June 13, 1911

Mr. Berrien. But if any resolution should be introduced referring to executive business, and the Sen-ate should be equally divided, un· doubtedly the Vice President would .have a right to vote. And suppose this question was now in this form, “ Resolved, That A B be appointe<l Chaplain to the Senate,” and that upon that question the Senate was equally divided, mo t nnque tiona b ly the Vice President, in the exercise of his power, would give the casting .vote. But it seems to me unwise to reason on this subject by attempted analogy, because the language of the Constitution is too plain to admit of a div.er e construction. The twenty-first rule is but an affirmance of the provisions Qf the Con-­ stitution. It is :

" When the Senate are equally divided, the Secretary shall take th!! decision of the President."

Mr. CALHOUN.—

ThiS is where he refers to his dissension with Mr. King-

As the very experienced Senator behind me, Mr. King, ls mistaken on the subject of Executive nominations, I deem it my duty to S8:1 that I in several instances when I occupied the Chair, cast my vote on "Such nominations. I did so in the very celebrated cne;e of Mr. Van Buren, and in two or three others.

Mr. King then said!

I am aware of that; but the individuals nominated must receive t.he votes of a majority of the Senate to be confirmed, .and there can be no necessity, therefore, for the presiding .officer to give his vote .. There was no such necessity in the case of Mr. Van Buren as he was rejected if he did not receive a majority of the votes.

The discussion continued and I will ask, inasmuch as it is not more than half a column, that it be inserted in the RECORD in connection with what I have said.

The VICE PRESIDENT. · Without objection the request will be granted.

The matter referred to is as follows:

Mr. UNDERWOOD. The Constitution contemplates in the organizatlo~ ot this body the election of officers-the Secretary of the Senate, the Sergeant at Arms, and o th e r officers-and the Senate can not be . ~a~d. to be -organized until these officers are elected. Suppose an equal division in reference to their choice, are we to stand still and postpone our organization untII some one of the Senators shall give way, or shall it be" decided by the Presiding Officer ? This view of roe case seems to me to settle this question. if it be anal og ous.

Mr FOOTE If the Senator will allow me, I will show that it ls not analogous. The honorable Senator from Kentucky [hlr. Underwood] will at once perceive that the officers to which he referred are necessary to the organization of the ' Senate, but we have been without a Chaplain for several days, and without offering any obstruction to our organization. ·

Mr. UNDERWOOD. True; but I was putting the question as though we were not organized and as though the division had then taken place.

Afr. FOOTE. The Senator is putting the case of the election of officers whose election is necessary to the organization of the Senate. Is that analogous to the case of the election of an officer whose election is not necessary for such organization? Clearly not; and therefore the . two cases are not analogous at all. I do not think, however, that the analogy is necessary for the decision of the question.

Mr. UNDERWOOD. I think not myself. I brought the case to show that Mr. WORKS. in such an instance we must remain unorganized, unless the Vice President had the power to decide. By our Constitution the Senate must always consist of an even number, two from each State, and it is but a reasonable proposition that the Vice President should decide in all cases of a tie. The framers of the Constitution must have contemplated, from the very organization of the body-two from each State-that equal division must frequently occur. I think, therefore, there can be no doubt of the right of the Presiding Officer to vote.

The Vice PRESIDENT. The Chair feels no desire to express an opinion either one way or the other ; nevertheless, if the duty is imposed upon the Chair to vote, the Chair would feel guilty of a dereliction of duty not to discharge it. And as It seems to be the opinion of the Senate that the Chair has the right to vote on this occasion, unless some proposition is now made to the contrary, the Chair will proceed to vote and declare the result. The Chair waits to see if any such proposition is made.

The Chair votes for Mr. Butler, who, having received a majority of the votes, is therefore elected.

Mr. HEYBURN. The fact was that it was submitted to the Senate in this case and the Senate sustained the Chair.

Mr. BACON. What was the ruling? I did not catch it.

