CONGRESSIONAL RECORD-SENATE. 1\Larch 26

$CONGRESSIONAL RECORD-SENATE. 1\Larch 26$

3938 CONGRESSIONAL RECORD-SENATE. 1\lARCH 26,

Also, petition of New York Chapter American Institute of of the term of six years, beginning on the 4th day of March, 1903, to fill the vacancy caused by the decease of Hon. William Pinkney Whyte. Architects, for pre~ent site of the Grant Memorial-to the Com- Witness his excellency our governor and our seal hereto affixed at mittee on the Library. . Annapolis this 25th day of March, in year of our Lord 1908. Also, petition of American Wme Growers' Association, against AUSTIN L. CROTHERS. the Littlefield original-package bill-to the Committee on the By the Governor: (~EAL.] N. WI:::-.SLOW WILLI..U.IS, Judiciary. SecretanJ of State. Al o, petition of Trades League of Philadelphia, Pa., favor ing H. R. 616D and 7597-to the Committee on Interstate and Mr. RAYNER. Mr. President, the Senator-elect being pres Foreign Commerce. ent, I ask that he be sworn. Al o, petition of sundry citizens of New York, for the Justice Mr. BURROWS. Mr. President, I am constrained to object currency bill-to the Committee on Banking and Currency. to the oath of office being administered to Mr. Smith under the AI o, petition of Citizens' Supply Company, of Columbus, Ohio, circumstances of this case. I do not think his election by the against H. R. 171 and 172, relative to drugs under pure-food legislature of the State of Maryland is in accordance with the act-to the Committee on Interstate and Foreign Commerce. Constitution and laws of the United States. The Federal Con By Mr. SABATH: Petition of Travelers' Goods and Leather stitution, Article I, section 4, provides that- The times, places, and manner of holding elections for Senators and Novelty Workers, against prohibition legislation-to the Com Representatives shall be prescribed in each State by the legislature mittee on the Judiciary. thereof; but the Congress may at any time by law make or alter such Also, petition of Chicago Architectural Club, favoring present regulations, except as to the places of choosing Senators. site of Grant 1\Iemorial-to the Committee on the Library. Exercising its prerogative under that provision of the Con By Mr. SULZER: Petition of citizens of New York, in favor stitution the Congress on the 25th of July, 1866, passed the of Kittredge bill-to the Committee on Patents. following act : By Mr. TffillELL: Petition of Hudson (Mass.) Grange and REVISED STATUTES, TITLE II, CJI.A..PTER I-ELECTION OF SE:YATORS. Gardner Grange, favoring a national highway commission-to SEc. 14. The legislature of each State which is chosen next preced the Committee on Agriculture. ing the expiration of the time for which any Senator was elected td represent such State in Congress shall, on the second Tuesday after By l\Ir. THOMAS of Ohio: Petition of F. Z. Harrington and the meeting and organization thereof, proceed to elect a Senator in other , for a national highway commission-to the Committee Congress. on Agriculture. SEC. 15. Such election shall be conducted in the following manner : By Mr. WANGER: Petition of Saratoga Grange, No. 25, Each house shall openly, by a viva voce vote of each member present, name one person for Senator . in Congress from such State, and the Patrons of Husbandry, for S. 3152, additional protection to name of the person so voted for, who receives a majority of the whole dairy interests-to the Committee on Agriculture. number of votes cast in each house, shall be entered on the journal of that house by the clerk or secretary thereof ; or' if either house fails to Also, petition of S. H. Dotterer Subdivision, No. 166, Brother give such majority to any person on that day, the fact shall be entered hood of Locomoti\e Engineers, of Carbondale, Pa., for S. 4260 on the journal. At 12 o'clock meridian of the day following that on and 5307 and H. R. 17036 and 17137--=-to the Committee on Inter which proceedings are required to take place as aforesaid, the members stute and Foreign Commerce. of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person has received a By Mr. WILEY: Paper to accompany bill for relief of Ben majority of all the votes in each house, he shall be declared duly elected de Lemos (previously referred to the Committee on Invalid Senator. But if the same person has not received a majority of the Pensions).:._to the Committee on Pensions. votes in each house, or if eithel." house has failed to take proceedings as required by th.is section, the joint assembly shall then proceed to choose, by a viva voce of. each member present, . a person for Sena tor, and the person who receive a majority of all the votes of the joint SENATE. assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected. If no person re ceives such majority on the first day, the joint assembly shall meet at THURSDAY, March 26, 1908. 12 o'clock merid.ian of each succeeding day during the session of the legislature, and shall take at least one vote, until a Senator is elected. Prayer by the Ch.aplain, Rev. Enw.A.B.D E. lLu.E. SEc. 16. Whenever on .the meeting of the le"'islature of any State a The Secretary proceeded to read the Journal of yesterday's vacancy exists in the representation of such State in the Senate, the proceedings, when, on request of 1\lr. CULBERSON, and by unani legislature shall proceed, on the second Tuesday after meeting and organization, to elect a person to fill such vacancy, in the manner pre mous consent, the further reading was dispensed with. scribed in the preceding section for the election-of a Senator for a full The VICE-PRESIDENT. The Journal stands approved. term. SEC. 17. Whenever during the session of the legislature of any State SENATOR FROM MARYLAND. a vacancy occurs in the representation of such State in the ~enate, similar. proceedings to fill such vacancy shall be had on the JSecond Mr. RAYNER. Mr. President, I present the credentials of Tuesday after the legislature has organized and has notice of such Hon. John Walter Smith, Senator-elect from the State of Mary vacancy. land . . I ask that they be read and ·filed, and, the Senator-elect The constitutionality of this act has been passed upon by the being present, I ask that he be sworn after the reading of the Supreme Court of the United States and sustained. credentials. It will be observed that this act prescribes the method of The VICE-PRESIDENT. The Senator from Maryland pre procedure for the election of a Senator under three different sents the credentials of the Senator-elect from Maryland, which conditions: First, at the beginning of a full term; second, for will be read. filling a vacancy which happens during a recess of the legisla 1\Ir. KEAN. Mr. President, I suggest the absence of a ture; and, third, for filling a vacancy happening when the legis, quorum. lature is in session. The VICE-PRESIDE1'lT. The absence of a quorum is sug The case now before the Senate arises under section 17 of gested. The Secretary will call the roll. this act, which is as follows: The Secretary called the roll, and the following Senators SEC. 17. Whenever, during the session of the legislature of any State, answered to their names : a vacancy occurs in the representation of such State in , the Senate, Aldrich Curtis Guggenheim Perkins similar proceedings to fill such vacancy shall he had on the second Allison Depew Heyburn Platt Tuesday after the legislature has organized and has notice of such Bankhead Dick Hopkins Rayner vacancy. · Borah Dillingham J'ohnston Richardson The Senate will observe that the proceedings for the election Brandegee Dolliver Kean Simmons of a Senator at the beginning of a term are as follow~ : Brown du Pont Knox Smith Bulkeley Flint Lodge Smoot The legislature of each State which is chosen next preceding the ex Burkett Foraker Long Stephenson piration of the time for which any Senator was elected to· represent Burnham Foster McCreary Sutherland such State in Congr<'SS shall, on the second Tuesday after the meeting Burrows Frazier McEnery Taylor and organization thereof, proceed to elect a Senator in Congress. Clay Frye McLaurin Teller Section 17 modifies the general course of procedure only in. Crane Gallinger Nelson Warner Culberson Gamble Overman Warren providing that the legislature shall proceed on the second Tues Cullom Gary Paynter Wetmore day after the legislature has organized and has notice of such The VICE-PRESIDENT. Fifty-six: Senators have answered vacancy. to their names. A quorum of the Senate is present. The Sec It appears from the certificate presented and the records or' retary will read the credentials presented by the Senator from the Senate that this election on the 25th day of 1\larch was not l\Iary land. the second Tuesday after the organization of the legislature The Secretary read as follows : ~oo@~oo~~~G~ · 'J;'HE STATE OF MARYLAND, 1\Ir. OVERMAN. I should like to inquire from the Senator EXECUTIVE DEPAnTMENT. what ls the section of the act he is reading from? To the .President ot the Senate of the United States: Mr. BURROWS. Sections 16 and 17 of the Revised Stah1tes, This is to certify that on the 25th day of March, 1908, John commencing with section 14. Walter Smith was, in accordance with law, duly chosen by the legisla ture of the State of Maryland a Senator from said State to represent It seems from these credentials and from the records of the said State in the Senate of the United States for the unexpired portion Senate that this election did not occur on the second Tuesday 1908. CONGRESSIONAL RECORD-SENATE. 3939

after notification of the Yacancy. If I understand my friend 1\Ir. CULBERSON. I presume that if the Senator stands the Senator from Maryland, it is conceded that this is true and upon one of the rulings in that case he would stand upon the that there is no controversy over that matter. · others. I call his attention therefore to the fact that Senator Mr. RAYNER. 1\Ir. President-- Dubois in that case was sworn; and the proposition now is an The VICE-PRESIDENT. Does the Senator .from Michigan objection on the part of the Senator n·om ·Michigan to the oath yield to the Senator from Maryland? of office being administered to the Senator-elect from 1\iery 1\Ir. BURROWS. Certainly. land. Mr. RAYNER. The Senator from Michigan will understand Mr. BURROWS. The controversy in that case, let me say to that I do not concede for a moment that it was not the second the Senator, was over the question whether the organization Tuesday. That is one of the numerous points that I will be was a temporary organization or a permanent organization and able to present to the Senate. whether a temporary organization was a compliance with the l\Ir. BURROWS. I am unable to hear the Senator. statute. 1\Ir. UAYNER. I say that I can not concede that it was not Mr. RAYNER. May I ask the Senator what page of the the second Tuesday. I shall contend that it was the second volume he reads n·om? Tuesday, and I do not want the Senator to understand .that I 1\Ir. BURROWS. Page 787. admit any fact at all. It is a question of law. I Will un Mr. CULBERSON. If the Senator will pardon me, I call doubtedly admit that Senator Whyte died, becaus~ I an his attention to the syllabus, which says: nounced his death in the Senate. Senator Whyte died at 7 Objection was made, and the matter went over until the following o'clock last Tuesday a week. The two houses met on Tuesday day, when Mr. Dubois was sworn. separately, under the sections here, and on Wednesday, yes terday, they met in joint convention and declared Senator The Senator reads from this case as authority upon another Smith elected. I will undoubtedly concede the death of Sena proposition, which will be met in due time, I take it. I ask tor Whyte at the time it took place, but I will not concede him if he is not willing to -submit to the same authority and that the Tuesday upon which proceedings wer.e commence_

and when they come to notice there is no word there that two when the election was proper, when the credentials are proper, Tuesd~ys must have elapsed after notice was given, unless you and there is no contest, and not a single protest against the .interpolate into the body of the section, as I have said, the seating of its representative. words " and on the second Tuesday after the legislature has On page 698 the same question arises-:-Is the statute manda notice." There are no such words in the body of that section, tory or is it directory? This was the committee of which l\Ir. and Congress never meant so to legislate. That is my first point, Hoar was chairman at the time. Tills was in the electi(}n case, which, I think, settles this controversy. as I have said, of Elbridge G. Lapham and Warner Miller. But I have other points that I shall pass through in rapid suc Th& memorials set forth five reasons as grounds why these gentlemen cession which I think will appeal to gentlemen of our profes should not be allowed to sit here. sion on this floor who are accustomed to give opinions upon Mr. BURROWS. From what page is the Senator from 1\fary~ statutory construction. It is a question we must carefully ex land reading? amine into. You can not give an opinion about it simply . by Mr. RAYNER. I am reading from the third or fourth para· reading this section and taking it according to its strict phrase graph on page 698 of this volume. ology. Even taking it that way, however, there is nothing here This should end it, I think, upon this floor if the first case which says that two Tuesdays must elapse before notice. does not. Now, let me come to the second point. I want the attention This report states : of the Senator from Michigan. These sections are only di The memorials set forth five reasons as grounds why these gentlemen rectory, not mandatory; that is to say, the legislature can not should not be allowed to sit here. The first alleges that the legislature proceed before the second Tuesday, but it can proceed after did not proceed in separate bodies to vote upon the question until the third Tuesday after notice of the vacancy was communicated by the wards. The Senate has so decided upon two separate occa governor. The facts are such as to . create some controversy as to sions and I will gi\e you the precedents. If the legislature did whether they did proceed on the second Tuesday or the third Tuesday not proceed at all on the second Tuesday and proceeded on the after the notice; bnt, in any view, the committee are unanimously of third Tuesday the election would be perfectly good. I invite the the opinion that the legislature was not deprived of its constitutional attention of the Senator from Michigan to these propositions of right to elect Senators to this body. law-- • Now, if those two decisions are law and bind the Senate, the Mr. BURROWS. I am listening. legislature is not bound by the provision of the statute which l\Ir. RAYNER. Because, I repeat, this section is only di says the second Tuesday, but can proceed upon the third Tues rectory; and if the legislature of Maryland had proceeded on day. Of course if they can proceed upon the third Tuesday, the third Tuesday or the fourth Tuesday or the fifth Tuesday they can proceed upon the fourth Tuesday or the fifth Tues the election would be perfectly good, and this Senate has so day, or upon any Tuesday upon which the legislature sits, or determined. I will give you the cases upon that point. upon any day subsequent to the second Tuesday after organiza· I refer now to the decision in the Hart case, which yon will tion. find on page 379 of the Senate Election Cases. You must ·where is there any law that you must give a mandatorY. draw the distinction between what is mandatory in a statute construction to this provision of the statute which by only an and what is directory. Time is generally directory. On page interpolation can be made to read that two Tuesdays must 379 will be found the case of Ossian B. Hart v. Abijah Gil elapse after the notice is given? bert. I presume we had then as good a Committee on Privi These cases are much weaker cases than the case I now pre leges and Elections as we ever had in this body. There were sent, because, as I hav~ said over and over again, there is then upon that committee Mr. Trumbull, who wa.s its chair nothing in the statute whatever-not a word-that any Tues man; Mr. Edmunds was on the committee; Mr. Conkling was day shall elapse after notice is given; but it simply uses the on the committee; Mr. Carpenter was on the committee; Mr. words "has notice of such vacancy." The legislature could: Rice and 1\fr. Stewart were also on the committee, and 1\fr. have proceeded upon the night of the notice, in accordance Thurman was on the committee. I presume they gave a very with these decisions, if it had so determined, immediately upon profound and not a passing and superficial examination to the having actual notice of Senator Whyte's death-for the law questions which were involved in this controversy. requires no official notice-it could immediately have proceeded There were three Senators to be elected by the State of Flor to elect another Senator in his place, if these decisions mean ida. Two of. them were elected in accordance with the act of anything. That is my second point. Congress, but in reference to the third Senator, they did not Mr. KNOX. 1\Ir. President-- commence proceedings at all until Thursday. There were no The VICE-PRESIDENT. Does the Senator fro,m Maryland proceedings at all, as directed by the act of 1866, until that day. yield to the Senator from Pennsylvania? There were no proceedings on Tuesday at all; and the unani Mr. RAYNER. I do. mous report of the committee is as follows : l\Ir. KNOX. Before the Senator proceeds to the consideration The legislature by which the sitting member was elected was the of his third proposition, I should like to ask him a question with one chosen next preceding the term which wonld commence on the respect to his second proposition. I only want to ask a ques 4th of 1\Iarch, 1869, and was, therefore, the proper legislature to elect. tion. The two cases which the Senator has cited refer to pro " The second Tuesday after the meeting and organization of the legis lature " was the time prescribed by the act of Congress for initiating ceedings by the legislah1re after the expiration of the second the election of Senators, and that was the time when the legislature Tuesday. Does the Senator have any knowledge of any case proceeded to that business. There being three Senators to elect. it where the legislature undertook to proceed before the expiration took action on that day only in reference to two of them. Did its failure to take action on that day, and the two subsequent days (which of the second Tuesday? Are there any precedents on that line? were occupied in electing the first two Senators), in reference to the Mr. RAYNER. None whatever; and that is my contention. ;j_,~~~~~\~~~ rt'h~~~· ~t election, in all other respects regular, invalid? I contend here that the legislature can not proceed to the elec tion of a Senator until the second Tuesday has expired after its There you have a report ilf a committee, us I have said, com organization, and that is the construction that I put on this posed of Messrs. Trumbull (its chairman), Stewart, Edmunds, section. That is all. If the Senator also finds that there are Conkling, Rice, Carpenter, and Thurman. Some of them were no decisions against that point, it only confirms the proposition in Congress when the law was passed. This is a direct decision for which I am contending. that under this first section the law was only directory. 1\fy contention is that the legislature has no right to proceed There was an election, understand, in Florida for three Sena to the election of a United States Senator until the second Tues tors. Proceedings were initiated in reference to two of them day has expired after its organization, and when that second on Tuesday. Nothing was done in reference to the third Sena Tuesday expires, if no proceedings have. been commenced, under tor on Wednesday, and nothing was done until Thursday; and, the section it can commence the proceedings on any future day. notwithstanding the language which, as I say, upon an entirely That is the decision, as the Senator from Pennsyl\ania will find superficial examination may satisfy anyone that it is manda if he will look into it carefully. I have not read the whole deci tory, nothing was done upon Tuesday, as set forth in the act sion, but that is the decision in Gilbert's case, and that is the of the assembiy; and yet the committee unanimously held that decision in Lapham and Miller's case. Now, I come to another even if the proceedings were initiated on Thursday, instead of point. Tuesday, the Senator was entitled to his seat. Mr. FORAKER. Mr. President-- I have another case right on that point. This first case is The VICE-PRESIDE... ~T. Does the Senator from Maryland conclusi\e, but I have another one right on the same point, and yield to the Senator from Ohio? that is the case of 1\fessrs. Lapham and Miller, found on page Mr. RAYNER. I do. G98 of the same \Olume. If the Senate seeks to make these sec 1\fr. FORAKER. Is it the contention of the Senator that the tions mandatory, the time will come when it will regret it, espe legislature of Maryland, having been organized the requ13ite cially in a case of this kind, with the legislature adjourning, length of time prescribed, could have proceeded the day afte:r it to command the State to call an exh·a session of its legislature received notice to have elected a successor to Senator Whyte?

' 3942 CONGRESSIONAL RECORD-SENATE. MARCH 26,

Mr. RAYNER. Unquestionably, if the second Tuesday had the vote of those two members that Senator Turpie was elected. expired. If the second Tuesday under the statute had expired The Senate committee, again with Mr. Hoar as its chairm~n, and a -vacancy occurred after that second Tuesday, the legisla I think, unanimously held- ture can proceed at any time after ·actual notice to elect a suc- that as to the two members seated by the Senate so organized, the cessor to a deceased Senator. · judgment of the senate of Indiana was conclusive on the Senate of Mr. FORAKER. That is, say, if they receive notice the day the United States, and that the latter body could not inquire into of the death when the vacancy happened they might have pro the motive of the former. ceeded to elect a Senator on that day or the next day or any If the judgment of the senate of Indiana was conclusive upon other day that suited the pleasure of the legislature? the Senate of the United States upon a question whether a Mr. RAYNER. After they have been in session and after Senator was elected-because the question here was whether the second Tuesday had expired, undoubtedly, unquestionably. he was elected by a sufficient number of -votes in the general I should like to ask the Senator from Ohio if they can proceed assembly-how can it be said that the judgment of the State on the third Tuesday, why can they not proceed on the fourth of Maryland as to what constituted the second Tuesday is not or fifth Tuesday? In this case it was perhaps the ninth or conclusive upon the Senate of the United States? tenth Tuesday. This case is followed by the ease-l will not read it, but I Mr. FORAKER. I was not asking the Senator the question will refer it to the chairman of the committee-of Senator in a controversial way, but only to understand the proposition ScoTT, of West Virginia, where the same proposition was de the Senator was advancing. If I understand- the argument of termined, on page 892. the Senator, it is that the second Tuesday must come to pass This brings me, 1\Ir. President, to the last point, and I now after the organization-- submit to the Senate that even if I am wrong on every pro11osi 1\Ir. RAYNER. That is right. tion I have stated, I can not be wrong upon this proposition Mr. FORAKER. But not after notice. which I now address to the Senate. :Mr. RAYNER. That is right. Even if this Tuesday was not the second Tuesday, if the con 1\fr. FORAKER. If the organization has been long enough struction of the Senator from Michigan is a correct construction. prior-- if this statute is mandatory and not directOt-y, if the verdict of 1\Ir. RAYNER. That is my proposition. the Maryland legislature can be set aside by the Senate of the Mr. FORAKER. And that in this case, the legislature having United States, then I contend that upon an unbroken line of been a long time in session, receiving notice of the death of authority, the credentials being in proper form, the Senator has Senator Whyte, might have elected the following day? the right to be sworn in, and the question must go, if at all, to Mr. RAYNER. Yes; that is my proposition, and there is the Committee on PTivileges and Elections after he takes his nothing in the statute against it-not a word. It says " after oath and is seated in this body. I will give the ca es on that notice." It does not say when after notice-not a word. The point, and I think there is no question about it. I ask the Sena Senator from Ohio has had opportunity after opportunity of tor from Michigan to give me a single case where a Senator construing statutes of this sort, and I will guarantee that, if was ever denied the right to be sworn in when his credentials he was on the bench, he would give it such a construction, were proper and were right, or where they were collaterally im and that is exactly what I mean and nothing else, unless you peached, and he was prevented from taking the oath of office. In want to render it absurd and ridiculous upon its face. It all these contested-election cases that went to the Committee means that after the second Tuesday has expired, whenever on Privileges and Elections, where they were controverted and there is notice of death after that second Tuesday, the legis disputed, some of them taking weeks and months for their lature can proceed forthwith, because it does not say two adjudication, the Senator was sworn in, and the controversy Tuesdays must elapse after notice. The only way, as I have took place after he took his seat. In none of them did the Sen said, that it can receive the construction that the Senator ate do what the Senator from Michigan now asks the Senate to from Michigan puts upon it, is by interpolating in the body do, and that is, to send it to the committee, where, perhaps, we of the section the words that " after notice and on the second can not get a decision until after our legislature adjourns next Tuesday after the legislature has notice." He must put those 1\Ionday. words in in order to reach that construction. The first case I will give the Senator is the case of Lamar, l\1r. President, I have finished the first two points. Now I page G34. This question, I respectfully submit, has passed be come to the third point, to which I want to call the attention yond the pale of controversy, even if the Senator from 1\fichi of the Senate. The point is this: The State of Maryland has ga.n is right in his contention. The oath must now be adminis decided that the Tuesday upon which this election was held tered, and if there is any attack upon the proceedings, it must was the second Tuesday, within the meaning of the statute. afterwards be made in the Committee on Privileges and Elec ' They have closed that question, and ·the Senate has no right tions. ·collaterally to impeach the verdict of this legislature. Mr. Lamar was first elected for the term beginning March 4, 1877. These propositions I am depending upon are all distinct one Objection being made March 5, 1877, to the oath of office being ad from another. The legislature of Maryland has decided this ministered to him, his credentials were laid on the table. · matter just precisely as if they had passed an act of assem Then: bly saying that the Tuesday upon which proceedings were com Mr. Wallace submitted the following resolution for consideration: menced was the second Tuesday, because they have elected the "Resolved, That the credentials of L. Q. C. Lamar, Senator-elect from the State of Mississippi, be taken from the table and that he be Senator upon that day, and therefore by his election, so far as sworn." the State of Maryland is concerned, have closed the question Mr. Spencer called for the reading of a report made to the Senate that this Tuesday was the second Tuesday, and the Senate has at the first session of the Forty-fourth Congress, by the Committee on Privileges and Elections, on the subject of recent elections in the State no right to question that adjudication. Now, one moment on of Mississippi. that. There is no answer to that, I apprehend, from anyone Mr. Wallace having objected to the reading of the said report, who has examined the cases. The Vice-President submitted the question to the Senate, Shall the report be read? and it was determined in the negative. Senator Whyte died last Tuesday a week ago at 7 o'clock in The question recurring on the resolution of Mr. Wallace, the evening. Notice was immediately given, because within an On motion by Mr. Spencer to amend the resolution by striking out. hour of his death I will guarantee that every Member of. the in the last line thereof, the words " that he be sworn," and in lieu House and Senate knew of his death. Tuesday had not ex thereof inserting "be referred to the Committee on Privileges and Elec pired. In our State we did not regard the fraction of a day in tions when the committee shall be appointed," - this case. The legislature of Maryland has therefore deter There was the direct question presented to the Senate that is mined by its proceedings that the Tuesday following was the presented now. An attempt was made to impeach the title of second Tuesday. Has the Senate a right to go behind that ad Mr. Lamar as United States Senator. The question before the judication? I think not. Senate that the Senate was called upon to determine was The question was up in the election of Senator Turpie from whether he should be sworn in or whether his certificate should Indiana. I refer that case to the Senator from Michigan. be referred to the Committee on Privileges and Elections. Mr. TELLER. What page? After debate it was determined in the negative-yeas 1, nays 58. Mr. RAYNER. I am trying to find the case now. It is on One Senator voting that the credentials be referred to the page 719. The question in the case of Senator Tm·pie of In Committee on Privileges and Elections and fifty-eight Senators diana was this-and, of course I am not reading all these cases; voting that he be sworn in. I am just giving the purport of them-the claim was made that So it was there were two members of the Senate of Indiana-Senator Resolved, That the credentials of L. Q. C. Lamar, Senator-elect from Turpie having been elected, I think, by a majority of two the State of Mississippi, be taken from the table and that he be sworn. Whereupon that were not entitled to their seats. There were two members The oaths prescribed by law were admini tered to Mr. Lamar by the in the body who ought not to have been there, and it was with Vice-President, and he took his seat in the Senate. 1908. CONGRESSIONAL RECORD-SENATE. 3943

