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haps some other defects remedied, I should gladly cast my vote to bring about further conference and consideration as to the wisdom of leaving out these sections of doubtful constitutionality or expediency. But, sir, the parliamentary situation of this report does not admit of such
The vote must be to concur or nonconcur in the report of the conference committee, and I believe that the just demands of all interests involved will be best consulted by not allowing this bill, which in its main features is within the constitutional grant of power to Congress, and fairly meets the popular demand for an assertion of that power on the part of Congress to fail.
Time and experience before the meeting of Congress in December next will do more to enlighten and inform the public mind than further debate here can possibly do, and I hope and believe that this great question will be then dealt with in a spirit of liberality and justice to all sections and to all interests, which will be worthy of the patriotism and intelligence of American legislators.
Now, sir, if I am mistaken in what I believe to be the parliamentary situation of the question before the Senate, and it is competent to vote upon a motion to recommit to the committee of conference this bill with or without instructions, I shall be glad to give my vote for such a recommittal; but believing, as I understand the parliamentary situation, that that is not possible, I shall record my vote in favor of the conference report.
The PRESIDENT pro tempore. The question is, Will the Senate agree to the report of the committee of conference ? Mr. FRYE. I desire to make a motion to recommit.
The PRESIDENT pro tempore. The Senator from Maine moves that
Mr. FRYE. I will first, if the Chair pleases, move to recommit this report with instructions to the Senate conferees to insist upon the striking out of section 4 as amended and inserting section 4 of the original Senate bill; also upon striking out section 5, which is the pooling clause, and inserting in its place section 19 of the original Senate bill, which is the clause authorizing the commissioners to investigate the matter of pooling, and report at some future day.
The PRESIDENT pro tempore. The Senator from Maine moves that the report be recommitted with the instructions named by him.
Mr. CULLOM. I make the point of order on the motion to recommit, and especially on the question of recommitting with instructions.
Mr. HARRIS. I would be glad to ask the Senator from Maine to whom or to what is this bill to be recommitted? Some months ago the House of Representatives adopted an amendment in lieu of the Senate bill. The Senate disagreed to that amendment and insisted upon its disagreement and asked a conference, to which the House assented. Managers on the part of the two Houses were appointed. They conferred; they agreed; and have reported their action to their respective Houses. That committee no longer exists. It has performed the duty assigned it; it has gone out of existence. There is now no committee of conference between the two Houses in respect to this bill.
But suppose the motion of the Senator from Maine is held by the Chair to be in order, and suppose a majority of the Senate sustains it, and I presume the construction would be in the precise form of the motion, that the bill goes back to the same managers who had charge of it before on the part of the Senate; if that be true, suppose our chairman should address a note to the former managers on the part of the House, is it to be presumed that those managers would consent to entertain the proposition? What right have they to respond to any such note and come here to conter with us about the report which they have already made? The House has taken no action upon it, but those conferees have made their report. It is there on file, awaiting the action of the Senate, concurring or non-concurring in the report of the committee.
The object that the Senator from Maine has, or that any other Senator may have who desires a further conference, can be reached in a legitimate and in a parliamentary way if it is sought to reach it and a majority of the Senate shall favor it. When the Senate shall have disagreed to this report, shall by vote have rejected the conference report, it will then be competent and in order for any Senator who chooses to do so to move that the Senate further insist on its disagreement with the House amendment, and ask a further conference with the House in respect to that disagreement.
By that method the object can be legitimately reached, and reached in accordance with parliameotary methods and parliamentary rules and parliamentary law. But the motion to recommit the report of a committee composed of the managers of the two Houses, who have already considered, who have already reported, and who have performed the whole duty that was devolved upon them, the committee having gone out of existence, really seems to me to be entirely out of the question, though I am aware that there is at least one, and possibly more than one, precedent for this proceeding. It is a most vicious precedent, inconsistent with every method of parliamentary proceeding, and a precedent that had better be departed from at the earliest opportunity that the body has to depart from it, than be followed, because it is vicious and wholly contrary to every rule of parliamentary methods and sound parliamentary law.
Mr. FRYE. Mr. President
The PRESIDENT pro tempore. Debate is not in order. The Chair has indulged debate thus far by unanimous consent and is very glad to hear the opinions of Senators.
Mr. FRYE. Will the Chair allow me to reply to the Senator from Tennessee in a few words?
The PRESIDENT pro tempore. If there be no objection the Senator from Maine may proceed.