Mr. HEYBURN. The ruling was that the Vice President had a right to cast a vote on the election of officers of the Senate, and it was put to the Senate and they sustained the Vice President.

Mr. BACON. With the permission of the Senator, if the Senator will analyze it, it was doubtless by a party vote. All those questions are generally decided by a party vote.

Mr. HEYBURN. · I will make this further suggestion: The question was also raised, although not an issue, as to whether or not the Vice President might vote in executive session. . l\Ir. BAILEY. What was the vote by which the Senate sustained the Chair?

Mr. HEYBURN. The vote was 30 to 30. The total number was 60.

Mr. BAILEY. But when the point of order was made and the matter submitted to the Senate, what was the · vote by which the right of the Vice President to cast the deciding vote was sustained?

l\1r. HEYBURN. I will read what the Vice President says. l\Ir. BAILEY. Was there a roll call?

Mr. HEYBURN. There was a roll call. There were five roll calls.

l\Ir. BAILEY. I have not made myself clear. I understand, of course, that there was a roll call on the election of a Chaplain.

Mr. HEYBURN. Yes; there were five roll calls.

Mr. BAILEY. On that roll call the Senate divided evenly?

Mr. HEYBURN. Evenly.

Mr. BAILEY. Then the Vice President cast the deciding vote and his right to do that was challenged. Now, that was debated and finally sustained. What I desire to ask the Senator is, What was the vote by which the right of the Vice President was sustained?

Mr. HEYBURN. That is not given, but I will read what occurred.

lUr. BAILEY.- I understood the Senator to say that it was submitted to the Senate, and the right of the Vice President to cast that vote affirmed by the Senate.

Mr. HEYBURN. Allow me to read it.

Mr. BAILEY. Certainly.

Mr. HEYBURN. I prefer to read it:

The VICE PnESIDENT-

A.fter some intermediate discussion—

The VICE PRESIDENT. The Chair feels no desire to express an opinion either one way or the other; nevertheless, if the duty is imposed upon the Chair to vote, the Chair would feel guilty of a dereliction of duty not to discharge . ~e it. And as it seems to be the opinion of the Senate that the Chair has the right to vote on this occasion, unless some proposition is now made to the contrary, the Chair will proceed to vote and dedare the result. The Chair waits to see if any such proposition is made.

That is in the nature of a submission of the unanimous consent-

The Chair votes for Mr. Butler, who, having received a majority of the votes, is therefore elected.

The Chair submitted it as it is customary to submit questions for unanimous consent.

l\Ir. BAILEY. Then that appears to have been passed without dissent. ·

Mr. LOOO-E. Yes; without dissent.

Mr. HEYBURN. That is, the equivalent.

Mr. GALLINGER. It is better.

Mr. HEYBURN. For a rule, it ought to have some stabilitj. l\!r. WORKS. ' Mr. President, the Senator from New Hampshire [Mr. GALLINGER] declined to be interrupted. I did not rise to antagonize his position . .

:Mr. GALLINGER. Mr. President, if the Senator will permit me, I did not mean to decline, but I was just concluding w:hat I had to say. · I only desire to understand the full force and effect of the precedent which he cited. A.s I understood the precedent cited by the Senator from New Hampshire, it was at a point where a motion was made by Senator Thurman that called upon the Senate for a decision of the question, and no decision was rendered. After that motion, or whatever the form of proceeding might have been, it was withdrawn, leaving the matter entirely an open one.

I think that is true with respect to the precedent submitted by the Senator from Idaho ' as well. No Senator on the floor at that time raised any question as to what was the proper course to pursue.

Certainly, Mr. President, this is an important question. It may be a serious one. If the question can not be properly raised and determined by the Senate of the United States it may be raised and determined at some future time before another tribunal that may be quite disastrous to this effort to amend the Constitution.

Mr. LODGE. Will the Senator allow me?