Afterwards the question came up and precisely the same pro 1\Ir. RAYNER. Was he not appointed by the governor? ceedings took place in Senator Morgan's case, on page 636: Mr. LODGE. Certainly; but his credentials were in perfect The Senate resumed the consideration of the resolution yesterday order. submitted by Mr. Bayard, viz: . Mr. RAYNER. There was no question about his appoint "Resoll:e(l, That the credentials of John T. Morgan, Senator-elect from the State of Alabama, be taken from the table, and that he be ment by the governor? sworn." Mr. LODGE. Unquestionably none. On motion by Mr. Spencer, to amend the resolution by striking out, Mr. RAYNER. That is not the question here at all. This in the last line thereof, the words "he be sworn," and in lieu thereof inserting " they be referred to the Committee on Privileges and Elec is no appointment by the governor. As the Senator from tions when appointed," Massachusetts knows, the governor has no right to appoint After debate, it was determined in the negative. in a case where the legislature refuses to elect. The question recurring on the resolution of Mr. Bayard, it was agreed to, as follows : 1\Ir. LODGE. I did not take that view at the time; but "Resol-,;ecl, That the credentials of John T. Morgan, Senator-elect Senator Quay's credentials were absolutely in order, which is from the State of Alabama, be taken from the table, and that he be the only point about swearing in. His credentials were per sworn." 'Vhereupon fectly regular and in order, and he was not sworn in. It is Mr. Morgan appeared at the bar of the Senate, and the oaths pre entirely within the province of the Senate to exclude a Senator scribed by law having been administered to Mr. Morgan by the Vice from being sworn in. President, he took his seat in the Senate. 1\Ir. RAYNER. I must say that that is a very insufficient The same thing took place in the case of Mr. Call, from Flor answer to what I am stating. The credentials certified upon ida. There is no case on record at all where the Senate would their face that Senator Quay was appointed by the governor, decline to seat a Senator when his credentials were perfectly and also showed that the governor had no right to appoint. proper on their face. I will read from 1\ir. Call's case, on page 805: Mr. LODGE. I do not attempt to answer the Senator; I have no desire to do so, but was attempting to get some informa December 7, 1891, R. H. M. Davidson presented the credentials from the governor of Florida desc1·ibed in the following case, at the same tion from him and failed. time a transcript of the proceedings of the two houses of the legisla Mr. RAYNER. The credentials showed on their face that ture of Florida in a joint convention, composed of a majority of the members of the two houses, but not of a majority of the members of each, the governor appointed Senator Quay, and, therefore, the very recording what purported to be the election of Wilkinson Call. Mr. Call credentials upon their face showed that there was a violation presented himself on the same day, claiming the right to take the oath of law, because the governor had no right to appoint. by virtue of the proceedings of that joint convention. l\fr. LODGE. I think this credential shows on its face a On motion by Mr. Hoar, "' grave defect. The Senate proceeded to consider the motion yesterday submitted by l\Ir. RAYNER. What is the mistake, I will ask the Senator him, that the oath of office be administered to Wilkinson Call as a from Massachusetts? The Senator from Michigan has pas ed Senator from the State of Florida; and The motion was agreed to. on those credentials. What is the mistake? He said they were Whereupon in proper form. Mr. Call appeared, and the oath prescribed by law having been ad Mr. LODGE. I think it shows there was error. The Senator ministered to him by the Vice-Presi~ent, he took his seat in the Senate. from Uichigan pointed out-- I want to call the attention of the Senator from Michigan to l\Ir. RAYNER. What is the error? the fact that afterwards, on the motion of Mr. Hoar, it was: Mr. LODGE. That he was not elected on the second Tuesday; Ordered, That the credentials of Wilkinson Call and also the cre dentials of R. H. M. Davidson, claiming a seat in the Senate by appoint that he was elected before the second Tuesday had arrived. ment of the governor of Florida, be referred to the Committee on l\Ir. RAYNER. Now, the Senator from Massachusetts makes Privileges and Elections. another mistake, because the credentials show no such thing. But not until after the Senator had been sworn. In the case They do not show when Governor Whyte died at all. Governor of Ady v. Martin, from the State of Kansas, the direct point Whyte might have been dead a month on the face of that cre arose whether the Senator should be sworn in or whether the dential, so far as the face of the credential is concerned. The credentials should be sent to the committee before the oath was Senator is mistaken. administered. In this case Senators will recall the fact that Mr. LODGE. It appears on the face of the RECORD and the there was a pretense that the legislature that elected him was Journal of the Senate and the credential. not a properly organized legislature. It was a very important Mr. RAYNER. The Senator from Massachusetts is talking question, and it was afterwards argued in the Committee on about the Journal of the Senate. Just now he was talking Privileges and Elections. about the certificate of election. Which does he mean? I ask the special attention of the Senator from Michigan, be l\Ir. LODGE. I mean the credentials on their face con- cause I suppose he would feel bound by some decisions of Mr. tradict the J ournaJ. ' Hoar on this question, if consideration ought to be paid to prece l\fr. RAYNER. The Senator from Massachusetts did not dents or decisions, and this case ought not to be decided upon state that. My answer to that is- some individual construction of the statute. The direct question 1\fr. LODGE. No; I thought you would see it without my_ came up in the case of Ady v. Martin, on page 812. Here is the stating it. statement of l\fr. Hoar. That was a hotly contested case for a Mr. RAYNER. I would have seen it without your stating it, time in the Committee on Privileges and Elections: but you stated it in the wrong way. You said that it appeared Mr. HOAR. The credentials of Mr. Martin seem to be In due form and to entitle him prima facie to be admitted to a seat in the Senate. If there upon the face of the credentials. They do not say that. be any question as to his title upon the inerits, the Senate can deal with ·Mr. LODGE. I think they do. it afterwards. I ask that the oath be administered to Mr. Martin. l\fr. RAYNER. Say how they do. How does it appear upon Mr. Martin was escorted to the Vice-President's desk by Mr. Peffer, and the oath prescribed by law having been administered to him, he took his the face of the credentials that anything took place in viola seat in the Senate. (Cong. Rec., vol. 25, p. 2.) tion of law. I will give the Senator time to show this. That was upon the same day that "Mr. Peffer presented the Mr. BURROWS rose. credentials of John Martin, recently elected a Senator from the Mr. RAYNER. No; let the Senator from Massachusetts State of Kan&'l.s." That ought to settle it. What is the answer speak. He has made a statement. to that? Is there an answer to this case? An examination of Mr. LODGE. Mr. President, it is shown on the face of the the decisions shows that e-very one of these Senators was sworn credentials that the Senator whose credentials are being pre before the question was submitted to the Committee on Privi sented was elected too soon. leges and Elections. Mr. RAYNER. How do they show it? Now, one word more, and I have :finished. The same thing oc Mr. LODGE. By the dates. cur~ in the case of Senator George L. Shoup. 1\Ir. RAYNER. They do not show that by the dates. The llr. LODGE. Mr. President, may I ask the Senator a ques Senator will correct that statement, because the credentials do tion? not show when Senator Whyte died. Therefore the cred.entials The VICE-PRESID&~T. Does the Senator from Maryland can not show it by the dates. yield to the Senator from Massachusetts? l\fr. LODGE. That is just what they do show. Mr. RAY}.."'ER. Certainly. l\fr. RAYNER. The Senator is mistaken. . )Jr. LODGE. I merely desire to ask the Senator a question. l\Ir. LODGE. Does the Senator contest the date of Senator I will not interrupt him if it is not convenient. Whyte's death? l\lr. RAYNER. The Senator will not interrupt me. Cer ~1r. RAYNER. There is no notice in the credentials of the tainly he can ask me any question he wants to. date of Senator Whyte's death at all. 'Mr. LODGE. I am peaking merely from memory, but l\fr. LODGE. The credentials are not required to show that. Senator Quay, of Pennsylvania, came here with his credentials Mr. RAYl\TER. Yon said the credentials do show it. in perfect order, and the Senate did not allow him to be Mr. LODGE. They are not obituary notices. sworn ln. .Mr. RAYNER. You have stated that they did. 3944 CONGRESSIONAL RECORD-SENATE. MARcH 26~

1\fr. LODGE. I repeat it. They show it by the date; and if gether with the credentials, then it does appear by uniting the I can not make the Senator from Maryland understand it, it is two. But upon these credentials nothing of the sor·t appears, not my fault. and the credentials are perfectly regular and proper upon their Mr. RAYNER. I will guarantee there is not a man in the face. If the. Senator will read them over again he will come Senate who understands it, and I undertake to say the Senator to the same conclu ion. himself does not understand it. Now, just one word, and I shall have finished. The case of 1\fr. LODGE. There are an abundance of Senators who Clagett against Dubois has no connection with this matter at all. understand it, as the Senator will find. The whole question in Clagett against Dubois was, as the Sena Mr. RAYNER. It takes a man with a thorough knowledge tor from Colorado will recollect, whether the legislature was or of his profession to pass an opinion on this case. Let me read ganized. It was a question whether there was a temporary or the credentials and see if they show on their face anything of permanent organization. That was the whole questicn in the kind. The Senator from Michigan has passed upon them, Clagett against Dubois-whether there was a temporary or a and he says the credentials are in proper form. permanent organization. I want to point the Senator from Mr. BURROWS. 1\fr. President-'-- 1\Iichigan to another thing in Clagett against Dubois. I wish to The VICE-PRESIDENT. Does the Senator from Maryland call attention to this: yield to the Senator from Michigan? The legislature met and organized, as found by your committee, on Mr. RAYNER. Not just now. Monday, December 8, while contestant claims the organization was The VICE-PRESIDENT. The Senator from Maryland de not effected until Tuesday, December 9; so, in any event, inasmuch clines to yield. as the election of Mr. Dubois took place on Tuesday, December 18- 1\!r. RAYNER. I want to read them, because the Senator How was that possible? How can Tuesday be December D from Massachusetts has made a statement, unintentionally of and Tuesday, December 18? Does not that show upon its face course, which is not borne out by the facts. He has mixed up that it is a mistake? I suppose the Senator from Massachu the credentials with something that appears in the records of setts can answer that question that Tuesday can be December the Senate, as if the two were the same thing, as if the records 9 and another Tuesday December 18. of the Senate and the credentials were the same. Let me read Mr. TELLER. Will the Senator allow me? the credentials : The VICE-PRESIDENT. Does the Senator from Maryland THE STATE OF J.I.I.ARYLAND, yield to the Senator from Colorado? EXECUTIVE DEPARTl!ENT. 1\fr. RAYNER. Certainly. . To the P·residertt of the Senate of the Ut~itea States: Mr. TELLER. The legislature met on 1\Ionday. They or '£his is to certify that on the 25th day of March, 1908, John Walter ganized what the committee determined was a proper organiza Smith was, in accordance with law, duly chosen by the legislature of the State of Maryland a Senator from said State to represent said State in tion, and a week from the next day they elected. the Senate of the United States for the unexpired portion of the term 1\Ir. RAY1\"ER. That part is all right. But I want to know of six years, beginning on the 4th day of March, 1903, to fill the va how '.rue day-- cancy caused by the decease of Hon. William Pinkney Whyte. Witness his excellency our governor and our seal hereto affixed, at Mr. TELLER. They elected within a week and a day :from Annapolis, this 25th day of March, in the year of our Lord 1908. the time of organization. [SEAL] AUSTIN L. CROTHERS. 1\fr. RAYNER. That is all right. How can Tuesday be De Dy the Governor : cember 9 and Tuesday December 18? N. WINSLOW WILLIAMS, Secretary of State. 1\fr. TELLER. That must be an error in the print. It Is not worth while spending any time over that. How does it appear here that the 25th day of 1\farch was not Mr. RAYNER. What day did the election take place? six Tuesdays after Senator Whyte had died? It might be, 1\fr. TELLER. A week from the day they organized. except for what appears on the Journal. Mr. RAYNER. I will ask the Senator from Colorado when Mr. LODGE. It appears plainly on reading. I have nothing did they organize? more- to say. 1\fr. TELLER. They organized on the 9th. 1\fr. RAYNER. I should like to hear from any other Senator 1\fr. RAYNER. On Tuesday? if he agrees with the Senator from Massachusetts-a single 1\fr. TELLER. No, on Monday; and a week from the next Senator. day the election took place. , Mr. LODGE. The Senators are not here to be called upon as 1\fr. RAYNER. A week from the following Tuesday? witnes es by the Senator from' Maryland. Mr. TELLER. Naturally it would be Tuesday. Mr. RAYNER. The Senator ought to be careful about stating 1\fr. RAYNER. The language here is different from what the facts without being able to show that the facts exist. Show me Senator from Colorado says. It says, " It was ten days after upon the face of the credentials where such a reference is the organization of the legislature" that the election took made. place. But that case has nothing in the world to do with this. Mr. LODGE. It shows that the vacancy was caused by the The question was whether it was a case of temporary or per death of Senator Whyte. manent organization. Mr. RAYNER. Does it show the date of his death? Mr. President, I have finished what I wish to say, and I rest Mr. LODGE. Of course not, but it shows that Mr. Smith upon these four propositions: First, that the section is not en was elected on the 25th. That is enough. titled to the interpretation the Senator from Michigan puts upon 1\fr. RAYNER. Could that not have been five Tuesdays it; second, that the section is only directory, not mandatory; after? third, the State of Maryland has decided it ; and fourth, if I Mr. LODGE. The credentials show on their face that he am all wrong in everything else I have said, the Senator-elect was elected unlawfully; that he was elected too soon. is now entitled to be sworn in, and this question should go to 1\fr. RAYNER. How do they show that he was elected too the committee, as has been done in e\ery other case, for further soon? examination. I ask, therefore, that the Senator be sworn in. Mr. LODGE. I have told the Senator that it appears ob 1\Ir. CULBERSON. Mr. President, the Senator from Mary viously by the date. I can not furnish him with understand land [Mr. RAYNER] has presented this case very clearly, but I ing. ask the indulgence of the Senate briefly upon it. There are, 1\fr. RAY~'ER. And no one else on earth can understand it occurs to me, two fortunate aspects in which the case is pre the Senator from Massachusetts. sented. One is that there is no personal contest for the Sena The VICE-PRESIDENT. The Ohair will suggest to Sena torship involved, and the other that there is no partisan emer tors-- gency in the Senate which could possibly, if that were at all 1\fr. RAYNER. No one else can understand it. I repeat, possible in any case, influence the vote of any Senator along the Senator from Massachusetts himself does not understand partisan lines. It ought to be decided, . therefore, free from u. If the credentials had stated upon their face the time personality and free from partisanship, upon broad lines of Governor Whyte had died, the Senator would be perfectly constitutional construction. r\ght, but the credentials upon their face do not show that this The issue as presented in this case, just at the moment, is election was not held on the fourth or fifth Tuesday after. It not whether the Senator from Maryland was lawfully elected is a perfectly proper credential. The Senator from Michigan to the Senate, but, having presented to the Senate credentials passed upon it. regular in form, showing no objection to his being sworn in There is not one word upon the face of the paper to the effect upon the face of the certificate, the question is, whether that that he was not elected until after the second Tuesday after shall be done. Governor. Whyte's death. You have to take the Senate pro Under such circumstances the Senator from 1\fichlgan [.Mr. ceedings. That is what is in the Senator's mind. you have BURROWS] objects to the oath being administered, whil~ he to take my announcement in the Senate that Governor Whyte admits that the certificate is in due form, does not carry upon had died last Tuesday, and if you take my announcement, to- its face any suggestion of illegality in the election, and the 1908. CONGRESSIONAL RECORD-SENATE. 3945 ------.,------only authority which he cites is that of the Dubois case, and of opinion that a failure to C?I?PlY with thi~ formality. would under no circumstances suffice to v1t1ate an election otherwise legal and the very statement he read from the Dubois case was ob.iter, valid· but where as in the present case, both hot/,Ses p1·oceeded without unnecessary to the decision of the case, and the comm1ttee objection from a;ly source to perform the-it· constitutional d!ttY of elect expressly say that it is unnecessary, although they do expr~ss ing a Senator, the nece~sity of complying •with fillY partwular forms requi1·ecl by law ntay fa~rly be consldered as wa,-ved by c.ommon con an opinion upon it. The case went off upon another pomt sent and it is entirely too late, atter the result of the vottng has been entirely. ascM-tained, to raise a question as to the mode of proceeding. In that very case Senator Dubois, upon the presentation of Mr. President, if all these suggestions shall be unavailing, I his credentials, was sworn in, and when I ask . the Senator appeal to Senators to give the Constitution itself a fair and rea from Michigan if he quoted this case upon one point, where it sonable consh·uction. - The Constitution declares that each is purely and admittedly obiter, will he not accept it as author State of the Union shall be entitled to two Senators, elected by ity upon one of the very questions upon which its decision the legislature thereof, and that action should be taken here rested-that is, the swearing in of the Senator when his cre which accords with the spirit and purpose of that instrument. dentials are regular and in due form-he says, "Oh, I read it The legislature of Maryland has elected a Senator without op on another point." So he did. But the question for the Senate position without protests, although it seems that efforts were to decide now is whether it will undertake to go behind the made t~ secure them. He presents his credentials, regular in returns whether it will go dehors the certificate of election in form, from the governor of the State, and against this it is in this ca~e, instead of pursuing the usual course when a certifi sisted that possibly the legislature voted one day or perhaps cate regular in form comes here from the governor of a sover one week prior to the time fixed by a statute. eign State, and permit the Senator to be sworn in. In the case of Lapham and Miller, from New York, the Sena In the case of Senator Quay, from Pennsylvania, I voted tor from Georgia, Mr. Hill, speaking for a unanimous commit with the Senator from Michigan, and I regret to say that in tee of the Senate, declared that the failure of the legislature in this case he is departing from the faith which he counseled electing Senators to comply with technical and directory pro at that time. His proposition there was that the legislature visions of law could not take from the States their constitu should be made to elect the Senator. His proposition here is tional right to be represented in this body. That is the issue that technical obstructions and impediments which may be which is presented here. shall be thrown in the way to prevent the legislature of Mary Mr. President, as I said at the outset, it ought to be consid land from filling the vacancy. In the case of Senator Quay, ered fortunate that this case arises without the environments of my recollection is that the credentials showed on their face a personal contest for the office and without necessity for polit that the legislature had been in session and, having voted in ical advantage to be sought on one side or the other; and I trust effectual1y for months for Senator, adjourned, failing to elect, Senators~ will give a fair and a sound construction to the Con and thereupon the governor of the State undertook illegally to stitution so that it may subserve the purpose of the founders, fill a \acancy which had not occurred during ' a recess of the that each State in the Union shall be represented in the E;enate legislature. by two Senators elected by the legislature, and that obsh·uc l\fr. President, now on the merits of this law, though a dis tions to the election of Senators will not be thrown in the way cussion of it is in my judgment premature. It is, of course, of legislatures. mere reiteration to say that sections 14, 16, and 17 of the Re Mr. TELL.ER. Mr. President- vised Statutes have in view three contingencies. One is the Mr. BURROWS rose. election of Senator when there is an expiration of a term or The VICE-PRESIDENT. The Senator from Michigan. Does when a State first comes into the Union; second, when there is the Senator from Michigan yield to the Senator from Colorado? a \acancy during a recess of the legislature; and third, when Mr. BURROWS. I yield to the Senator from Colorado. there is a vacancy during a session of the legislature. All Mr. TELLER. I do not think the Senator from Michigan three of these sections provide that the election shall be held need to yield to me. I think I am entitled to the :floor, having on the second Tuesday after organization, and the last one first addressed the Chair. . adds when the legislature "has notice of such vacancy." The VICE-PRESIDENT. The Senator from Colorado is cor- Mr. President, in my judgment, the last section-that is, sec tion 17--clearly means that the election may be had at any time rect.Mr. TELLER. I am one -o f t b ose w h o b e1' 1eve m• mam• t ammg· · after notice of a vacancy, provided the legislature has been or the order and decency of the Senate by the observance of its ganized for the time named in the law; that is, provided it is rules. not earlier than the second Tuesday after the organization of l\Ir. President, as the Senator from Texas [Mr. CULBERSON] the legislatlire; that the limitation applies not to notice of the has said, this case is presented for our consideration unP,er vacancy, but to the time after organization. That is the only favorable circumstances. It is not a que~tion of party ad proper construction, it seems to me. The recm·rence of the idea vantage or party disadvantage in any respect. With a two of time in the three sections with regard to organization bears thirds vote in the Senate by one political party, no advantage out that construction. can be had by the admission or exclusion of a member of the And, more than that, sir, it can not be implied, construing other party. And so we ought to approach this question upon section 17, that the election shall be had on the second Tuesday principle-and precedents. I would not say that in every case after organization and also after notice of a vacancy, because it where the credentials are proper the Senate is obliged to accept is almost an impossibility for the two dates to be coincident. So the credentials, but I do say, and I venture it can not be con I submit to Senators who have an unbiased judgment on this troverted that in every case which has ever come before the question that they ought to determine it not upon partisan lines, Senate ~here there were proper credentials, the credentials but as Senators intending to give a true, correct, and permanent showing no defects whatever, and where there was not a con consh·uction to the law. testing Senator or an actual protest because of some irregularity The Senator from Maryland, going further, submits that if in the election, the Senator-elect has been sworn in on a prima this construction of the law shall be wrong, it is nevertheless a facie case. Mr. Turpie, who came here from Indiana, in wllose directory and not a -mandatory provision. In addition to the case there was a question whether there had been a legal authority cited by him, I beg to cite a case from Pennsylvania, election or not, was sworn in on motion of Mr. Hoar, who was that of Simon Cameron, in 1857. Senators will remember that then chairman of the committee, on a prima facie case; that ist the Constitution provides that- to say on a certificate which did not show any defect. The The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature committee afterwards investigated it and decided that we were thereof; but the Congress may at any time py law make or alter such compelled to take what the State of Indiana had certified to regulations, except as to the places of choosmg ~enators. us was a legal and proper legislative body. Mr. President, at the time this case arose the law of the Mr. President, here are the credentials: State of Pennsylvania controlled. .Afterwards the act of Con This is to certify that on !Jle 25th day of March, 1908, J'o.hn Walter Smith was, in accordance w1th law, duly c}?osen by the legislature of gress of 1866, now incorporated in the Revised Statutes, super the State of Maryland, a Senator from sa1d State to represent said seded all the laws of the States. Let me call the attention of State in the Senate of the United States for the unexpired portion of Senators to the decision in this case, when the Committee on the term of six years beginning on the 4th day of March, 1903, to fill Privileges and Elections was composed of Messrs. Butler, Bay the vacancy caused by the decease of Ron. William Pinkney Whyte. · ard, Toombs, Pugh, Benjamin, Collamer, and Trumbull. If the Mr. President, that presents no question of doubt about the mind of the Senator from Michigan is still open upon the ques right of the State of Maryland to send here her representa tion, I invite his attention to what is said at page 265: tive. The attention of the Senate was called to the fact that It appears from the J'ournal of the Senate that the appointment of Mr. Quay's credentiaJs were not accepted. Let me read: a teller and the nomination of candidates and the communication to Whereas a vacancy ex.ists in the representation of the Common the other House of the appointment and nomination so made, all took wealth of 'Pennsylvania in the Senate of the United States by reason place on the day of the election, instead of one day previous to the of the expiration of the constitutional term of the Bon. Matthew S. election, as required by the law of the State; but your committee Quay, an

