[Hinds' Precedents, Volume 1]
[Chapter 3 - The Presiding Officer at Organization]
[From the U.S. Government Publishing Office, www.gpo.gov]
THE PRESIDING OFFICER AT ORGANIZATION.
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1. Clerk calls House to order and presides. Sections 64, 65.\1\
2. Election of a chairman in place of Clerk. Sections 66, 67.
3. Early practice of Clerks to decide questions of order.
Sections 68-72.
4. Later practice as to authority of Clerk. Sections 73-80.\2\
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64. A rule--which, however, is not operative at the time the House is
organized--provides that the Clerk shall call the new House to order
and preside until the election of a Speaker.
At the organization of the House the Clerk calls the roll of Members
by States in alphabetical order.
Pending the election of a Speaker or a Speaker pro tempore the Clerk
preserves order and decorum and decides questions of order, subject to
appeal.
Present form and history of section I of Rule III.
Section 1 of Rule III provides:
The Clerk shall, at the commencement of the first session of each
Congress, call the Members to order, proceed to call the roll of
Members by States in alphabetical order, and, pending the election of a
Speaker or a Speaker pro tempore, call the House to order, preserve
order and decorum, and decide all questions of order subject to appeal
by any Member.
This rule was adopted on January 27, 1880,\3\ in Committee of the
Whole, while the revised code was under consideration. The committee
had at first recommended a section providing only that the Clerk
should, pending the election of a Speaker, preserve order and decorum
and decide all questions of order subject to appeal to the House,
taking, in fact the latter half of the old rule, 146, which dated from
March 19, 1860,\4\ and provided:
* * * and pending the election of Speaker, the Clerk shall preserve
order and decorum, and he shall decide all questions of order that may
arise, subject to an appeal to the House.
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\1\ Thanked by the House for presiding. Section 222.
\2\ Decisions as to motions to correct the roll and appeals. (See
sec. 22 of this volume.) Declines to open a communication addressed to
the Speaker. Section 47.
\3\ Second session Forty-sixth Congress, Record, p. 555.
\4\ First session Thirty-sixth Congress, pp. 1211, 1237.
Sec. 65
As the rules are not adopted until after the Speaker is chosen, this
rule is evidently of persuasive effect only at the time of
organization.
65. In 1820 there arose a question as to the right of the Clerk,
presiding during organization, to rule a motion out of order.--On
November 15, 1820,\1\ after twenty-one ineffectual ballotings for
Speaker, under the rule which provided that ``a majority of the votes
given shall be necessary to an election; and, when there shall not be
such a majority on the first ballot, the ballot shall be repeated until
a majority be obtained,'' Mr. Peter Little, of Maryland, moved a
resolution that the lowest on each ballot should be dropped at the
succeeding ballot, and that any votes given for such lowest person
should not be taken into account.
The Clerk of the House \2\ declared that, under the rules of the
House which prescribed the mode of election by ballot, he could not
receive this motion.
Mr. John Randolph, of Virginia, protested against what he pronounced
an assumption of power on the part of the Clerk, and asserted the right
of any Member to propound any question to the House through the Clerk,
or from himself if he thought proper. Mr. Little asserted his right to
make the motion, but waived the right to save time.
66. In 1837 a proposition was made that the Members-elect choose one
of their number to preside during organization; but it was laid on the
table and the Clerk of the last House continued to act.--On September
4, 1837,\3\ at the organization of the House, the Clerk of the last
House was calling the roll of Members-elect by States, when, in the
State of Massachusetts, the name of Mr. Caleb Cushing was called. Mr.
Cushing arose in his place and said that before responding he wished to
say a few words in explanation. He saw before him many Members who were
said to be elected, but there was no authentic knowledge on the
subject. They were not, in his opinion, Members of the House until a
Speaker had been elected and they had qualified. He was aware that it
had been the usage of the House that the Clerk should prepare a roll as
he had done, should call the Members individually, and should also
officiate at the organization of the House. The standing rule of the
House provided that he should be Clerk until a successor should be
appointed. But the arrangement which should be adopted would be for the
gentlemen present to be organized under the presidency of one of their
own number.
