June 7, 1911

Mr. BORAH. I ask unanimous consent that the Senate resume the consideration of the joint resolution (H. J. Res. 39) proposing . g an amendment to the Constitution providing that Senators shall be elected by the people of the several States. There being no objection, the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution.

:Mr. RAYNER. Mr. President, I shall b~ brief in the remarks I propose to submit to the Senate to-day. I hope that this is the last speech I shall make upon the subject of the election of United States Senators by the people until the proposition comes before the people. I have participated in this discussion for many years, and now for the first time I see upon the horizon the sign of promise.

Before submitting the remarks I intend to submit, I want to appeal to those Senators upon the other side of the Chamber who are in favor of the election of United States Senators by the people t<> change their minds, if possible, upon the question of the Bristow amendment, which is substantially the Suther- land amendment of last session.

I do not intend to discuss the legal aspects of the subject matter. I have done this so frequently that it has become tiresome, and I do not intend to advert to it. I want to look at it from a practical standpoint just for a moment before I submit the remarks I intend to. And let me say this, that by adhering to the Bristow amendment you are imperiling the passage of the general resolution.

I will admit, for the sake of argument, that with the Bristow amendment in it the joint resolution will pass. I intend to vote for it, but I am only one. I am against the amendment of the Senator from Kansas [l\Ir. BRISTOW], but I am for the joint resolution, even if the amendment of the Senator from Kansas should carry. But that is not the position of a great many of my colleagues upon this side of the Chamber.

Admitting for the sake of argument that with that amendment in it the joint resolution can obtain a two-thirds vote in the Senate, let me say this to you, and I say it with all the earnestness and sincerity that I possess: With that amendment in the joint resolution you imperil and jeopardize the ratification of the joint resolution by three-fourths of the States, as required by the Constitution. You might as well . l look at this question from a practical standpoint It is not what I may think; it is not what any Senator here may think; but it ls necessary to carry 313 States in order to ratify the joint resolution for the election of United States Senators by the people; and, in my judgment, with the Bristow amendment in it, you take a chance with nearly every Southern Commonwealth in this Union. With the Bristow amendment out of it, I do not believe the que tiou will be asked upon the hustings in any of the Northern or Middle or Western States whether there is such an amendment in it or whether it is out. The attention of the people will not be directed to it. But it will be directed to it in the South.

The State of Georgia, for instance, in my judgment, will not question? ratify the joint resolution with this amendment. I do not think the St a te of Mississippi will ratify the joint resolution with the Bristow amendment in it, and I can name one Southern State after another in doubt, and we are not in a position to lose any of them.

Before submitting the remarks I intend to, because I did not intend to say anything about what I am now saying, I make an earnest appeal to those Senators who were with us _ last session not to change their minds now and force this amendment into the body of the joint resolution, because we must look to the end and the termination of this great struggle. And I say to you that I believe that if you place that amendment in it you imperil the joint resolution in every Southern State.

l\f r. SUTHERLAND. Mr. President--

1\fr. RAYNER. .Mr. President, I did not intend to say this when I rose.

The VICE PRESIDENT. Does the Senator from Maryland yield to the Senator from Utah?

Mr. RAYNER. I will submit to an interruption.

Mr. SUTHERLAND. Does not the Senator from Maryland recognize that if the Bristow amendment should not be adopted it would imperil the joint resolution in a great many of the Northern and Western States? -

Mr. RAYNER. l\Ir. President--

Mr. SUTHERLAND. Let me just follow that for a moment In the first place I want to direct the attention of the Senator from Maryland to the fact that there are a great many people in this country who are sincerely opposed to taking from Congress the supervisory power over the election of Senators which it now possesses under · the Constitution. Those people, or a. very large number of them, will be found opposing the adoption of this joint resolution if it passes as it is _ now presented to the Senate, and in addition to that--

Mr. RAYNER. I understand that question.

l'tir. SUTHERLAND. In addition to that every man who is opposed to that portion of the joint resolution which proposes to giw to the people the right to elect will use this other provision for the purpose of defeating it before the legislatures,

Mr. RAYNER. I like to agree with the Senator from Utah, because I know he is always sincere and earnest, but I do not believe that this event will ever take place. I do not believe the question will ever be asked outside of the Southern States on any hustings in the country whether or not we, in substance, preserve this power in the Constitution. I do not think the attention of the people will be directed to it. I do not think they care. In other words, I think, with the Bristow amendment out of it, all the States which would vote for it with it in will vote for it anyway. But I do say you will have a tremendous struggle in the Southern States if you put it in to carry perhaps any one of them.

Now, let me proceed to the general discussion.