The facts upon which that was held up are shown in the cer they have no discretion in the matter. The law has fixed the tificate itself. The Senate had at a previous session de time of their adjournment and they will be out of existence so clared that the failure of a legislature to elect a successor to far as this session is concerned. nn outgoing Senator did not authorize the gov-ernor of the There are a number of cases that have been determined in State to appoint. That was the law of the Senate, and there the Senate, and I think they have always been determined in upon that appointment was held up perpetually. The Senate favor of seating a member in the Senate when there is no real voted in that case, by a ver close majority, to adhere to the good reason for keeping him out. Of course when I first came rule which had been established before that time. It had been into the Senate we had questions arising from the contro established on two or three other occasions a way back in the ver'"'ies soon after the war in the different sections, and orne history of the Senate. of those questions were undoubtedly settled both by the Demo Mr. President, the case of Clagett v. Dubois does not present crats when in power and by the Republicans in power largely this question in any shape or manner. That was a question from prejudice and party interest and party favor. Here you whether there had been an organization of the legislature have not anything of the kind ; no harm can come to the Re within the meaning of the statute of 1866. The committee, in a public; and we may properly give the construction to the statute very extended report, written by Senator Mitchell, who was that \VU.S given to it by the legislature, "hich I am myself a member of the committee at that time, settled that proposi inclined to believe is a proper construction, keeping in view tion on the theory that whenever a legislature had been suffi the fact that we want to keep the Senate membership intact ciently organized to enact laws it was an organization comply as far as possible. ing with the statute. That is a very lengthy report. I have Mr. BURROWS. Mr. President, as to the credentials pre not looked it over to see exactly what we said upon this ques sented in this case, I think there can be no question but that tion, but if we said anything it was not one involved in that they are in due form and are not subject, on their face, to criti contest, it was an obiter, and it is not entitled to any consid- cism. But, in determining the right of 1\Ir. Smith under these ~~~ . credentials to a seat in the Senate, the Senate will take cogni In the case of Lapham and Miller, there was a protest filed zance of its own records and its journal entries. The credentials against them. Notwithstanding that protest the certificate presented showing that Mr. Smith was elected on Wednesday, was considered sufficient and they were sworn in and sub the 25th of March, and the journal of the Senate disclosing that sequently the committee took up that question. the vacancy occurred on Tuesday, the 17th o! Uarch, the ...·enate That is the ease in which Senator Hill of Georgia made a has knowledge of these facts,. and it seems to me that the yerbal report for the committee upon this question, and I think yalidity of his title is thereby impeached, and that instead of a perhaps it is worth while to look at it. Will the Senator from prima facie case being established in favor of the party hold Maryland give me the page? ing such credentials, a prima facie case is made out against Mr. RATh"'ER. The Lapham ease is on page 6D7. such right. 1\Ir. TELLER. I wish to call attention to some things Mr. I think it will throw some light upon this question by allud Hill said in behalf of the committee. ing to the history of this legislation.. The occasion for the en The memorials set forth five reasons as grounds why these gentlemen actment of the statute of 1866 every Senator will recall Con should not be allowed to sit here. The first alleges that the legislature gress exercised its power under that provision of the Constitu did not proceed in separate bodies to vote upon the question until the tion referred to first in 1842 by directing the manner in which third Tuesday after notice o! the vacancy was communicated by the governor. The facts are such as to create some controversy as to the Members of the Honse of Representatives should be elected. whether they did proceed on the second Tuesday or the third Tuesday Previous to that time the whole membership of the House was after the notice; but, in any view, the committee are unanimously of the elected upon a general ticket, so that whatever divisions there opinion that the legislature was not deprived of its constitutional right to elect Senators to this body. might have been in a. State politically the dominant party in the 'l'he second allegation is that at one of the joint sessions of the gen State carried the entire representation. So, in 1842 Congress eral assembly a quorum of the State senators was not present. It is passed an act under this right to regulate the method of electing not alleged that there was not a quorum pliesent of each body on the days the respective elections took place, but it is alleged or claimed that Representatives in Congress, declaring that the State should be under the act of 1866 the failure of either body to be present with a divided into districts. Then subsequently another act was passed quorum on any day deprives the legislature of the right to elect The requiring that the election of Members of the House should committee differ with the memorialists in that view. We think that one body of the legislature could not deprive the legislature of the right to occur on the same day throughout the United States, so that the elect by such absence, if unquestionably on the day of the election a practice of colonizing from one State into another on election quorum of each body ot the legislature was present and voting. We day should be prevented. think the reason alleged in t'his ground is not sufficient to invalidate the election. Then came 1 66, when this provision was made as to the man ner of electing Senators. Previous to that time the legislatures I think there have been half a dozen cases in the history of had failed to elect Senators in :m..'Uly instances. One house the Senate since I have been a Member of it where Senators would act and then the other, and there was no system and no have been seated here where one House failed to participate in method by which the election could be certainly secured. So the election. That was certainly true in the case of :Mr. Mitchell Congress sought to regulate the manner of the election of Sen of Oregon and some others I could mention. Within my own ators by this provision. knowledge a legislature has elected a Senator when one body of If we turn back to the history of this legi lation it throw a the legislature did not have a single member- in the general as flood of light upon the meaning of its provisions, and I think sembly, and it was held, as stated here, that one body can not disposes of the contention of Senators on the other side that deprive a legislature of a right to elect. I think that shows it was unnecessary to have two weeks elapse after notifica pretty generally that the committee had the same view the Sena tion before proceeding to fill the vacancy. The act was re tor from Maryland has, that it is a directory statute and not an ported from the Committee on the Judiciary in 1866, a com imperative or mandatory statute. mittee composed of Lyman Trumbull, of Illinois ; Ira IIa.rris, l\Ir. President, can anyon~ tell me why the applicant who is of New York; Daniel Clark, of New Hampshire; Luke here should not be now sworn? There is no one objecting. Poland, of Vermont; William :M. Stewart, of. Nevada, Thomas A. There is n<>thing on the face of the proceedings, there is nothing Hendricks, of Indiana, and ReTerdy Johnson, of Maryland. on the record here that I know of to show that the legislature That list of names should carry with it the conviction that the did not comply with the statute of 1866. It seems to me that act was very carefully framed. the presumption ought to be in favor of seating the applicant. The report of the committee was made on the 9th of July, I think, as Senator Hoar said in the Turpie ease, tlle certificate 1866, and so far as the firs~ and second sections are concerned is, without a controversy, prima facie evidence of the right of they were adopted substantially as reported and as they stand the applicant to be sworn. So it seems to me that the Senator to-day. But, coming to the section in controver y, providing for who presents himself here is entitled to be sworn. filling a vacancy occurring when the legislature is in session, I do not myself !mow of any ease which would perhaps cover the committee reported as follows : this exactly in point of fact. It is a construction that might Ancl be it further enacted, That whenever, on the meeting of thG easily be put upon the law. On Tuesday the Senator died, and legislature of any State, a vacancy shall exist in the representation of the legislature is notified, and a week from that day they elect. such State in the Senate of the United States, said legislature shall proceed, on the second Tuesday after t:J;te commencement o~ its ession, The controversy is that they ought to have waited another to elect a person to fill such vacancy, m the manner herembefore pro week. The doubt ought to be always resolved in favor of keep vided for the election of a Senator for a full term- ing the membership of this body full. To say that they must Now I come to the provision under • which this contention wait another week is simply to say that the Senate must be has arisen- without that member for another week;- and in this case, as and if a vacancy shall happen during the session of the legislature, the Senator from Maryland has stated, the legislature by law then on the second Tuesday after the legislature shall have notice adjourns. I understand its adjournment is imperative and thereof. 1.908 .. CONGRESSIONAL RECORD-SENATE. 3947

Can anything be plainer than that? The only amendment-- Mr. BURROWS. Not at this time. 1\Ir. CULBEl!.SON. 1\Ir. President-- The VICE-PREJSIDENT. The Senator from Michigan de The VICE-PRESIDENT. Does the Senator from Michigan clines to yield. yield to the Senator from Texas? Mr. RAThTER. I wish to correct a mistake in regard to our Mr. BURROWS. Certainly. legislature which the Senator certainly would like to have 1\Ir. CULBERSON. I inquire from what the Senator is corrected. · reading? The VICE-PRESIDENT. Does the Senator from Michigan • 1\lr. BURROWS. I am reading fTom the report of the yield? · Judiciary Committee of 1866, which reported the original draft Mr. RAYNER. It will take only a minute. of the bill. l\Ir. BURROWS. I prefer not to yield, because I desire to l\Ir. CULBERSON. I suggest to the Senator that the law does complete my statement. not read as the report s'uggested it should read. l\Ir. RAYNER. I want to say to the Senator-- l\1r. BURROWS. Of course not. The Senator evidently did The VICE-PRESIDENT. The Senator from Michigan de not understand me. I am showing how the measure originated clines to yield. and what was its language when reported. Mr. BURROWS. When I am through I will yield. Mr. CULBERSON. I understood the Senator to be reading 1\Ir. RAYNER. I think the Senator should let me make a from the report to the effect that the law should contain a statement. It is that the legislature expires by law on Monday provision that in case a vacancy occurred during a session of night and it can not take a recess. The Senator can not object the legislature it should be filled by an election on the second to my making that statement. Tuesday after there was notice of it. 1\fr. BURROWS. That has already been stated, and the Sen Mr. BURROWS. I tried to make myself understood. I said ator has already declared that there is nothing in the constitu I was reading from the original bill that was reported to the tion of Maryland to prevent the governor, to-day, from issuing Senate by the commi.ttee, the membership of which I have just a proclamation convening the legislature of Maryland next given. I am reading the bill as reported by the Committee on Tuesday. the Judiciary, composed of the gentlemen I have named, with Mr. CULBERSON. Mr. President-- Senator Trumbull as chairman and Reverdy Johnson among the The VICE-PRESIDENT. Does the Senator from Michigan membership. I hold in my hand a copy of the bill that they yield to the Senator from Texas? reported. Am I understood? 1\Ir. BURROWS., I decline to yield further until I have con 1\lr. CULBERSON. I think I understood the Senator. . I was cluded my statement. only suggesting that the law as passed was not in the exact · The VICE-PRESIDENT. The Senator from Michigan de language given in the report. clines to yield. Mr. BURROWS. Of course not, and I am going to .show how Mr. BURROWS. Now, Mr. President, as this bill was re the change came about and what the change was. But I am ported from the Committee on the Judiciary the provision over only trying to show now, and I think I shall be able to show- which this controversy has arisen read as follows: Mr. CLAY. Will the Senator permit me to ask him a ques And if a vacancy shall happen during the session of the legislature, tion? then on the second Tuesday after the legislature shall have notice The VICE-PRESIDENT. The hour of 2 o'clock having aT the1·eot. rived, the Chair lays before the Senate the unfinished business, Can anyone misunderstand that language? They could not which will be stated. elect until the second Tuesday after notice. Now, the Senator The SECRETARY. A bill (S. 3023) to amend the national bank from Texas [Mr. CuLBERSON] suggests that it was changed. I ing laws. know that, and I am going to show the Senate how it was changed Mr. ALDRICH. I ask that the unfinished business may be and for what reason. But, mark you, there was no change in temporarily laid aside. I hope it will have to be only tem the bill as to the time of electing on the second Tuesday after porarily laid aside. notice. Let me read the debate. Mr. Clark in his discussion in The VICE-PRESIDENT. Without objection, it is so ordered. the Senate said : Mr. CLAY . . With the Senator's permission-- I move further to amend the bill in the fifth line of the second section Mr. BURROWS. I should like to go on, if the Senator will by inserting the words " and organization" after the word " commence pardon me. ment." 1\Ir. CLAY. It is only for a question and for just a minute, That is all, "and organization," leaving the balance just as with the Senator's permission. I understand the Senator to it read, "the second Tuesday after notice." contend that the election must take place on the second Tuesday Mr. .TOHNSON after the vacancy occurs. Suppose the legislature is not in session on the second Tuesday after the vacancy occurs, but is Reverdy Johnson- in se sion when the vacancy occurs. The Senator contends How will it read then? that the legislature must elect on the second Tuesday after the Mr. CLARK vacancy occurs. If it adjourns by law before that time, could Quoting- "And if a vacancy shall happen during the session of the legislature, the governor appoint a Senator to fill the place? then on the second Tuesday after the legislature shall. have been or Mr. BURROWS. That question does not arise here. ganized and shall have notice of the vacancy." Mr. CLAY. I should like to ask the opinion of the Senator on that question. That was the only change, and that is the law as it reads to 1\Ir. BURROWS. The governor could call the legislature to day. The only change made by the Senate when the bill was gether any day. before the Senate declaring that the election should take place . 1\Ir. CLAY. Does the Senator contend that neither the legis on the second Tuesday after notice was to insert the words lature that is in session could elect nor that the governor could "and organization," so as to read "organization and notice," appoint, but that the governor must call an extTa session of the for the reason that they could not proceed, of course, until after legislature to elect? the legislature was organized. 1\Ir. BURROWS. Take the recent case in South Carolina, Mr. TRUMBULL. I suggest to the Senator from New Hampshire that that can hardly be necessary. This provision is, "If a vacancy shall when Senator Latimer died. The time of the legislature had ex happen during the session of the legislature." Is it a "session" of pired so far as pay was concerned, and the legislature took a the legislature until it is organized? recess for a week in order to conform to the statute before the Mr. CLARK. It may be. The legislature may be together and sitting, but not organized. I want to avoid that difficulty. election took place. Mr. TRUMBULL. I have no objection to it. Mr. CLAY. If the Senator's contention-- Mr. CLARK. I think it would make it a little more specific to insert 1\Ir. BURROWS. But, Ir. President, the Senator is taking those words. me away entirely from what I am discussing. That, Mr. President, is the history of this enactment. That l\Ir. CLAY. It is in connection with the same question. is how the amendment "organization" came in, and thus it con The VICE-PRESIDENT. Does the Senator from Michigan forms to the provision of the other sections. Is it contended that yield further to the Senator from Georgia? because the word "organization" was inserted before the word Mr. BURROWS. I do not, until I complete this statement. notice it changed the whole meaning of the section? That can The VICE-PRESIDENT. The Senator from Michigan de- not be possible. The second Tuesday after organization and no clines to yielcl. · tice of the vacancy applies with equal force to "notice" as to or Mr. BURROWS. I should like to be able-- ganization. l\fy contention therefore is that the legislature of l\Ir. RAYNER. I should like to make one statement, not to Maryland, in proceeding to the election of a Senator on the 25th ask a question. day of March to fill the vacancy occasioned by the death of Sen The VICE-PRESIDENT. Does the Senator from Michigan ator Whyte, which occurred on the 17th day of the same month, yield to the Senator from Maryland? acted prematurely and in violation of the statute of 1866. - I

3948 CONGRESSIONAL ·RECORD-SEN ATE·. -~fARCH 26,

Mr. President, I have taken occasion. to look over the prece clusire-suppose the President of the Sen:lte were a court and dents of the Senate since 1866, when this· measure was enacted. these credentials were a petition or a complaint of any kind There have been fourteen deaths in the Senate at a. time when and a demurrer was filed to them as not showing on the· r face the legislature· of the State in which the vacancy happened facts sufficient to constitute a cause of action-. The court could wa.s in session and in not one single: instance has any State not say: "Ah, I will sustain this demurrer, because, although presumed to defy or ignore this statute and elect until the the complaint is sufficient on its face, yet 1 happen to know second Tuesday after they were notified of the vacancy. that on my docket here there appears a fact which hereafter The cases are all like the one now pending be!ore the Sen might be produce law." Any demurrer to that must point Marcus A. Hanna, of Ohio, died February 15y 1904, and his out the defects upon the ·face of the record, and not depend: successor was elected March 2, 1904. npon facts which may hereafter be de-veloped when the cause Ambrose E. Burnsidfr died September U 1881:, and hi& suc itself is properly and regularly tried. cessor was elected October 5, 1881. ~.rr. Kl~OX: Mr. President-- William B. Bate, of Tennessee, died l\Iarch 9, 1905, and his 'Tiie VICE-PRESIDENT. Does tlie Senator from Indiana. ~mccessor was elected. March 2L- 1905, and. the- election on the yield to the Senator from Pennsylvania? second Tuesday. Mr. BEVERIDGE. Certainly. John E. Kenna, of We t Vi:ugini~ died, Jamrn.ry 11~ 1893, and Mr. KNOX. I only desire to ask the Senator a question. I his 25, successor was elected January- 1893. should. like to ask the Senator from Indiana it the gentleman :i\Iatthew H. Carpenter, of Wisconsi~ died February 24., 1881, should present himselt the bar of this Senate with regular and his successor was elected 1\Iarch. 10, 1881. at credentials signed by the governor of Indiana asserting that Asbury C. Latimer died February 20~ 190&, and his successo~ be had been elected to the Senate of the United States, would was elected March 6, 1908. not the Serrate take notice of the tact that two Senators repre So in all the

