July 5, 1909 (2)

Mr. President-­

Mr. CL.APP. Mr. President--

The VICE-PRESIDENT. Does the Senator yield to the Senator from Ida:ho or to the Senator from Minnesota?

Mr. CL.APP. Just one question. -

The VICE-PRESIDENT. Does the Senator yield; and if so,

Mr. BROWN. I yield to the Senator from Minnesota . ·

Mr. CLAPP. I hardly think it is just the proper thing for a Senator to say that those who favor this amendment will vote according to his view and those who are opposed to it will vote another way.

Mr. BROWN. 0 Mr. President, I did not say that, or intend to say that, at all.

Mr. CLAPP. I thought the Senator did not intend to say it.

Mr. BEVERIDGE. Mr. President--

The VICE-PRESIDENT. Does the Senator from Nebraska now yield to the Senator from Idaho?

Mr. BROWN. I yield.

Mr. BORAH. Mr. President, I do not know upon what prin­ ciple the Senator from Nebraska suggests that in case the legislature refuses to call a convention the people can not of themselves come together and ratify the amendment.

Mr. BROWN. I have not said that; but how are they going to select each other as delegates except as the state legislature may provide? How are they going to name their delegates? Who is going to pass on their credentials? Why go out in a field of that kind, that no mortal man has ever suggested before, when we have the plain method proposed in the Constitution and followed in the joint resolution now pending?

Mr. BACON. I will suggest that the State of California came into the Union under a constitution framed by a convention called exac t ly that way.

Mr. BROWN . That is a very different proposition.

Mr. BORAH. That is the basic principle of a republican form of government, and there is no authority in law or elsewhere for saying that the people can not come together unless the legislature says they may do so.

Mr. BROWN. Is there anything unrepublican about following the method the Constitution says we can follow and referring to the legislatures of the country the question whether or not the Federal Constitution shall be amended? This is the first time I have heard it suggested that it is unrepublican to submit an amendment to a state legislature for ratification, when the fact remains that every amendment we have was adopted in that very way.

Mr. BEVERIDGE and l\fr. GORE addressed the Chair .

The VICE-PRESIDENT. To whom does the Senator from Nebra s ka yield?

l\fr. BROWN. I yield to the Senator from Indiana.

Mr. BEVERIDGE. Referring to the remark of the Senator from Minnesota, I understood, and wish to now ask the Senator from Nebr a ska if that is a correct understanding, that under the amendment of the Senator from Texas, proposing to submit this matter to convention , two- processes are involved instead of one, as is the case with the proposition of the Senator from Nebraska, and that of those two processes one is precisely the same that is now objected to? . It is said that cert a in influences may prevent the legislature from acting favorably. But, as the Senator from Mississippi pointed out a moment ago, those same influences would certainly be equally potent in preventing the legislature from . calling a convention, in addition to which they would have the other arguments about economy, and so forth, that are used with such effe c t. Therefore, if I understand the position of the Senator from Nebraska, which seems to me to be essentially sound, and particularly and uncommonly clear, it is this: In submitting this amendment, which we all hope to have adopted-and i think I can, without any improper assumption, predict that at least in one State that I know of the legislature will adopt itunder the proposition of the Senator from Nebraska [Mr. BROWN] we only have one process to go through with one danger to face, one difficulty to overcome, whereas, under the convention proposition of the Senator from Texas [Ur. BAILEY] we have two dangers to overcome and two difficulties to sur­

Mr. BORAH. Mr. President--

Mr. BEVE,'RIDGE. Wait a minute-and that both propositions involve precisely the same matter-that is, the legisla· ture-of which complaint is made. In other words, to boil it down to a sentence, the amendment of the Senator from Texas [Mr . BAILEY] makes it doubly difficult to get this amendment ratified, because two processes instead of one process must be gone through; and of these two processes one process is untried .

The VICE-PRESIDENT. Will the Senator from Nebraska yield in order to permit the Senator from Idaho to make an inquiry of the Senator from Indiana?