Mr. FRYE. I thoroughly understand that when a committee has made a report in parliamentary law the committee is then discharged; but it is an equally well settled principle of parliamentary law that a recommitment to a committee revives the committee. There can not be any question at all abont that, and the United States Senate has recommitted reports of conference committees.
Mr. HARRIS. Will the Senator allow me to ask him can any action on our part revive a committee of the House of Representatives that has gone out of existence ?
Mr. FRYE. We are simply acting as the United States Senate, and we do not look at the House of Representatives at all. We instruct our conferees; we recommit to our conferees, and if we recommit with instructions, it is to our conferees. It has no reference to the other House at all. They must take the responsibility of their action in the House, and not we.
Why, sir, the Senate has recommitted reports over and over and over again to conference committees. In the case of the well known salary grab, so called, a motion was made in the Senate to recommit that, with instructions, and the Senator from Vermont (Mr. EDMUNDS], then Presiding Officer, ruled that it was in order. The present Presiding Officer of the Senate stoutly maintained that the ruling of the then Presiding Officer was clearly right. The United States Senate, on the contrary, determined, on an appeal, that it was wrong. But that whole discussion proceeded upon this one single idea—that you could not instruct conferees, because the moment you undertook to do so you took from them their character as free conferees. In my judgment, there is nothing in that point. But that was decided by the Senate.
I admit that the Presiding Officer here (notwithstanding his opinion may be that under parliamentary law this motion may be in order) may with perfect propriety cite the ruling of the Senate and decline to accept this motion; but I prefer very much to make the motion with the instructions, for I confess that never before in my life did I listen to a Senatorial discussion and find my mind in such an utter state of confusion as it is following the discussion which has taken place here on this question.
I move to instruct the conferees to strike out the fourth section. - I should like to know what the fourth section means from this discussion. I should like to know how I or my constituents are to determine what it means from this discussion. I should like to know what lights have been thrown upon it. The conferees disagree in relation to it; almost every Senator who has discussed it disagrees with the other Senators in relation to it. Boards of trade in Boston and Indianapolis, the Chamber of Commerce in New York, Legislatures of the different States, all absolutely disagree diametrically as to what this fourth sec. tion is.
Now, sir, the State of Maine, which I in part represent, is away down at one extreme of this long haul. If this fourth section is what some of the Senators on this floor claim it is-and it seems to me that their claim is sound-then it affects disastrously all the interests of my State; then it levies a tax upon every barrel of flour that comes into my State, upon every bushel of corn, upon all the coal that comes to my State, upon all the cotton that comes to my State; it places an embargo upon every pound of our granite that we desire to send into the interior of this country, upon every pound of ice, upon all our baled hay, and not only an embargo upon the hay, but an increased tax upon our bay and upon our lumber. And I say that, affecting, as one construction of the fourth section does as it stands to day, the interests of my State, it is my duty, if I can, to have the report recommitted to this committee, and ask them to go back to the fourth section which the Senate passed, instead of creating into law this section about which there is such confusion and such doubt.
As to the fifth section, the pooling clause, there is almost the same confusion about it. One Senator seeming to know about it insists that pooling is a great benefit to the interests of the people of this country. Another Senator insists that within his knowledge it ought to be made a crime and it ought to be punished by a five-thousand-dollar fine, and so on.
Now, it seems to me ibat the better way is to recommit this bill with instructions to consider these two sections further and to report again; and I say if this motion shall be adopted by the United States Senate it revives in parliamentary law our committee, and they can proceed.
I do not know whether the Chair will adopt the ruling of the United States Senate in the case of the salary grab; and perhaps the Chair remembers that the Senator from Vermont (Mr. EDMUNDS) at the next session of the Senate gathered all the precedents (and there were
some eight or ten of them in number), and in a speech of great power that he made to the Senate justified the position which he had taken in his ruling in the matter of the salary grab
Mr. HOAR. Certainly within one or two years we have overruled the ruling then made by the Senate, on the authority which the Senator cites.
Mr. FRYE. The Senator from Massachusetts himself cited it, and had it read in the Senate.
Mr. HOAR. And the Senate at that time ruled that such a motion was in order.
Mr. FRYE. But the Chair understands perfectly well that a ruling of the Senate on a question of order is of no account whatever. When the last post-office appropriation bill was before the Senate, within one' hour's time this Senate ruled diametrically opposite on two different items of that bill involving exactly the same principle. The Senate vote on the merits of a question when a matter of order is presented, and not on a construction of parliamentary law always.