Ur. TELLER. If it would not interrupt the Senator- Mr. KNOX. Certainly. Mr. BEVERIDGE. Not at all; I am about through, anyway, JUr. BEVERIDGE. I ought to have asked the question ear a.nd shall be glad to hear the Senator. lier. The Senator asked what is the use of delay; why refer Mr. TELLEn. If the Senator from Indiana will allow me, I anything to a committee? When a demurrer to a complaint is desire to read a resolution offered by a former Senator from filed, and as a matter of fact the court knows the facts and Indiana, Governor Morton, whom, I am glad to say, I knew very everybody else knows the facts, but the case has not been well. tried, the question could be asked, What is the use of referring · Mr. BEVERIDGE. Certainly; I shall be glad to have the this case to a jury to try the facts or to the court to hear it? Senator do so. We know it all now. Mr. TELLER. That resolution reads: Mr. KNOX. I think, Mr. President, that the Senator is most Resolv ed, That the credentials of P. B. S. Pinchback for a seat in unfortunate in his reference to a proceeding in court. The Sen the Senate of the United States for six years, commencing on the 4th of March, 1873, being in regular form, he is entitled under the law, and ate is the absolute, uncontrolled judge of this matter. No other in conformity with the usages of the Senate, to be sworn in as a mem authority or no other power on earth can intervene between ber ; and that whatever ground of contest there may be as to his right us and the decision of the question of the qualification of any to a seat should be made thereafter. one who presents himself here for admission to this body. Mr. BEVERIDGE. Quite so. Mr. President, in those words Mr. BEVERIDGE. Mr. President, may I ask the Senator which I am obliged to the Senator from Colorado for reading this question? which are from what we all in Indiana love to think is one of The VICE-PRESIDENT. Does the Senator from Pennsyl the greatest minds this country every produced and certainly vania yield further to the Senator from Indiana? one of its greatest patriots-Governor Morton states, with a 1\lr. KNOX. Certainly. brevity equaled only by its force and authority, what I have Mr. BEVERIDGE. Of course everybody concedes that that been trying here to feebly state. It may hereafter, when the is so under the clause of the Constitution that the Senate is case is tried, when the pleadings are filed, and the issues are the judge, and so forth, but if every question is to be determined made up, be a question upon which we may haye some dispute. by the Senate the moment anybody raises it, what is the use There has been a construction of the law presented here by of having a standing Committee on Privileges a.nd Elections at ttoth sides with ability; but the single question now before us all, and if we should investigate the facts in one case in a is, whether on those credentials themselves-which the Senator regular manner, why not in another case in a regular manner. from Michigan, the chairman of the Committee on Privileges even though we all know what they may be in one instance and and Elections, has admitted are regular-the Senator who has do not in another? presented himself to fill this vacancy which now exists shall be deprived of the privilege of having the oath of office adminis 1\fr. KNOX. Mr. President, I will come in just a moment to tered, and thereby 1,200,000 people d'f a State in this Union be reply to the question suggested by the Senator from Indiana. partially disfranchised. I think it entirely too serious a matter, It is perfectly foolish for the Senate to stop and consider a the and I recall the statement of several veteran Senators here, thing that is openly admitted upon floor of the Senate to that never in their long experience have they seen any Senator be the fact if it raises a question that we must ultimately deal presenting credentials that were perfect on their face, refused with. We have, upon the face of the credentials presented, the permission to take the oath of office. So far as my vote is statement that Senator Smith was elected to fill the vacancy concerned, I shall certainly vote that the Senator be sworn in. caused by the death of Senator Whyte. We have it upon the Mr. KNOX. .Mr. President, very little can be contributed, I face of the record that Senator Wbyte died upon a particular think, to this discussion. The very lucid and forceful way in day, and we certainly can take notice of the flight of time be which the matter has been presented on both sides I think will tween the date of the death of Senator Whyte and the date enable the Senate to reach a conclusion without much more de specified upon the credentials as the date when Mr. Smith was elected. So that I say, 1\Ir. President, that every single fact bate. However, as I have no doubt at all in my mind about th~ construction of this statute or about my duty under the circum that bears upon this question is in full possession of the stances, I feel constrained to say· a word or two in explanation Senate. of my position. I only want to say one word as to the section of the Revised I think it is most fortl.mate, as sev-eral of the Senators have Statutes that has been referred to. It was made perfectly clear mentioned, that we may decide this question as a pure question by the distinguished chairman of the committee that as that of law, uninfluenced by anything else whate-ver. It is most for bill was originally reported to the Senate it only provided for tunate also that it does not matter how this question shall be one thing, namely, that when a vacancy shall occur during the determined, it will not in the slightest degree affect the political session of the legislature the legislature shall proceed on the fortunes of the gentleman whose credentials have been pre second Tuesday after notice of the vacancy to elect a successor. sented. When the bill with that provision in it was reported to the Mr. President, I do not propose to make any reference to the Senate, the Senate said, "Nay; there is one thing yet that we so-called precedents that have been established or suggested must provide, and that is that the legislature under such cir and referred to from prior election cases, except that I want cumstances must have been organized." So an amendment was to say, in respect to the case of Senator Quay, that when my inserted, and the law as it stands now provides that UYO things colleague [Mr. PENRoSE] presented Senator Quay's credentials must concur-first, that the legislature must be duly organized, ' he did in that case what I think he should have done, and that and second, that its action must follow not earlier than the is, as a question of law was rnised and it appeared upon the second Tuesday after notice of the fact of death. face of the credentiais, he did not ask that Senator Quay should 1\fr. RAYNER. Mr. President-- be sworn in, but allowed the question of law to be referred to The VIOE-PRESIDE~TT. Does the Senator from Pennsyl the committee, as there were some questions of fact to be con vania yield to the Senator from 1\faryland? sidered in connection with the question of law. Mr. KNOX. Certainly. I think is is a kindness to the gentleman who holds these Mr. RAYNER. If the Senator will allow me to correct him, credentials, I think it is a kindness to the State of Maryland, there is no such provision as two weeks' notice. and I think it is a duty that we owe to ourselves, if this qu~ts 1\Ir. KNOX. I beg pardon. That was a slip of the tongue. ti.on has been fairly, squarely, and properly raised, for us to de I mean the second Tuesday. cide it feaflessly and promptly. What is the necessity of post Now, 1\Ir. President, as to the precedents that have been re poning its consideration? What is the necessity of referring it ferred to, where the legislature has acted after the second to a committee? The ·committee is a mere machine, or a part Tuesday and the inference to be dra'Yfi from those precedents of the machinery, for the transaction of the busin~ss of the that the words are not mandatory, but directory, I take this Senate. What additional facts could the committee bring to view of that proposition, that the statute can be construed so the Senate of which it is not now already fully possessed? that the words preventing action before the second Tuesday are There is but one question in this case, and that question is, Did mandatory as to everything that might occur prior to the second the legislature of Maryland act upc:u the second Tuesday after '.ruesday and only directory in respect to that which might it received notice of the death of S~nator Whyte? follow. In that respect such a construction woulu follow very 1\Ir. President, it seems to me that there is no doubt whatever closely many rules that lawyers are entirely familiar with in as to the construction of this statute. It was made perfectly reference to the dates fixed for pleadings, notice, and so forth, clear by the chairman of the Committee on Privileges and Elec in litigation. tions. Therefore, 1\.Ir. President, in con~lusion, I say that, in my .Mr. BEVERIDGE. Will the Senator permit me to ask him judgment, this is the proper time and the proper place to decide a question? this question, and it is only a kindness to the State of 1\Iary The VICE-PRESIDENT. Does the Senator from Pennsyl land and to the gentleman who has presented his credentials vania yield to the Senator from Indiana? here that we should do so. 3950 CONGRESSIONAL RECORD-SENATE. MARCH 26,

Mr. LODGE. Mr. President, the Senator :from Maryland a court, if the Senator will excuse my saying so. It is sitting [Mr. R~YNER] summoned me to explain something that ap as the Senate of the United States to try the right and to peared in the case of Claggett v. Dubois, where in one place decide the right of an applicant for a seat in the Senate. The the date was given as "Tuesday, December 9," and then on Senate sits as a court only when it sits in the trial of im the next page, page 787, "Tuesday, December 18." I venture peachments. to say that it appears on the face of the record that that is a Mr. President, to repeat what I have already said, I think misprint. I do not mean, when I say that, that the record itself it appears as plainly on the face of this credential as it did on states that it is a misprint. -I mean it appears in the record, as the face of the credential of the Senator from Pennsylvania, anyone can see who will take the trouble to turn to the page Mr. Quay, that there is a flaw under the law regulating the where it is stated with the greatest care by the committee, manner in which Senators shall be chosen. that the legislature met on the 8th; that Tuesday, December Mr. President, no one can value the principle of the represen 9, was the first Tuesday, and on Tuesday the 16th they voted, tation of a State more than I. That was the basic principle and there was no election; that on Wednesday, the 17th, they on which I, in company with many excellent lawyers in this voted again and there was no choice, and that on the 18th, Senate, sustained-and I .still believe correctly-the proposition Thur day, as is set forth on the next page, Mr. Dubois was that a governor has the right to appoint under certain condi chosen. Mr. President, I think that makes it clear that this tions. I feel in the fullest degree the importance of a State is a misprint, and I do not think it is worth while to found having its full and entire representation in the Senate at all a very serious argument on a grave question like this on a mis times. This is not a question of disfranchising 1,200,000 people, print in an old document. or any number of people; it is a question of whether one legis I was led into this debate without any intention of taking lature in this country can violate the statutes of the United part in it by merely- asking a question in regard to the case of States, which no other legislature, so far as our records show, Senator Quay~ which I remember very well, indeed. He did not has ever attempted to disregard. I think it is of the extremist take the oath, as has been stated by the Senator :from Pennsyl importance that legislatures should scrupulously observe the yania [Mr. KNox]. My contention is that it no more appeared statutes, and in this case it is perfectly clear to my mind-! on the face of the credentials of Senator Quay that there was an need not go over the argument-that the statute has been disre irregularity than it appears on the face of the credentials of garded. I think that we are as absolutely entitled to pass upon Mr. Smith. The fact that a credential-- this prima facie case, and to pass upon it now, as we can be at Mr. TELLER. Mr. President-- - any otheJ; time, and we have the fullest possible power to do so. The VICE-PRESIDENT. Does the Senator from MasEachu- I do not agree with the proposition of the Senator from Mary setts yield to the Senator from Colorado? land, that because it was held-and held rightly, I think-that Mr. LODGE. Certainly. the question of the right {)f two members of the senate of In Mr. TELLER. Has the Senator read that credential? diana to their seats was to be determined solely by the senate Mr. LODGE. The credential of Senator Quay? of that State, it therefore follows that this Senate- is estopped · Mr. TELLER. Yes. Let me read it to the Senator. I think from considering what is the second Tuesday after a given he has oyerlooked a fact. It reads: event because the legislature of Maryland happens to differ Whereas a vacancy exists in the representation of the Commonwealth from it. I think that our action is conclusive as to the right of of Pennsylvania in the Senate of the United States by reason of the expiration of the constitutional term of the Ron. Matthew Stanley an applicant to a seat in this body. · Quay and the failure of the general assembly of the Commonwealth Mr. President, my sole interest in this subject is that the to elect his successor. statutes of the United States in · a matter of this vast impor Mr. LODGE. Yes; I am aware those words are there. tance should be religiously observed. Mr. TELLER. That is where the defect was apparent on the Mr. McCUMBER. Mr. President, when a law does not agree :face of the credentials. with my .ideas of justice in a: particular case I shall not at Mr. LODGE. Mr. President, I was one of those-and there tempt in any way to make that law read differently from what were a very large number of us in the Senate, both on that it actually does read, but rather content myself tmder a given case and in the Lee Mantle case-who did not think that was condition to change that law. I can not by any law of con a defeat, although the Senate decided otherwise, and I still struction make the section of the Revised Statutes read uny think decided · wrongly and unfortunately. It did not appear other way than that there must be a second Tuesday elapse after on its face that there was any flaw in that title, any more than the notice of death, nor can I agree with the Sen a tor from it appears on the face of the title here. This credential pre Indiana [Mr. BEVERIDGE] that we can ignore what Qur recorned to know from the record itself that s~at. I voted against the seating of Mr. Quay not only upon such facts existed? what I considered constitutional grounds, but I also considered Mr. LODGE. This is not a court or an equity proceeding. that to admit him would create a precedent that would be ab Mr. BEVERIDGE. It is exactly a court in a question of solutely pernicious. I did not think that a situation where any this kind. number of members of a legislature could prevent an election Mr. LODGE. This is the Senate of the United States try during the life of the session of the legislature and throw the ing an election case, of which it is the sole judge. The courts matter over to the governor could possibly appeal to us as a are supposed to take judicial cognizance of certain facts, and just and fair proposition, which would be a safe precedent for the Senate can be assumed to take judicial cognizance of its the American Senate. So I voted against Mr. Quay. I know own record and of things in it. there were many Senators who took the opposite view, as did Mr. BEVERIDGE. If the Senator will permit me to inter the Senator from Massachuetts, and I have no doubt that the rupt him just a moment there, I wish to say that when the deep friendships in favor of Senator Quay may have influenced Senator said the Senate is not a court, of course he at once many to vote in fayor of admitting him to a seat in the Senate refuted that statement-and I think he would modify it now at that time, and they may have been justified in their course. by stating that we are trying an election case of which the This case presents no such condition. The legislature of the Senate is the judge. In a matter of this kind the Senate is a State of Maryland has had an opportunity to elect a United court. No court on earth, no chancellor on earth, can take States Senator. It has elected one, and he is before the Senate judicial cognizance of something appearing on its own records asking for his seat in accordance with the certificate which in determining as to the sufficiency of a petition. has been presented from the officials of the State. · Mr. LODGE. Mr. President, the Senate is not sitting as The matter of refusing him admission is bused upon this law. 1908. CONGRESSIONAL RECORD-SENATE. 3951

It was enacted for the reason that it was desirable to give It does not say "and has had notice.'' It -is merely equiva time for the legislators to consider the candidacy of any person lent to the language " with notice of such vacancy;" and no for whom they were liable to vote. I lmow of no other object one challenges the proposition that this legislature had- been for which it could ha Ye been enacted. (lrganized for more than eight days previous to the election. Mr. BURKETT. Mr. President-- But the contention turns upon the point that the word "after" 1\lr. 1\IcCUMBER. Had the yote been taken one or two or qualifies their notice of such vacancy, and the language of the three days later, I do not understand that any question what statute does not require that inter·pretation. You may gi-ve it ever would have arisen. To me, therefore, if appears as a that interpretation by inserting the word "had" after the word mere technicality, without any good reason. for refusing the "has." You may give it that interpretation by a somewhat admi sion at this time. If I vote in fa-ror of seating the man forced construction, and granting that it may be so construed elected by that legislature, it will be a \Ote to change existing without a forced construction, it at least is equivocal. It may law, so far as it affects this particular case, and the demands be interpreted either way. Since the Senate has the power and of justice are sufficient to me to incline my vote in favor o:f the right to determine the validity of these credentials, and the admission. since there is no violation of the statute necessarily involved Now, a special session, it is true, might be called, but the in tbis case; and since the cause of justice requires that the special session undoubtedly would require notice. It would State ;~1 Maryland be allowed to record its will and be repre-· cause much expense to the State. If the constitution of Mary SE'nted on this floor, I shall vote not only to admit the Senator~ land is like the constitution of most of the other States in the elect from Maryland, but if it comes up afterwards I shall main~ Union, from ten to thirty days' notice would have to be giyen tain that it is his right to a seat in the Senate. before a special session of the. legislature could be convened. l\Ir. BURKETT. Mr. President, I rose when the Senator It would be expensive, and no different result is liable to follow from North Dakota [l\Ir. McCuMBER] was speaking to ask him in caBe a special session is called. This being the case, Mr. a question, but I did not get recognition. The Senator from President, I feel it my duty to vote, and I feel that I am North Dakota, if I understood aright his interpretation of this fully justified in voting, to amend the law as it now stands in law, suggested that probably the second Tuesday was fixed so favor of equal and exact and proper justice being meted out that the legislature might have a proper time to canvass the to this man; that he be sworn in at the present time and be merits of the candidates. In my opinion, that never entered allowed to take hiB seat. into the consideration of anybody in the framing of this law.' 1\Ir. OVERl\fAl""'{. May I ask the Senator from North Dakota If the Senato1· will read the history of this legislation he will a question before he takes his seat? find it was, like most all legislation that is passed, amended 1\Ir. McCUMBER. Certainly. after it was originally framed. There were amendments inter l\Ir. OVERMA.i'l". If the legislature. is called in extra session polated into the text of it on the floor of the Senate, and the for the purpose of electing a United States Senator, would it chairman of the committee. has brought that fact to the atten not have to remain in session~ without doing anything, for tion of the Senate. fifteen days before it could elect, according to the contention This bill was passed at a time when, perhaps, the most here? difficulty was experienced in our method of electing United Mr. McCUMBER. That is probably true. States Senators in our history. As to the immediate cause of Mr. RAYNER. At an expense of forty or fifty thousand thiB bill, I will give just one illustration. l\1r. Fessenden was dollars. elected eig.bteen times to the United States Senate by one Mr. OWEN. Mr. President~ it seems as if this contro-versy body of his State legislature, and never was elected in those· turned, so far as the merits of the case are concerned, upon eighteen times by the other body of the legislature. One body the interpretation of the statute which it is suggested that the was of one political faction and the other of another political legislature of Maryland has violated in making this selection faction, and they never did agree when they should get together of a Senator; and when I examine the statute I think that that under the laws of their State to elect a United States Senator. controversy is not sustained. I have listened with great in That had been the trouble for a number of years. · It had not terest to the precedents offered by the chairman of the Com only occurred to Mr. FesBenden. It had occurred in a good mittee on Privileges and Elections. I have liBtened to the many other States and on a good many other occasions, and discussion with regard to the colloquy or the conversations for quite a time there had been debate and discussion as, to the which occurred between the mem.bers of the Judiciary who first advisability of' Congress going further than the Constitution drew and submitted this statute; but I think that the statute had gone and saying specifically when a State should elect its itself should be allowed to speak for itself and not be con United States Senator. It -did it not only for uniformity, but trolled by conversations which took place in committee roomB, it did it so as to be certain that the States would elect United and especially when the statute uses different language from States Senators. that which is quoted by the chairman of the Committee oD The matter was referred to this committee, and they brought Privileges and ElectionB. out the bill originally as the chairman of the committee has l\!r. BURROWS. l\Ir. President-- suggested, providing in this particular case that on the second The VICEl-PRESIDElNT. Does the Senator from Oklahoma Tuesday after the legislature shall have notice of a vacancy yield tG the Senator from Michigan? they shall proceed to elect. An the way through the bill it pro Mr. OWEN. Certainly. vided the second Tuesday after the meeting of the legiBlature. Mr. BURROWS. The Senator will allow me to state that tho When the bill came into the Senate, l\fr. Clark mo-ved to insert. conversation referred to was not a conversation in the com- after the word " meeting," the words " and orgnnization," and mittee room, but on the floor of the Senate. • the debate shows that some contended that in some cases that l\Ir. BEV.ERIDGE. Debate. it would be impossible to do so by the second Tuesday after the Mr. OWEN. It amounts to the same thing. It is the expres meeting. l\Ir. Clark cited some illustrations where the second sion of personal opinion that did not find itself recorded in the Tuesday after meeting had found some legislatures not organ language of the law. The statute speaks for itself, and when ized, and he further said "you can not get this vote cast at a the chairman findB it necessary to bolster his contention with certain time with reference to the beginning of' the session be these precedents of fourteen different cases I call the attention cause you can not force anything until the legiBlature is or of the Senate to the fact, and the interesting fact, that, regard ganized and in position to do business, and so you must put it less of the opinion of legislatures with regard to this statute, it 'after the organization.," would hardly ever occur that a' legislature would show such So the law was not made, as the Senator from North Dakota 'dispatch as to dispose of a matter of this importance within says, for the purpose of giving time to investigate the candi se"Ven or eight days, and therefore since these legislatures may dates, but to fix a time after the legislature should be in opera well have acted without regard to the interpretation of this statute their action constitutes no valid argument in interpreting tion, with power to enforce the attendance of its members. the statute itself. when a vote would certainly be had. Hence they put in the I call the attention of the Senate to the language of the words "after organization." statute, section 17: That is not a nt:y material point except as to this: I was Whenever during the session of the legislature of any State a vacancy very much interested in the address of the Senator from Mary occurs in the representation of such State in the Senate. similar pro land [l\Ir. RAYNER]. I want to say to him that on the general ceedings to fill such vacancy shall be had on the second Tuesday after results of this proposition I am with him. It was a very in the legislature has organized. genious argument that the Senator made, and certainly a very And this language is found in se