Assuming now that the amendment goes in or assuming that the amendment does not go in, upon this measure the time for action has arrived. I am satisfied that no one in this body can now be swayed one way or the other by argument. The ingenuity of the human intellect has been exhausted in the discussions upon this subject. I challenge the genius of the Senate to ad­ \ance a single proposition upon either side that possesses the inspiration of novelty. The field of tradition, of history, public policy, , and of constitutional and statute law h . as been explored in order to discover resources for this protracted debate that has now been progressing for years upon this mighty problem. The people have listened patiently and submissively, and now they demand from their representatives in this body the privilege of voting. They demand with rightful claim and resistless numbers that the right to vote shall pass from us to them. They have no intention of violating the spirit of the Constitution, and I deny now, as I have denied time and time again, that this change affects the spirit of the instrument. It takes away the election of Senators from the people's servants and transfers it to their masters. It withdraws it from the agent and confers it upon the principal. The spirit of the Constitution remains inviolate and intact, because · the Constitution was made by the States, and this amendment, if adopted, will be the work of sovereign States, acting under constitutional prerogative. Three-fourths of the States and not three-fourths of the people must ratify this act. The power to amend stands isolated and al o ne upon the pages of that imperishable document, the power that obvia.tes the necessity of revolution, because the States, when they speak, speak under the grant and privilege of the Constitution. The States have practically spoken, though not in constitutional form, and the people in the States have spoken.

Mr. HEYBURN. Will the Senator permit me to ask him a l\Ir. RAYNER. Certainly.

l\Ir. HEYBURN. I ask· the Senator whether any State has indorsed a change in section 4 of Article I of the Constitution of the United States?

. l\Ir. RAYNER. None that I know of.

Mr. HEYBURN. No.

Mr. RAYNER. But this is the point I am making--

1\Ir. HEYBURN. Would the Senator be willing to state how many States in his judgment would support such a proposition if it stood alone?

.Mr. RAYNER. I believe this. ,.. I believe that if the Bristow amendment is left out of the resolution the general proposition will carry in almost every State in the Union. That is my firm conviction. I hardly think we would lose a single Commonwealth in the Union if Senators · on the other side would take the Bristow amendment away from the body of the resolution. The people are speaking everywhere. They have in some sections of the country lost their faith in legislative assemblages. In over 100 years since the Constitution was framed, the panorama of public life has moved on and the scene upon the canvas now represents the people in control.

The people have demonstrated that they are capable of selfgovernment, and that the standard of this great assemblage will not be lowered if we permit them to select its membership. The system fs now practically in vogue in every State where primary elections finally decide the . issue. If the people of these United States are not qualified to elect their Senators, then they are not qualified to exercise the franchises of freemen or enjoy the advantages of republican institutions. If this is the condition, it might be best for us to resolve ourselves into an oligarchy and appoint political managers to select our public representatives for us. Speaking for myself alone, I would not desire to remain here for a moment if I thought my presence was distasteful to the will of my constituency. Though elected both at a primary election and, of course, by the general assembly of my State, nevertheless if I was here against the protest of my constituency, I would become o embarrassed in the performance of my public duties that I would feel that I had usurped the place I occupy. Who do I represent here; my State in its sovereign capacity? Yes. But what is my State except the people who compose it. . Are the people of the State one thing and the State another? Then who is the State? Do the political leaders of the State · constitute the State? Is that which has been rightfully denominated the despotism of the Republic the prevailing sentiment of this body? Fellow · Senators, are we imbued with fear of the people of our States? Do we believe that in our supreme power we measure so much above the standard of their intelligen c e that they can not, in their limited _ vision, grasp the helghts upon which we repose, that our selection must continue to be vested in _ the legislatures, and that the legislatures in a number of instances are also incompetent to make the choice and they must relegate it to an autocracy whose purposes are at war with the institutions of the Republic? I shall not discuss the merits of the proposition. I have finished this task in my advocacy of it for a quarter of a century, from the day that it passed with unanimity in the House of Repre entatives. We will discuss the merits in our several States when the subject is presented to them, and presented to them it will be. We have delayed it; we have postponed it; we have impeded and obstructed it, I will admit with the best motives on the part of the Senators who are opposed to it; but the hour has arrived when the battle is on, and that battle must either be lost or won. There is no compromise in sight. Principles can not be compromised, and this is not a policy but a principle that is involved. Dilatory tactics and parliamentary devices can not baffle and overpower the movement.

