Whereas: Stories from the People’s House

Fighting the Filibuster

U.S.S. Chesapeake/tiles/non-collection/6/6-10-Chesapeake_loc.xml Image courtesy of the Library of Congress In 1807, crewmembers of the British naval ship HMS Leopard boarded the American frigate USS Chesapeake (shown above) in search of deserters from the British Navy. The incident sparked outrage and led to calls for war with Britain.
Wednesday, January 3, 1810, seemed like a day that would never end in the House of Representatives.

The marathon 19-hour session began at 11 a.m., as the House resumed debate on a delicate subject—diplomatic relations with Britain. The Royal Navy had recently attacked the USS Chesapeake in search of British deserters, and Members of the House accused the crown of impressing U.S. sailors—that is, forcibly removing them from American ships and putting them into the service of the British Navy. American officials had sought redress for the incident, but the uncooperative and icy demeanor of England’s diplomat Francis James Jackson only aggravated relations between the two countries. When President James Madison refused any further communication from the British Minister, Congress introduced a resolution in support of the Madison administration’s position.

The resolution, however, did not sit well with Representative Barent Gardenier of New York, whose district depended on trade with Britain and who wanted the House to simply end discussion on the issue. That evening, Gardenier proposed a motion to adjourn the proceedings, which the House voted down. Gardenier offered a motion to send the resolution back to committee, but the House voted him down a second time. Gardenier then moved to adjourn once more but was voted down a third time. So at 10 o’clock at night, Gardenier simply started speaking. Unable to end proceedings or get his point across the easy way, Gardenier opted for a more long-winded method and hijacked the debate. Ten o’clock became 11, and still Gardenier spoke. Proceedings continued past midnight, with no end in sight. Finally, around two in the morning, Gardenier moved to adjourn once more. Again, the House voted him down. So Gardenier picked up where he left off and didn’t sit down until four in the morning. The resolution in support of the Madison administration ultimately passed, but Gardenier’s bleary-eyed colleagues learned a sobering lesson: if a Member started speaking, there was no way to stop him.

John Randolph of Virginia/tiles/non-collection/6/6-10-Randolph-2014_015_000-3.xml Collection of the U.S. House of Representatives
About this object
John Randolph of Virginia was a well-known orator of the early House and could dominate floor debate by speaking for hours at a time.

The Loquacious Legislator

Gardenier was one of the earliest champions of the filibuster, a term that refers to the use of obstructive tactics such as long, dilatory speeches and the repeated introduction of parliamentary motions to block or delay legislation. Today, filibustering is almost exclusively associated with the Senate, where individual Senators wield extraordinary power over debate. In the modern House, on the other hand, the majority party rules, and individual Members have little influence concerning the course of debate; over the years, the House, which is more than four times the size of the Senate, has developed rules which strictly control who can speak and for how long. But during the early nineteenth century, when the number of people serving in the House was much smaller, debate in the chamber was virtually unlimited.

Like America’s early colonial assemblies and the Continental Congress, the U.S. House inherited much of its parliamentary procedure from the British Parliament. In its early years, the House’s rules governing debate had few limits, other than that a Member could not speak more than twice on the same question. But House Rules at the time did not limit how long a Member could speak, nor did the rules provide an easy way to bring debate to a close. In fact, it was not uncommon for Members to address their colleagues with hours-long speeches. The eccentric John Randolph of Virginia, with his shrill and piercing voice, often spoke for three to four hours at a time.

But the verbose Barent Gardenier, an attorney by training, was in a class all his own during his service in the 10th and 11th Congresses (1807–1811). “You lawyers can talk forever,” former President John Adams once wrote in a letter to his grandson. “Your Gardinier [sic], a very clever Fellow . . . once spoke Seven hours, with the sole purpose of postponement and delay.” Gardenier had been a local official and a leader of the Federalist Party in his native Ulster County, New York, before winning election to the House in 1806. On Capitol Hill, Gardenier quickly developed a reputation as a witty orator who could be both eloquent and, at times, abrasively sarcastic. John C. Calhoun of South Carolina commented on Gardenier’s “remarkable” ability to keep the floor, sometimes for days. Speaker Henry Clay of Kentucky once recalled the story of a Member who spoke for a marathon 24 hours without stopping. While the exact details of the speech remain unclear, congressional scholars suspect Clay was referring to Gardenier.

Gardenier’s comments occasionally had consequences beyond the floor. In 1808, after a verbal dispute over an embargo bill, he challenged Representative George Campbell of Tennessee to one of the first duels between sitting Congressmen. Gardenier was shot during the duel, recovered, and returned to the House Floor, talkative as ever.