ft)r the reasons I have set forth; and that is why I undertook to The motion here is that the. Senator shall be sworn. As I answer the statement of the Senator from North Dakota. say, that does not preclude any further inquiry into the case. The time was to be the second Tuesday after organization, The Senator from Pennsylyania says we have had full inquiry. and no other time. That is when they must meet. That is It does not follow that we have had a full inquiry. The Sen when they must take the first action with reference to this ator-elect is entitled to be represented if he wants to before the matter. Why? Because then they are directed when both Committee on Privileges and Elections. The idea of the Senate houses shall meet. It was to overcome the difficulty they had determining that this seat is vacant without giving the claim for many years, in the early sixties, of one body of the legislature ant even a rig:Jlt to appear before the committee, to be repre meeting one day and another body of the legislature. meeting sented in person or by counsel, is tyrannical. Therefore I do another day, or one body never meeting at all. They could not not accede to that view at all. 'l'he Senator from Pennsylvania get them together under the State laws in some States for a says that we ought to determine it here and now upon the argu joint ballot. " They could not get one house to act with the ments made, two or three arguments upon each side, and evi other on a joint ballot, or something of that sort. One house dently made-although I confess I have said about all I can would agree to a joint ballot on one day and the other would say upon the subject-without any extended investigation by not, and there was all that sort of thing. So the Congress of those who have participated in · the discussion, and by two the United States, to overcome that difficulty, passed that law, thirds of the Senators--or four-fifths of them, perhaps-with and it went much further than the Constitution and provided no examination at all. specifically the day when that thing must be done. If the Senate rejects these credentials it will be the first case Now, in the debate that was had on the bill there was a good in the history of the Senate where the Senate has refused to deal of discussion as to whether or not Congress had the power, permit a Senator to be sworn in upon the face of his creden for instance, to provide how they should vote; whether they tials where the credentials were regular. If there is any other should vote viva voce or by ballot. That question was raised case I should like to hear of it. There is not another case. and voted upon, and it was determined that in so far as Con All these citations of cases, where there was no dispute, amount gress was concerned it did have the right to provide when they to nothing. You might as well in trying a case in court cite as should vote and how they should vote; and the Senate voted on authorities a lot of cases that have never been tried. No one that particular thing. of the cases which the Senator from Michigan cited was ever I have heard a good deal of controversy as to when is the brought before the Senate. There is not a contested case which seventh day and when is the first day of the week; and it is he has cited. going on now. All Senators, I suppose, are getting many COQ1- I have given two cases here in which the Senate has decided munications. As a member of the District Committee, I am that where the proceedings were initiated on the third Tuesday, getting, I think, about twenty-five or thirty letters a day, tell which is not in entire accord with what the Senator from ing me about the importance of the first day or the seventh day, Nebraska [Mr. BURKETT] said, although I am very glad he has and in respect to legislation about the first day and the seventh reached the result he has in his own mind, because I do not day. care what his line of reasoning is if he is going to vote for the Now, this whole question to-day revolves around whether last Senator-elect from Maryland-but in both those cases the Sen Tuesday was the second Tuesday or the first Tuesday after the ate held that the statute was directory; that was in Miller's legislature of the State of Maryland was advised of Senator case and in the Florida case. In the case of Hart and Miller Whyte's death. For my part I am not going to quarrel about the proceedings were not commenced-the Senator from Michi it. The legislature has decided when it was, so far as it is con.· gan oyerlooked that part of the statement--on the second Tues cet·ned, and the result that the Congress intended by this law day, but on the third Tuesday, and the Senate held it made no has been accomplished-harmonious action and the election of difference whether they were commenced on the second or the a Senator. It is the only case of the kind that has occurred third Tuesday; that the statute was only directory. in the history of the Senate. There will probably never be an I do not go as far as that. It is not necessary. I say the other case where a Senator dies on Tuesday and the election second Tuesday must elapse after organization. I am perfectly takes place under these circumstances. We are not making a willing to admit that that part is mandatory; that it must be precedent, therefore, that will ever rise up against us, and cer the second Tuesday after the organization of the legislature; but tainly there is no trouble in this particular case. It will not I will never admit that the second Tuesday clause comes into occur one time in a million. It is the first case of its kind in this provision with respect to notice, and before you refuse the a hundred years in the history of the country. For my part I Senator from Maryland his rights you have to interpolate those am going to take the view that the legislature of the State of words into the provision as to notice, that two Tuesdays must Maryland took. They knew that Senator Whyte was dead two elapse after notice, when there are no such words in the Tuesdays. That constituted the second Tuesday, and they statute. elected his successor on that Tuesday. • It is all right to talk about the reports of committees. We This law had just one object, and that was to get elections of all know that the courts, in an unbroken line of cases, have de United States Senators and prevent filibustering, and it has clined in the construction of statutes to be entirely governed accomplished in this case just exactly what the law was origi by antecedent matters connected with the legislation. They nated and designed to accomplish. And for my part I do not have taken the view of course that the statute merged the pro propose to sit here and quibble on a technicality, whether it is ceeding. You may find the report of the committee one way and the fi·rst Tuesday or the second Tuesday, and defeat the ac you may find the law another way. The_]aw mero-es the pro complishment of a thing sought to be accomplished by that ceedings, and the antecedent proceedings do not alway enlighten statute. So I am willing in my vote to follow the opinion of us in the ~nstruction of the law. We are not to decide this the legislature of Maryland ih this matter and say that they case upon any proceedings that took place before the passage of did know of Senator Whyte's death two Tuesdays. the law. Mr. RAYNER. Mr. President, before I submit my motion I The filing of the bill, the discussion in the committee room, wish to say a few words. I think we had better understand ex the reports of the committee are all gone when the law actly the question before the Senate. The question before the is passed, and the question is not how will you construe Senate is not the question which the Senator from Pennsyl those proceedings, but how will you consh·ue the law, and here vania [Mr. KNox] submitted at all. The question before the is the law providing for notice, without saying one word to Senate is whether the Senator-elect from Maryland shall be the effect that two Tuesdays must elapse after the notice is sworn in. That is the only question before the Senate. It given. does not preclude the Senate or any member of the Senate 1\lr. BURKETT. Will the Senator from Maryland permit me or any member of the committee with reference to any sub a question? He says that in this case the second Tuesday sequent proceeding that may take place or in regard to does not have any reference to the time of the death, but only any report that may come from the Committee on Privileges refers to the second Tuesday after the organization. Supposing and Elections. The Senator from Pennsylvania wants to put in this case one house of the legislature of Maryland had been this question in a way in which it never yet has been put one way and the other house had been the other way with before the Senate that I know of. If there is any such case, I reference to the election of a Senator, and they had not C{)me shall be glad to haYe it presented. The Senator from Pennsyl together, that one wanted to set one day for the election of a vania says to take up the case and decide it now finally, not send Senator and the other another. Suppose one of the hou~ . es had it to the committee at all, not let the committee act upon it or determined to sit the next day, and the other house had agreed hear any further arguments upon it, but just upon the presenta to sit two or three days later on for the election of a Senator. tion of a motion to swear in a Senator that the Senate shall What would have been the result if this statute is not to provide consider the whole question, abandon the motion, and consider the time when they must get together and vote? something that is not before the Senate. I object to that plan, Mr. RAYNER. If the legislature proposes not· to elect a Mr. President. Senator, it must take the responsibility. If the legislature does 1908. CONGRESSJONAL RECORD-SENATE. 3953 not e1ect, it must take the result. My construction is that the elect from Maryland to leave this presence. There is no such second Tuesday must elapse after organization. It is impos case. I have cited an unbroken line of cases-and the Senator sible for me to change my mind about that. But it has nothing from Michigan has not referred to them, and the Senator from whateyer to do with notice. They can proceed the day after Massachusetts has not referred to them, and no one has re they get the notice. referred to them-where in every single instance the Senator I want to announce to the Senate the situation we are in in elect was sworn and the question came up afterwards upon its Maryland. Our constitution provides that the general as merits. sembly may continue its sessions so long as, in its judgment, the I say, follow your precedents. It does not bind you. It puplic interest may require, for a period not more than ninety does not conclude you. The question then, upon the motion of days. The time of our g~eral assembly expires on Monday any Senator who so desires it, as it was done upon the motion night at 12 o'clock. Therefore we can not elect any member of of Senator Hoar and other Senators in these cases, will be sent the United States Senate. It would be impossible for us to do to the Committee on Privileges and Elections. The Senator it. It would be utterly impossible for the general assembly of from Maryland will have the right to appear there by counsel, Maryland to comply with the suggestion of the Senator from if such a proceeding should occur. Michigan. :Mr. President, I think this question is of great concern. You This case might not occur again within a long time, be are attempting to do a serious thing. You are denying to a cause the death of Senator Whyte took place on Tuesday. If it State the constitutional right of representation. had taken place on 1\Ionday, this case would not have arisen. l\Ir. BEVERIDGE. I will simply say to the Senator that that We have not defied any law of Congress or anything of that may be what has been proposed, but it has not been done here, sort. We have done the very best we could. We could not do and I think the Senator will find that the entire gravity and anything else. There was nothing else for us to do, because importance of this situation is entirely appreciated. I am there is o other Tuesday that intervenes so as to entitle us to heartily with the Senator. have an election. The undivided sentiment of our State is 1\Ir. RAYNER. I understand that. I am VeJ.'Y much obliged against calling an extra session for reasons that it is not neces to you. I am trying to get votes. sary for me to enter into now. There is a protest from every 1\fr. BEVERIDGE. I was informing the Senator that he has part of our State, not only in my own party, but from the Re some votes on both sides. publican party and from independent sources all through l\fr. RAYNER. I have some, but I want a few more. I feel the State, againt an extra session. It would incur a useless ex the overwhelming work that is on. me as a Senator from Mary.: pense of $30,000 to $40,000, and they would be kept in session land, and the State _is entitled to two Senators. I think every fifteen days absolutely doing nothing, to settle a technicality, if State is entitled to two Senators. I would leave his Hall be you can dignify it by that name. fore I voted to reject a man on pr:oper credentials from a State. There is no contestant here; there is no protest. You estab I woulO. say "the State elected you, and now be sworn; and let lish no precedent by letting the Senator-elect be sworn in. There the committee go into an inquiry about it, if an inquiry is de is not a single precedent, as I pointed out to the Senator from manded." Michigan, that is established. If the Senator-elect from Mary The point the Senator from Michigan makes is a mere techni land is now sworn in, your committee can take up this question, cality. It is, in other words, that we must make the inquiry and if you want to declare the seat vacant you can take it up before the Senator-elect is sworn, and not after he is sworn. and have a full discussion in the committee, and let us have a Why not let this proposition go to the Committee on "Privileges tun discussion in the Senate. and Elections, and when the Sen!ltor who is sworn appears In none of the cases the Senator from Michigan has cited has before the committee have the question there decided, if neces the event happened in the manner that this event did, because sary? here the Senator happened to die on a Tuesday which does not I wish to say in conclusion that the Senator from Pennsyl permit two Tuesdays to intervene before the adjournment of a vania and the Senator from Michigan and the Senator from legislature. Massachusetts have not cited a case to contravene the un In not a single case that is cited has that been the case. broken line of cases where if the credentials of a Senator are The whole question here is whether this shall be done in view proper he is sworn. That is all that I ask. of the fact that there never has been a Senator rejected here My motion before the Senate is nothing further than that. whose credentials were all right. The Senator from Colorado I move that the credentials of John Walter Smith, Senator-elect knows as much about these matters as any man in this body, from the State of Maryland, be taken from the table and that and he agrees with me. Furthermore, he has stated that the he be sworn. Then, after he is sworn, the Senator from Michi only case that has been cited-the case from Pennsylvania gan can make a motion that his credentials be referred, as in was one where the irregularity upon the credentials of Senator all those cases it was done, to the Committee on Privileges and ~uay appeared upon the face of the credentials. Elections, if he so desires. Any other proceeding, 1\Ir. Presi 1\ir. President, we had better be a little careful about this dent, would be the gravest injustice, gratuitously inflicted upon matter. It is not a party question. It is not a question of a sovereign State that has the right of its constitutional repre supporting the dignity of the committee, because your commit sentation in the Senate. tee has made no report. It is not a question of sustaining the 1\Ir. BURROWS. 1\fr. President, I think I appredate fully, opinion of the honored chairman of that committee, because as the Senate does, the importance of the question. he has never had the case in hand to make an official report The VICE-PRESIDENT. Will the Senator from Michigan to the Senate. He simply has given his views upon the con allow the motion to be stated? struction of a statute and, admitting now that his construction 1\Ir. BURROWS. Certainly. is right, there is no reason on this earth why every precedent The VICE-PRESIDENT. The Senator from Maryland moves should be disregarded and the Senator-elect from Maryland that the credentials of John Walter Smith, Senator-elect from should be the first Senator rejected upon the face of perfectly the State of Maryland, be taken from the table, and that he be proper credentials in accordance with the statutes of the United sworn. States. l\Ir. BURROWS. Mr. President, I was saying that I appre I do not think that some members of the Senate fully appre ciate the importance of this question and the very gra Ye im ciate the situation. You . have never yet rejected a Senator portance of making a mistake in the matter. I feel as though where his credentials were in proper form. You have never the matter ought to be considered by a committee before action yet collaterally impeached the certificate of a Senator by pro is taken. I therefore offer a substitute resolution for the mo ceedings dehors the certificate. It has never been done. tion of the Senator from Maryland. All I ask for here is the exercise of a prima facie right. I am The VICE-PRESIDENT. The Senator from Michigan offers not asking the Senate to determine this question. A.. man may a resolution which will be read. vote to-day to let the Senator-elect be sworn and vote to-morrow The Secretary read as follows : to have his seat vacated, and there is no conflict between his Resol-ved, That the credentials of John Walter Smith, claiming a votes. The Senator from Indiana [Mr. BEVERIDGE], who will seat in the Senate from the State of Maryland, be taken from t he -vote to seat him, may, when the report comes in from the Com files of the Senate and referred to the Committee on Privileges and mittee on Privileges and Elections, vote to unseat him, and Elections. he is not bound by anything he has said. He will then be able 1\fr. BURROWS. I will say in this connection that if the to examine into the merits. Bnt now the whole question is as to resolution prevails I will call a meeting of the Committee on the prima facie right of the Senator-elect to be sworn. Privileges and Elections at once, to-morrow, to consider the The Senator from Michigan is mistaken. He has no prec matter, and I promise the Senate an early report. edentEt. There is no precedent. Give me a single precedent Mr. RAYNER. A.s far as I am concerned that will not suit where a Senator appeared at the bar of the Senate with proper me, and it will not suit my State, and it will not suit anybody. credentials and was rejected. If you do I will ask the Senator- Suppose we go into this question to-morrow, and have a meet- XLII-248 3954 CONGRESSIONAL REOOR])-SENATE. MARcH 26,. ing of the Committee on Prirueges and' Elections- called, the Mr. WARREN (when his name was called). I have a gen Senator-elect certainly must be given time to prepare his case. eral pair with the Senator from l\llssissippi [Mr. 1\IoNEYJ, who Wby is there. this tremendous urgency in the case? Wby is the is detainee! fi·om the Chamber by illness. I therefore with- Senator from Michigan, without a protest or a contestant, pro hold my Yote. · posing to- do in thi case what hfts never been done before! The roll call was concluded. You want us to enter into a discussion of this very important 1\Ir. CLAY. l\Iy colleague [Mr. BACON] is absent. He is matter before the Committee on Privileges and Elections before paired' with the senior Senator from Montana [.Mr. CARTER}. the case is ready for presentation? It might nm·er be reported, Were my colleague present he would' vote "nay.n and then it might be reported after the legislature of Maryland 1\Ir. KEAN. My colleague [....Jr. BRIGGS] i necess:1.ril'y ab• has adjourned and thus compel the governor to call an extra sent. I understand he is paired with the Senator from Mary.. ses: ion. land [1\lr. RAYNER]. 1\Tr. BURROWS~ It does not make any difference whether 1\Ir. RAYNER (after having voted in the negative) . I thought it is dEc'termined by the committee votes on Saturday or next the pair was on the currency bill, but if the , enator from New Monday, so far as the legislature is concerned. The governor Jersey says it is on all legislation, I will withdraw my Yote. of your State can call an extra session of the legislature for I stated distinctly the currency bill, but if it is the impres ion-- next Monday, before the members of the legislature leave the 1\Ir. KEAN. I would be very glad if the Senator should ar· capital of the State, and they can elect a Senator a week from range a pair so that he can vote. next Tuesday. But I do not care to discuss the matter further. Mr. RAYNER. I will Jet my pair with the Senator from .IUr. RA..Y:NER. :Mr. President. I propose to say a word. New Jer"'ey stand, if that is the understanding, and withdraw Mr. BEVERIDGE. Mr. President-- my ,-ote~ The VICE-PRESID~""T~ Does the Senator from 1\iaryla..nd Mr. CULBERSON. I will state, generally, that Senators on yield to the Senator from Indiana? this side of the Chamber have general pairs, in some c s with lUr. R.A. Yl\TER Certainly. Senators on the other side, and I am inclined to think that some Mr. BEVERIDGE. I wished merely to say it the Committee of those Senators have voted. I do not invite attention to it ex· on Privileges and Elections were willing to act upon the case cept generally, bot I do it in a general way. this afternoon or to-night or to-morrow or at any other time 1\Ir_ RAYNER.. I want to state that the arrangement for a at this pru:ticular juncture, the Senator-elect has a right upon pair with the Senator from New Jersey [1\Ir. BRraos] wa made his credentials, the regularity of which no man questions, to be before this question came up; and I can not .,ee how it could sworn in. The next hour we might take up this question and possibly apply t<> a question that came up to-day, unexpected.Iy. try it in the regular way and exclude the Senator-elect. But Mr. KEAJ.~. I am :tully aware of that faet; and I do not Irnow upon the only question now pending before- the Senate, the how my colleague [1\fr. BRIGGS] would vote. . I should b~ glad i! right of the Senator-elect to be sworn upon regular cred"entials, the Sen tor fi.'Om Maryland could arrange for a transfer of the he lra:s that right, no rna tter if we were to T"Ote to exclude him pair so that he could vote. in an hour. Mr. TELLER. ~Ir . President, I call for the regnla.r order. Mr. BURROWS~ I want to sa-y in reply to the Senator from All thi debate is out of order. Indiana. that I have not yet forgotten the contention of the The VICE-PRESID-ENT. The regular order is demanded. Senate that when a member is once sworn in it will take a The C1mir would ask it the Senator from Maryland! withdrew. two-thirds -vote to dispossess him~ his vote1 :Mr. RAYNER. The Senator from :Michigan is mistaken 1\Ir. RAYNER. I will stand on my yote as cast. It can stand. about that.c There will not be an expulsion~ If you decide 1\fr. GA.l\IBLEJ. I desire tf> announce that since my name was against the Senator-elect from Maryland, the seat is vacant ab called my pair with the Senator from Ne~ada [Mr. NEWLANDS} initio~ and the question of expulsion does not enter into it has been transferred to the Senator from Maine [Mr. HALE! at all. and I will vote. I vote ... yea." Mr. BURROWS~ I suppose the Senator from Maryland can 1\Ir. ELKINS (after having voted in the affirmative.). I have not speak for the Senate. a general pair with the senior Senator from Texa [Mr. 1\Ir. RAYNER. I can speak for the Senate. BAILEY.] I see that he is not in the Chamber, and I withdl:aw Mr. BURROWS. I have offered my resolution as a Sllbsti my vote. tute, and I ask for a vote on it. 1\Ir. KEANL I suggest to the Senator from West Virginia Mr. RAYNER. Mr. President,. just a moment. I want to that he transfer his pair to my colleague~ state the proposition. There is no occasion for expulsion. If Mr~ ELKINS~ Very well; I will transfer my pair to the the Senator from Maryland was not elected, his seat is vacant. junior Senator from New Jersey [Mr. B&rsos] and let my vote It is not a question of doing any act.- The case from Utah pre stand:. sents no parallel. The governor of our State has been advised 1\Ir. CULLOl\1. I have a general pair with the junf{)r Senator by the attorney-general of the State, one of the best-read law from Virginia [1\Ir. MARTIN], but I understand that my pair has been transferred to the Senator from Indiana [1\Ir. !IE:MENWAY]. yers in the State7 and he has. been advised by almost every leading lawyer in our State-and we have as good a bar almost I therefore vote " yea." as there is in the country; they are the peers of any other bar 1\Ir. RA.Y3ER. Is my vote recorded or withdrawn? in any other State-and the uniform opinion is that the action The VICE-PRESIDENT. The Senator's vote is rec{)rded. of the legislature was regular and that the governor is right The Secretary recapitulated the "\"ote. about it and ought not to .be called upon to call an extra ses .M:r. CULLOl\L I am informed by one of the men oil the :Hoor sion. These men have examined it, and he has acted under that there iff some question raised as to the propriety of my, their advice. Every leader. of the ?\.faryland bar, without hav voting. I do not know how the Senator from Indiana [Mr. ing any interest in it at all, has advised him to proceed in the HEMENWAY} would vote, but if there is any question about the way he has, and acting on their advice he has proceeded. The matter I will withdraw my -vote and stand paired with the question is whether the Senator-elect will be rejected. Senator from Virginia [Mr. lUARTIN]~ 1\Ir. BURROWS. On the resolution I have offered as. a sub Mr. SIMMONS (after having voted in the negative). I was stitute I demand the yeas and nays. under the impression at the time I voted a few moments ago The yeas and nays were ordered that a transfer of my pair with the junior Senator from 1\.lin.. Mr. CULBERSON. Let me understand the proposition~ The nesota [Mr. CLAPE]. had been arranged. I find that that .haS Senator from Maryland offers a motion that the Senator-elect not been done,. and therefore I withdraw my Yote. be sworn. The Senator from Michigan proposes as a substi The result was announced-yeas 28, nays 34, as follows: tute. to send the credentials to the committee and to vote down YEA8-28. the proposition that the Senator-elect be sworn now. Aldrich Curtis Elkins Kno.,'r The VICE-PRESIDE ~T. That is the effect of it. The Ankeny Depew Flint Lodge resolution to commit takes precedence. The Secretary will Br:mdegee Dick Foraker Long Bnlkeley Dillingham Gallinger Nelson call the roll. Burnham Dixon Gamble Smith . The Secretru·y proceeded to call the ron_ Burrows Dolliver H opkins Suth.erla.nd Mr. DILLINGHAM (when his name was called). I again Crane duPont Kenn Wetmore unnounee the illne s of the Senator from South Carolina [Mr. NAYS-34::" TILLMAN!. which renders his absence necessary, and of my Bankhead Frazier McCumber Rnyne1· Beveridge Frye McEnery Richardson general pair with him. I transfer my pair to the Senator from Borah Gary McLaurin Smoot Nevada [Mr. Nrxo~] and vote. I vote ~·yea . " Bourne Gore Owen Stephenson Mr. G.Al\IBLE (when his name w:1.s. called). I have~ general Brown Guggenheim Overman Taylor Burkett Heyburn Paynter Teller pair with the senior Senator from Nevada [Mr. NEWLANDs}, Clay Johnston Perldns Warner and not knowmg how he would vote. if present,. l will withhold Cnlberson La Follette Piles my vote for t he present. Foster McCreary Platt 1908 . . CONGRESSIONAL RECORD-SEN ATE. 3955