Every political reform of this sort has started in the camp of the minority and then it has gradually increased its converts until it has been taken up upon the tide of public opinion, and as the tide sweeps on to its destination the debris and the wreckage of stranded hulks can not obstruct it in its course. I know that public opinion changes; that at times it veers and trims with the passing winds, but never when it is in pursuit of a great political truth like this. It clings to it until the achievement and every hindrance becomes only an incentive to renewed effort. I hate to touch the Constitution of the United · States. Not be c ause it is a perfect instrument; because we know that it is not. We know that it was the result of compromise, conciliation, and adjustment; but there it stands, the greatest political document ever delivered to the human race. The patriots who framed it, however, foresaw that the day would come when it might require modification in its nonessential fe a tures, and so far as its essential features are concerned, they were willing to trust the people that they would never chan g e the integrity of republican institutions. This is a nonessential feature , take it as you will, so far as the Constitution is concerned. It does not touch its life. On the contrary, the change will prolong its life. I said during the last session that the greatest argument delivered against this measure was that of the Senator from Massachusetts who preceded the present junior Senator from that State, and I attempted to show that the rea s ons advanced had all passed into oblivion. And so they have. Mr. President, there is one circumstance, howe-ver, in connection with this business that I do not like at all, if I may be allowed to digress for a moment. I read in a paper the other day a brief editorial written by an old college friend of · mine, who has a certain degree of intelligence and sense, which reads as follows:

How does Senator RAYNER come to accept the leadership of ex-President Roosevelt upon the qu e stion of the election of United States Senators b y the people'( We believe firmly in the position that he has taken, but how do e s he reconcile the anomaly of his standing upon precisely the same platform that the ex-President does?

I do not like this, Mr. President. When I am on a platform I stay there . . · The ex-President, however, has a peculiar gift and talent of getting on and off of platforms that I do not possess. No other individual in the United States has the genius that he has in this connection. He can make a speech upon the platform of a railroad train, where the stations are only a mile apart , and recant at one station what he had said at the station he h a d just passed; he can recommend the selection of a progressive Senator in one State, and then with equal vehemence indorse an extreme conservative in another; he can stand upon two political platforms, each radically differing from the other, and then deny that he stood ' d upon either of them ; he can coquette with both political parties and then start a party of his own, who e doctrines and principles consist of an incoherent medley of unconstitutional impossibilities; he can stand upon a platform before an intelligent audience of 3,000 people and tell them how at the dead of night upon the borders of an African jungle, upon the banks of a river that never had any existence, when no one was with him, he encountered and slaughtered a mythological animal that God had never created, and receive the wildest plaudits for the miraculous performance of this impossible accomplishment. [Laughter.]

Senators must not consider for a moment that I am in any manner unfriendly to the ex-President. On the contrary, I am very fond of him, and, as this editor says, we both agree in every particular upon the identical subject that I am discussing here to-day. My objection is not so much to the principles that he advocates, because I believe in quite a number of them, but in the peculiarity that he possesses of changing front ~o _ quick 1 y that it is utterly impossible for the human mind to keep track of him in his evolutions. In this connection, I recall in the famous railroad-rate debate that took place during his administration that he sent for me to inquire how I stood upon the supreme issue that was before us at a critical stage of that contro-versy.

When I gave him the information he said that he was ple a sed beyond expression that I had arrived at the same conclusion · that he had reached. "Now, stand to your colors," he sa i d. "Do you recall what Colin Campbell said to his Sutherland Highlanders at Balaklava?" I happened to remember the incident that , turning to his regiment, he said: ".Men, there is no place to retreat from. You must die where you stand." "That is exactly it," said the President. "You have a wonderful memory, and, if necessary, we will die together." The next day, when the vote was taken, I stood to my colors and died where I stood. Just as I was about dying, however, I looked around for the President, who had promised to die with me, but he had · neither died nor retreated. On the contrary, I never saw anyone more constructively alive. Under the gentle guidance of the junior Senator from Massachusetts he had slipped away during the night, while we were all slumbering, and there he · stood, it is true, with the colors in his hand, but they were the · colors of the opposition, and when I returned to life and met him a short time afterwards the only explanation I received for this maneuver, unparalleled in point of strategy upon the pages of political history, was his remark to me: "Well, you an died a glorious death. I was so sorry I could not be with you." [Laughter.]

Mr. President, I am not greatly interested in ancient or medieval illustrations in support of or in opposition to the measure that is now before us. I received a communication yesterday from an ancient friend of mine, inclosing an article of 180 closely typewritten pages upon " The historical evolution of the Spartan constitution and the Athenian Areopagus," and asking me whether I would have it published, as it would illuminate the subject now under discussion and make us desist from leveling this attack upon the traditions of the Republic. I do not intend to read a line of this article, whether it illuminates me or not. I do not intend to have it published. The author said if I would do so he would reimburse me out of the proceeds. Mr. President, there will be no proceeds. I wrote him that I had read everything of .consequence that had ever taken place from the time that Eve and the serpent met in the Garden of Eden, and that I never intended reading another line of what has occurred in the past.