The roll call having been completed and a question as to the election
of two Members from Mississippi having been raised, Mr. R. Barnwell
Rhett, of South Carolina, submitted this motion:
That Lewis Williams, of North Carolina, being the oldest Member of
the House of Representatives, be appointed chairman of this House, to
serve until the House be organized by the election of a Speaker.
Mr. Williams opposed this motion, and urged that the Clerk be allowed
to preside over the organization as he had from the beginning of the
Government. To this Mr. Henry A. Wise, of Virginia, replied that there
was no Clerk of this House, and that the rule of the last House
continuing the Clerk until his successor should be elected had no force
in this House.
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\1\ Second session Sixteenth Congress, Annals, pp. 437, 438.
\2\ Thomas Dougherty, of Kentucky, Clerk.
\3\ First session Twenty-fifth Congress, Journal, p. 4; Globe, pp. 1-
3.
Sec. 67
On motion of Mr. Isaac Toucey, of Connecticut, the motion of Mr.
Rhett was laid on the table without a division.
67. The Clerk of the last House having declined to put any motions
except the motion to adjourn during organization of the new House, the
Members-elect chose one of their number chairman.
The Clerk presiding during organization declined to put a question,
whereupon a Member-elect put the question from the floor.
A clerk, presiding at the organization, having proposed to read a
paper explaining his reasons for certain acts, the Members-elect
declined to permit him to do so.
Discussion of the functions of the Clerk of the former House
presiding at the organization of a new House.
On December 2, 1839,\1\ the day fixed by the Constitution for the
meeting of Congress, at 12 o'clock meridian, Hugh A. Garland, Clerk to
the late House of Representatives, called the Members to order; and
suggested that, if not objected to, he would proceed to call over a
list of Members of the Twenty-sixth Congress for the purpose of
ascertaining who were present and whether a quorum was in attendance.
No objection being made, the Clerk commenced the call of the roll by
States, beginning with the State of Maine; and, having called as far as
the State of New Jersey, and having called the name of Joseph F.
Randolph from that State, he rose and stated that five seats from New
Jersey were contested; that it was not for him to undertake to decide
who were entitled to them; and that, if it was the pleasure of the
House, he would pass by the further call from New Jersey, and complete
the call of the roll, when he would submit the documents and evidence
in his possession to the House, who alone were capable of deciding upon
them.
This course was objected to by Mr. William Cost Johnson, of Maryland.
The reading of the credentials of John B. Aycrigg, William Halstead,
John P. B. Maxwell, Charles C. Stratton, and Thomas Jones Yorke, was
then called for; and being read, Mr. Charles F. Mercer, of Virginia,
asked that the law of New Jersey relative to elections of Members of
the House of Representatives of the United States be read; when Mr.
Cave Johnson, of Tennessee, asked that the credentials of Philemon
Dickerson, William R. Cooper, Joseph Kille, Daniel B. Ryall, and Peter
D. Vroom, claiming to be Members of the House of Representatives of the
United States from the State of New Jersey in place of John B. Aycrigg
and his associates, be also read.
Before either the law or credentials were read, debate arose. It was
urged that as Messrs. Aycrigg and his associates held credentials from
the governor of New Jersey, under the broad seal of the State, and
precisely similar to the credentials by virtue of which Mr. Randolph of
that State had already been called, they had a prima facie right to be
called and participate in the organization of the House. There was
objection to this, and a proposition that the subject of the New Jersey
contest be laid aside until the roll of the residue of the Members
should have been called.
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\1\ First session Twenty-sixth Congress, Journal, pp. 1-6; Globe, pp.
1-20.
Sec. 67
The Clerk, in the course of the day's proceedings, declared that,
under the present imperfect state of the organization of the House--no
quorum having answered to their names, and there being no rules in
existence for the government of the body--he did not feel authorized,
under these circumstances, to put any question to the House except by
general consent.