1\lr. BROWN. Yes.

1\lr. BORAH. The two processes the Senator refers to are the legislature and the convention?

Mr. BEVERIDGE. Yes.

Mr. BORAH. Upon what theory does the Senator from In­ order. diana insist that we must necessarily have the legislature?

Mr. BEVERIDGE. Until the Senator arose a moment ago, I had not heard any person suggest that the machinery for the calling of a convention would simply create itself out of airtha t the people would simply get together somehow or other, without order, authority, or law. And this, too, in so solemn a proceeding as the amending of the Constitution of the Nation. If the people got together, certainly all the people would not get together. Under what authority of law would they get together? You can not .assume-

1\Ir. BORAH. But--

1\fr. BEVERIDGE. Pardon me; the Senator asked me a question. You can not a sume that all of the people of the State are going to · be for this action. If not all, then by what method will you get them together? If all, still by what method? Are they to ha-ve a general meeting? If so, who will call it? Who will be delegates? Who would determine the credentials? Where would it meet? Would we have a town meeting in every town, resolving that on such and such a day the people would select certain -delegates? How would they be selected?

Mr. BORAH. Mr. President--

1\fr. BEVERIDGE. And · that, too, in so grave a thing as an amendment to the Constitution of the United States! I have never in my life been more heartily for a thing than I am for this amendment to the Constitution, giving to the Congress of · the United States the power that it ought to have of levying this tax in case of an emergency. This whole business involves a much deeper question than any of those taxes-it involves the question of orderly liberty; and, to my mind, orderly liberty is the largest . question in this whole extraordinary tax matter.

Why should we adopt the convention method that has been 'Suggested here, with the result of crossing two · streams when, · under the method of the Senator from Nebraska, which is the usual one, the historic one, and the one laid down in the Constitution itself as a preference, only one stream must be crossed? If you take the former course, you multiply by 100 per cent the difficulties in the way of getting this amendment to the Constitution of the United States giving the Government the power it ought to have.

.Mr . GORE. Mr. President--

The VICE-PRESIDENT. Does the Senator from Nebraska and a comma. yield to the Senator from Oklahoma?

Mr. BROWN. I yield to the Senator from Oklahoma.

Mr. GORE. Mr. President, I wish to · propound a question to the Senator from Idaho and the Senator from Texas. l\fy vote may possibly depend upon their answer.

In a general way I prefer the convention plan, because in the selection of delegates to a -convention this would be the only issue, dissociated from n. hundred legislati've questions-the selection of United States Senators, and other extraneous matters. But, as I understand, this amendment will pend indefinitely, and can be made the issue in the selection of a dozen legislatures until one is finally chosen that will ratify the amendment. If one convention should be called and should act adversely upon the amendment, is it the opinion of the Senators I have named that the legislature .could properly summon another conv.ention to pass on the same i ue? '

The VICE-PRESIDE.:. TT . The hour of 1 o'clock has arrived. The question is on agreeing to the resolution offered by the Senator from Nebraska [Mr. BROWN].

Mr. BAILEY. I should like to have-

The VICE-PRESIDENT. No · further debate is in order under the order of the Senate. To the joint resolution th~ Senator from Kansas [l\Ir. BRISTOW] first suggested an amendment, upon which the Senator from Rhode Island [Mr. .ALDRICH~ raised the question that the amendment wa:s not in order under the special rule adopted by the Senate. The Chair sustains the point of order, and holds that the amendment is "nay." not in order under the agreement. The question now is on the first amendment offered by the Senator . from Texas [Mr. B.A.ILEY].

.J\Ir. LA FOLLETTE. Will the Chair indulge the Senate by having reported the order under which we are now proceeding?

The VICE-PRESIDENT. Without objection, the Secretary will report the order.

Mr. BEVERIDGE. Mr. President, I should have asked to have it reported myself, but, as a matter of fact, under the agreement--

The VICE-PRESIDENT. Is there objection? .

l\.h~ BEVERIDGE. I have no objection myself; but we must have some rules of procedure.