The VICE PRESIDENT. Does the Senator from California yield to the Senator from Massachusetts?

l\Ir. WORKS. Certainly.

Mr. LODGE. Mr. Thurman made a point of order and then withdrew it. ·

Mr. -WORKS. So I understood.

Mr. LODGE. He did not offer a resolution; he made a point of order. In the other case, the Chair submitted the question to the Senate, and there was no objection, and he voted .

l\fr. WORKS. I did not rise for the purpose of intruding any opinion of my own on this question because I have not coutinced myself, but I simply wanted to understand the precede. cited by the Senator from New Hampshire; that is all.

Mr. GALLINGER. The point of order which l\fr. Thurman made was that the Vice President shall have no vote unless where the Senate is equally divided, does not apply to the case of ~eating a Member, but that the question of seating a Member should be left to the Senators themselves. He made the point of order that the Vice President had no right to vote on a question of that kind, but upon reconsideration he withdrew the point of order, and the Vice President voted and decided it.

The VICE PRESIDENT. The question is on the approval of the Journal.

Mr. BACON. Mr. President, I wish to say a word more, as this is a matter of very great importance. None of the precedents which have been cited relate directly to this particular question; they do relate to matters which I had cited by way of illustration, but no one of them has the peculiar character of this particular joint resolution. All of them relate to matters which are within the ordinary functions of Congress in legislation and in ordinary methods of procedure. So, even if all those illustrations were proven to be ill founded, it would not change the gravity of the question, which I do not understand that any Senator has attempted to answer, and that is this: If it be true that this particular joint resolution proposing an amendment . to the Constitution is one outside of the ordinary functions of the Senate, not belonging to the Senate as one of its legislative functions, one so perfectly recognized that not only by universal recogniton, but by the decisions of the Supreme Court of the United States, the President of the United States has no function to perform in connection with it, by every rule of analogy does not the same thing apply to the action of the Vice President?

Mr. President, I desire to read a more recent case decided by the Supreme Court of Maryland than that which was read by the learned Senator from Texas [Mr. CULBERSON].

Mr. BROWN. Mr. President--

The VICE PRESIDENT. Does the Senator from Georgia yield to the Senator from Nebraska?

Mr. BA.CON. I will for a question.

Mr. BROWN. Before the Senator from Georgia proceeds to that case, may I call his attention to the notion which I have? He has emphasized the gravity of the question involved, because, first, an amendment to the Constituton is involved; and, second, whether or not the Vice President's deciding vote was legal becomes vital to its legal submission finally to the States. Does it not occur to the Senator that the question upon which the Vice President voted, whether he had a right to vote or not, becomes quite immaterial when it is recalled that on the final vote, where that same joint resolution was voted upon by the Senate, it received a very large majority beyond two-thirds?

Mr. BACON. The Senator is entirely mistaken in his statement of facts-absolutely so.

Mr. BROWN. The question on which the Vice President voted--

Mr. BACON. I would suggest to the Senator that, of course, what he is now stating is in the nature of an argument. I will yield to the Senator and continue after he concludes. It is not a question he is submitting to me, but he is arguing the question, and I am .Perf e<!tly willing for him to do so.

1\4". BROWN. I have not made myself understood. Is it not true that the Vice President cast the deciding vote on the substitute of the Senator from Kansas [Mr. BRISTOW] to the joint resolution offered by the Senator from Idaho [Mr. BORAH] '1

Mr. BACON. Yes.

Mr. BROWN. By that deciding vote the substitute was car­ - . . ried?

Mr. BACON. Yes; and that is what I am complaining of.

1\fr. BROWN. But the point I make is that afterwards the Senate voted again on the adoption of the Bristow resolution.

Mr. BACON. Never.

Mr. BROWN. . It did not?

Mr. BACON. No; it did not.

Mr. BROWN. Does the Senator from Georgia contend that the final roll call was not on the adoption of the joint resolution offered by the Senator from Kansas as a substitute for the Borah resolution?