A motion being made to adjourn, the Clerk decided that he could not
submit that motion to the House, and so the House, by general consent,
adjourned until the next day, without a question put to that effect. On
the succeeding day, also, the House adjourned without motion put by the
Clerk; but on December 4, after a motion to adjourn had been made, the
Clerk stated that, on the two preceding days, he had not adverted to
that clause of the Constitution of the United States which provides
that less than a quorum may adjourn from day to day. Having now
adverted to that clause, he had changed the opinion heretofore given,
that he could not, in the present state of the organization of the
House, put the question on an adjournment; that he would now put a
question on a motion to adjourn, but on no other motion.
On December 3 the Clerk stated that he had reduced his reasons for
the course he had taken to writing, and asked permission of the House
to read them. This was refused.
In the discussion which arose as to the functions of the Clerk, Mr.
Henry A. Wise, of Virginia, speaking of the present Clerk, said it was
true that he was not technically an officer of the House. But by the
law of usage and necessity he was always permitted to hold the office
which he now held. He was the quondam Clerk of the last Congress, and
presented himself here, firstly to render to his successor the records
of the office; and, secondly, he was here by the law of usage. The
ordinance of 1785 imposed upon the Clerk (Secretary) of the preceding
Congress the duty of keeping a roll of Members of Congress, and of
calling over that roll at their meeting. There was also a resolution of
1791 relating to this duty of the Clerk. Thus the Clerk was bound by
the law of usage.
Mr. John White, of Kentucky, contended that the ordinance of 1785 and
the resolution of 1791 were of no more binding effect than the rules of
the last House.
Mr. Daniel B. Barnard, of New York, contended that the Clerk was not
only the Clerk of the last House of Representatives, but also the Clerk
of this House. And he would so continue until his successor should be
appointed. It was a cardinal principle of the common law that the
public interests should never be permitted to suffer for want of an
incumbent to fill important offices, and by the common as well as by
the parliamentary law the functionary holds over until his successor is
appointed. It was in analogy to the common law that the parliamentary
rule was adopted that the clerk of the House of Commons should hold
over until his successor should be appointed. This was the settled
parliamentary rule in this country as well as in England. The Clerk, in
assuming his seat and calling the House to order, was doing nothing
more than he was fully warranted in doing. More than that, he
undoubtedly had the authority to put questions--any question which the
House in its partially disorganized condition might entertain.
The Clerk still persisted in declining to put any question except the
motion to adjourn. Various propositions were submitted: To call the
uncontested names,
Sec. 68
and, a quorum of such having been ascertained, to let them decide the
contested cases before proceeding to the election of a Speaker; to
choose a temporary Speaker and a committee of elections, for the
consideration of the contests, and after the settlement to choose a
permanent Speaker; to proceed and call the New Jersey claimants having
the certificates from the governor; to allow those to whose election
there was no objection to pass upon the right of challenged gentlemen
to participate in the organization.
The Clerk putting the question on none of these propositions, Mr.
John Quincy Adams renewed the proposition to call the names of the
gentlemen having the certificates from the governor of New Jersey, and
on this proposed to put the question himself.
At this point Mr. R. Barnwell Rhett, of South Carolina, asked the
Clerk if he would put questions to the House. To this the Clerk replied
that he would put no question except to adjourn; but said that, with
the consent of the House, he would put questions as chairman of a
meeting of the gentlemen present, if instructed to do so by the Members
present, but he would not do so as Clerk of the House of
Representatives.
Mr. William Cost Johnson objected to his putting questions as
chairman.
Mr. Rhett then moved that Mr. Lewis Williams, of North Carolina, the
oldest Member of the House, be appointed Chairman of the House, to
serve until the election of a Speaker. Mr. Williams declining to serve,
Mr. Rhett read in his place the following resolution:
Resolved, That the Hon. John Quincy Adams be appointed Chairman of
this House, to serve until the election of a Speaker.