NOT VOTING-27. He also introduced a bill (S. 6348) granting a pension to Allison Clarke, Ark. Hemenway Scott Francis 1\I. Snead, which was read twice by its title and, with Bacon Cullom Kittredge Simmons Bailey Daniel Martin Stone the accompanying papers, referred to the Committee on Pen Briggs Davis Money Taliaferro sions. Carter Fulton Newlands Tillman He also introduced a bill (S. 6349) to remove the charge of Clapp Hale Nixon Warren Clark, Wyo. Hansbrough Penrose desertion from the military record of John Tayhan, which was So the resolution was not agreed to. read twice by its title and, with the accompanying paper, re The VICE-PRESIDENT. The question recurs on the motion ferred to the Committee on Military Affairs. of the Senator from Maryland [Mr. RAYNER], that the creden MISS ELLEN M. STONE. tials of the Senator-elect from Maryland be taken from the The VICE-PRESIDENT laid before the Senate the following table and that the oath of office be now administered. [Put message from the President of the United States, which was ting the question.] The "ayes" have it, and the Senator-elect read and, with the accompanying papers, referred to the Com will present himself at the Vice-President's desk and take the mittee on Foreign Relations and ordered to be printed: oath prescribed by law. [Applause in the galleries.] The To the Senate and House of Repr·eserttatives: · Chair must admonish the occupants of the galleries that under I transmit herewith for the consideration of the Congress a letter from the rules of the Senate applause is not permitted. the Secretary of State on the subject of the repayment to the contrib utor~ of the money raised to pay the ransom for the release of Miss 1\fr. Smith, escorted by Mr. RAYNER, advanced to the Vice Ellen M. Stone, an American missionary to Turkey, who was abducted President's desk, and the oath prescribed by law having been by brigands on September 3, 1901, while traveling on the highway from Raslog to Djumabala, in the Turkish Empire. administered to him, he took his seat in the Senate. THEODORE ROOSEVELT. ALBERT NELSON. THE WHITE HOUSE, Mm·ch 26, 1908. The VICE-PRESIDENT laid before the Senate a communi AMENDMENT OF THE NATIONAL BANKING LAWS. cation from the Secretary of the Interior, presenting, in com 1\Ir. ALDRICH. I ask that the bill (S. 3023) to amend the pliance with the resolution of 1\Iay 29, 1830, the name of Albert national banking laws be now laid before the Senate. Nelson, of Suter's tract, Allendale, Alameda County, Cal., late The Senate, as in Committee of the Whole, resumed consid gunner's mate, second class, U. S. S. Wheeling, who is now pen eration of the bill (S. 3023) to amend the national banking Sioned at $24 per month, and who by reason of his present con laws. dition should be granted a pension of at least $50 per month, 1\Ir. WARREN. I simply wish to inquire if any time has and for which the Commissioner of Pensions has not sufficient been granted for morning business to-day? power or authority, which was referred to the Committee on The VICE-PRESIDENT. There has been no time granted Pensions and ordered to be printed. for that purpose. NATIONAL SOCIETY DAUGHTERS OF THE AMERICAN REVOLUTION. Mr. WARREN. And is morning business now in order, with The VICE-PRESIDENT laid before the Senate a communica the consent of the Senator from Rhode Island, who has charge tion from the Secretary of the Smithsonian Institution, trans of the floor? mitting, pursuant to law, t1le tenth report of the National So Mr. BEVERIDGE. It is in order by unanimous consent. ciety of the Daughters of the American Revolution, which, The VICE-PRESIDENT. If the Senator from Rhode Island with the accompanying paper, was referred to the Committee on is recognized, so long as he has the floor no morning business Printing. is in order. PETER CLAUDE. Mr. ALDRICH. I prefer that Senators will wait until to- morrow morning to present morning business. Mr. DEPEW presented sundry papers to accompany the bill Mr. WARREN. Very well; let it go over then. (S. G166) for the relief of Peter Claude, which were referred to 1\fr. CULBERSON. Mr. President-- the Committee on Pensions. The VICE-PRESIDENT. Does the Senator from Rhode COMMITTEE SERVICE. .Island yield to the Senator from Texas? 1\fr. LODGE, on behalf of Mr. HANSBROUGH, asked that that Mr. CULBERSON. I did not ask the Senator to yield, Mr. Senator be relieved from further service as chairman of the President. I thought the floor was not occupied. Committee on Public Lands, to take effect April 1, 1908, and it Mr. ALDRICH. I did not understand the Senator. was agreed to. The VICE-PRESIDENT. The Chair asked the Senator from Mr. NELSON was, on his own motion, relieved from further Rhode Island if he would yield to the Senator from Texas. service as chairman of the .Committee on the Mississippi River Mr. ALDRICH. I yield the floor. and its Tributaries, to take effect April 1, 1908. Mr. CULBERSON. I do not desire to take the Senator from 1\Ir. WARNER was, on his own motion, relieved from further Rhode Island off the floor. I supposed the bill was before the service as chairman of the Select Committee on Industrial Ex Senate and that the floor was unoccupied by any Senator, and I positions, to take effect April 1, 1908. addressed the Chair accordingly. If the Senator from Rhode :Mr. LODGE submitted the following resolution, which was Island has anything to say, I will wait until he concludes. considered by unanimous consent and agreed to: Mr. ALDRICH. I have nothing to present. I merely called Resolved, That Mr. HANSBRO UGH be appointed to fill the vacancy in the bill up. the chairmanship of the Committee on Agriculture and Forestry ; that Mr. CULBERSON. 1\Ir. President, I then offer the amend Mr. NELSON be appointed to fill the vacancy in the chairmanship of ment on the question of reserves, which I send to the desk, and the Committee on Public Lands; and that Mr. WARNER be appointed to fill the vacancy in the chairmanship of the Committee on the Missis invite the attention of the Senator from Minnesota [Mr. sippi River and its Tributaries ; said appointments to take effect·April l, NELSON] to the amendment now proposed. 1908. The VICE-PRESIDENT. The s.mendment proposed by the Mr. LODGE submitted the following resolution, which was Senator from Texas will be stated. considered by unanimous consent and agreed to: The SECRETARY. On page 10, line 3, after the words " Sec. Reso lved, That 1\Ir. G uGGENHEIM be appointed to fill the vacancy in 8," it is proposed to insert the following: the Committee on Post-Offices and Post-Roads. That from and after J"anuary 1, 1909, every national bank shall Mr. LODGE submitted the following resolution, which was have and keep on hand in its vaults the reserve of lawful money pro vided for by law. All laws and parts of laws which authorize na considered by unanimous consent and 'agreed to: tional banks to have and keep part of their reserve in other national Resolved, That l\Ir. BURKETT be appointed to fill the vacancy in the banks are hereby repealed. Committee on Agriculture and Forestry. The VICE-PRESIDENT. The pending amendment is the BILLS INTRODUCED. amendment proposed by the Senator from North Carolina [Mr. ~Ir. BURKETT introduced a bill (S. 6344) granting an in SIMMONS) . . crea e of pension to J. M. Crosby, which was read twice by its 1\Ir. NELSON. I desire to state, Mr. President, that in some title and referred to the Committee on Pensions. respects the amendment offered by the Senator from Texas as He also introduced. a bill ( S. 6345) granting an increase of a substitute or an amendment to take the place of an amend pension to William O'Brien, which was read twice by its title ment I offered yesterday I think is a better amendment than and, with the accompanying papers, referred to the Committee mine; and I am quite willing that it shall take the place of on Pensions. the amendment which I offered. l\lr. FORAKER introduced a bill (S. 6346) granting an in The VICE-PRESIDENT. The pending amendment is the creaC!e of pension to Lydia I. Taylor, which was read twice by amendment proposed by the Senator from North Carolina [Mr. its title and referred to the Committee on Pensions. SIMMONS], which will be again stated by the Secretary. He also introduced a bill (S. 6347) granting an increase of The SECRETARY. It is proposed to strike out all afte,. the pension to Joseph P. Boals, which was read twice by its title words " of the United States," in line 4, page 7, down to the and, with the accompanying papers, referred to the Committee word "every," in line 7, page 8, and insert in lieu thereof the on Pensions• . words "f?hall pay a monthly tax of one-fourth of 1 per cent 3956 CONGRESSIONAL RECORD-SENATE. ~IARCU 26, during the first three months after they shall be issued and of from one-half of 1 per cent per month to one-fourth of 1 per one-hal! of 1 per cent afterwards upon the avm·age amount of cent per month.· There is nothing in the amendment as adopted such of their notes in cil·culation as are based upon the de that conflicts with this proposition. posit of such bonds." Now, 1\fr. President, I want to say frankly to Senators on · Mr. ALDRICH. Mr. President, I hope the amendment will the other side of the Chambm· that I do not offer this amend not be adopted. If it is, in my judgment, it will destroy the ment in any spirit of hostility to the pending bill, although in purpose of the bill. It was not the purpose of this measure to its present shape I can not vote for it. I sincerely wish that make the issue of notes by national banks profitable. It would the bill might be put in a condition that I could vote for it. JJc profitable if this amendment should be adopted, and I am There is no Senator in this Chamber on this or on the other quite sure that the result would be an ilnmediate and large addi side-- tion to the currency of the country, not to meet emergencies, but Ur. HOPKINS. Mr. President-- for ordinary business transactions. The amendment proposes The VICE-PRESIDEN1;'. Does the Senator from North Caro to fix the rate for three months, but it would l>e extremely easy lina yield to the Senator from Illinois? for any bank. that desired to keep its circulation out on a 3 l\lr. SIMMONS. Yes. per cent basis to issue it for three months, and at the end of Mr. HOPKINS. I should like to ask the Senator whether, if three months to issue it again; so that we would, in my judg the amendment he has just proposed is adopted, he will vote for ment, ha\e constantly in circulation an emergency currency the bill. taxed but 3 per cent. I hope the amendment will not be 1\Ir. SIMMONS. I think I will. I have so st:1.ted to the adopted. chairman of the comml ttee. Senators will remember that in a 1\Ir. OWEN. Mr. President, I call the attention of the Senate speech I made upon this bill a few weeks ago I pointed out the to the fact that on yesterday it adopted an amendment increas main objections which I had to the bill. They were threefold. ing the rate of interest after a certain number of months-! The first was the provision in regard to railroad bonds. That think four months-and this would be entirely at Tariance with objection has been remoYed by striking these bonds from the that action on the part of the Senate. bill. The second objection I then stated will be in part removed 1\Ir. ALDRICH. Yes; that is right. by the amendment offered by the Senator from Alabama [1\Ir. Mr. SIMMO"" ... S. Mr. President, before a "Vote is taken on JoHNSTON], and which I am advised the Committee on Finance the amendment I desire to submit some remarks to the Senate at its meeting this morning decided to accept. The third objec expressing my reasons for desiring legislation of this character. tion is co\ered by this amendment, and if it is adopted it will I regret "Very much that the chairman of the Committee on practically remo\e all of the objections to the bill which would Finance [Mr. ALDRICH] is unable to accept the amendment make it impossible for me to giYe it my support. EYen with which I have offered, because I am myself Tery much in earnest these changes the bill would still be unsatisfactory to me, but, about it. I am very thoroughly convinced that it is a. proper as I said, I think, with these amendments and changes, I can amendment. I believe that it would greatly strengthen this vote for it. bill and that it would make it much more acceptable, not only Mr. President, there is no Senator in this Chamber who recog to a large number of Senators upon this side of the Chamber, nizes more fully than I do the nec~ssity for legislation provid but to the people of the agricultural and manufacturing sections ing an emergency currency, a currency which can be quickly of this country. I want to say frankly-- brought into existence to meet abnormal conditions of panic or :Mr. McCUMBER. l\lr. President-- stringency, and which will just as quickly go out of existence The VICE-PRESIDENT. Does the Senator from North Car when that emergency has passed away. I also recognize the olina yield to the Senator from North Dakota? fact that in the nature of things there must be, if the money 1\Ir. SIMMONS. Certainly. is to meet an emergency caused by exceptional conditions, a Mr. 1\IcCU:MBER. I simply rise to a point of order, Mr. sufficient tax: to force it out of circulation when the emergency President. We adopted yesterday an amendment increasing has passed. the rate of interest for a ce1·tain proportionate time. Now, the 1\Ir. CLAY. Will the Senator allow me to ask him a question: question with me is whether the Senate as in Committee of the The VICE-PllESIDE....'rr. Does the Senator from North Caro \Vhole can take up another amendment on the sa.me line as the lina yield to the Senator from Georgia? amendment adopted yesterday and make that a different amend Mr. SIMMONS. I yield with pleasure to the Senator from ment without amending the particular amendment that was Georgia. adopted yesterday; If so, I have also an amendment on the Mr. CLAY. With the Senator's permission, if I can ha\e the same subject. I a k simply for information. attention for a moment of the Senator from Rhode Island, the The VICE-PRESIDENT. The Senator from North Dakota original bill, if I understand correctly, provided that the tax rises to a parliamentary inquiry. The Chair is of opinion that shall be equal to 6 per cent peE yen.r; in other words, one-half the amendment .now offered is in order, notwithstanding an of 1 per cent per month. I want to ask my friend from North amendment was formerly adopted upon a similar subject. Carolina this question : If we amend this bill and allow for Mr. McCUMBER. If it is agreed to, will it take the place the first three months the rate of taxation to be one-fourth of of the one adopted yesterday? 1 ·per cent per month, could not the national banks take out this The VICE-PRESIDENT. Yes; as the part to be struck out circulation for three months and pay the tax on it of one-fourth and inserted present substantially a different proposition. of 1 per cent, then retire it, and then take it out again for three Mr. SIMMO.~:rs. Mr. President, I regret yery much that I do months, and consequently the tax: would be practically only 4 not recall at this time the amendment which was adopted on per cent per annum instead of 6 per cent per annum? Would yesterday. The first reference that I have heard to it was the not that enable the bankers to make more profit and would it statement of the Senator from Oklahoma [Mr. OwEN}, and not not practically destroy the 6 per cent rate of interest, because knowing the exact terms of that amendment, I am not able to they could simply retire the money, take it back, and rei sue it understand the reference that has been made. I therefore ask at the end of three months? that that amendment be read, so that I can understand it. 1\fr. Sll\lllONS. Mr. President, that might be the case if it The VICE-PRESIDE...'\T. The Secretary will state the amend were not for the fact that the bill itself provides in specific ment referred to by the Senator from North Carolina. terms that not one dollar of money can be issued under· it until The SECRETARY. In line 4, page 7, after the words " shall the Secretary of the Treasury has officially detm·mined and de pay," insert: cided that an emergency exists. If the Seer tary of the Treas For the first six months. ury decides that there is an emergency, under my amendment And in line 7, page 7, after the word "bonds," strike out the any bank can take this money out, and for three months it will period and insert in lieu thereof a comma and the words : be required to pay but one-fourth of 1 per cent per month. At And afterwards a monthly tax of three-quarters of 1 per cent upon the end of that three months it will have to pay one-half ol 1 the average amount of said notes. per cent. Suppose, as the Senator from Georgia suggest , the So as to read : banker again desires to issue similar notes or notes for similar National banking associations having on deposit bonds to secure their amounts in order to get the benefit of this reduced rate, he can circulating notes other than bonds of the United States shall pay for not do it imless the Secretary of the Treasury determine that the first six months a monthly tax of one-half of 1 per cent upon the average amount of such of their notes in circulation as are based upon the emergency still exists; and so long as the emergency exists, the deposit of such bonds, and afterwards a monthly tax of three I maintain there is no necessity for burden\ng this money with quaxters of 1 per cent upon the ayerage amount of said notes. this heary rate of taxation. If the Secretary determines the l\Ir. SHL\IO... TS. Mr. President, that amendment in no way emergency is over he will have to pay the hio-her rate. conNcts with the amendment I ha\e proposed. l\ly amendment The bill as reported by the Finance Committee impo. es a proposes to reduce the rate of tax as provided in the original ta..""'r at 6 per cent upon every dollar of money issued unuer it bill during the first three months of the life of these notes from the hom that it is issued until the hour of its redemption 1908- CONGRESSIONAL RECORD-SENATE.: ;3957J

