the letter of the law · and is a resolution requiring the joint action of the two Houses, it is nm ·e rtheless one as to which the universal recognition is that the President of the United States has no function to perform in connection with it and can neither approve it nor disapprove it; and for the same reason, in my judgment, the Vice President in the case--

Mr. LODGE. Mr. President--

The VICE PRESIDENT. Does the Senator from Georgia yield to the Senator from Massachusetts?

Mr. BACON. One moment, if the Senator will pardon me.

Mr. LODGE. I wish to say, before the Senator from Georgia takes his seat--

Mr. BACON. I want to simply finish the sentence to the effect that for the same reason that the President of the United States is not recognized as having any function to perform in the approval or disapproval of this particular - resolution, in my judgment the Vice President has no office to perform in regard thereto, and can not either upon the final vote or upon any intermediate vote vital to that final vote affect the result by his vote.

Mr. GALLINGER. Mr. President, I have listened with great care and interest to the observations of the honorable Senator from Georgia [Mr. BACON] ~ but I am constrained to the con.:. clusion that his objections are fanciful rather than practical, and that they will not be sustained when the precedents are considered and when the provision of the Constitution is fairly interpreted.

The Senator from Georgia is mistaken in saying that I somewhat abruptly broke in last evening to say that the precedents were against the contention made by the Senator from Mi ·souri has [Mr. REED]. What I did say was this:

I think, Mr. President, when the Senator from Missouri does examine the matter-

The Senator from Missouri having expressed some doubt on the pointhe will be satisfied that the Chair acted within his constitutional rights. That is what I said, as reference to the OoNOBESSIONAL RECORD will show.

I did not then allude to any precedents. I did not think it was necessary. I had in mind the explicit provision ot the Constitution of the United States which says:

The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

That is what I had in mind, and I thought that was sufficient to warrant the Vice President in casting the deciding vote.

The Senator from Georgia seems to argue that the function of the Vice President is to break a deadlock. That is not the function of the Vice President's vote at all. No deadlock can occur when a tie vote happens in the Senate on a proposition such as was before it last evening. The amendment of the Senator from Kansas [Mr. BRISTOW] would have failed had the Vice President not voted, and no deadlock would have resulted. Mr. President, the Senator from Georgia, arguing that the Vice President can not vote on collateral questions, has been answered very pointedly by the Senator from Idaho [Mr. HEYBURN], wlio has quoted a precedent that is directly in order. It goes back to the Thirty-first Congress, and it is there laid down by as eminent an authority as Mr. Calhoun, who had been Vice President, that he had frequently voted on questions of that But I have before me a more pointed precedent, and I trust the Senator from Georgia will listen to it. It occurred in the first session of the Forty-fifth Congress. The facts are these: . On the motion to proceed to the consideration of the resolution to admit William Pitt Kellogg to a seat in the Senate, the yeas were 29 and the nays were 29. The vote of the Senate being equally divided, the Vice President (Mr. Wheeler) voted In the affirmative, and the Senate proceeded to the consideration of the resolution.

Mr. Thurman moved to amend by striking out all after "Resolved/' and inserting:

"That M. C. Butler be now sworn as a Senator from the State of South Carolina."

The yeas were 30 and the nays were 30.

The vote of the Senate being again equally divided, the Vice President (Mr. Wheeler) voted in the negative, and the amendment was not Mr. Thurman has been quoted by the Senator from Georgia as an authority he would like to have cited in this instance, a great lawyer, a great presiding officer- ·

Mr. Thurman rose to a question of order, and submitted that the provision of the Constitution that the Vice President shall have no vote unless where the Senate is equally divided does not apply to the case of seating a Member, but that questions of seating a Member should be left to the Senators themselves, under the provision that "each House shall be the judge of the elections, qualifications, and returns of its own Members," and after debate Mr. Thurman withdrew the question of order.

So, Mr. President, not only did the Vice President in the early days of the Republic, when Mr. Calhoun presided over this body, give the casting vote on the election of a Chaplain, but at a later time Mr. Wheeler, a distinguished gentleman, who presided over this body, cast his vote in the matter of seating a Senator; and Mr. Thurman, having raised substantially the same question as the Senator from Georgia raises to-day, argued it, and, after giving it due consideration, withdrew the point of order and a Senator was seated by the casting vote of · the Vice President.

Mr. BAILEY. Mr. President--

The VICE PRESIDENT.' Does the Senator from New Hampshire yield to the Senator from Texas?

Mr. GALLINGER. Certainly.

Mr. BAILEY. Not to interpose on the particular matterthat is, as to the amendment-I think if it were possible for the Senate- to tie on the adoption of the joint resolution itself, although I think that is a mathematical impossibility; but if it should happen, or if it could , happen, then, I think, according to the plain letter of the Constitution, the Vice President could not cast a vote, because if you · will read the language you will see it is-

The Vice President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided.