But by 1810, the House had begun to lose patience with Gardenier. His ability to seize and hold debate had become so unbearable that the House had to reinterpret one of its rules—and overturn longstanding parliamentary precedent—in order to stop him.

The Old Hall of the House/tiles/non-collection/6/6-10-HouseChamber-2004_086_002-001.xml Collection of the U.S. House of Representatives
About this object
From 1807 to 1857, the House met in the Old Hall of the House, known as Statuary Hall today. The Old Hall was damaged during the War of 1812 and had to be rebuilt.

On the Road to War

Gardenier’s final filibuster happened on the night of February 27, 1811, as tensions with Britain brought America ever closer to armed conflict with the imperial giant. At the time, Great Britain had been at war with France for almost a decade. Both European powers sought to blockade the other’s ports, restricting vital commerce—including trade to and from America, which remained neutral. After a brief attempt at a non-intercourse agreement to prohibit trade among the United States, France, and Britain, France repealed its restrictions on American merchant ships. In response, the U.S. House brought up a bill to re-enact the embargo against Britain unless it, too, supported the right of America’s trade neutrality.

Members of the Federalist Party who wanted to maintain strong ties with Britain protested the legislation; for his part, Gardenier criticized the legislation as being in “compliance with the wishes of Bonaparte,” the Emperor of France. On the night of February 28, 1811, at 2:30 in the morning, Gardenier, unable to shelve the measure completely, began to filibuster the non-intercourse bill (bill no. 52) against England. Federalists like Gardenier may have been in the House minority, but they had time on their side: only six days remained in the 11th Congress (1809–1811), and if they could delay the bill until March 3, it would die when the session adjourned. The Democratic Republican majority, however, was not about to sit quietly and count down the days.

The Previous Question

As it happened, the framework of the legislative mechanism Democratic Republicans needed to stop Gardenier was already in the House Rules: the previous question. The previous question motion originated in the British Parliament and had been included in the standing rules of the First Congress (1789–1791). During the House’s initial twenty years, the previous question functioned much like it did in Britain—to gauge the level of support for a bill. To move the previous question was to ask if it was worth the House’s time to continue debating the issue at hand. The motion required a simple majority to pass. If the previous question motion succeeded, it reaffirmed that the issue was worthy of continued debate. If the previous question motion failed, the House would end debate on that topic and move on to other business. It was like hitting pause; the House could always resume debate later. In effect, the previous question also functioned like a trial vote on final passage: if the motion failed and debate ended, the bill’s backers would know they needed to work to build support for the measure when it came up for consideration again.

Speaker Joseph Bradley Varnum of Massachusetts/tiles/non-collection/6/6-10-Varnum-2005_16_6-1.xml Collection of the U.S. House of Representatives
About this object
Joseph Varnum of Massachusetts served as Speaker of the House during the 10th and 11th Congresses (1807–1811).
In 1811, as Gardenier droned on against the non-intercourse bill, Thomas Gholson of Virginia lost his patience. Hoping to move things along, Gholson interrupted Gardenier’s speech to order the previous question. Gholson’s move initially appeared to be an exercise in futility. After the House agreed to the previous question motion, Gardenier simply rose to speak again. Gholson objected, but Speaker Joseph Varnum followed established precedent and allowed the New Yorker to continue speaking. Gholson, however, had other ideas.

When a Member ordered the previous question in the House, the Speaker translated the request into specific parliamentary language: “Shall the main question be now put?” Legislative processes are rarely known for their simplicity, so what, exactly, did this mean? The “main question” referred to the specific bill being debated and the “now put” was a way of saying vote. Put plainly, “shall the main question be now put?” essentially meant “should the House vote on the bill being debated?” Traditionally, however, the “now” of the question was never understood to be urgent; rather, it meant the bill was worthy of a vote at some point.

Gholson thought differently. He appealed the Speaker’s decision and, in a major reversal of precedent, the House voted 66 to 13 to bring debate to a sudden close. In a desperate attempt to buy more time, Gardenier introduced an amendment that would have nullified any embargo against Britain unless the President could determine that France had repealed its restrictions on American merchant ships. Gardenier reasoned that if he could not speak on the main bill, he could at least sidestep the House’s effort to silence him by speaking on his own amendment instead. But the Democratic Republican majority used its newly re-interpreted power to bring Gardenier’s dilatory amendment to an immediate vote, where it failed. The previous question was ordered on the non-intercourse bill’s final passage, leaving Gardenier with no other option but to watch as the House overwhelmingly approved the embargo legislation 64 to 12. It was a little past four in the morning.

Rules of the House of Representatives/tiles/non-collection/6/6-10-House Manual 116th.xml Constitution, Jefferson's Manual, and Rules of the House of Representatives of the United States One Hundred Sixteenth Congress, 115th Cong., 2nd. sess., H. Doc. 115-177 The rules of the House are passed at the beginning of each Congress and included with the United States Constitution and Jefferson's Manual.