What do I care in this discussion about the Grecian assemblies at the time of Lycurgus? What difference does it make to me whether Lycurgus believed in a senate of elders or not, or wheth e r Solon left the supreme magistracy of the state in the hands of its nobles, or whether Augustus destroyed the independence while _ he restored the dignity of the Roman senate? We are not nobles. I have enough dignity. I would rather have a little less dignity and more independence. I know that about the time of Cresar the independence of the Roman senate ought to have been destroyed. The Senate then consisted of about 1,000 members, most of whom were privately and publicly depraved and corrupt and reflected disgrace and dishonor upon their · rank and station. I have wasted years over this, and what I am concerned about now is the future and' not the past. I am taking more interest in Senator BORAH, who is advocating this measure, and Senator HEYBURN. wllo is opposing it, than I am in Solon or Lycurgus or Julius Cresar. l\1y face is • toward the rising sun. I see the most significant changes taking place around me, and history does not help me. We can not disguise the fact that a · peaceful revolution is taking place in this country. We may be upon the side of the revolutionists or opposed to them; it matters not. The fact, however, admits of no denial; it stands out in bold relief, and political independence is the order of the day in both parties. The people are shaking off the manacles and fetters of political slavery, and link by link their chain is breaking. I am not here to deliver any dissertation upon the extent of this mo-vement nor upon its merits, so far as its contemplated purposes are concerned. One thing is sure, and that is that the conflict is on and that the people, led by patriots, are in the field. I deny that this movement is deteriorating the standard of intelligence or morality of the public service. A prominent Senator proclaimed to the country a few years ago that "the Decalogue in politics was an iridescent dream." Any person who at this hour would announce that a moral code in politics was a dream would be branded as an outlaw and banished from the field of his political activity. Instead of an iridescent dream it is a radiant reality. A few years ago party servitude was a badge of honor, and if an unqualified candidate was nominated for public office it was considered the duty of every party man to rally to his support, and · it was held to be disloyalty and treason to revolt against the nomination; but treason prospered, and when treason prospers it is no longer treason.

The measure now before us is merely a sign and symptom of the movement. It was put to its practical test a short time ago in the State of New Jersey. I am not just now selecting presidential candidates because I am not a politician, thank God. I do say this, however, that never upon the pages of our political history was there a more fearless exhibition of inde pendence than that of the governor of tLat State upon this occasion. It was not a personal or political matter at all. A ~ primary election had been held and I do not care how many or how few people voted at that primary, the people had the opportunity to vote and if they did not exercise the right it was their fault. Governor Wilson announced the principle that a moral obligation rested upon the legislature to sustain the result of the election. I am not disparaging anyone who was a candidate before the legislature. I am upholding, however, to the last degree, the principle that was proclaimed. He denied the right of anyone to corral the legislature and his undaunted courage in laying down the gage of battle to the forces that opposed him has drawn for him, from every section of the land, · the commendation of his countrymen. It is the same way with us. We can not override the will of the Ameri· can people, and we might as well fall in line with it. We might as well recognize the fact that this Senate is not more powerful than the constituencies it represents, and that we can not throttie this reform any longer. The senior Senator from Idaho, with all his daring intrepidity and all his defiant courage, backed by the resources of his powerful intellect, can not march single handed over this land and overpower 90,000,000 of his countrymen. ·

'l'be Senator, to whose arguments I always listen with a great deal of interest for a number of reasons and for one reason principally, and that is because he uses as good and pure English diction and expression as any Senator upon this floor, says that the matter has never been properly explained to the people. Now, let the Senator explain it, and I venture to say that with every explanation he will make converts upon the other side of the question.

Mr. President, there is no constituency in this land so benighted that it does not understand it.

And let me tell you it is a great mistake to suppose that this amendment depends for its support upon the ignorant masses of the country. It is exactly the opposite; it will gather its strength from every community where political integrity rules and intelligence prevails. As the roll is called from Commonwealth to Commonwealth you will find that from our seats of learning, from the ranks of educated labor, from our colleges and academies and universities, its apostles come, With free ballots and with ballots that are not for sale, and they comprise the flower of the rising generation of this land, who are not agitators or demagogues, who under.stand the philosophy of our institutions, who have determined to break the bonds of political servitude, and who have arrived at the conclusion that for them the road to an honorable ambition lies not upon the narrow path of legislative influence, but upon the open field where freedom thrives and honor blooms.