Mr. BACON. No; the final roll call was on the adoption of from Nebraska [Mr. BROWN] the joint resolution as thus amended.

Mr. BROWN. Exactly; but it was the same joint resolution which bad been offered by the Senator from Kansas. .

l\Ir. BACON. Not at all; it is a different proposition altogether, Mr. President. I will come to the question as to whether or not that was a vital stage in that proceeding. I am on the proposition now that this particular joint resolution proposing an amendment to the Constitution is not within the contemplation of the Constitution when it confers upon the Vice President the power to vote when the Senate is equally divided; that it is a proposition separate and apart from ordinary legislation, or any legislation ordinary or extraordinary, and that the exercise of that function is one thing of which the Senate of the United . States is to judge for itself, and the matter is to be determined by the votes of the Senators and by no other person who is not a Senator. That is the proposition. ».

Mr. President, the Senator from Texas [Mr. CULBERSON] read the case of Hollingsworth, which is directly in point, and I have in my hand a case in One hundred and first Maryland Reports-, in which that case was reviewed. The court goes on to give exactly the same reasons. It is the case of Warfield v. Vandiver; it is the exact question whether or not this is a matter of legislation; and, as suggested by the senior Senator from Texas [Mr. CULBERSON], is not a matter of legislation within the contemplation of that provision of the Constitution upon which the authority is based, which relates solely to matters of legislation. I will say that this case which I now read has been very kindly furnished to me by the Senator from Maryland [Mr. RAYNER].

In every jurisdiction, where the right of the President of the United States and of the governor of a State to sign or to veto a proposed constitutional amendment has been drawn in question, the courts have, without a single exception, denied the existence of such a right. By the second paragraph of section 7, .Article I, of the Federal Constitution it is provided that: " Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States i if he approves he shall sign it," and the section continues in practically the same terms as those contained in section 17, article 2 of the Maryland constitution. The concluding paragraph of section 7 is in these words : "Every order, resolution, or vote to which the concurrence of the Senate and the House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill." Article V declares that "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution," etc. The Third Congress proposed to the States the eleventh amendment on ti on. S eptem ber 5, 1704, and on the 8th of January, 1798, the Pre side nt in a me ssa ge to Congress declared that the amendment had been ratified. B y the amendment it was provided that the "judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of an o ther State, or by citizens or subjects of any foreign State."

In Hollingsworth v. Virginia (3 Dall., 378)~ which has been read by the Senator from Texas-

The question arose whether the eleventh amendment destroyed the jurisdiction of the Federal courts in cases to which it applied and which were pending at the time of its adoption. It was contended that the amendment had not been proposed in the :form prescribed b~ the Constitution and was void. It appeared that it had never been submitted to the President for his approval, and it was argued that it was inoperative because the Constitution declares . that " Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary • • • shall be presented to the President • • • and before the same shall take effect shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives." The Attorney General, Mr. Lee, was about to reply to this argument when he was interrupted by Mr. Justice Chase with this statement: "There can surely be no necessity to answer that argument. The negative of the President applies onfy to the ordinary cases of legislation. He has nothing to do with the proposition or adoption of amendments to the Constitution.” On the following day the Supreme Court delivered a unammous judgment that the amendment had been constitutionally ) Now, Mr. President, I say no Senator has attempted to reply; to the question, Why is it, if, as has been recognized .from th~ day of ~he decision .of the Hollingsworth case to this day, and even prior to that time, the President of the United States has no function to perform in connection with a resolution proposinoo an amendment to the Constitution, that the same rule does not apply to the function of the Vice President, when the authority conferred upon the Vice President is found in the same se<!tion of the Constitution which confers the other power on the President of the United States? The power, unqualified as it is, is held not to give power to the President over such a resolu tio n. The same reason denies the exercise of a similar power over the same resolution by the Vice President. Until that is answ ere d Mr. President, there is a most important question for this Sen: ate to determine, one very far-reaching in its consequences.