I think by the very force of the term if it were two-thirds thatagainst one-third and that could · possibly eventuate in a tie, under the very language of the Constitution the Vice Presideut would not be permitted to vote.

Mr. GALLINGER. I think the Senator from Texas is right on the point be makes.

Mr. WORKS. M:r. President--

The VICE PRESIDENT. Does the Senator from New Hampshire yield to the Senator from California?

Mr. GALLINGER. I will conclude in just a moment.

The VICE PRESIDENT. The Senator from New Hampshire prefers not to be interrupted.

:Mr. GALLINGER. I think in the case cited by the Senator from Texas that is true, but in this case the Senate was equally divided, and the language of the Constitution is absoltuely explicit and without qualification. It is laid down in the Constitution, repeated in Jefferson's Manual, that the Vice President shall on occasions of that kind give the deciding vote. While I have not looked up all the precedents, the Senator from Idaho [Mr. HEYBURN] has cited one precedent; I have cited another that I think will be somewhat troublesome. to the Senator from Georgia if he undertakes to establish his contention that the Vice President was not warranted in voting as he did on tile Bristow amendment.

Mr. BACON. Will the Senator from New Hampshire permit me for a moment?

l\fr. GALLINGER. Certainly.

Mr. BACON. What the Senator has cited in the way of precedents might be in a degree controlling as to the infelicity, if I may so speak, of some of my illustrations. But , as the Senator says that the Constitution is explicit · in its language that the Vice President shall vote when the Senate is equally divided, what I want to ask of the learned Senator is • this: The language of the Constitution is equally explicit that the President of the United States shall sign every resolution before it shall take effect and yet I think the Senator himself will concede that this particular Joint resolution would take effect without the signature of the President. I should like to ask the Senator how it is that the language shall be cont~olling-:the literal langu.age-a~ to the right of ~e Vice President with respect to this particular joint resolution, and shall not be controlling as to the President with respect to this particular joint resolution.

Mr. GALLINGER. I think that does not need any serious discussion. - l\lr. BACON. I will say to the Senator, before he replies-I will not take the time to do it now, because other Senators want to be heard--! have some authority from the Supreme Court of the United States that I will read a little later.

Mr. GALLINGER. I think the contention of the Senator as to the other clause of the Constitution is rather academic. It is true that the question that was before the Senate yesterday was out of the usual order; it was a joint resolution that did not require the signature of the President; and yet I do not see how that invalidates the clear and explicit and unqualified declaration of the Constitution that when the Senate is equally divided the Vice President shall cast his vote.

I am content to rest my contention, 1\Ir. President, upon the language of the Constitution; and inasmuch as the Senator from Georgia was desirous that precedents should be forthcoming, I am willing to have it fortified by the precedent cited by the Senator from Idaho [Mr. HEYBURN], and the very illuminating precedent I have read to the Senate in the case where the Vice President cast his vote on the question of seating a Senator in this body. If more precedents are demanded ' ey can doubtless be found, but it seems to me that those already given are sufficient.

Mr. CULBERSON. Mr. President, when this point was made last night by the Senator from Missouri [Mr. REED] it occurred to me that it was not well taken, and I called his attention to the express provision of the Constitution on the subject, which has been read by the Senator from Georgia. The more I think of it, however, the more doubtful I am of the legality of the vote which was cast by the Vice President upon that occasion; and I will ask the indulgence of the Senate to state quite briefly why I am in doubt about it, rather leaning to the view that the vote ought not to have been cast.

The Constitution provides that-

The Vice President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided. - In the same article of the Constitution, and it is important to bear in mind that this is in the article which constitutes the legislative branch of the United States Government not the executive or judicial or general clauses, it is also' provided Every order, resolution, or vote to which the concurrence of the Senate and Ho.use of Representatives may be necessary (except on a que.stion of adJournment) shall be presented to the President of the United States; and before the same. shall take effect shall be approved by bun, or, being disapproved hy bun, shall be repassed by two-thirds of th~ Senate and House of Representatives, according to the rules and limitations prescribed m tlle case o! a bill.

Those · two provisions, I repeat, are in that article of the Constitution which creates the legislative branch of the Government, and obviously they refer to matters of legislation, rather than matters extraneous to legislation.