Mr. HEYBURN . Mr. President, it had not been my intention at this time to speak on the joint resolution or on the amendment, but the Senator from Maryland [Mr. RAYNER] has made some statements to which it seems to me it is well to reply. He has, as I understand him, suggested that because of the slight attention that would be paid to the amendment of section 4 of Article I of the Constitution, the people might be led to adopt it in ignorance of the fact that it was a part of the subject matter for their consideration. That does not appeal to me. Any proposition to amend the Constitution of the United States should be impressed upon all of the people and the fullest knowledge should be had by all of the voters as to its purpose.

I asked the Senator from Maryland if any State had ever proposed or recommended the amendment of section 4 of Article I of the Constitution. He said he knew of none. Mr. President, no State has ever suggested to Congress or at all that section 4 of Article I should be amended. It can not be claimed on behalf of that amendment that there is any pressure or demand from any part of the people of the United States that that part of the Constitution should be changed. Is it now proposed to attract the attention of the people to the amend- ment of section 1, and then, if I may use the term, slip in surreptitiously-without knowledge or notice to the people-an amendment to another and different part of the Constitution that is separate and distinct in its purpose and effect?

How is it that up to . this day no one outside of this body ' has ever proposed to amend section 4 of Article I, or that it has never been thought of in the legislative bodies of the country or among the people of the country that section 4 of Article I should be amended?

The Senator says that unless section 4 is amended the States will repudiate the amendment to section 1. Well, in my judgment, the States will repudiate the amendment to section 1 and to section 4, or to either of them if those amendments are submitted to the people for their consideration. What possible excuse can there be in this hour for attaching the amendment to section 4 to the amendment to section 1 except it be to gain a strength for the amendment to section 4 which it could not otherwise obtain? Is that the high plane upon which legislative matters should rest, that you are going to use one section or one proposed amendment as a club to compel the people to support that which they do not want in order that they may obtain something that they do want? Is that the proper spirit in legislation, whether it pertains to amendments to the Constitution or whether it arises in the ordinary course of legislation?

What State in this Union would support the amendment to section 4 if it stood alone? Does the Senator dream that it could receive the support of a sufficient number of States to adopt it? Why not, if Senators think that section 4 should be amended, submit it as a separate amendment to the Constitution? Why not introduce a joint resolution in this body proposing to amend that section, and let it stand upon its merits? No. But they would dragoon those who · favor the election of Senators by direct vote of the people, as they call it, into their cause in order to gain strength for that which without it would _ have no strength whatever.

Will a Senator who is in favor of the amendment proposed by . the Senator from Kansas [Mr. BRISTOW] submit to the introduction of a new element into this question in order that he may perhaps succeed in amending section 1? I doubt it. There is and there can be no reason why any Senator on thi s side of the House should support the proposition to amend section 4. If they are wedded to the idea of electing Senators by direct vote of the people, what else can they do but support the amendment introduced by the Senator from Kansas?

That is assuming, for the purpose of argument, that the proposition to amend section 1 has merit; it is assuming, for the purpose of argument, that the proposition to amend the Constitution so as to do away with the intervention of the legislatures is of sufficient importance to compel them to submit to an amendment to section 4 which has never been discussed by, the people, never been advocated by any legislature, and which' has no support based upon the demand . of the people of the country.

No man has ever voted upon the question of the amendment of section 4 ; yet we are told on the other side that unless we submit to that amendment that has received no consideration outside of this body they will defeat the entire proposed amend .. ment of the Constitution. Whenever the Congress of the United States resorts to that character of pressure for the purpose 01' en . acting or on behalf of the enactment of a law or the change of the . fundam·ental law, it will have abandoned principle and resorted to the law of expediency or resorted to the law which governs the highwayman-the alternative that is presented to a man, "if you do not · abandon the principles that have marked your career and your course all your life we will defeat you in a just cause."

I am not one of those who believe in the amendment to either section 1 or section 4. A few days since I gave my reasons for my opposition to the proposed amendment, and I am not going to attempt to cover that ground again. I am speaking now against the adoption of a measure here that proposes to change the fundamental law of the land without any pressure or demand whatever on the part of the people. What does the proposed amendment do to section 4? It leaves it, as was admitted by some Senator on the occasion of my former discussion of this question, a skeleton, without the form or semblance of law. as law is written. It eliminates from the section the provision relative to the election of Senators, and leaves the provision giving Congress the power to fix the time, places, and manner of holding elections for Representatives stand alone in the sec ­ tion. What becomes of the principle for which they profess in this hour to contend? Why should one rule pertain as to the election of the Members of the House and be rejected as to Members of the Senate? The proposed constitutional amend­ _ ment eliminates from section 4 the provision- But the Congress may at any time by law make or alter such regulations, except as to the places of choosing Sena~ors.