In regard to the suggestion, as I understand it, of the Senator the question upon the adoption of the Bristow amendment was a vital question. It was a question which determined the vote of many Senators on the final passage of the joint resolution. The substitute offered by the Senator from Kansas ms not objected to in its totality, but in regard to and in respect of a particular clause of it. When that clause was in issue, that was the question which was voted upon by Senators at the time when the Vice Presi- dent gave the casting vote. The other parts of it were not under consideration and did not affect the vote. After it had been determined, the vote having a conclusive · determination upon that particular part of it, Senators again divided, and some who ha.d opposed that particular part of it and who haai v.oted against the amendment because it contained that par• ticular feature afterwards voted for the entire joint resolu• tion. That it was vital can not be more strongly illustrated than in my own case. The amendment of the Senator from Kansas without the vote of the Vice President was lost, and with it lost I should have voted for the joint resolution as the question would have been upon the passage of the joint resolution as it came from the Judiciary Committee, which was the same as the substitute of the Senator from Kansas except as to the particular feature that I mentioned upon which Sena- tors had divided. However, as the result was not declared in accord with the vote of the Senate, but was declared in ac- cordance with the vote as it was affected by the casting vote of the Vice President, I voted against the joint resolution ; in other words, the vote on the Bristow amendment absolutely: controlled my vote on the joint resolution, to the contrary o:e what it otherwise would have been.

I think, l\fr. President, that this proposing an amendment to the Constitution is a matter which is not limited in any, manner to the final two-thirds vote which is required by the Constitution, so far as concerns the right of the Vice President to vote, but that it is a function in all of its parts, from iti;i ·beginning to its end, separate and apart from the legislative functions of the Senate, and one upon which the Vice President has not the authority to vote.

Mr. BAILEY. Mr. President--

The VICE PRESIDENT. Does the Senator from Georgia yield to the Senator from Texas?

Mr. BACON. With pleasure.

Mr . BAILEY. I suggest to the Senator from Georgia that it might be well enough if he would enter a motion to reco nsid er the vote, SO that he could have time to investigate the matter to his satisfaction. I merely make that as a friendly sugges.; I also want to suggest this view to the Senator from: Ge o rgia--

Mr. LODGE. If the Senator from Texas will allow me, the · motion would have to be made to reconsider the vote by which the amendment was passed.

Ur. BAILEY. I understand that.

Mr. LODGE. And, of course , the Senator from Georgia; could not make that motion, because he voted against it. It - could be made, however.

Mr. BAILEY . . I would ~e w~g to make that motion. fo-r the Senator from Georgia if he should so request. I want, however to suggest to th~ Senator from Georgia, for whose opinion,' as he well knows and as the Senate knows, I have profound respect, that, in my opinion, the presidential approval for which the Constitution provides, and the vote of the Vice President, which is now at issue, are very different. If the Senator will carefully examine the Constitution, with reference to the presidential approval, he will find that it requires that every order, resolution, or vote before it becomes a la.w shall be presented to the President.

Proposed constitutional amendments are not presented to the President for his approval, because they do not become a law by his approval. They must be ratified by the legislatures of the States · or by the conventions of the States, as one or the other method may be determined upon by the Congress, and I myself rather wonder that anybody ever thought seriously of urging upon the court that it was necessary to present proposed constitutional amendments to the President for his approval. I also call the attention of the Senator from Georgia to Article V of the Constitution, which provides-

The Congress-

I know that the President is in legislative matters considered a part of the Congress, but I think the language which follows differentiates this case-

The Congress whenever two-thirds of both Houses shall deem it necessary shall propose amendments to this Constitution or, on the application 'of the legislatures of two-thirds o! the several States, shall call a convention for proposing amendments.

And so forth.

Now in the latter case the duty of Congress is imperative whenever two-thirds of the legislatures make application, and of course the Congress itself would have no option in the matter, according to my view, and the President could neither give effect to nor destroy the vital force of that.