Mr. Rhett then put the question on the said resolution to the
Members, and it passed in the affirmative.
Mr. Adams was then conducted to the chair by two Members of the
House, and proceeded to discharge the duties of the position.
Mr. Charles F. Mercer, of Virginia, then moved that the rules of the
late House of Representatives, so far as applicable to this body in its
present state of organization, be the rules for the government of its
proceedings.
And the question on this motion being put by the Chairman, it passed
in the affirmative unanimously.
68. In the earlier days the Clerk of the last House presiding at the
organization declined to decide questions of order and referred them to
the House.--On December 4, 1843,\1\ at the time of the organization of
the House and after the presence of a quorum had been announced, but
before the election of a Speaker, Mr. Daniel D. Barnard, of New York,
arose and proposed to read in his place a paper in the nature of a
protest of himself and other Members of the House against the
participation of the Representatives of certain States in the election
of Speaker.
Objection was made that it was not in order to read the paper pending
the election of Speaker.
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\1\ First session Twenty-eighth Congress, Journal, p. 7; Globe, pp.
2, 3.
Sec. 69
The Clerk \1\ begged respectfully to state to the House that, in its
present state, he should feel it to be his duty to put the question on
granting leave, to the House, and not, in his humble capacity,
undertake to decide a question of that magnitude.
A motion being submitted, the Clerk put the question that Mr. Barnard
have leave to read the paper, and the motion was decided in the
negative, 59 ayes and 124 noes.
69. On December 21, 1849 \2\ before the election of a Speaker, Mr.
Samuel W. Inge, of Alabama, moved that the resolution adopted on the
14th instant, prohibiting debate until the election of a Speaker, be
rescinded.
Mr. Robert Toombs, of Georgia, having taken the floor, proceeded to
debate the motion.
Mr. Joseph M. Root, of Ohio, called Mr. Toombs to order for debating.
Mr. Toombs declined to surrender the floor, but proceeded in spite of
the protests of Members.
The Clerk \3\ requested Mr. Toombs to allow the motion to be put.
Mr. Toombs declined to yield, and proceeded amidst much confusion,
declaring that the Clerk could not put the question while he held the
floor.
Mr. John Van Dyke, of New Jersey, called Mr. Toombs to order.
The Clerk (Mr. Toombs continuing to speak) put the question whether
the gentleman from Georgia, being called to order, should be allowed to
proceed.
Mr. Toombs continued to speak, but the Clerk, having put the
question, declared that the point of order was sustained by the House,
and that the gentleman from Georgia was decided out of order.
Mr. Toombs continued to speak, but the Clerk proceeded to put the
question on the motion of Mr. Inge, and the question being put, the
yeas and nays were demanded and ordered.
The Clerk thereupon began to call the roll, and Mr. Toombs continued
his speech, concluding during the roll call.
70. In the Thirty-first Congress the House did not choose a Speaker
until December 22, 1849, nineteen days after the assembling of the
Congress. The Clerk \3\ of the preceding House presided during this
time. He did not decide questions of order, but submitted them to the
House for decision. Thus, on December 5 \4\, a motion was made to lay a
pending resolution on the table, and the question was asked whether the
motion to lay on the table was debatable, no rules having been adopted.
The Clerk referred the question to the House, which decided that the
motion was not debatable.
Again, on December 6 \5\, the question arose again, and Mr. William
Duer, of New York, made the point of order that the motion to lay on
the table was not debatable. The Clerk said that it was a point for the
House to decide. The Clerk could not call any gentleman to order.
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\1\ Matthew St. Clair Clarke, Clerk.
\2\ First session Thirty-first Congress, Globe, pp. 61, 62.
\3\ Thomas J. Campbell, Clerk.
\4\ First session Thirty-first Congress, Journal, p. 34; Globe, pp.
6, 8, 17.
\5\ Globe, p. 8.
