During the Civil War, senators traded verbal blows trying to answer a vexing question: What constituted a quorum? For the first 75 years of its history, the Senate considered a quorum to be a majority of all authorized seats, whether or not those seats happened to be filled. In 1861, before the 11 states of the Confederacy departed, the Union contained 34 states with 68 senators. The Senate counted a quorum as half of 68, plus one—35 members.
The departure of southern senators resulted in a number of vacant Senate seats. Refusing to formally acknowledge the secession of the Confederate states, the Senate continued to require a 35-member quorum. Increasingly, illness, travel, and military conditions made it difficult to muster 35 senators. Often, the Senate adjourned for lack of a quorum, thereby delaying the consideration and passage of essential wartime legislation.
In May 1864, as war issues awaited disposition, the absence of a quorum forced the Senate to adjourn. Frustrated by the delay, Senator John Sherman of Ohio introduced a resolution defining a quorum of the Senate as, “a majority of the Senators duly chosen.” “The framers of the Government never intended that their schemes should be broken up and this Government disorganized by the absence of the representatives of some of the States caused by death, secession, or anything of that kind,” Sherman argued. “The only question is whether a quorum of the Senate consists of a majority of those duly chosen by the Legislatures of the States, or whether it consists of a majority of all who by possibility may be elected members of the Senate,” the Ohio senator explained. “I think the grammatical construction is perfectly plain. The Senate is to consist of ‘two legislators from each state, chosen by the Legislature thereof;’ but until a person is chosen by the Legislature he is not a senator and cannot be counted. The grammatical construction is so plain that I cannot add to it. Can a man be a senator until he is chosen by the State Legislature?”
Senator Garrett Davis of Kentucky was among those who opposed Sherman’s resolution. “The proposed resolution is another bold and reckless assault upon the Constitution, and if adopted will produce a vast amount of evil,” Davis insisted. “If the framers of the Constitution had intended that less than a majority of the whole number which they had provided to compose it should form a quorum to do business,” he argued, “they would have given some expression to that purpose.”
On May 4, 1864, the Senate voted 26 to 11 in favor of Sherman’s resolution. Three-quarters of a century after its founding, the Senate finally defined itself, for purposes of conducting business, as an assembly of members who have actually been duly chosen to serve.
Read the complete May 3, 1864 quorum debate (pdf) from the Congressional Globe .