The VICE-PRESIDENT. The Secretary will report the The Secretary read as follows :

It ls agreed by unanimous consent that at 1 o'clock p. m., Monday, J'uly 5, 1909, the Senate shall proceed to vote, without debate, upon Senate joint resolution No. 40, "Proposing an amendment to the Constitution of the United States," and upon all amendments pending or to be propcsed thereto.

The VICE-PRESIDENT. The Secretary will report the first amendment offered by the Senator from Texas [Mr. BAILEY].

Mr. BRISTOW. May I ask the ruling upon my amendment?

Mr. ALDRICH and others. Let us have the regular order.

The VICE-PRESIDENT. The Chair has ruled that the amendment is not in order under the rule the Senate has provided for this procedure, to wit: The Senate has determined by its action that it will consider the amendment offered by the Senator from Nebraska [1\1r. BROWN] relating to amending the Constitution and referring to the income tax. The amendment of the Senator from Kansas relates to an entirely different matter.

l\1r. STOl\TE. No; the question is-­

Several SENATORS. Regular order!

The VICE-PRESIDENT. The Chair has ruled, and unless there is--

:Mr . STOl\TE. I rise to a question of order.

The VICE-PRESIDENT. The Senator will . state it.

l\fr. STONE. The Chair stated that the question was upon the resolution offered by the .Senator from Nebraska, under the order just read.

The VICE-PRESIDENT. And the amendments thereto which are in order.

l\fr. STO:NE. But the order just read says that we shall vote upon resolution No. 40, which is the resolution proposed by the Finance Committee. ..- "' . -1

Mr. ALDRICH. That is a technical matter.

The VICE-PRESIDENT. If the Chair made a misstatement in that regard everyone understands what is meant. Senate joint resolution No. 40 is the one the Senate is now considering. The Secretary will report the first amendment offered by the Senator from Texas.

The SECRET.Alff. In line 5, strike out the word " legislatures " and insert the word " conventions." In line 9, after the word " incomes " and the comma, insert " and may grade the same " Mr. McCUMBER. I should like to have those matters divided so that we can vote on them separately.

The VICE-PRESIDENT. Without objection, that will be done. The Senator from Texas, as the Chair understands, asks for the yeas and nays upon each amendment.

l\1r. BAILEY. Yes.

The yeas and nays were ordered.

The VICE-PRESIDENT. The question is on the first amendment · of the Senator from Texas.

l\Ir. CULBERSON. Mr. President, I ha-ve been absent from the Senate, and I a k that the first amendment be reported.

The VICE-PRESIDENT. Without objection, the Secretary will report the amendment.

The SECRETARY. In Senate joint resolution No. 4.0, line 5, strike out the word "legislatures" and insert the word "conventions."

The VICE-PRESIDENT. The Secretary will call the roll. The Secret.ary proceeded to call the roll.

Mr. DILLINGHAM (when his name was called). I have a general pair with the senior Senator from South Carolina [Mr. T:r:u:;MA.N], who is absent. I transfer that to the senior Sen.ator from Maine [1\1r. HALE], and vote "nay."

Mr . GUGGENHEIM (when his name was called). I have a general pair with the senior Senator from Kentucky [Mr. PAYNTER], who is detained by illness. I transfer that to the senior Senator from Washington [Mr. PILEs], and vote Mr. McLAURIN (when his name was called). I run paired with the junior Sen.ator from Michigan [Mr. SMITH]. If he were present, I should vote " yea."

l\Ir. JONES (when Mr. Pres’s name was called) . . My colleague is absent from the city on important business. If he were present, I am not prepared to say how he would vote on this amendment.

:Mr. TAYLOR (when his name was called). I am paired with the junior Senator from Connecticut [l\fr. BRANDEGEE] questions except this one. I vote " yea."

The roll call was concluded.