Sec. 71
Again on December 11 \1\, a motion for a call of the House was
pending and a motion to amend it was made. Mr. Jacob Thompson, of
Mississippi, asked if the motion was in order. The Clerk declared that
it was for the House and not the Clerk to decide the question of order.
71. On December 5, 1859,\2\ before the election of a Speaker, Mr.
John B. Clark, of Missouri, rose and proposed to submit some remarks.
Mr. Henry C. Burnett, of Kentucky, raised the question of order that
debate was not in order since no question was before the House.
The Clerk \3\ said:
The Clerk having no power to decide the point of order which has been
raised, will submit it to the House. * * * The Clerk will state that he
has carefully examined this subject, and can find no authority
conferred upon him as Clerk of the former House, except to put
questions, when raised, to the House for its decision. He will not,
therefore, take upon himself the power to decide this question.
Mr. Clark having been permitted to proceed, Mr. Israel Washburn, Jr.,
of Maine, made the point of order that the gentleman from Missouri must
confine himself to the question.
The Clerk said:
The Clerk can not undertake to decide whether the gentleman from
Missouri is confining himself to the question of order or not. If the
point of order be insisted on, he must submit the question to the
House.
72. On December 6. 1859,\4\ before the election of a Speaker, Mr.
Horace Maynard, of Tennessee, asked of the Clerk whether he would make
decisions of questions of order, or refer them to the House to be
settled by majorities.
The Clerk \3\ said:
The Clerk, in answer to the inquiry of the gentleman from Tennessee,
begs leave to read from the Manual, in order that the House may
understand the power which the Clerk has in deciding questions which
may arise. This is the only authority the Clerk has been able to find
upon the subject.
``When but one person is proposed and no objection made, it has not
been usual in Parliament to put any question to the House; but without
a question the Members proposing to conduct him to the Chair. But if
there be objection, or another proposed, a question is put by the
Clerk. As are also questions of adjournment.''
``That being all that the Clerk can find, he does not feel authorized
to decide questions of order as they arise.''
73. Discussion of the functions and authority of the Clerk of the
former House presiding at the organization of the new House.--On
December 8, 1859 \5\ before the election of a Speaker, a question arose
as to the power of the Clerk of the preceding House, who was presiding,
to decide questions of order. The Clerk \6\ had repeatedly declined to
decide such questions, and when the precedent of December 26, 1835, was
quoted, explained that the Clerk in the Thirty-fourth Congress, while
suggesting his opinions on points of order, in no instance claimed the
right to make a final decision.
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\1\ Globe, p. 17.
\2\ First session Thirty-sixth Congress, Globe, pp. 2, 3.
\3\ James C. Allen, Clerk.
\4\ First session Thirty-sixth Congress, Globe, p. 19.
\5\ First session Thirty-sixth Congress, Globe, p. 66.
\6\ James C. Allen, of Illinois, Clerk.
Sec. 74
Mr. John S. Millson, of Virginia, in the discussion of this question,
said:
The Clerk is not the presiding officer of this House in any sense of
the word. When the Clerk puts a question to the House, it is the House
putting a question to itself, selecting its own officer as its organ.
When the Clerk propounds a question to this House, he has no more
control over the House and exercises no other function than the reading
clerk when he calls the yeas and nays. It is the House calling the roll
through its own appointed agent. No man can preside over the House of
Representatives who is not a Member of the House of Representatives. It
is in this respect that we differ from the Senate of the United States,
over which, by the Constitution, the Vice-President of the United
States is appointed to preside. The mistake has originated altogether
from the convenient usage of permitting, by the sufferance of the
House, the Clerk of the former House to propound questions, for in the
absence of any other constituted agent there must be some one to
address the House; but the person so speaking is not a part of the
House, but simply the mouthpiece of the House. And I submit to
gentlemen, if they would protect the dignity of this body, that they
would never consent to regard the Clerk in any other light than as one
who for convenience sake is permitted to propound questions to the
House, just as the reading clerk is permitted for convenience sake to
call the names of Members when the yeas and nays are ordered.