That is eliminated entirely and we have remaining the mere skeleton:

The times, places, and manner of holding elections for Representatives shall be prescribed, etc.

Mr. President, there are some suggestions that I desire to make in addition to those I have heretofore made in regard to the election of Senators by what is called a direct vote. The population of our country is changing in character, and has been changing for half a century. The relation between tho native-born American to-day and the foreign-born citizen of the United States is so radically changed from what it was 50 years ago that it enters into the consideration of this question. It was, 50 years ago, two-thirds American sentiment and one-third mixed sentiment. · To-day the condition is reversed. It is on e­ third American sentiment and two-thirds mixed sentiment, from which we must gather the strength that will support the American sentiment. The proportion between those two classes of citizenship must be taken into consideration. We are receiving into thi s country an element of people that bring no tradi ­ tions incident to our country with them. They come from other countries where the participation of the people in the determina ­ tion of public questions does not exist. They come to this coun ­ try with the idea that it is in the nature of a socialistic Government. They know nothing at all of the foundation, principles, or traditions of our Government. It takes generations for them to become imbued with the ideas essential to the maintenance of this Government; they seek to change it from the time they , land on our shore. The element that supports the revolutionarY; party of this country is a foreign element. By and by, as gen-.

Mr. BORAH. My colleague suggests there was a reason why the States were given control over the manner of electing electors, and why the States were given control, subject to the regulation of Congress, over the manner of electing Senators. I ask, as a matter of information, what was that reason? I have never been able to understand why the fathers gave to the legislature of the State the sole and exclusive power to prescribe the manner of electing electors and why they differentiated with reference to Senators. If there was a reason assigned in the debates or elsewhere I would be glad to have my colleague suggest it. I have never been able to find it.

Mr. HEYBURN. That is arguing that the presumption is Mr. HEYBURN. against the wisdom of the founders of the Constitution.

Mr. BORAH. No; it is an humble and a frank admission on the part of the Senator from Idaho that he would like to learn something from his colleague.

Mr. HEYBURN. Mr. President, I do learn something every day from my colleagues, and the man who does not is probably either overegotistic or perhaps deficient in appreciation.

.Mr. BORAH. I asked the question in perfect good faith. I assume my colleague thought I was simply bantering.

Mr. HEYBURN. No; I did not. I know the bent of mind of my colleague well enough to know he is sincere in what he does. But he has asked me a question, and it is my intention briefly to reply to it.

Mr. CHAMBERLAIN. Mr. President--

The PRESIDING OFFICER. Does the Senator from Idaho yield to the Senator from Oregon? '

Mr. HEYBURN. I do not want to be interrupted just now. I will yield to the Senator from Oregon later.

When the question of the organization of this Government, could act. as represented by the Constitution of the United States came before the people there were already States in existence, sovereign States, each bound only by articles of confederation. There was no concrete existing government, and it was necessary, in order to induce those States · to enter into the compact represented by the Constitution, to recognize the States as governments, each distinct. The question arose as to how, or whether or not they should be a part of a general council of the Nation; and through long, hot days of debate that question occupied the attention of the constitutional convention. First, the question whether there should be one or two bodies. The States under the Confederacy had only one legislative body. They had no body of legislators which represented the States as States. The only legislative body they had represented all of the people in a Congress.

The States were not willing to give up their individual sovereignty unless they could retain their identity as States; and it was a question of contract between them as to how this branch of the Government, in which the States should appear as States, should be represented, and, secondly, how that representation was to be brought about. The disparity in size of those States, or of some of them, entered largely into the determination of that question. The smaller States, like Delaware, New Jersey, and others, were not willing to enter into any other body than the House upon the basis . of their population. They said: "We are sovereign States; we want representation in a body in which all the . States will be equal, have the same vote in determining questions that affect the Union or affect the States separately." They demanded it as a condition precedent to entering into the contract of government.

There would have been no occasion for having two Houses of Congress except for that condition. The demand for two Houses of Congress was based upon that condition. Otherwise, can any Senator give any reason why there should be two otherwise. Houses of Congress?

If you are going to change the method of making up the Senate to the same method that prevails as to the House, you have only two Houses of Representatives. That is all. There is no longer that representation of the State as an entity. They would all be elected by what is called a popular vote, subject to the evils I have pictured.

