What was a quorum in Congress during the Civil War?

Factual Questions
1

I vaguely remember reading a speech of Lincoln’s in which he said that the question of whether the southern states really seceded should be delayed until after the war. Apparently the question was answered by the Supreme Court, in **Texas v. White (1869) **

A majority of both houses of congress is required to form a quorum. During the Civil War, when they were deciding if they had a quorum or not, did they calculate based on the number of Senators and Representatives who represented the northern states, or who represented all the states? They should have been able to form a quorum in either case since there were more Senators and Representatives from the north than from the south. But were there any cases in which laws were passed by a quorum of northern legislators but not by a quorum of all legislators? If so, would those laws be unconstitutional because the Supreme Court ruled (after the fact) that Texas and the other secessionist states had never really left the union?

As long as we’re at it, does anyone care to speculate about what would have happened if a constitutional amendment had been ratified by three-fourths of the Northern States during this period?

2

Most likely, the Supreme Court isn’t going to invalidate any law passed by Congress just because they didn’t think there was a quorum present or for any other procedural reason. It’s just not something the Court gets involved in. If a bill is sent from Congress and the President signs it, that usually settles the issue.

I’m guessing, but a quorum exists in either house of Congress when the presiding officer of that body says there is one.

I know that the Court won’t touch the issue of whether or not an Amendment is valid. That was decided in a 20th Century court opinion when the Court basically said that it had nothing to do and no power over the amending process.

According to Article I of the Constitution, all “revenue” bills are supposed to originate in the House. However, I don’t believe there have been any challenges to any bill passed by Congress dealing with revenue that originated in the Senate, as there have been some in the last few years during Reagan’s administration when the Republicans controlled the Senate, but not the House.

3

For the benefit of those of us that don’t watch C-Span, how many people is a ‘quorum’ again? I vagely recall it being more than half of the senators or representatives (ie, at least 51 senators) but I could be wrong.

As for congressional procedure during the Civil War, I know that West Virginia was admitted under some questionable circumstances. What happened was that Virginia’s contingent of congressmen were boycotting the US Congress, like the rest of the secceeding states. The western (anti-seccession) part of Virginia sent it’s own contingent to Washington and formed what was basically a loyalist state-government-in-exile. This stunt was used to circumvent the part of the Constitution that says that no state can have land taken away from it without its consent. The ‘legislature of Virginia’ gave permission to divide the state, and then promptly became the legislature of West Virginia.

4

On Diceman’s question, under Article I, Section 5 of the US Constitution, “a majority of each [house of Congress] shall constitute a Quorum to do business”.

I have some knowledge and resources about the Senate - and I would presume that the Senate is where this matters most (I don’t have the numbers in front of me, but I would bet that the withdrawl of Southern members had a far bigger percentage impact on the Senate than on the House.)

On a minor initial point, I know that under the rules of the Senate (and I suspect this is true in the House as well) a quorum is presumed to exist unless proven otherwise. So, any action taken by voice vote (or, according to Senate precedents, even by division vote) would stand regardless. However, a roll call vote can provide proof of the absence of a quorum. These votes could have been questioned.

Robert Byrd’s history, “The Senate 1789-1989”, does indicate that the seats of most Southern senators were declared vacant when terms expired, and those who supported the Confederacy were expelled as members - so the rules of the Senate would require a majority of all the seats. (A few members from non-seceding states were also expelled). I am pretty sure that the quorum would have been 35-37 members (West Viginia and Nevada were admitted during the war, so the Senate grew during this period.)

It is worth noting that some seats from the South continued to be filled. Andrew Johnson of Tennessee served until 1862. The rump legislature from Virginia appointed two senators from that state before they set up West Virginia. (I don’t know if the westerners continued to choose 4 senators, or just chose 2 after that)

In a quick scan through the Civil War chapters, I cannot see Byrd make any reference to quorum difficulties. My suspicion is that although this was a potential problem (the Republicans held 31 seats at the beginning of the war - the 10 Democrats in the Senate could have denied a quorum by refusing to show up), the political realities of the time made this tactic extremely hazardous for the remaining senators, and thus it was not used. Byrd was (and I presume still is) a master parliamentarian, and I would be stunned if his history would ignore this issue if it came up much. On the other hand, it could well be the case that part of the real reason for admitting West Virginia was to try to push the numbers of the Senate in a direction that made quorae (quorums?) a bit easier to acheive, and Byrd as a very patriotic West Virginian might have pushed that part of the story to the background.

I am guessing that any Constitutional amendments proposed during the war would have been treated as the immediate post-war amendments were - they would still have required a full 3/4 of all the states to ratify them, but newly created governments in the Southern states would not be recognized until they ratified the amendment(s).

5

Whoops – found a new source. According to DeAlva Stanwood Alexander’s “History and Procedure of the House of Representatives”, both Houses adopted as rules the principle that a quorum would consist of a majority of those members who were actually chosen. [Subsequent rule (in the Senate) or precedent (in the House) clarified that they had to have been “chosen, sworn, and living, whose membership has not been terminated by resignation or the action of the House”, but this language was apparently not standard until well after the war ended]. Thus, the Civil War congresses could continue to meet without difficulties presented by quorum problems, because the Southern states did not choose members. At the same time, those seats were always held to be available should any “legitimate” government of a Southern state provide appropriate certification of a member’s appointment or election.

I will leave it to others to determine whether this constitutes an underhanded way of sneaking past the Constitutional prescription of a quorum, or the only sensible response of a legislative body with many missing members. (I lean toward the latter, but can see the argument for the former.)