On the other hand, Mr. Horace Maynard, of Tennessee, voiced the
opposite opinion:
It is not Mr. Allen, as I understand, who is temporarily the
presiding officer of the House; it is the Clerk of the last House, who
by law is placed for the time being as the presiding officer over this
unorganized body; who is placed there for the very purpose of giving it
organization; who is placed there with the power of general
parliamentary law in his hands to exercise, and who is, to all intents
and purposes, the presiding officer of the House as long as it remains
in its present inorganic condition. When that organization shall be
effected by a selection of a gentleman of our own body as the Speaker
and presiding officer, the Clerk then becomes for that purpose functus
officio, but till that time he is, ex vi termini, compelled to be the
presiding officer of the House; and, like any other presiding officer,
he must, under the parliamentary law, exercise the power which that law
confers upon him and clothes him with. One of these powers is to decide
questions of order as they arise; and unless practically be decides
these questions-- although he may not formally do it--the wheels of
business will be blocked, and we could not go forward a single step. He
is, unconsciously perhaps, deciding questions of order continually. He
does so in giving the floor to this or the other Member, in asking a
Member's permission to allow an interruption, and in many other ways
which I need not instance.
74. Before the election of a Speaker the Clerk recognizes Members.--
Before the election of a Speaker in 1859 the Clerk, Mr. James C. Allen,
of Illinois, recognized Members who were to address the House, and when
complaint was made by a Member, on December 21, explained that he was
governing the recognitions so as to give an opportunity to all Members
who applied for time.\1\
75. In 1855, while the Clerk was presiding at the organization of the
House, a question of order was decided by him, and the decision
sustained.--On December 26, 1855.\2\ before the election of a Speaker
or the adoption of rules, the House was considering a proposition that
the Hon. James L. Orr, of South Carolina, be invited to preside over
the House until the election of Speaker, and on this Mr. Lewis D.
Campbell, of Ohio, had demanded the previous question.
Pending this, Mr. George W. Jones, of Tennessee, moved that the House
take a recess until 11 o'clock and 59 minutes to-morrow.
Mr. Joshua R. Giddings, of Ohio, submitted as a question of order
that it was not competent to take a recess pending the demand for the
previous question.
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\1\ First session Thirty-sixth Congress, Globe, p. 209.
\2\ First session Thirty-fourth Congress, Journal, p. 181; Globe, p.
87.
Sec. 76
The Clerk \1\ decided that the motion to take a recess was in order.
Mr. Giddings having appealed, the appeal was laid on the table.
76. In 1863, at the organization of the House, the hold-over Clerk
disclaimed authority to enforce the rules, but decided points of order
as authorized by a rule of the last House.--At the organization of the
House on December 7, 1863,\2\ Clerk Emerson Etheridge held that he had
no power to preserve order, having no power to enforce the rules. No
rules had been adopted, but the rules Nos. 146, 147, dated March 19,
1860, provided that ``these rules shall be the rules of the House of
Representatives of the present and succeeding Congresses, unless
otherwise ordered,'' and that ``pending the election of a Speaker, the
Clerk shall preserve order and decorum, and shall decide all questions
of order that may arise, subject to appeal to the House.'' \3\
77. On December 7, 1863,\4\ the Clerk \5\ of the last House presided
at the organization of the House, and ruled on points of order on two
several cases. No objection was made, and in the first case no appeal
was taken. In the second case Mr. Thaddeus Stevens, of Pennsylvania,
appealed from the decision of the Clerk, but withdrew his proposition
before a vote on the appeal.
78. Before the completion of the organization of the House, in 1869,
the Clerk refused to entertain a motion referring to a committee a
subject relating to the election of a Member.--On March 4, 1869,\6\ at
the organization of the House, after the roll of Members-elect had been
called and the presence of a quorum had been announced, Mr. George W.
Woodward, of Pennsylvania, offered this resolution as a question of
privilege:
Resolved, That the returns of the election from the Twenty-first
district of Pennsylvania be referred to the committee of elections to
be appointed, with instructions to report at as early a day as
practicable which of the claimants to a seat in this House has the
prima facie right thereto.