The Senator from Wisconsin (Mr. SPOONER] desires me to add this to my instructions, and I have no objection to it because I think it is a matter of great importance:
Nothing contained in this act shall be so construed as to prohibit any carrier subject to its provisions from making reasonable discrimination by special rate or otherwise in favor of freight of any kind carried for exportation from the United States.
As an amendment, I suppose, to some provision of the bill.
If the Chair should overrule this motion, and the report should then be recommitted without instructions, the conferees of course will distinctly understand what the desire of the Senators who vote for recommitment is. These suggestions will be regarded as instructions, and then I will make the motion to recommit. I suppose no point of order will be made against it.
Mr. EDMUNDS. Mr. President
The PRESIDENT pro tempore. The Senator will be heard if there be no objection.
Mr. EDMUNDS. As my name has been drawn in question about this matter of order, I wish to say that when the salary-grab bill, as it was properly called I think, was up the question that was presented to me, being for the moment accidentally in the chair, was not a question as to whether you could make a motion to recommit as against a motion to agree to a report of a committee of conference, as I remember, but the only question (waiving that-nobody suggested that) was whether it was within the power of either House to instruct their conferees when they could properly appoint conferees and send them to the other House to communicate.
I held that each House had the right to instruct any committee of its own, that it had the right to commit anything to, to do what that House thought it fit should be done. The Senate overruled me against what had been its clear precedent before, as I demonstrated at the next session, and against what I think is the true parliamentary law.
But the question that is now presented, if I correctly understand it, is not the question that was then presented and passed upon. The question that is now presented is not merely whether you may instruct your representatives in a conference when you have them, but having had a conference and the conferees having reported, and pending the question of agreeing to that report, whether you can recommit the subject without having first voted that you will not agree to what they have reported.
If the Senate should vote that they would not agree to this conference report, then I think, as I thought in 1873, that it is perfectly competent for the Senate in again notifying the House that we disagree to their amendment, and ivsist upon disagreeing to it, and ask a further conference and appoint conferees, to instruct our conferees to do what we think they ought to do, and to insist on what we think they ought to insist upon; but I must say that I think it is clear on the ordinary principles of procedure that the first question which is to be taken in this body is on agreeing to this report.
If Senators are not satisfied with it, we all come to the same result in the end; they will vote “no,” and having voted “no," by a majority, then I admit it is perfectly competent in asking a further conference to instruct our representatives to insist on this, that, or the other, as we please. But as the question now is, I submit, with great respect, that the first question must be taken on agreeing to the conference report.
The PRESIDENT pro tempore. The Chair supposing that this question might arise has taken occasion to look into the precedents, and finds that Rule XLIX gives to the report of a committee of conference a precedence in being received and considered, but makes no special rule as to the modes of consideration, leaving that to be settled by the order of precedence fixed by the forty-third rule.
The Chair ascertains that in all cases which can be found among the precedents in the history of the country, going back to the beginning of the Government, that the same order of precedence of motions has been applied to the consideration of a report of a committee of conference as is applied to any other question pending before the Senate except only that early in the history of the Government, as early as the close of the last century, it was held by the Senate, and passed as an order of the Senate, although not carried into the rules
That a motion to amend a report of a committee of conference cannot be made.
But a conference report is open to all the other motions that can be made; for instance, to take a recess, to proceed to the consideration of executive business, to lay on the table, to postpone indefinitely, to postpone to a day certaip, to commit, but not to amend. So the Chair is clearly of the opinion that a motion to commit is in order, although it is not a very common practice. There have been some cases found in the books where a motion to commit such a report has been made and has been adopted nem. con. The Chair thinks that the motion to commit can be made as a matter of right before the question is put on agreeing to the report itself.
The Chair, in referring to the case which was made somewhat famous, called the salary-grab bill, finds that the ruling of the then occupant of the chair, the Senator from Vermont (Mr. EDMUNDS], was exactly in accordance with this position. A motion was made in that case to instruct the committee of conference which had reported a bill contain: ing what was known as the salary-grab. An objection was made that that motion to commit with instructions was not in order. The then occupant of the chair, the Senator from Vermont, ruled that it was in order. The instructions were held by him to be in order.
That question was debated at some length. An appeal was taken from the decision on the question of instructions, and the Senate overruled the decision of the Chair which held that the instructions were