I have heard my colleague say-and I suppose he is saying it now in his own mind-that the election by popular vote does not change the fact that the popular vote of the State elects the Senator.

But the government of the State is embodied in its legislature by the constitution of every State in the Union. The only government that the State has is crystallized in its legislature, and that is something for the State to look to. That which is crystallized government is recogniz,ed as the entity of statehood.

1\Ir. BORAH. Mr. President--

The PRESIDING OFFICER. Does the Senator from Idaho yield to his colleague?

Mr. HEYBURN. Certainly.

.Mr. BORAH. The government of a State is crystallized in its executive, its judicial, and its legislative departments all combined. If you speak of it in the manner in which my colleague speaks of it, it would have been just as appropriate, if the fathers had seen fit to do so, to have referred the selection oJ Senators to the executive department. It could have been just as well said that the executive department alone, pursuing the argument which my colleague is pursuing, represented the government of the State. Now, as a matter of fact, speaking simply as a governmental entity, it is represented by the judiciary, the legislative, and the executive departments. Mr. President, it is true the State might have taken that position; but they did not. It was the States, and not the General Government, which determined how they should be represented in the United States Senate and how that representation should be procured. It was the States which opposed the idea that was advanced that Senators should be selected by the governor or by other portions of the State government. But it must be admitted that whatever government for the purpose of making . laws there is in the State is in the legislature of the State. There is no government for legislation in the judiciary of the State, nor in the executive officers of the State; it is in the legislature. That is where the State government is crystallized, because the highest function of every gov ­ ernment such as ours is in its legislative power. The courts are made by legislation, or the equivalent of it; they are added to or changed by legislation, or the equivalent of it, whether it be the State constitution or an act of its legislature. The States demanded this method of doing it, because the legislature was the only medium of power through which the State

Mr. BORAH. Mr. President--

The PRESIDING OFFICER. Does the Senator from Idaho yield further to his colleague?

Mr. HEYBURN. Certainly.

l\fr. BORAH. If my colleague will pardon me for making one more suggestion--

Mr. HEYBURN. Certainly; it does not bother me at all.

Mr. BORAH. The legislature is the lawmaking body of the State, and it represents the sovereignty of the State so far as the lawmaking capacity of the State is concerned. One of the great objections which we have to permitting this function to remain with the legislature is because it is not a lawmaking function which the legislature is performing, and it is turning the legislature of the State into a political convention, which results in its being torn and distracted and venalized and corrupted by those things which work alone for political purposes and not for the purpose of making laws for the benefit of the State.

Mr. HEYBURN. Mr. President, that is the old argument of incompetency or unfitness of the legislature to perform this duty. The sovereignty of a State is in its legislature and nowhere else. It is not divided between the legislature and other functionaries of government. The sovereignty of a State rests where the lawmaking power rests, and it is not elsewhere, either in the State or in the General Government.

Mr. BORAH. Mr. President--

The PRESIDING OFFICER. Does the Senator from Idaho yield further to his colleague?

.Mr. HEYBURN. Certainly:

Mr. BORAH. Does my colleague contend that the sovereignty of a State is confined alone to the legislative department of the State?

Mr. HEYBURN. Yes, absolutely; and it was never written .Mr . BORAH. Then when two governors are dealing with one another in reference to extradition neither of them represents the sovereignty of their respective States. ·

Mr. HEYBURN. They are merely the agencies of the legislatures that pass the law authorizing them to deal with each other.

That is police power. That is simply an act giving the performance of police duty by which one governor issues a requisition at the request of another for the purpose of apprehending those who have violated the law. The Senator would not con ­ tend that' that was an act of sovereignty any more than he would contend that the arrest of a man on a street corner was an act of sovereignty. ·

Mr. BORAH. l\Ir. President- -

Mr. HEYBURN. There is something which authorizes that to be done. The States have other powers that are granted through the Constitution of the United States. The Con sti tution of the United States is the foundation upon which the right of extradition rests; it was a part of the contract that formed the Nation. erations come, they drop out, but they are reenforced by others Who that are coming in. For the last half century we have had to seat contend against the · foreign idea or ' conception of our Govern­ States, ment; we have had to contend against those who, because of their unfamiliarity with our system of government, are wandering in the field of political conjecture without any anchorage.

These conditions emphasize the necessity of standing by our would written Constitution, which represented at the foundation of our Government the true principles upon which the Government of the should rest and which represent them in a larger measure to-day than ever before. There is more nece sity to-day than there throw ever was for a citizenship that adheres to the foundation principles of this country, because of its traditions, because of the and rea ons for their adoption.