I merely submit that to the Senator from Georgia, as, of course we are all trying to arrive at what is just and proper about it and none of us could be more anxious to do that than the Senator from Georgia. I think, upon consideration, he will find that there is a full explanation for the difference there; but I may be wrong about that, for I have not examined it to my satisfaction, and whenever the Senator from Georgia indicates that he wants further time, if he does want further time, to examine · that matter, as it is my privilege to do, having voted in the affirmative, I will enter the motion to reconsider.

Mr. BACON. Mr. President, the Senator anticipated what I was intending to do and was very nearly on the point of doing-suggesting that that motion should be made by some Senator. I had in mind at the time · the Senator from Missouri [Mr. REED], who suggested the point.

Mr. BAILEY. So much the better, because the Senator from Missouri raised the question.

Mr. BACON. I want to say to my learned friend that he does not quote with his usual accuracy the words of the n- stitution in regard to the presentation of resolutions to the President. The Senator said that they should be presented before they became law. That is not the language of the Constitution.

Mr. BAILEY. Mr. President-- l\Ir. BACON. Will the Senator from Texas pardon me, and let me make my presentation before he replies? I just want to read him the section as I find it. The provision is not the one · which he is reading, but is found on the bottom of page 189, and is in this language:

Every order, resolution, or vote to which the concurrence of the Sen- t s ted ate and House of Representatives may be necessary (except on a ques- or 'VO tion of adjournment) shall be presented to the President of the United States ;-

There is a semicolon-that command is complete in itself. It shall be presented to him; and then it resumesand before the same shall take effect shall be approved by him, etc.

But the mandate is absolute, not simply that it shall be pre- .sented before it can become a law, but the mandate is absolute th~~ery order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary * * * shall be presented to the President of the United States.

I do not want to argue this question now, for this reason: I have had some little experience a.s a lawyer, and I know that when a lawyer argues on one side it is very hard afterwards to get him to look at it the other w.ay, and I am very anxious that my distinguished friend the Senator from Texas [Mr. B.AILEY], than whom there is no better lawyer in the Senate, shall not be too strongly fixed in his opinion, because I think it is a matter of grave importance that we should all endeavor to investigate :with great care. l Mr. President, I have not made any point of. order in the matter. I think this is a matter for the determination of the Senate. I only took advantage of the opportunity in the read- ing of the Journal to bring it to the attention of the Senate. I think that the course suggested by my friend the Senator from Texas is the proper one, that there should be entered a motion to reconsider, not for present consideration, but for the purpose of giving, not to myself alone but to all . Senators, an opportuni.ty to examine carefully this most vital and important question. Therefore, I hope that after-- l\fr. STONE. Mr. President--

Mr. BACON. I hope the Senator from Missouri will pardon me for just a moment.

Mr. STONE. Mr. President--

Mr. BACON. Just one moment and I will finish.

So far as the Journal is concerned, the Journal does narrate what exactly occurred, and that is the only question we have to deal with so far as the Journal is concerned. Therefore I shall not oppose its approval, but after the approval of the Journal I think the motion should be .made.

Now I yield to the Senator from Missouri.

Mr. STONE. I merely desire to suggest to the Senator from Georgia one thought I have in mind, which seems to me to be very important, to the end that he may give his attention to it in the further examination of this question. That is this: The vote cast by the Vice President was to determine a. tie vote on a resolution offered by the Senator from Kansas by way of amendment or substitute for the joint resolution coming from th~ Judiciary Committee, which was the original proposition pending before the Senate. That vote was not in the Senate proper, but in the Committee of the Whole. After that vote had been cast by the Vice President, even conceding that it was improperly cast, the measure was reported from the Committee of the Whole, and the Senate, by a two-thirds vote, determined to submit the proposition in the form in which it stood when reported from the Committee of the Whole to the Senate. The question I ask is whether the final action of the Senate does not determine the question?