and retirement. That tax, together with the expense incident were held by national banks, or even by State banks, but he con to issue and redemption, will impose a fixed charge upon tended that good banking required that they should carry a rea every dollar i sued under this bill of about 6-! or 6i per cent. sonable amount of such securities, or securities of like character-, In the great majority of States that is one-half of 1 per cent and he declared if the proposed legislation made it necessary for more than the legal rate of interest, and the great majority of them to carry more of this class of securities it would be a the commercial banks-and national banks are commercial good thing. banks--do not, as a rule, charge over 6 per cent. So that we Mr. President, I have the greatest respect for any opinion will have a money taxed one-half of 1 per cent in excess of the or judgment expressed by the junior Senator from Texas [Mr. legal rate of interest and of the rate of interest that actually BAILEY], because I recognize his great powers; but in this con obtains in commercial a,nd business transactions. tention he is, I think, in error. The obligations of a commer If a bank carries this class of bonds as a part of its perma cial bank are demand obligations. Nearly all the debts of a nent assets, if it keeps them, so to speak, in stock, as many of commercial bank are due to depositors and corresponding bunks. the great banks in the reserve cities do, or if, as is the case Probably more than two-thirds of all the obligations of a com with many of these great financial institutions, it could, through mercial bank can be called at any hour of the day when the its connection and affiliation with the great trust companies and doors of the bank are open, and I maintain it is nece~sary in insurance companies which carry these bonds as permanent the interest of good and safe banking that the assets of such investments, secure them without any cost to it, this money a bank shall be at all times as far as possible of a liquid char will only cost it about 6! per cent, and such a bank can per acter-that is, quickly convertible into cash. haps afford to use it and loan it without charging an exorbitant We have to-day about 6,000 national banks. They have a rate of interest; but that class of banks which are desig capital of only about $1,000,000,000. They have on deposit about nated by the Treasury Department as country banks (and they four and a half billion dollars, payable on the demand of their include all the national banks of the country except those depositors. With demand obligations more than four times located in the reserve and central reserve cities) do not carry greater than their capital, I maintain it is not good banking for this class of securities and can not afford to carry them; they them to carry long-time paper. I maintain this condition calls can not afford to invest money, for which they have a ready for assets quickly convertible into money-in short, for short demand from their commercial customers at G per cent, in bonds time commercial paper. drawing only 4 per cent interest. If they want these bonds as In support of these propositions I desire to read a brief state a basis of circulation, they must either borrow them and pay 2 ment from a petition recently sent to Congress by the Board of per cent for their use-the owner of the bond getting the interest Trade and Transportation of the city of New York. Here is one which they draw-or they must buy them with money taken of the statements contained in that petition, signed by the presi from their vaults which could be loaned at 6 per cent, thereby dent of that board and its finance committee. losing 2 per cent interest in the tran&'lction. To this class of Mr. ALDRICH. Mr. President-- banks the notes taken out under this bill would cost 8-! per cent The VICE-PRESIDE~T. Does the Senator from North Caro and could not be loaned at a profit for less than 9 per cent. lina yield to the Senator from Rhode Island? The Senator from Rhode Island [Mr. ALDRICH], who is chair l\fr. SIMMONS. Certainly. man of the Committee on Finance, has said several times dur Mr. ALDRICH. I suppose the Senator is aware, although ing the course of this debate that this bill was not intended for he may not be, that the president of that association, the gen the benefit of the banks. He has charged that the bankers were tleman who signed this statement, is president of the New York against it. I agree with the Senator that we are not here to Clearing House Association. make a bill for the bankers; we are here to make a bill for the Mr. SIMMONS. I do not know that. people; but I wish to remind the Senator that not one dollar of 1\lr. ALDRICH. Well, he is. He is president of the Clear the money provided in his bill can get into the hands of the peo ing House Association. I think the Senator ought to give him ple except through the banks-they alone are authorized to the credit that belongs to him. issue money under its provisions. If they do not issue this Mr. SIMMONS. I do not see how that affects the force of emergency currency, the people will never get it. I believe the his statement. The petition is not signed by Mr. Gilbert alone. bankers of this country are as patriotic as any class of our fel He signs it as the chairman of the board, but it is signed by the low-citizens. Some of them may be grasping and greedy, but the entire body of the committee on finance and taxation of the great bulk of them are honest, patriotic, and fair-rqinded citi board. Mr. Gilbert may have some connection with the clearing zens. But they are business men, and they are in the banking house-I do not know how that is-and that fact may, in the business for the purpose of making money, and I am not so opinion of the Senator from Rhode Island, discredit his state innocent as to suppose that they are going to i sue this money ment, but I do not regard that as an impeaching fact. He is ex for the benefit of the people at a loss to themselves, and I re pressing an opinion about a banking system, and I do not think peat if they do not issue it for any reason whatever, the people that the fact that he is a banker derogates from its weight as can never get it. the questions and comments of the Senator seems to imply is The position which I take is that the so-called "country his opinion. banks " do not hold these bonds, and can only get them by l\lr. ALDRICH. I mentioned that fact only for the purpose borrowing them or by buying them; that to borrow them will of showing that the Senator from North Carolina is cooperating cost 2 per cent interest; that to buy them there will be a loss with the leading banks and bankers of the United States in of 2 per cent interest besides the loss on the difference between trying to secure the adoption of some other bill than the one the cost of the bonds and the amount of money that may be now under consideration. issued against them, and a possible loss in the price paid in 1\Ir. SHll\IONS. I admit the fact that many bankers are op the purchase of the bonds at a time when they are high by posed to this bill. But they are not the only people who are rea on of the demand for them created by this legislation and opposed to it. l\fany leading business men engaged in transpor in the sale of them after that demand has passed. tation, in commerce, in manufacturing, and in agriculture be I know the Senator from Rhode Island [Mr. ALDRICH] has lieve it wrong in principle and vicious; believe that it discrimi contended, and still contends, that it is not true that the so nates in fayor of one class of banks and against another and called " country banks " do not invest in this class of se that if it is passed it will be largely inoperative because of the cm·ities. I know that he insists that as a matter of fact these exorbitant and unnecessary tax it impo~es on the money it banks carry a considerable amount of these bonds. It may be authorizes. true that there are a good many of these bonds held by the Mr. ALDRICH. I have called attention to this fact for the banks in the country districts, but I am satisfied it will be purpose further of stating that the president of the New York found upon examination tllat but few of these bonds so held Clearing-House Association and all those who agree with him are really owned by the banks holding them ; that the great bulk and I am not now including in those the Senator from North of them are bonds borrowed by them for deposit to secure Gov Carolina, because I do not know what his views are-are op ernment deposits. posed to this measure because they are in favor of asset cur I shall, before I finish, present to the Senate evidence to rency. The president of the clearing-house association states show that the Senator from Rhode Island [l\fr. ALDRICH] is that in the paper the Senator has in his hand, and he says he wrong about this matter; to show that but few of these banks prefers to have this bill defeated, because then they will prob hold this kind of bonds, and that during the recent panic it was ably be able to get a chance to issue currency upon the assets a common custom among them to borrow bonds for use as se of the banks without limit and without reserves. curity for Government deposits. And for that reason I am very glad the Senator from North The Senator from Texas [l\Ir. BAILEY], in his very able argu Carolina is to put this article into the RE.CORD, with his apparent ment on his substitute for this bill fr:;mkly admitted that the approval. banks of the outh and \Vest did not as a rule carry this class Mr. SDHIOKS. The bankers of my State. as I know from of bonds. He said in the State of Texas yery few of these bonds actual correspondence and personal communication with them, 3958 CONGRESSIONAL RECORD-SENATE. liARCH 26, are almost a unit against this bill. I have had letters from fif city of New York says in reference to commercial banks car teen or twenty of them, and I say to the Senator they do not put rying these bonds and in reference to the cost of this money. their objection upon the ground that they want an asset cur I Conservative bankers agree- rency, but upon the ground that on account of the high rate of Says this petition- tax prescribed it would be of but little, if any, benefit to them th:J.t investment in bonds by commercial banks is not in line of good and the communities they represent. • bunking. • • • It may be that the bankers of this country are in favor of an Everything a bank owes is payable on demand, nd its assets at all asset currency; it may be that 1\Ir. Gilbert is in fa\or of an times should be kept in the most liquid state possible. asset currency; but I submit that that is no reason why we Speaking about the cost of money issued under this bill, it . hould di credit and refuse to gi\e due weight to any argu uses this language : ment which they or he may present which addresses itself. to our Under the provisions of the bill judgment against the system of the high-ta..."'Ced bond-secured cur That is, the Aldrich bill- rency proYided in this bill. the cost of taking out currency and putting it In circulation would be I do not belie\e the bankers of my State are opposed to this so heavy that the bill would probably be inoperative. bill because they are in fayor of an asset currency, if they are • • • • • • • The purchase of bonds with Its attendant risk of loss, the tax of 6 in fa.-or of such a currency; but I believe they are opposed to per cent, the locking up of probably from 15 to 25 per· cent of the co.st it for the reasons I haYe gi.-en. Whatever may be their po of the bonds, would make the interest charge on the currency received sition upon the question of asset currency, it is sufficient for me so high that no banker could be induced to take it out. Even in the face of approaching panic bankers would hesitate to pay so high a rate that the reason they gi>e for their opposition is one which ad for money. dresses itself to my judgment. In a speech delivered by Mr. Gilbert to this board he uses this I repudiate the suggestion of the Senator [1\fr . .ALDRICH] that I stand for the banks in this matter. I am not standing for the language: Considering the attendant risk and loss and the probablUty that tne. banks. I am standing for the people. But I recognize the fact cost of currency would be at lea.st 8 per cent and the amount of relief that the people can not get the benefit of the emergency cur received one-third less than the amount requu·ed to purchase the bonds, rency pro>ided in this bill except through the banks, and I in I should hesitate befqre applying for any relief under the provisions sist that the banks will not is ue it if they must do so at a loss. of the Aldrich bill. While I am not standing for the banks, I am not against Continuing, he says: the banks. I am not against any legitimate interest in this If we are to have nothing more than provision for emergency currency at the present ses~ion of Congress, then let us have a measure cotmtry. I want to see them all prosper and make money. l that will not be hampered and made impracticable by provisions which wish the people of this country could come to a full realization · require banks to buy bonds in an emer"'ency and take the attendant of the fact that the 11rosperity of every occupation is inseparably risk of loss; or to borrow bonds, paying '2 per cent for the accommoda interwo\en with the prosperity of e>ery other occupation; that ~!._<1~· :U~~ch, added to the tax, will make the currency too expensive to the interest of the banks, and the factories, and the railroads, I want to read further on the same line from certain resolu- and the mines, is closely allied with their interest, whate.-er f may be their occupation. I wish we could realize more fully tions recently adopted by the Trades League o Philadelphia. than we sometimes do this interdependence of interest. We can I will not read all of them, but such parts as are pertinent to not strike down one interest, we can not abridge the prosperity the question I am discussing. of one interest, we can not deny it an opportunity to make a Rcsolt·c£1, That the Trades League of Philadelphia Is unalterably opposed to the passage of the Alddch cmTency bill- rea onable profit without affecting the prosperity of another I do not suppose the Senator from Rhode Island would con interest, and in turn another interest, and so on, until ·the pros- tend that the members of the Trades League of the city of perity of the whole is affected. I want to see the banks make · b a fair profit; I want to see the manufacturers make a fair Philadelphia are mo\ed in the passage of these resolutwns Y too great an interest in the banks- profit; and I want to see the railroads make a fair profit, for the reason that it provides for additional bond-secured currency because I am, among other things, a farmer, and I know if based on a deposit of State, municipal, and railroad bonds, which the these great interests shall be denied reasonable profits from country banks do not generally possess, and imposing a rate of lntet·est their investments, in the end my profits will be likewise affected. which few commercial banks cun afford to pay, thereby creating a ficti- I repeat I am not so mtich concer·ned abotit the profits of tious value for certain bonds, favoring special financial interests, and ~ ignoring the agricultural, manufacturing, and commercial needs of the the banks as I am about their ability under this act to furnish country. , . the people the emergency currency which it purports to proYide 1\lr. President, there is one class of banks in this country for them. You haye so framed your bill that not a dollar of that are probably in favor of this bill. It is the banks-like tllis money can be issued except by a national bank, and I the Morgan and Rockefeller group-in the great reserve and charge that you haYe fixed the rate of interest so high that the central reserve cities, who hold these bonds themselYes, that class of banks which sene the country districts-the agri- or conh·ol them through their connection and affiliation with eultural district~n not afford to use it, will not issue it, the great trust and insurance companies, by whom they are and the people in those sections will derhe no benefit from held as permanent investment. They are in fayor of it because your act, except such as percolates to them through the great it will gi>e them 6 per cent money, while the country banks, banks of the financial centers. who do not own these bonds and who will have to either borrow I will not §ltand for that. I may be for the banks and the them or buy them at a loss of 2 per cent in interest, will have Senator from Rhode Island [1.\Ir. ALDRICH] may be for the to pay 8 per cent for all the money they may i. sue under it, by people, but it will be a surprise to t~e peoJ?le o~ this c~untry reason of which disadvantage, if they use this money at a11, to learn that that Senator has lost his old-tlme mterest m the I they \Yill find it to their adYantage to obtain it from them in financial cla~ses and become the champion of the 11eople against stead of from tlie GoYernment. them. Mr. ALDRICH. Will the Senator allow me to ask him a 1\Ir. President, I want a bill which will be operative, and I question? belieYe with this high tax this bill will be largely inoperative. :Mr. Sil\Il\IONS. Yes. What reason I ask hase we to suppose that banl~s will issue Mr. ALDRICH. If there are any banks in existence in fayor this money and pay a tax of G per cent per annnm on it when of the bill for these reasons, they would be much more in favor in the late panic these same banks would not issue notes on of it if they bad to pay only 3 per cent taxes. GoYerument bonds subject to a tax of only one-half of 1 per Mr. SIMMONS. That may be true. By the same process of cent per . annum? Did they not, despite the high price of in- reasoning I could add that banks make a greater profit on notes terest and the pressing stringency, refuse to is_sue these notes? secured by Go.-ernment bonds, because the tax is only one-half Did not the Secretary of the Treasury haYe to beg them and per cent per annum. But that is beside the question I am finally substantially lend tllem the money without interest to discussing. The point I am making-and I in ist upon it-is buy United States bonds for deposit to get them to issue them? that to relieYe this money of this lleaYy tax, this tax of 6 per Are they likely to come to the relief of the country by issuing cent wllen it is in actual usc, performing the function for note taxed G per cent when they refused to do so by issuing which it was created, when it is at work relieving the strin notes ta:s:ed only one-half of 1 per cent? This bill in its present gency and distre s of the counh·y, is not a reduction of taxation shape may increa e tlle price of the bonds named in it, but as in the interest of the banks, but it is a reduction of taxation in a currency measure I now predict it will prove of little, if any, the interest of the people and the business of the country. I '\"alue. maintain that this tax is unnecessary, and that it is a tax upon Mr. President, I will put these testimonials in the RECORD the energy, the thrift, and industry of the people--and I am for the benefit of the Senator from Rhode Island, and he can not going to be driYen from my position by the suggestion that ha>e any consolation he can get out of them. They are not the banks would be benefited by this reduction. · what 1\lr. Gilbert alone says, but what the committee on finance I haye here a statement, and a Yery strong statement, from and taxation of the Board of Trade and Transportation of the a gentleman by the name of John L. Hamilton. I do not myself 1908. CONGRESSIONAL RECORD- SENATE . 3959 know the gentleman. I understand he is a prominent manufuc York. They are men engaged in commerce. They are not men turer in the city of Kew York. Perhaps the Senator from who loan money, but men who borrow money. Here is what Rhode Island may enlighten me about him. I do not know him. they say: 1\Ir.ALDRICH. I ha>e heard of a man bv thenruneofHamil Resolved, That this committee on bankruptcy and commercial law ton who has been discussing the financia( question. He lives disapproves Senate bill No. 3023, entitled "A bill to amend the national banking laws," introduced by Senator ALDRICH, for the following rea in Illinois and not in New York. He is president of some kind sons: * * * Second. The high tax which this bill proposes to levy of a banking in titution in Illinois. upon the issue of emergency currency, and which in the last analysis 1\Ir. Sil\IhlONS. He may be the same man or he may not. would be paid by the borrower to the banks, when increased as it would be in practice at least one-third by reserve requirements, is not only But the Senator says he is a banker, and that fact seems to unnecessary, but oppressive, and in this and other States would pro disqualify him in his opinion as a witness. voke an immediate disregard of the statutes against usury. It is not- 1\Ir. President, it is a late day for the Senator from Rhode Says this resolution of the Merchants' Association of New Island to stand up in the Senate and deride and repudiate the York, and they state a great truth when they say it- opinions of bankers. When did the Senator become the people's becoming that a great nation should fill its coffers from the necessities champion and the opponent of the wishes and interest of the financial classes? When we come to the consideration of the ~~e~~r[ii~~~;rke~~~ t~t·t~e ~~~!1I~~Y0l~~~~~~~- to pass one law which tariff, I will ask the Senator from Rhode Island if he will repel But, Mr. President, if the Senator from Rhode Island will with the same aversion and distrust the suggestions of the not accept any of the witnesses I have brought here, if he will manufacturers who are interested in fixing duties in the interest not accept the evidence on these questions of fact of the of their products? Merchants' Association of New York, of the Trades League 1\Ir. ALDRICH. I shall expect. that my friend the Senator of Phil d~,Phi ..... of the Board of Trade and Transportation from North Carolina will stand by these gentlemen then as he of New ork, and the bankers whose opinions I have read to is doing now, and I think his advocacy and his championship show that on account of the high tax imposed by his bill on .will probably be very satisfactory to them. ' the money it authorizes, it will be largely inoperative and of 1\Ir. Sil\Il\10.NS. I shn.ll stand by the manufacturers when but little if any benefit in relieving agairu;t panic and stringency, the time comes so long as what they demand is in the interest I am sure he will recognize the authority from whom I now of the people as well as of themselves. I want to say to the propose to read. I am sure he is known to the Senator, for Senator that w.hen a manufacturer comes here and asks some no man is better known or stands higher in the business world. thing that may be in the interest of his business, if by granting It is James B. Forgan. .Ir. Forgan is considered the greatest it the general prosperity of the country will be promoted and the authority upon questions of banking and ,currency in this coun interest of the people will be advanced, I shall not oppose grant try, with the probable exception of 1\Ir. Morgan. He is the ing it. The question I ask the Senator is, When the tariff bill president of the largest bank in the United States outside comes before us will he repudiate the testimony of the manu of the city of New York, the First National Bank of Chi facturers as interested witnesses as he now does that of the cago. The bank o>er which he presides has $14,000,000 in un bankers? impaired capital and surplus, and carries deposits of about What I am insisting upon here is something that will benefit $100,000,000. Here is a part of what l\Ir. Forgan says upon the people, and I say to take this 6 per cent tax off this money this subject: at the time it is performing its duty, at the time it is performing Further, it is a fact that national banks do not invest except to a the ftmctions for which it was created and put into circulation, very small extent in such bonds. As a rule, they can not afford to and, being commercial banks, they naturally use their money for the direct is to relieve the business and the people of the country from benefit of their commercial customers. I have the honor to preside over an unnecessary burden and that they and not the bank are the the largest bank outside of New York City. We carry as an invest chief beneficiaries. I ask that it be done in their interest and ment a very small amount of such bonds. When the recent currency stringency struck -us we took out $3,000,000 of additional circulation not in the interest of the bankers. When you want to dri"ve it and received on deposit some of the money distributed by the Govern out of circulation put as much tax upon it as you please, but ment for the benefit of the general situation, but, as shown in our state not when it i needed and is actually employed relieving the ment, we had to borrow nearly all the bonds used by us for that purpose. Other banks did likewise, as this was the only basis on which we stringency and distress. could afford to use them. It cost us an average of 2 per cent to borrow 1\Iy proposition is to reduce the tax upon money issued under them. This is what the national banks would invariably have to do this bill to 3 per cent per annum during the first three months; before they could avail themselves of such a currency, and it would add to the expense of the circulation this additional 2 per cent, making after that time make it as high as you wish. I do not want this its use cost 9 per cent. money burdened during the period of emergency when it is per In a money stringency, with its shattering of public confidence and forming a great public function. When the emergency is over, curtailment of credit, in what condition would the banks be to help their customers if they themselves are obliged to borrow currency at to prevent inflation, I am willing for any reasonable tax to force 9 per cent? They might do something to help speculation in Wall it into retirement. street, where alone money reaches such exorbitant rates. They could do I fixed the term of three months in my amendment as the emer nothing for the support of their commercial customers. '£he principle of the proposed legislation is directly the reverse of gencF period, because our experience shows that these periods of what it should be. Something should be done to avoid emergencies stringency general1y lasts from two to three months. In the and to enable banks to tide their customers over periods of depression. case of a great panic, like the one through which we have ju t This can not be done by issuin&' emergency currency, the very name of which is enough to breed a paruc, nor by exorbitantly taxing the banks pas ed, or through which we are now passing, the period of in the exercise of their legitimate functions. stringency is longer, but on an average I think it will be found Mr. President, there are three reasons why emergency money to be about three months. should be taxed. First, to prevent its issue when there is no But, Mr. President, let me return to the testimony which I emergenf!y; second, to prevent more being issued at a given time said I would offer to the Senate. I will now read what 1\Ir. than is needed to meet emergency conditions, and third, to force John IJ, Hamilton, banker, as the Senator from Rhode Island its retirement when the emergency is over. [1\fr. ALDRICH] says, has to say upon the point of my contention If under the provisions of this bill a bank were permitted to that the country banks do not carry this class of bonds, and take out money secured by State and municipal bonds at any time that this bill would therefore be of no practical benefit to them it pleased, in any amount it pleased, as national banks are now because of the cost of money issued under it. Mr. Hamilton permitted to take out circulation based on Government bonds at says: their discretion both as to time and amount, there would be a The securities required are such as are not carried by scarcely a bank necessity for a tax sufficiently high to prevent its issue when of the country class-- not needed for emergency purposes or in an amount not needed 1\Ir. ALDRICII. Perhaps I do not do justice to Mr. Hamilton. to supply the emergency. But that is not the case. Let me I will say, in addition, that he is an ex-president of the Amer read the provisions of the bill upon this point. ican Banking Association. I ought to say that, perhaps, in It provides when an application is made to the Comptroller dustice to him. of the Currency for authority to issue additional circulating 1\Ir. SIMMONS. Being a banker talking about finance, I as notes that- . sume he knows what he is saying. ~Ir. Hamilton says: The Comptroller nf the Currency shall transmit immediately the ap The securities required are such as are not carried by scarcely a bank plication, with his recommendation, to the Secretary of the Treasury of the country class, or those required to carry a 15 per cent reserve, who shall, if in his judgment business conditions in the locality demand and if this bill should become a law, instead of being of any benefit additional circulation, approve the same and 'shall determine the time to them- of issue and fix the amount, within limitations hereinafter imposed of the additional circulating notes to be issued. ' That is the country banks- From this it will be seen that by the provisions of the bill It would be a positive detriment, as compared with the present law. not one dollar of this currency can be issued to any bank until l\Ir. President, I have another resolution that I want to read. the Secretary of the Treasury has officially determined that The men who passed these resolutions are not bankers. These there is an emergency, and not one dollar more can be is ·ued are resolutions adopted by the :Merchants' Association of New than the Secretary of the Treasury holds is needed to meet that 3960 - CONGRESSI ON~l\._ L RECORD-SENATE. ~!ARCH 26,

emergency. The whole thing is placed by the terms of the bill exceeding 7 per cent, and such interest may be taken in advance, recli: oning the days from which the ·note, bill, or other evidence of debt has in the hands of. the Secretary of the Treasury. He settles the to run. · question when this money shall come forth and ·how much may be taken out at a given time, and there is no necessity of a tax Under the laws of the State of New York and, I believe, the to prevent too much beilig issued or to prevent an issue when State of Pennsylvania, the rate of interest is so regulated, taken business conditions do not require it. in connection with the act of Congress from which I have read, The only reason for as high a tax as is here imposed is to that no national bank outside of New York and Pennsylvanj~ force its retirement when the emergency is over. I concede can probably ·r eap any benefit from the issuance of circulation that a tax sufficiently high for that purpose is necessary, und~ili~bill . · and my amendment provides for a tax of 6 per cent for that I bad copied the other day this law from section 13 of the purpose after the note has been out for three months, which is revised statutes of New York, under the head of "Interest." about the usual duration of these periods of stringency. It provides as follows : In any case hereafter in which advances of money, repayable on de Mr. fresident, I haye detained the Senate much longer thap mand to an amount not less than 5,000, when made upon warehouse I intended. I did not expect to speak five minutes, but I have, receipts bills of lading, certificates of stock, certificates of deposit, bills in my earnestness and in my zeal about this mutter of an un of exchange, bonds, or other negotiable instruments pledged as collateral security for such repayment, it shall be lawful to receive or to contract necessary tax on this money, spoken longer than I intended. to receive and collect as compensation for making such advances any The amendment which I offer proposes to reduce the tax dur sum to be agreed upon in writing by the parties to such transaction. ing the first three months to one-fourth of 1 per cent l?er Mr. President, I understand that that law is applicable to the month. That is 3 per cent per annum. I would ven be Wlll banks of the State of New York except in so far as it may pos ing to compromise on 4 per cent per annum. Th ~.rg· of 2 sibly be modified by the sec"tion which I will now read, being per cent represents the cost of the borrowing of Jjolid or of section 56 of the banking law of the State of New York : loss in buying bonds with 6 per cent money when they dr~w 56. Upon advances of money, repayable on demand, to an amo,unt only 4 per cent. I would be satisfied with that. All I ask is a not less than $5,000, made upon warehouse receipts, bills of ladmg, bill that will be workable, that will be usable, so to speak, by certificates of stock, ct-rti:ficate of deposit, bills of exchange, bonds, or other negotiable instruments, pledged as collateral security for such re that great class of banks representing four-fifths of all the payment any bank or individual banker may receive or contract to national banks of the country, known in the language of the receive and collect as compensation for making such advances any sum Treasury Department us " country banks," and which servE.> to be agreed upon- · the people of the agricultural district and the smaller cities and "Any sum to be agreed upon"- towns of the country. in writing by the parties to such transaction. Mr. CULBERSON. Mr. President, the remarks. of the Sen Pennsylvania has a statute, enacted in 1903, identical with ator from North Carolina [Mr. SIMMOr s] induce me to make that of New York in regard to interest on demand loans. an observation or two. No such law appears on the statute books of any other State, One of the general objections which I ha\e always had to but in Arizona, C3.lifornia, Colorado, :Massachusetts, 1\Iont:..'IDa, this bill is that it will create a demand for bonds in bond Nevada, Rhode Island, and Utah there is no limit to the rate hol(ling centers of the country, which will be unjust to other which may be charged under express contracts in writing. sections. In Alaska, Idaho, New Mexico, North Dakota, Oklahoma, 1\lr. ALDRICH rose. South Dakota, Washington, and ·wyoming 12 per cent may be Mr. CULBERSON. I will state to the Senator from Rhode charged under contracts in writing. Island before he asks a question about it that my objection is In all the other States, with some minor exceptions as to not based upon the fact that I am in favor of an asset cur small amounts, pawnbrokers, and the like, no greater rate than rency. I am in fa\or of a Government note, if we are to ha-re 10 per cent may be charged under any circumstances. any. In Illinois the legal rate is 5 per cent and the highest con Mr. ALDRICH. Mr. President-- ventional rate 7 per cent. The VICE-PRESIDENT. Does the Senator from Texas yield In :Missouri the legal rate is 6 per cent and the highest con- to the Senator from Rhode Island? ventional rate 8 per cent. · Mr. CULBERSON. Certainly. So that, endeavoring as I am to emphasize what was said. by Mr. ALDRICH. I dislike very much to interrupt the dis the Senator from North Carolina, it appears that in only two course of the · Senator from Texas, but I wish he would let us States in the Union are rates of interest on