Mr. BACON. I desire to announce that my colleague [Mr. ordered on that amendment. CLAY] is necessarily absent. If he were present, he would vote "yea." He is paired with the . senior Senator from l\fassachu ­ etts [Mr. LODGE], who, I presume, if present, would vote Mr. BANKHEAD. I am paired with the junior Senator from Illinois [l\fr. LoBIMER]. I transfer that pair to the junior Senator from Maryland [Mr. SMITH], and vote "yea."

Mr. SCOTT. My colleague [.Mr. ELKINS] is unavoidably detained from the city to-day . I am not prepared to say how he amendment. would vote if he were here.

Mr. BAILEY. I am paired with the S enat or from West Virginia [Mr. ELKINS], and if it would make any diff e rence in the result of this vote I should of course fe el compelled to withdraw my vote . But as it does not make any difference in the result, I shall let my vote stand.

l\Ir. HEYBURN. I should like to . make a parliamentary inquiry.

The VICE-PRESIDENT. The Senator will state it.

Mr. HEYBURN. Should pairs count on a vote . of this kind, amendment. which requires a majority of two-thirds? It seems to me this is an exception to the rule.

The VICE-PRESIDENT . . The question of pairs is not for the Chair to determine. ·

Mr. BACON. A majority of two-thirds is not required in the case of an amendment.

Mr. MONEY . I b e lieve it has been ruled repeatedly that in the intermediate . ediate stages of an amendment to the Constitution only a majority is requi ite.

The VICE-PRESIDENT. The Chair thinks that is so, but to objection. that was not the question that was asked of the Chair .

Mr. GALLINGER. Let us have the regular order.

The VICE-PRESIDENT. The question asked of the Chair was whether pairs should count. The Chair understands it is not for the Chair to determine whether a pair shall" or shall not stand.

Mr. MO:NEY. The Chair is right about that. It is a matter of agreement between two Senators whether the pair stands or not; and that agreement is not liable to be reviewed by any other party.

The result was announced-yeas 30, nays 46-as follows:

YEl.A.S-30.

Bacon Cummins Jones Shively Bailey Davis La . Follette Simmons Bankhead Fletcher 1\lcEn e ry Smith, S. C. Borah Foster Money Stone Bristow Frazier New lands Taliaferro Chamberlain Gore Overman Taylor Clapp Hughes Owen Culberson John ton, Ala. Rayner

N.A.YS-46.

Aldrich Crane Gallinger Penrose Beveridge Crawford Gamble Pei· kins Bourne Cullom Guggenheim Root Bradley Curtis Heyburn Scott Briggs Daniel Johnson, N. Dak. Smo o t Brown Depew Kean Stephenson Burkett Dick Mccumber Sutherland Burnham Dillingham Martin Warner Burrows Dixon Nelson Warren Burton du Pont Nixon Wetmore Carter Flint Oliver Clark, Wyo. Frye Page

NOT VOTING-16.

Brandegee . Dolliver Lorimer Richardson Bulkeley Elkins McLaurin Smith, M~. Clarke, Ark. Hale Paynter Smith, Mich. Clay Lodge Piles Tillman

So Mr. BAILEY'S first amendment was rejected.

The VICE-PRESIDENT. The Secretary will report the next amendment offered by the Senator from Texas.

The SECRETARY. In line 9, after the word " incomes " and the comma, insert the words " and may grade the same " and a comma.

The VICE-PRESIDENT. The question is on agreeing to that amendment.

l\fr. BAILEY. Mr. President, I am satisfied that this amendment will be voted down; and voting it down would warrant the Supreme Court in hereafter saying that a proposition to authorize Congress to levy a graduated income tax was rejected. And although I do not believe it would be rejected upon any except a rather blind political reason--

Mr. HEYBURN. I call for the regular order.

Mr . RULEY. I do not intend to allow that to occur, and I withdraw the amendment.

The VICE-PRESIDENT. The Senator can not withdraw his on all amendment except by unanimous consent after the yeas and nays have been ordered.

l\fr. BAILEY . I did not know the yeas and nays had been

The VICE-PltESIDE:N'l'. They have.

l\Ir. BAILEY. I think not.