Mr. BACON. That may be true, and I do not purpose, of course, at this time to go into the question as to what is the legal effect of what has been done. But I do think it is a question which should be settled upon very mature consideration, based upon careful study and examination; and it is with that view that I have called it to the attention of the Senate. I know of no way in which it can be reached other than that suggested by the Senator from Texas [Mr. BAILEY], and that is that there should be entered a motion to reconsider, to lie upon the table until such time as Senators shall have had the opportunity to make an in-vestigation which shall be satisfactory to them.

Of course, the Vice President need not have my assurance that in raising e point it has been without the slightest personal feature, and it would be furthest from my possible thought to in any manner reflect upon the act of the Vice President. Doubtless he did so with the utmost conviction of his right to do so, and that is not in any .manner challenged.

But I think that is the proper course, and I will suggest to my friend the Senator from Texas [Mr. B.A.ILEY], or the Senator from Missouri [Mr. REED], one or the other, both of whom voted for the joint resolution as it passed, to enter the motion in order that Senators may have time for an investigation.

I want to say . just one single further word, and that is this: In most of the cases which have been read here as precedents it will be found that the questions were political and that Sena tors th din t th · lit' al one way or e o er, accor g o their po IC alliances. This does not happen to be a political question; it is not one in which there is a party alignment; and I hope that the opportunity is offered for a calm, dispassionate, and imp.artial discussion of the question.

.Mr. CLAPP. .Mr. President, I desire to call the attention of the Senator from Georgia to a matter that I know the Senator from Texas suggested, although he did not seem disposed at that time to press it I do not know whether to this extent it was even in contemplation.

The argument which the Senator from Georgia makes is that dealing with a matter upon which it is not necessary for the President to act-takes it out of the rule authorizing the Vice President to -vote. The provision for amendment to the Con stitution provides two ways. One leaves it in the discretion of the Congress, and if it stopped there, there might be force in the position taken by the Senator from Georgia. But the other provision for amending the Constitution imposes an absolute imperative duty upon Congress. When two-thirds of the States ask it, then Congress shall provide for a constitutional convention.

Where a duty is absolutely imposed as an imperative duty, and there is n. provision in the Constitution which may be invoked by which a tie can be prevented, and it is made possible for tlle Congress to perform that duty which is required of Congr<> s, it seems to me there can be no escape from the conclusion that it was not only put there, but must be invoked, and there being the absolute necessity, possibly, of invoking it to prevent a tie and prevent the failure of Congress to carry out · a prescribed duty, it seems to me there is no escape from the conclusion that in matters of this kind the Vice President must act

Mr. BACON. Mr. President, I will suggest this to the Senator from Minnesota: Even in the case, as stated by him, of the compliance with an absolute mandate of the Constitution, it would still have to be put in the form of a statute or of a resolution.

Mr. CLAPP. Oh, certainly. But can the Senator from Georgia imagine a mandate without a provision by which that mandate may be executed?

Now, if it is possible for the Senate to tie upon a mandate, then the mandate would be of no force at all. There must be some provision against defeating the mandate, and that provision must vest somewhere the power to cast a vote in the case of a tie upon the execution of the mandate.

Mr. BACON. There is no trouble about that at all, if I understand the point made by the Senator from Minnesota. I did not catch it at first.

There is no impediment to the proceeding of the Senate caused by a vote being a tie. There is a well-recognized parliamentary law that when a proposition is submitted and there is a tie the affirmative fails and the negative prevails. There would not be a cessation of busine s because of the fact that there was no provision for the pre iding officer to vote.

Mr. CLAPP. That is true. But inasmuch as the execution of the mandate requires the affirmative action, the affirmative action would fail, the execution of the mandate would fail, if the Senate came to a tie and there was no way to break that tie.

Mr. BACON. The Senator is proceeding upon the assumption, then, that with an absolute mandate to call a convention under certain circumstances, and with those circumstances arising, there would be half of the Senate which would disobey the mandate, and therefore there must be somebody to put it into execution. That is the Senator's proposition, as I understand it.