The Senator from Maryland says we are in an era of peaceful You re-volution. If this element is to grow and extend its influence of upon our Go-vernment, we may find ourselves in a revolution land. that is not a peaceful one.

The guaranty, and the only guaranty, we have for the main- body . tenance and continuance of our institutions under the Consti­ here tution is to maintain them. Nothing should recommend a change in the organic law of this country that arises in times of joined peace. We have never unwritten a word of the Constitution which since it was adopted. It has never been seriously proposed that the we unwrite a provision of the Constitution until in this hour, even and we are proposing to write out of it the power of Congress laws to maintain the Government, to defend it against attempts to undermine and sap the fundamental law. Never until this when hour has it been proposed to diminish the power of the Government in maintaining its own life and integrity. 1\Ien have tions talked it, revolutionists have preached it, theorists have prated this about it, but statesmen have never before proposed to unwrite more any provision upon which the power and the supremacy of our voting country rested.

At no time has it been proposed, prior to this hour of political disturbance referred to by the Senator from Maryland the [1\fr. RAYNER], that we should take away from the States act­ Mr. ing as States the power to perform their constitutional functions in selecting Members to this body. Never has it received Idaho the consideration or tlie serious consideration of the Senate of the United States, and yet we are told now that we are going tions to change the whole system that regulates the relations between the States and the Government under the specious pre­ States text of getting nearer to the people.

How does it get nearer to the people? As I see it only as it is, that in the parlance of the police records, that it will get nearer to and the people in order that it may get its hands into the pockets from of the people's rights and filch them away. That is the way it Mr. will get nearer to the people.

Look at the result! To-day we have under consideration a of great investigation involving the regularity of the election of a. the Member of this body. We are called upon to in-vestigate the lows proceedings of the legislature of a single State. We can not tion? attack or question the right of any member of the legislative Mr. body to hold office. We accept the legislature as the people of have the State constituted it. What do we propose to do now? We is propose to make it necessary, in the event of a contest, to investigate e-very county and precinct and ward in any State Mr. where a controversy arises. We open the temptation to those people who would gain by these contests to contest, through the com­ United mittees of this body, the elections in wards and counties and safe precincts. ·

We endanger the stability of the act of the people in another Mr. way. Should Senators be elected at a general election where precinct, county, State, and other officers are elected, the result further of those elections could be tied up indefinitely. Proceedings to determine the regularity of an election at which State and county officers are elected would involve the determination of may the election of a United States Senator which depended upon vision the vote in those subdivisions of our Government.

If a great contest arose over the election of a Senator from President? one of our great States within which great cities exist, we would have to send our committees to the ward poll books, to it so the county returns or the returns of the State; and Congress is can not take away from the courts of the States the right to ner investigate those elections. Congress can not controvert the tives. conclusion of the courts as to whether or not the polls were dential opened at the hour provided by law; as to whether or not the ballots were counted in the manner provided by law; as to Senators? whether or not the returns were made in the manner provided There by law. They would be subject to the control and decision of in the the courts in proceedings familiar to every Member of this was then. body regarding the regularity and the legality of the election; Mr. and then what would become of the - United States senatorship? The No man could appear at the bar of the Senate with creden­ yield tials until those questions were determined in the local courts. Mr.

then would be determining the right of a Member to his in this body? The local courts, the supreme courts of the after the long term or procedure in which the considera· tion of the legality of those elections were being heard and determined. No man could appear at the bar of the Senate, because he would have no authenticated credentials which authorize him to . appear here.

· Now, that might occur in one State or it might occur in all States, and it would be a temptation to many who were making a desperate struggle to be elected to this body to confusion about the election, to have claims made as to its irregularity, in order that it might be tied up in the courts, there eventually, perhaps one or two or three years afterwards, be determined. - transfer, in effect, the right to determine the membership this body from the body itself to the minor courts of the We could not take up for consideration a question whether or not any man had been elected a. Member of this until the returns were canvassed. There is not a Senator who has not in his own mind fresh the recollection of cases in which the canvassing of the returns of the election was enby a court or controlled by it. The very foundation upon the Senate bases the consideration of the question as to right of one claiming membership in this body could not • be initiated until the courts having jurisdiction under the of the State 1 had passed upon it. These objections suggest themselves to the minds of Senators they talk about taking the power and the duty from the legislature and placing it in the ward precinct. These ques- · are of such vast importance that they overshadow all of political cry of corruption in legislatures. Is corruption likely to exist in a legislative body than it is in the precincts of a State?

Mr. CHAMBERLAIN. Mr. President-- The PRESIDING OFFICER (1\lr. JONES in the chair). Will Senator from Idaho yield to the Senator from Oregon?