Mr. ALDRICH. I think there will be no objection to that course, l\Ir. President.

The VICE-PRESIDE ~T . The Chair so under tood. Ilow· ever, it is very easy to solve the difficulty. Is there obje c tion to the Senator from Texas withdrawing his amendment? The Chair hears none . The Senator from Texas withdraws his The question now is upon the amendment offered by the Senator from Mississippi [Mr. McLaurin], which the Secretary will again report.

The SEc°RETA.RY. Amend the joint resolution by striking out all after line 7 and inserting the following:

The words " and direct taxes," in clause 3, section 2, Article I, and the words " or oth e r direct,” " in clause 4 , section 9, Article I, of tlie Constitution of the United States are hereby stricken out.

The VICE-PRESIDENT . The question is on agreeing to the T~~endm~~s~~~ .

Mr. BRISTOW. I desire to offer as a substitute !or the joint resolution the matter which I send to the de k.

The VICE-PRESIDENT. The Senator from Kansas offers the following substitute for the joint resolution.

The SECRETARY. Joint re olution offered by Mr. BRISTOW as a substitute for Senate joint resolution No . 39, Sixty-first Congress, first session.

Mr. ALDRICH. I a k that th e substitute be r ea d, subject The Secretary read as follow . :

Joint resolution off e red by Ur. BRISTOW as a substitute for Senate joint resolution No. 39, Sixty-first Congress, first session.

Joint resolution to amend the Constitution.

Resol ved, by the Senate and House of R e pr esen tat ives of th e United States of America in Congr e ss assembled (two-thirds of each House concurring th e1·ei n), That the following section be submitted to the legislatures of the several States, which, when ra tifie d by the le g islatur es of three-fourths of the States, shall be valid and binding as a part of the Constitution of the United States:

"The Congress shall have power to lay and collect direct taxes on income s without apportionment among the several States according to population."

That section 3 of Article I be so amended that the same shall be as follows:

"ARTICLE I.

"SEC . 3. That the Senate of the United States shall be composed of two Senators from each State, who shall be chosen by a direct vote of the people of the several States, for six years; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the state legislatures; and each Senator shall have one vote."

Mr . ALDRICH. I make the same point of order in relation to that amendment.

The VICE-PRESIDENT. The joint resolution is not offered as an amendment to anything that is pending.

Mr. ALDR)CH. It is not offer~d?

The VICE-PRESIDENT. It is not offered as an amendment to the pending joint resolution.

Mr. ALDRICH. Then, I object to its presentation . .

The VICE-PRESIDENT. It is not in or de r.

l\fr. BRISTOW. I offer it as a substitute for !he pending joint resolution.

The VICE-PRESIDENT. But the joint resolution expressly says that it is offered ns a substitute for joint resolution No.39.

l\1r. BRISTOW. This is No. 39 7

·The VICE-PRESIDENT. It is not.

Mr. ALDRICH and l\fr. GALLINGER . . Regular order!

Mr. BEVERIDGE. Let us have the regular order.

Mr. BRISTOW. l\fay I ask what is the number of the pend· ing joint resolution?

The VICE-PRESIDENT. No. 40.

:Mr. BRISTOW. I ask to change the substitute to No. 40 in• stead of No. 39 .

The VICE-PRESIDENT. The change will be made .

Mr. ALDRICH. I make the point of order against it.

Mr. BRISTOW. What is the point of order?

l\fr. ALDRICH. I make · the point of order that it covers matters not included in the agreement, and tllat under that agreement-- . The VICE-PRESIDENT . The Chair sustains . ins the point of order.

- l\Ir. BRISTOW . I appeal from the decision of the Chair.

· The VICE-PRESIDENT. The Senator from Kansas appeals from the decision of the Chair . The question i s , Shall the deci ion of the Chair stand as the judgment of the Senate? [Putting the question.] The ayes appear to have it. The ayes have it. The de c i s ion of t he Chair is sustained.