The Senator from Georgia has pressed what I regard as the vital question in this case, and that is, if the President of the United States is not required or authorized to approve a con­ stitutional amendment passed by two-thirds of the Senate, why is the Vice President allowed to cast a vote with reference to that matter when the language in the two cases is equally general and explicit? ,

Now, we are not without authority, Mr. President, so far as the action .of the President "Of the United States is concerned on the subJect of amendments to the Constitution. I invite the attention of th~ Senate to the case of Hollingsworth et al. v. Virgima, m the Third Dallas, page 378, a case arising on the question whether or not the eleventh amendment of the Constitution had been properly passed by the Congress and properly adopted by the States of the Union. That amendment, as every Senator knows, has reference to the judiciary article, prohibiting the sumg of an! State of the Union. In .that case the President, as I gather it from the facts-:-th~ President did not approve the proposal ._ al ~o amend the Constitution m that. respect, and it _ was obJected m the Supreme Court of the United States that the amendment had no\ been proposed in the manner provided by the Constitution. Now, let us see. The Attorney General of t:11e Umt~ States, 1\Ir. Lee-and I read from his argument as reported :n the volume 0 : the reports-said:

Two objections are made· First, that the amendment has not been proposed m due form. But has not the same course been pursued relative to all the other amendments that have been adopted? And the . case of amendments is evidently a substantive act.

I invite the attention of Senators particularly to this language of the Attorney General, and later I will invite the attention of the Senate to the language of the Supreme Court on the subject:

And th.e case of amendments is evidently a substantive act, unconnec~ed with the ordinary business ~f legislation and not within the policy or terms of investing the President with a. qualified negative on the acts and resolutions of Congress.

Mr. Justice Chase, of the Supreme Court, interrupted the Attorney General at this point in the argument and said: . There can surely .be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation ; he has nothing to do with the proposition or adoption of amendments to the Constitution.

Mr. President, when the court came to render its decision we find this, and only this, in the report :

The court on the day succeeding the argument--

Mr. HEYBURN. If the Senator will permit an interruption there--

Mr. CULBERSON. Wait until I finish reading this opinion of the court, if the Senator please.

Mr. HEYBURN. It applied to what the Senator just read.

The VICE PRESIDENT. The Senator from Texas declines to be interrupted.

Mr. CULBEltSON (reading):

The court on the day succeeding the argument delivered an unanimous opinion that the amendment, being constitutionally adopted, there

Mr. LODGE. Of ihe whole number; I beg the Senator's p,ard-0n. 1 read it hastily. It is a majority of the whole Senate, and that by its terms excludes the Vice President

Mr. BAILEY. There could be no tie then.

Mr. LODGE. There could be no tie, of course. I want to say, what ought to have occurred to " me at once when I interrupted the Senator from Georgia, that necessarily the old Senate must have chosen the Vice President, been.use there was no other way in which it eould be done.

Mr. BACON. I am astonished that I yielded so quickly.

Mr. LODGE. So am I.

Mr. BACON. I was so impressed by the e.rudltion of my friend from Massachusetts that , I was a little startled when he told me I was wrong, and I fled .a little too .quickly.

Mr. HEYBURN. Mr. President, I desire to detain the Senate but a moment. I wish to call attention to de reason why , the President has no veto power over a resolution proposing a change in th~ Constitution. It is because the .resolution must have been pa.ssed by a vote equivalent to that which would overrule his veto. That is the principle behind that proposition, and it would have been a vain thing to provide that he should have anything to say.

Since I called attention to the precedent I have sent for the Congressional Globe, and it may be well to carry forward some of the wisdom of the Congress of 1850, because it gives us a much clearer light upon what Mr. Calhoun said when he referred to Mr. King's judgment. .l\lr. King said:

I suppose it is now to be decided whether this clause of th.e Constitution applies to elections that are required to take place ~ this body. Heretofore it has been considered as applying to leglSlative action alone, and never in any case, so far as I know, to the election of officers of any description in this body. Therefore it is now to be decided whether the clause of the Constitution referred to is to be extended in Us operation to elections as well as legislative action, for I know of no rule whatever that has ever been adopted by the Senate on the subject. For myself, I shall be satisfied with the decision of the question 1n any way that the Senate may think proper. I will only repeat that it is the first time I have ever known the question to be made, and my mind not having been turned to the subject heretofore I have supposed the clause referred to legislative measures .alone and not to elections.

Then Senator Berrien, of Georgia, interposes and says:

I can .not conceive .how it is possible by any action of the Senate to limit the expressions of the Constitution, which are in themselves t;O general as to comprehend every vote that may be ta.ken in the Senate. "The Vice President shall be the President of the Senate, but shall have no vote except when the Senate are .equally divided."

Now it is proposed, by one construction which is off e red, to limit the equal division to cases of legislation ; but the Constitution l.'Ontemplate<l that the Senate should perform other duties b e sides those which are merely legislative. There are executive duties, and when the Senate is equally divided in the discharge of their executive duties, the Vice President must give the casting vote. .

Mr. KING. Clearly the Vice Pr e sident has no power to vote {)ll ex e cu· tive nominations, because if the Senate is equally divided 1n regard to the propriety of their confirmation they are rejected.