Mr. Glenni W. Scofield, of Pennsylvania, made the point of order that
the Clerk could not, at the organization, entertain a motion for
reference to a committee.
The Clerk \7\ sustained the point of order.\8\
79. In 1869 the hold-over Clerk, basing his authority on the law of
1863, declined to entertain a question of order or an appeal pending
the motion to proceed to election of Speaker.--On March 4, 1869,\9\ at
the time of the organization of the House, the previous question had
been ordered on the motion to proceed to the election of a Speaker,
when Mr. James Brooks, of New
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\1\ John W. Forney, Clerk.
\2\ First session Thirty-eighth Congress, Journal, p. 1051; Globe, p.
5.
\3\ The House has come definitely to the conclusion that one House
may not impose its rules on a succeeding House. (See secs. 6743-6745 of
Vol. V of this work.)
\4\ First session Thirty-eighth Congress, Globe, pp. 5, 6.
\5\ The Clerk was Emerson Etheridge.
\6\ First session Forty-first Congress, Globe, p. 3.
\7\ Edward McPherson, of Pennsylvania, Clerk.
\8\ For discussions in House and Senate on the law of 1866 relating
to the organization of the House, including the designations of the
officers to act in case of the death, disability, etc., of the Clerk,
see Globe, second session Thirty-ninth Congress, pp. 66, 67, 379.
\9\ First session Forty-first Congress, Globe, p. 4.
Sec. 80
York, announced that he rose to a question of order, and proceeded to
call attention to the alleged fact that the Clerk had omitted, in
calling the roll of States, to call the names of the Members from
Georgia and Louisiana.
The Clerk \1\ said:
The gentleman is out of order. The question is upon the adoption of
the resolution that the House now proceed to the election of Speaker.
Mr. Brooks having proposed to appeal, the Clerk declined to entertain
the appeal, and when Mr. Brooks persisted, directed him to take his
seat, saying:
The Clerk by law is Clerk of the House until his successor is elected
and qualified * * *. The Clerk will take pleasure in saying to the
gentleman that he (the Clerk) is governed by the law of the land and
the rules of the House. * * * The Clerk has no desire whatever to make
any decision doing violence to the feeling of any gentleman of the
House. He has no desire to do an act officially calculated to bring the
body into confusion, but at the same time he is compelled, under the
obligations which are resting upon him, so to administer the law and
the rules as to effect, as a prime duty, the organization of the House.
He regrets very much if any decision which he felt called upon to make
has been held by any of the gentlemen affected as an invasion of their
personal rights, for it was not so intended; and the Clerk begs,
inasmuch as the question has proceeded thus far, that the persons
indicated as tellers may take their places and the organization be
effected.
80. In 1867 the Clerk, acting under the law of 1863, declined to
entertain any proposition not consistent with the organization of the
House.
The Clerk, presiding at the organization, has declined to entertain a
protest, although it related to the organization.
On March 4, 1867,\2\ at the organization of the House, the Congress
having assembled in accordance with the act of January 22, 1867, the
Clerk had called the roll of Members-elect, and had announced the
presence of a quorum.
Mr. James F. Wilson, of Iowa, moved that the House proceed to the
election of a Speaker viva voce.
Mr. James Brooks, of New York, being recognized in debate, proceeded
to present the protest of Members of the minority party of the House
against proceedings for its organization until certain States should be
represented. Mr. Brooks asked that this protest be entered on the
Journal.
The Clerk \1\ said:
The Clerk declines to entertain any paper of the character of that
indicated by the gentleman from New York, or any other matter pending
the action of the House. The Clerk is now acting under the law; his
duties are clearly prescribed, and it is impossible for him to
entertain any motion or any business not consistent with the
organization of the House.
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\1\ Edward McPherson, of Pennsylvania, Clerk.
\2\ First session Fortieth Congress, Globe, pp. 3, 4.