Mr. GALLINGER. Mr. President, I hesitate to call atten­ Mr. HEYBURN. tion to a certain other matter in connection with this vote.

The Senator from Maine [Mr. FRYE], who is absent, had a general pair with the Senator from Georgia [Mr. BACON]. The Senator from Vermont [Mr. DILLINGHAM] was paired with to deal with. the Senator from South Carolina [Mr. TILLMAN]. But upon that particular vote Senators DILLINGHAM, FRYE, and TILLMAN did not vote, while the Senator from Georgia [Mr. BACON] did vote. Had the pair of the Senator from Maine [Mr. Frye] been ob erved, this controversy would not have arisen.

l\Ir. BACON. The Senator has read a part of the RECORD and has not read it all. I stated the fact last night when I voted that I did have a pair with the Senator from Maine [l\Ir. FRYE], and that I voted, without observing the pair, by the authority of the Senator from Maine, which I have in writing. l\Ir. GALLINGER. Then, I apologize to the Senator. · l\lr. BACON. Very well.

Mr. GALLINGER. I simply knew that the Senator from Maine--

Mr. BACON. The Senator from New Hampshire will find that statement in the IlECORD.

Mr. GALLINGER. I will look it up. We know the Senator The petition is as follows: from Maine very ardently supported the amendment of the Senator from Utah [Mr. SUTHERLAND] last year, and before he left here he said to me . he had a general pair with the Senator from Georgia. That is all I know about it.

all BACON. I my elf voluntarily wrote to the Senator from Maine to inquire of him how I should pair him on that vote and. other vote. which were named by me. He replied to me that as to that vote he had no particular interest, and that I might pair him or not, as I pleased, and I now have his letter to that effect.

Later in the evening the Senator from Vermont [Ur. DILLINGHAM] applied to me to transfer the pair, which I did, I myself making the announcement.

When the Senator from Vermont first applied to me on the subject, I doubted, on account of the way in which the Senator from Maine wrote in his letter, whether I should do so or not, but upon reflection I concluded that I should do so; and I went to the seat of the Senator from Vermont and had him make the arrangement by which the pair was transferred in his case and in mine to i.ressrs. · FRYE and TILLMAN, respectively, so that we each voted.

l\fr. GALLINGER. I have apologized to the Senator from Georgia. It struck me as being rather peculiar, however, that the Senator did pair the Senator from Maine on the final vote.

Mr. BACON. It is usual, before criticizing with respect to a question of pairs, to ascertain what announcement was made in regard thereto ; and the announcement was made by me in the Senate last night that I had voted by the authority of the Senator from Maine.

Mr. GALLINGER. And yet the Senator paired the Senator from Maine on the final vote.

Mr. BACON. I did so at the request of the Senator from Vermont [Mr. DILLINGHAM], transferring the pair so that he could be allowed to vote and not be prevented from voting on account of the absence of the Senator from South Carolina [Mr. '1 1 TILLMAN]. .

The VICE PRESIDENT. The question is on the ap11l'ornl of the Journal. Without objection the Journal will stand approved. The Journal is approved.

Mr. BACON. On a question of per onal privilege, I want to refer the Senator from New Hampshire to page 1924 of the RECORD, where he will find this announcement made by me. After having announced the pair with reference to the Senator from South Carolina [Mr. TILLMAN] I said:

I also desire to state while I am on the floor that I voted on the Bristow amendment, although paired with the Senator from Maine [Mr. FRYE), because I had his authority so to do.

The Senator from New Hampshire will find that in the RECORD.

l\Ir. GALLINGER. Yes, I do find it; and yet immediately preceding the Senator from Georgia announced that the Senator from Maine would vote in the affirmative if present. The Sena tor from Georgia will notice that in his remarks likewise.

1Ur. BACON. I so understood.