The House Had Heard Enough

The new restriction on debate left the House sharply divided for years. In 1816, William Gaston of North Carolina described the new interpretation of the previous question as a “monster” and an “instrument of tyranny” designed “to prevent an interchange of opinions.” He rejected the idea that in the House the majority should rule. “[T]hat a numerical majority of any society has a perfect right to do as it pleases, is the most impious of political heresies,” the Southerner fumed.

But for many in the House, the new rule seemed inevitable. In the years leading up to 1811, exhausted Members developed doubts about allowing unlimited debate and many complained about the use of dilatory tactics. “We have been kept till ten and twelve ‘o clock at night, and sometimes till daylight,” John Smilie of Pennsylvania once observed. A decade into the nineteenth century, the rules governing debate still reflected those from 1789, but the number of Members serving in the House had more than doubled in size from its original 65 to 142. Under the old rules, some Members joked, “it would be necessary for the people to select their Representatives, not for the strength of their intellect, but for the robustness of their constitutions, and their capacity of enduring fatigue.”

Speaker Henry Clay later defended the rule change. “What [is] it more,” he said, “than a declaration of the House that they had heard enough?”

By allowing Members to end debate by majority vote, the House inched closer to becoming the majoritarian body it is today. For the next 30 years, Members could still speak without formal time constraints; it wasn’t until 1841 that the House adopted the hour rule, limiting the amount of time Members could speak on any given question to 60 minutes. Over the years, House Rules carved out exceptions for members of House Leadership, who, by tradition, have been allowed to speak for extended periods of time.

As for Gardenier? He had little opportunity to protest the new rule. He retired from Congress at the end of the 11th Congress, just days after the House shut him down during debate on the non-intercourse bill. Gardenier moved to New York City, where he served as a district attorney and published two Federalist newspapers, the New York Courier and the Examiner­—ideal outlets for a man who liked to talk. He unsuccessfully ran for the 16th Congress (1819–1821) in 1818 as an Independent. As America entered a new political era with the rise of Democrat Andrew Jackson, Gardenier saw his newspapers’ readership decline. When Gardenier eventually listed his Manhattan property for sale, he described it as “well situated for every business, but that of printing federal newspapers.” He would, finally, no longer have the last word.

Sources: Annals of Congress, House, 11th Cong., 2nd sess. (28 December 1809, 3 January 1810, 5 January 1810); Annals of Congress, House, 11th Cong., 3rd sess. (26 February 1811, 27 February 1811, 28 February 1811); Annals of Congress, House, 12th Cong., 1st sess. (23 December 1811); Annals of Congress, House, 14th Cong., 1st sess. (19 January 1816, 25 January 1816, 8 April 1816,); Annals of Congress, House, 16th Cong., 1st sess. (26 February 1820); House Journal, 1st Cong., 1st sess. (7 April 1789); House Journal, 11th Cong., 2nd sess. (3 January 1810); House Journal, Appendix, 12th Cong., 1st sess.; A bill supplementary to the act, entitled ''An act concerning the commercial intercourse between the United States and Great Britain and France and their dependencies, and for other purposes,'' bill no. 52, 11th Cong. (1811); Hinds’ Precedents, vol. 5, chapter 120, § 5445; Precedents of the U.S. House of Representatives, vol. 3, ch.3, §6.18-6.20; “A Compendium of Records and Firsts of the United States House of Representatives,” Report 75-96 GGR, 12 June 1975, Congressional Research Service; National Intelligencer (Washington, DC), 13 September 1815; National Advocate (New York, NY), 25 April and 1 September 1818; Letter from John Adams to John Adams Smith, 15 June 1812, Founders Online, National Archives; Robert E. Corlew, “George Washington Campbell,” American National Biography Online; Joseph Rodman Drake and Fitz Greene Halleck, The Croakers (New York: n.p., 1860); Edward L. Merritt, Barent Gardenier (Kingston: n.p., 1930); Thomas Hart Benton, Thirty Years’ View (New York: D. Appleton and Company, 1858); Kenneth Bradshaw and David Pring, Parliament and Congress (London: Quartet Books, 1972); Guide to Congress, 6th ed., vol. 1 (Washington, DC: CQ Press); Neil MacNeil, Forge of Democracy (New York: David McKay Company, 1963); Edgar A. Werner, Civil List and Constitutional History of the Colony and State of New York (Albany: Weed Parsons & Co., 1891); University of Houston, Digital History, “Embargo Act of 1807,” accessed 10 May 2020, http://www.digitalhistory.uh.edu/disp_textbook.cfm?smtID=2&psid=2986.

Categories: Practice & Customs