If there be no further amendment to be offered to the joint re olution, it will be reported to the Senate.

The joint resolution was reported to the Senate without am e ndment, ordered to · be engrossed for a third reading, and was read the third time.

The VICE-PRESIDENT. The question is, Shall the joint resolution pass? The Secretary will call the roll.

The Secretary proceeded to call the roll.

Mr. BANKHEAD (when his name was called). I am paired with the junior Senator from Illinois [Mr . LORIMER]. I transfer that pair to th e junior Senator from Maryland [Mr. SMITH], and vote "yea . "

Mr. BACON (when l\fr. CLAY'S name was called). I again for other purposes . announce that my colleague [Mr. CLAY] is necessarily absent. If h e were present, he would vote" yea." He is paired with the senior Senator from Ma sachusetts [Mr. LonGE], who I presume w o uld also vote "yea," if present.

l\lr. DILLINGHAM (when his name was called). I have a g e neral pair with the senior Senator from South Carolina [l\Ir. TILLM A N]. .

l\fr. BAILEY. If the Senator from South Carolina [Mr. MAN] were present , he would vote " ye a ." If the Senator from Vermont votes the same w a y, he is at liberty to vote.

l\Ir . DILLINGHAM. Being thus released, I vote "yea."

l\Ir. SCO'.r'r (when Mr. ELmNs's name was called). I repeat the statement I made a few moments ago. My colleague [Mr. ELKINS] is absent from the city;

l\Ir. GUGGENHEIM (when his name was called). I make the same announcement I did on the previous vote, and vote

Mr. JONES (Yvh e n l\Ir. PILEs's name was called). l\fy colleague [l\!r. PIL ES ] . is necessarily absent. If he were present, he would vo t e " yea."

. Mr. DU PONT (when l\Ir. RICHARDSON'S name was called). l\Iy colleague [Mr. RICHARDSON] is absent from the city. If he tee have agreed to it . were present, he would vote " yea."

The roll call was concluded.

l\fr. BAILEY. The Senator from Kentucky [Mr. p A.YNTER] is sick and detained from the Senate. If he were present, he would vote "yea." The Senator from Colorado [Mr. G U GGENH E IM] need not therefore transfer his pair unless it suits him.

Mr. DAVIS. I desire to announce that my colleague [Mr. CLARKE of Arkansas] is necessarily detained on account of the critical illness of his son . If he were present , he would vote Mr. B U RROWS. A dispatch just received from my colleague [l\fr. SMITH of Michigan] states that he is unavoidably absent, and if present he would vote for the joint resolution.

The result was announced-yeas 77, nays 0, as follows _ :

YEAS-77.

Aldrich C1·awford Gug g enheim Penrose Bacon Culberson H e y b urn Perkins

Cullom llughes Rayner

~~~ :h ead Cummins Johnson, N. Dak . Root . B eve ridge Curti s Johnston, Ala. Scott B o- r a h Daniel Jones Shively Bourne Davis Kean Simmons Br a dley Depew La Foll e tte Smith, S. C. Bri gg s Di c k Mc c umber Smoot Bri s t o w Dillin g ham McEn e r y Stephenson Brown D ixon McLaurin Ston e Burkett du Pont Martin Sutherland Burnham Fle tc her M o ney ~raliaferro BUlTOWS Plint Nelson Taylor Burton Fo s ter New l a nds Warner Cart e r Frazi e r Nixon Warren C hamberlain Fry e Oliv e r Wetmore C l a pp Galling- e r Overman Cla1·k, Wyo. Gambl e Ow e n Crane Gore Pa g e

NOT VOTING-15.

Brand e gee Dolliver Lorimer Smith, Md. - Bulkeley Elkins Paynter Smith, Mich. Clarke, Ark. Hale Piles Tillman Clay Lo!l g e . Richardson

So the joint resolution was passed, two-thirds of the Senators present having yoted in favor thereof.