tens of the country wlll not be subserved; that Its ultimate results Mr. CLAY. . Personal security, but not bonds--personal se would be disastrous to our commercial interests, and, notwithstanding the manifest necessity for relief from the present situation, it would curity to be approved by the Secretary of the Treasury. be preferable to have no legislation at all rather than that this unwise Mr. ALDRICH. Personal security by the bank? measure become a law. Mr. CLAY. Security is required by the treasurer of the At a recent meeting of the council of administration the following resolution was unanimously adopted, namely : State of Georgia. "Resolved, That the bankers of the State of New York unqualifiedly 1\Ir. ALDRICH. I know we have had all over the country in disapprove of the provisions of the Aldrich b,U ; that they do not ap prove of a bond-emergency currency; that they demand an elastic cur recent years great losses to States and to communities because rency based on bank assets, as provided in the measure of the currency of the failure of banks that had State deposits or municipal commission of the American Bankers' Association." deposits, and usually they are made without security. I do May I ask you to give me your views, saying whether you agree or disagree with the ideas above expressed. I inclose stamped envelope, not know, of course, what the law is in Georgia, but I am in and awaiting you~; response, am, clined to think-in fact, I feel certain-that if this provision Very truly, yom·s, E. 0. ELDREDGE, Secrefary. i put in the bill in the form of the amendment suggested by Mr. President, that is an authoritative declaration on the part tlie Senator from Georgia, it will prevent a distribution of of the bankers of the State of New York, which is directly tile public moneys tliroughout the United States, because the banks reverse of the position which has been assigned to them upon will not take them. this floor. They are unanimously opposed to the Aldrich bill. Mr. CI.~AY. I do not think it would have that effect; but I The VICE-PRESIDENT. The question is on agreeing to the will say to the Senator from Rhode Island that I hope we amendment proposed by the Senator from North Carolina [Mr. shall reach a point after a while where we shall not have a SIMMONS). large amount of surplus in the Treasury to deposit in banks. The amendment was rejected. Of course;·· we are bound to keep on hand a certain amount of Mr. NELSON. Mr. President, I offer an amendment in the surplus. We can not do the business of the Government with place of the amendment that I offered yesterday relative to the out it-not two or three hundred million dollars, however. interest on Government deposits. Two per cent is a very small interest. The Senator from Rhode The VICE-P;RESIDENT. The Senator from Minnesota pro- Island called my attention to the fact the other day that there poses an amendment, which will be read by the Secretary. . is only one State in the Union whose State bonds are drawing ...... -::; The SECRETARY. Add at the end of the bill, as a new section, a rate of-interest less than, I believe, 3 per cent, and that is ~ ..:he following: Massachusetts. I understand Massachusetts bonds-! do not SEc.-. That all national banking associations designated as regular know that I am correct in that-draw a rate of interest equal depositaries of public money shall pay upon all special and additional to 3 per cent; some of them draw 4 per cent, and a very few of deposits made by the Secretary of the Treasury in such depositaries, and all such associations designated as temporary depositaries of public them above 4 per cent. money shall pay upon all sums of public money deposited in such asso When you fix this rate of interest at the minimum rate of 1 ciations interest at such a rate as the Secretary of the Treasury may prescribe; not less, however, thap 1 per cent per annum upon the per cent, and leave it to the Secretary of the Treasury to say average monthly amount of such deposits : Provided, however, That what rate shall be fixed, in my judgment you will always find nothing contained in this act shall be construed to change or modify the rate fixed at 1 per cent. The Secretary of the Treasury the obligation of any association or any of its officers for the safe keep will construe the law to direct him to fix the rate of interest ing of public money. at 1 per cent. I do not believe that 2 per cent is too much, and The VICE-PRESIDENT. The question is on agreeing to the for that reason I have offered the amendment. amendment which has just been stated. Mr. CLAY. I move where the words "1 per cent" occur I know the Senator from Rhode Island is exceedingly anxious in the amendment, to strike out "one" and insert "two," so as to reach a vote, and he is not alone in that desi're. The re to read "not less, however, than 2 per cent," and so forth. mainder of the Senate is exceedingly anxious to get through The VICE-PRESIDENT. The amendment proposed by the with this bill, and I am ready to vote on the amendment without Senator from Georgia [Mr. CLAY] to the amendment of the any further remarks. Senator from Minnesota [Mr. NELSON] will be stated. Mr. TELLER. Mr. President, I believe t.his proposition has The SECRETARY. Before the words "per cent" it is proposed the approval of a part of the Committee on Finance. As a to strike out " one," and insert "two," so as to read: member of that committee I want to say that I do not approve Not less, however, than 2 per cent per annum, etc. of it. I do not myself approve of requring a bank which takes money from the United States to pay inter~st on it. Heretofore The VICE-PRESIDENT. The question is on agreeing to the when we have put money into a bank we have put it in as a amendment of the Senator from Georgia to the amendment of Government depositary to receive and take care of Government the Senator from Minnesota. [Putting the question.] By the money. Mr. ,President, when you require a bank to pay.interest sound the "noes" have it. on it you make it a loan to the bank. I am opposed•to the Mr. CLAY. I call for the yeas a:nd nays. The yeas and nays were ordered. lending of money to the banks or to individuals by the Govern Mr. ALDRICH. Mr. President, I am quite sure if this amend ment of the United ~tates . ment were adopted it would prevent any counh-y banks at least Mr. CLAY. Does the Senator permit me to ask him a ques from accepting any money from the Government, especially tion? in ordinary times. It would certainly have that effect, The VICE-PRESIDENT. Does the Senator from Colorado because no bank in the country, in my judgment, could afford yield to the Senator from Georgia? to pay 2 per cent upon deposits. Mr. TELLER. I do. Mr. CLAY. I will state to the Senator that in my State we Mr. CLAY. If the Senator is correct in his view that the have a statute providing that surplus money in the State treas Government ought not to require any interest on a deposit, and ury can be deposited with certain banks to be named by the that it becomes a loan instead of a special deposit, does not the treasurer of the State. The treasurer of the State is authorized Senator think, if we require interest · at all, that 2 per cent to receive bids for this money and, after carefully examining would be too hlirh? · them, to accept such bids as he may deem to the best interests 1\Ir. ·.rELLER: Mr. President, my objection is not to the 1 of the State. My observation teaches me that in many instances per cent nor to the 2 per cent. I think with the Senator from the banks have paid as high as 2! and in some instances 3 per Georgia that if the banks are going to pay interest on deposits cent interest. One per cent is quite a small interest. I do not at all they may pay 2 per cent very properly and profitably, too. believe it is worth while to amend this proposed law in the Mr. President, when you put money in a bank and the bank matter of charging any interest at all if we fix it at simply 1 has become the owner of the money and pays interest on it, per cent. Two per cent is a very small minimum. there is a moral obligation on the part of the Government to I do not wish to consume the time of the Senate, and I am let the money stay there a little while; and whenever you have willing to take a vote on the amendment to the amendment. · got a disturbed condition and the bank has paid interest on 1\fr. ALDRICH. 1\Ir. President, the Senator from Georgia, r" the money· for a year or two, which it may, when the disturb suppose, is aware that, in addition to that, the amendment fixes ance commences the bank will claim-and probably with some 1 per cent as the minimum rate. reason-that it bas held the money when there was plenty of Mr. CLAY. I know that. money and the Government has been deriving the benefit, and Ur. 'ALDRICH. But the amendment of the Senator from when trouble comes the bank ought to be allowed to keep it. G~rgia, if adopted, will also fix: the minimum rate. I have on several occasions here declared that I would not 1\Ir. CLAY. At 2 per cent. vote to compel the banks to pay interest on money deposited. 1\Ir. ALDRICH. I do not know under what conditions, of I am not in favor of depositing money in banks, except upon· ~ourse, loans are made in the State of Georgia, or whether or the theory that it is beneficial to the Government so to -do, or not security is required. when au emergency comes, such as we have had heretofore, 1\Ir. ,....LAY. Security is required on all of these deposits. and it probably becomes the duty of the Government to help 1\Ir. ALDRICH. What kind of security? the country to currency-not particularly to help the banks, 3962 CONGRESSIONAL RECORD-SENATE. MARcH 26, but to help e\erybody, to help the whole country, the commerce time and glad to have it upon those conditions. I undertake of the country, and the business of the country. to say that if this amendment fi.~ing the rate at 2 per cent is I do not find any fault with the fact that the Go-.;-ernment has adopted, it will be no hindrance to the placing of this money put two or three hundred million dollars or $250,000,000, or widely O\er the country. This money is sought for and will be whate-.;-er it may ha\e been, in the banks. I approve of that, sought for at that rate of interest and would be sought for at because I think it ought to have been done; but I do not be even a higher rate of interest. lieve in the Government lending money to banks or to indi But, sir, another thought. Suppose that the Government did viduals. It seems to me this is the beginning of a system which not keep this money constantly in the depositaries; suppo e that may bring us into trouble. the current business demand for money fell off somewhat and I do not wish to interfere with the action of the committee. the banks returned the money to the Treasury rather than pay I did not agree to it, and I wanted to put o:q record my reasons that rate of interest; I want to suggest that that very thing why I did not agree to it. would invest the $222,000,000 now in the banks of the country Mr. WARREN. I desire to ask the Senator from Colorado with an element of elasticity that would go far to meet the de The VICE-PRESIDEN'l'. Does the Senator from Colorado mand that is felt in this country for that quality in our cur yield to the Senator from Wyoming? rency circulation, and would operate to return the money, when l\Ir. TELLER. I do. business did not demand it, into the TreasliTy as a great res Mr. WARREN. I wish to ask the Senator from Colorado ervoir, from which it could be again drawn in the crop-moving if he desires to have the deposits of the Go\ernment the same period. as those of individual with respect to checking against them l\1r. WARREN. If it will not interrupt the Senator- from day to day, and that the Go\ernment may check its money The VICE-PRESIDENT. Does the Senator from Wisconsin any day? The Government is well secured; it can get its yield to the Senator from Wyoming? money out any day, and consequently the banks should not 1\Ir. LA FOLLETTE. Yes. pay interest upon it. If so, I agree with him. 1\Ir. WARREN. What security does the State require of the 1\Ir. TELLER. I intended to say the Government has always banks which receive these deposits? had the right on a minute's notice to take its money out of 1\fr. LA FOLLET'rE. The State requires the giving of a the banks, and until the banks begin to pay interest on it the bond, upon which the board of deposits passes as to its suffi- Government will maintain that right. ciency. · Mr. WARREN. I agree with the Senator. 1\Ir. WARREN. But the bank does not have to put up prop- Mr. TELLER. After that the Go\ernment will hardly have erty or deposit Government bonds? that right. 1\Ir. LA FOLLETTE. Oh, no. Mr. CLAY. Will the Senator from Wyoming allow me to 1\Ir. HOPKINS. The bond of a surety company. ask him a question? 1\Ir. WARREN. It is a matter of a surety bond. 1\Ir. W ARR&~. Certainly. Mr. LA FOLLETTE. A surety bond may be accepted; in Mr. CLAY. Does the Senator from Wyoming think that fact, any bond which meets the approval of the board of de the fact that we have adopted an amendment to this bill, pro posits is accepted. . viding that national banks designated as depositaries shall pay 1\Ir. WARREN. In other words, it is an I. 0. U., plus the interest at a certain rate, would deprive the Government from I. 0. U. of several people or firms that may be guarantors. checking on its money when the Government needed it? I can Now, another question, please. Is there not some difference not think tJ,:le Senator intends to take that position. in a State where the legislature appropriates the money, usually Mr. W.A.RREX. I take the position that the money the for two years at a time and decides how it shall be expended, Government deposits in the banks without interest is on call ordinarily providing that a certain proportion only shall be ex or check at a moment's notice. The bank is compelled, in the pended in any one month or any two months, does not that first place, to amply secure the Government, and the money is make the condition different, because the bank itself from the the arne as if it were in the GoYernment's own vaults. I appropriation bill of the State can provide itself with knowl agree with the Senator from Colorado perfectly, that the edge as to just how that money will be drawn out, and is it not moment you take interest for that money there is an obliga a time loan in its practical effect? tion, moral, if not legal, that you shall give due notice; that 1\Ir. LA FOLLE'l"'TE. Not in any sense, 1\Ir. President; the you shall not distress the party who borrows your money-in money is from time to time withdrawn from the banks by the other words, the banks become borrowers. There is a very State, and the banks are ready to receive deposits whenever the great difference. between a place to deposit and a place of in funds can be redeposited by the State. Every State in the Union \estm~nt or loan. is adopting similar legislation, and since the famous treasury 1\fr. LODGE. Let me ask the Senator, before he takes his case of Wisconsin, which I believe was the first State to de seat, whether, as a matter of fact, it is not true that the Sec cide that it was wrongful for any treasurer or any custodian of retary of the Treasury invariably gives notice when he is public funds to permit those funds to be placed in the banks going to eall for any of this money. and to take interest thereon-! say since the decision in that 1\Ir. WARREN. He does, as a matter of courtesy, but not as case and the adoption of a State law regulating the depositing a rna tter of obligation. of the money in banks and imposing an interest charge on such 1\Ir. LODGE. As a matter of courtesy. deposits, other States have followed, and this legislation has 1\Ir. WARREN. He does it as a matter of courtesy; but been and is being \ery generally adopted throughout th~ I claim that there is no obligation whatever to give notice in the country. case of money deposited without interest. 1\lr. W AR.REN. Does not the Senator-- 1\Ir. LODGE. I agree with the Senator that there is no The VICE-PRESIDENT. Does the Senator from Wisconsin obligation. yield further to the Senator from Wyoming? 1\fr. LA FOLLETTE. 1\fr. President, I want to contribute a 1\Ir. LA FOLLETTE. Yes. little testimony within my own experience which I think has a Mr. WARREN. Does not the Senator see a great difference bearing upon the proposition under discussion. It is uTged in between the outflow and inflow of a State, where every dollar opposition to the amendment which proposes a 2 per cent in of outgo is provided for specifically by biennial appropriation terest rate upon GoTernment deposits that such a rate is so bills, and the wants of a government that has money on condi high that it will prevent the placing of this money with the tional appropriations under many heads? The State, on the one banks. The law of Wisconsin permits the deposit of State hand, derives its money by taxation direct, providing exactly funds with State and national banks. This law has been in what it needs. The United States receives its money from cus force for some fifteen years. The State charges the banks toms that may vary many million dollars, in fact, hundreds of from 2 to 21 per cent interest for the use of such money. Dur millions of dollars in a given time. Is there not a difference being the five years that I was governor I was under the law a . tween the deposits of the Government in a national bank and member of the board of deposits, charged with the duty of the deposits of a State, considering the conditions which I h~vc pas ing upon the application of banks to be designated as de just mentioned? posital.'ies. I know personally that all the money the State 1\Ir. LA FOLLETTE. Considering, Mr. President, the differ had that was not required to meet its current expenses from ence in the magnitude of the business of the National Gov month to month was constantly in demand by the banks of the ernment and that of the States, there is no substantial differ State, and during that time the rate of interest was raised ence. We know practically what the customs receipts are to from 2 per cent to 2i per cent. be from year to year. We know substantially what the ex There was always, Mr. President, a long list of applications penclitures are to be. The appropriation bills make provision from banks waiting to be named as depositaries. They were for them. It is true that there are conditional e.x:penditm~es eager to take the State's money at that rate, taking it always, of .the National Government. It is equally true that there sir, with the understanding that it was subject to call at any are conditional expenditliTes of the State go1ernments. There 1908. CONGRESSIONAL RECORD-SENATE. 3963 is no substantial difference when you get down to the prin all the time saying ought not to be done-to concentrate these ciple, and there is no good reason why these banks should not loans at all times practically in the great money centers. pay interest on Government deposits. Mr. McLAURIN. I wish to ask the Senator from Rhode Is Anybody who attempts to distinguish between making it a land if there is any provision in this amendment which will loan and making it a deposit will, I think, run into a bog of require the interest paid by the depositaries to be uniform and difficulties. The moment the banks take Government money, equal throughout the entire country, or could the Secretary pro mix it with their funds, and loan it out it amounts to a loan vide that one rate should be charged in one locality and another on the part of the Government to the banks. The banks are rate in another locality? not obliged under any circumstances to take this money. Mr. ALDRICH. He could do -it, but it is impossible to sup Just as the chairman of the Finance Committee said in his pose that any Secretary of the Treasury would do that. address to the Senate with respect to . the bonds designated in Mr. McLAURIN. I do not think that such power ought to be this bill as security for currency issue, if any bank does not left to the discretion of any officer. The amendment ought to wish to invest in the municipal and other bonds provided for be so worded-- in this bill, it does not have to do so. The banks do not need Mr. ALDRICH. I suppose the Senator from Minnesota to take the benefit of this bill if they do not want to. If any would not object to an amendment making it uniform? national bank in this country does not want these deposits at Mr. 1\TELSON. I would not object. I thought of that ques 2 per cent, there is no kind of compulsion in the proposition. tion, but I do not think any Secretary ·of the Treasury would They need not take them. But they will take them; and, Mr. exact one rate from banks in one end of the country and a dif President, if this rate should be found so high as to interfere ferent rate from those at another end of the country. with the returning of this money into circulation when it ought Mr. McLAURIN. I do not think so-- to go there, another session of Congress can take care of that Mr. NELSON. We must assume, I will say in all candor to matter, I think, without any difficulty. From experience, I un the Senator from Mississippi, that our public officials, like the dertake to say that if any of the Senators on this floor from the Secretary of the Treasury, are honest and well-meaning and States where interest is charged upon State funds will rise here fair-minded people, like we suppose ourselves to be, and I have and state the facts as to conditions in those States, there will be no idea that any Secretary of the Treasury, be he Republican a concurrence of testimony that a 2 and a 2i per cent interest or Democrat or Populist, or even Socialist, would undertake rate does not interfere with the placing of State money in the anything like that. I thought it was better to leave it in the banks for use. form in which it is. . l\fr. TELLER. Mr. President, I am not quarreling with the 1\Ir. McLAURIN. I do not assume that the Secretary of the 2 per cent interest rate. I think that can be secured very read Treasury would make any such discrimination. · I assume that ily, and I do not thing it is too high. Heretofore no Govern the Secretary of the Treasury is an honest man and a patriotic ment money has been deposited except in Government depos man, who desires to do his duty, but we make laws for every itaries. Every bank is made a Government depositary before body, and I think we ought to make laws for officers just as money is put there. That money is not a loan; it is a deposit, we do for everybody else. I think we ought to make laws for and no matter what the bank does with it, provided it returns ourselves, and we do make laws to govern ourselves. We do it when the Government calls for it, its obligation is kept. not assume that Senators or Representatives are going to take What I object to is to change from a system of deposits to an bribes, but we have a law that would punish one if he did take actual loan by the Government of the United States. a bribe. I do not think it is a reflection upon any Secretary It may be that the State of Wisconsin and other States loan of the Treasury to put a provision in the law requiring the same money. I think a State may do that, unless its constitution pre rate of interest to be paid in every section of the country. I vents, but I do not know of any authority the United States think it would be a very sensiti-ve Secretary of the Treasury has to loan money to anybody. I know it does not exist; it can or a sensitive friend of the Secretary who would so understand not be shown. We could not give them such authority if we it. I think something of this kind ought to be in the amend should try. ment. 1\Ir. OWEN. Mr. President, I wish to say with regard to this Mr. HEYBURN. I should like to ask a question of the Sena matter that the amendment as it came from the committee met tor introducing the amendment. Is it contemplated that the my approval, and the proviso of that amendment means the con Government may collect interest on the daily balance of ac tention of the Senator from Colorado [Mr. TELLER]. That pro counts or deposits made 'for the convenience of the Government? viso leaves the funds deposited in h·ust, as they are now under l\Ir. NELSON. No; not at all. the present law, and undoubtedly, whateYer the law is, it has Mr. HEYBURN. There are, I think, about $60,000,000- been interpreted in this country to mean that this $220,000,000 Mr. NELSON. I want to explain to the Senator my point. should be utilized by the bankers of this country as a means of My original amendment offered yesterday was open to that ob enlarging the currency, and that has been done. jection. The amendment now has been carefully framed so as I think the most important reason in behalf of this amend not to cover deposits of that kind made by revenue collectors, ment has not been stated, and that is, that the banks ought not to customs collectors, postmasters, land officers, or officials of that' be allowed to profit out of the Government funds, because that kind. All these deposits are free, and do not come under the gives to the banks a special reason to keep this fund not only amendment at all. It is only such general deposits as were as large as it is, but to enlarge it still more by withdrawing made, for instance, in the recent panic. from the people of the United States money which ought to be Mr. HEYBURN. Loans? left in the hands of the people of the United States. This pro Mr. NELSON. Loans. vision will go to check that tendency on the part of the banks to Mr. HEYBURN. It is contemplated that the Government favor the enlargement of this fund, and I think it is a wise shall collect interest on monthly balances except where the amendment to the bill. Government makes a direct loan to the bank under the contract Mr. ALDRICH. l\fr. President, I will detain the Senate but which this law authorizes. Is that it? for a moment. This question of the interest rate is purely a 1\Ir. NELSON. It is limited to that. practical question. Of course, the deposit of this money is not 1\Ir. HEYBURN. Then this recognizes the principle of the analogous, it seems to me, to State and municipal deposits. I Government loaning money to national banks whether they are know in my own city the municipal funds are deposited in the designated as depositaries or not? banks and trust companies at certain rates, but the banks and Mr. NELSON. No; they must be designated as depositaries. trust companies which accept such deposits know within a rea l'lfr. HEYBURN. Then what provision is there for discrimi sonable length of time exactly when the money will have to be nating? Now, the Government will not designate a depositary paid. They are practically loans for a specified time. unless it considers it will be 'for the convenience of the Govern Mr. HOPKINS. Time loans. ment. Would these loans be confined to those banks? Mr. ALDRICH: Substantially time loans. The Government Mr. NELSON. It would be confined to deposits of that kind. deposits are not of that character, and none of us, I suppose, 1\Ir. HEYBURN. In that class of banks, or does it establish intend to make them so. The provision of this amendment a new class of banks? whether the amendment of the Senator from Georgia to the Mr. NELSON. No. amendment is adopted or not-leayes the matter entirely in the Mr. HEYBURN. It recognizes-- hands of the Secretary of the Treasury. I think we are bound Mr. NELSON. The Government designates a bank as a de to suppose that that officer, if there is a rate for money through positary. For instance, a country bank in Minnesota applies out the country which would warrant him in charging a higher to the Treasury Department for a deposit of fifty or a hundred rate, would do it. I think we are bound to assume that the thousand dollars. The Treasury Department accedes to that officer will do the right thing. request and makes the deposit there. It is just a naked de I am myself confident that if this amendment is adopted the posit of money. The Government does not have any business result will be just what the Senators upon the other side are there. There is no deposit made by a postmaster· or other 3964 CONGRESSIONAL RECORD-SEN ATE. MARoH 26,

Government official. 'fhere is no money drawn by any Govern . Mr. WARREN (when his name was called). By arrange ment official or any checks drawn against the deposit. It is ment with the Senator from North Carolina [Mr. SIMMONS] simply a naked deposit by the Government; and on that kind my regular pair with the Senator from Missi ippi [Mr. MoNEY] of a deposit the bank is to pay interest. has been transferred, so that the Senator from Mississippi [Mr. 1\Ir. HEYBURN. Then the substance of the amendment is MoNEY] will stand paired with the Senator from Minnesota that the GoTernment may, under the provisions of the amend [Mr. CLAPP], and I may vote. I vote "nay." I wish to an ment, select banks in addition to the class now constituted as nounce that I will permit that arrangement of pairs to stand Government depositaries, to whom it will loan money. for the day. Mr. NELSON. No. The roll call was concluded. Mr. HEYBURN. And the banks to whom it will loan money Mr. NELSON (after having voted in the negative). I de must be selected upon application? sire to announce that if the Senator from South Dakota [Mr. Mr. NELSON. To; not at all. KITTREDGE] were present he would vote the same as I have 1\Ir. HEYBUR.JJ. It seems to me that would be the effect \oted on this amendment. I desire to state what I failed to of it. do yesterday, that on the vote taken on the amendments yes Mr. NELSON. No. terday the Senator from South Dakota would ha\e voted the Mr. HEYBURN. Because a Go\ernment depositary is never same as I did. I wish that to be noted in the RECORD. created except for the convenience of the Government. The Mr. GMIDLE. I have a general pair with the senior Sena wants of the bank are not taken into consideration. So you tor from Nevada [1\fr. NEWLANDs]. Arrangements have been would either have two classes of deposits with the Government made whereby the pair is transfeiTed to the senior Senator depositaries created under existing conditions or else you from Maine [Mr. HALE]. I desire to vote. I vote" nay." would create a new class of Government depositaries, purely Mr. WARREN (after having voted in the negative). I am banks designated for the purpose of obtaining loans . from the informed that the Senator from North Carolina [Mr. SIMMONS] United States. Is that the effect of the amendment? has left the Chamber without voting. So I withdraw my vote. Mr. NELSON. No; it is not the effect of the amendment. 1\fr. ALDRICH. The Senator from Ohio [Mr. FoRAKER] is The Senator misapprehends it. The Go\ernment to-day has without a pair, and I suggest that the Senator transfer his pair depositaries all O"\"er the country. I know in my own State to him. there are a number of country banks which have these naked, 1\Ir. WARREN. Very well; I transfer the pair in that way. as I call them, Government deposits. Then we have another 1\Ir. CULLOM. I ha"le a general pair with the junior Sen class of banks in the large cities which receive two kinds of ator from Virginia [Mr. 1\IARTIN], and when I undertook to vote depo its. In the recent panic they got a deposit direct from the a while ago, when we were disposing of the Senatorial election Treasury. case, some question was raised as to whether I had a right to Mr. HEYBURN. Which was a loan? transfer my pair to the junior Senator from Indiana [Mr. Mr. ·NELSON. But they also receive deposits from day to HEMENWAY]. I therefore withdraw my vote. I did not desire day and from time to time from the revenue collectors and the that any question should be made as to whether I had a right collectors of customs and postmasters within the territory. to vote. Now I propose, if it is agreeable to the Senate, to 1\lr. HEYBURN. For the convenience of the Government? transfer my pair to the senior Senator from Iowa [1\fr. ALLI 1\Ir. NELSO ... r. For the convenience of the Government. soN]. If no question is raised about it, I will let it stand in Mr. HEYBURN. Not for the con\enience of the bank. that way, and I will vote. I \ote "nay." Mr. NELSON. Those deposits which the;r receive from public 1\fr. OVERl\fAl~ (after having voted in the a:ffirmati\e). I officials will not draw interest under the amendment. notice that the Senator from California [1\fr. PERKINS] is not 1\Ir. HEYBURN. Then it is proposed to loan the money of in his seat, and has not voted. Therefore I withdraw my vote, the Go"lernment, upon the application of approved banks, under having a general pair with the senior Senator from California. a contract for the payment of interest by the banks upon the The result was announced-yeas 17, nays 36, as follows: monthly balances. That, as I understand, is the purpose of this amendment. YEJAS-17. Mr. l\TELSON. It makes no change in the law. It leaves the B:mkheud Clay Gore McLaurin Government to make deposits just as it did in the recent panic. Borah Culberson J'ohnston Owen Bourne Foster La Follette The only difference is that we require the banks to pay interest Brown Frazier McCreary on their monthly balances. Burkett Gary McEnery Mr. HEYBURN. I understand that. The loans that were NAYS-36. made during the recent panic were not made pursuant to any Aldrich Depew Guggenheim Piles law at all. Ankeny Dick Heyburn Richard on Brandegee Dillingham Hopkins Smith, Mich. They were made by the grace of the Government. The~·e is Bulkeley Dolliver Kean Smoot no law authorizing the Go"lernment to loan money to a national Burnham duPont Knox Stephenson bank or to any other person. The Government is required Burrows Flint Lodge Sutherland under existing law to keep the money in its own Treasury, Crane Frye Long Warner Cullom Gallinger McCumber Warren except as it may deposit in selected depositaries money that it Curtis Gamble Nelson Wetmore will need for its own purposes. It is merely a matter of the NOT VOTING-37. con"\"enience of the Go"lernment. Allison Davis Money Simmons I only rose to say, in order that my vote may not be mis Bacon Dixon Newlands Smith, Md. understood, that I shall \Ote against any proposition that Bailey Elkins Nixon Stone Bev eridge Foraker Overman Taliaferro recognizes the right of the Government to loan money to any Brig!?S Fulton Paynter Taylor body, and I care not whether i_t is 1 per cent or 2 per cent or Cartel' Hale Penrose Teller 10 11er cent; that makes no difference. I am opposed to the Clapp Hansbrough Perkins Tillman Clark, Wyo. Hemenway Platt GoYernment entering into that class of business, and I shall Clarke, Ark. Kittredge Rayner vote against any propo ition that recognizes such a business Daniel Martin Scott transaction as the Government loaning money at any time, under any conditions, subject to a contract between the bor So 1\Ir. CLAY's amendment to Mr. NELsoN's amendment vms ro"\\er and the lender, and my vote will be cast against both rejected. the amendment and the substitute or any other amendment lUr. McLAURIN. On the line I suggested a while ago, I or any other provision of the bill which creates that new func offer an amendment to the amendment. tion in the Go\ernment. _ _ The VICE-PRESID~T. The Senator from Missi sippi pro poses an amendment to the amendment of the Senator from The VICE-PRESIDENT. The question is on agreeing to Minnesota, which will be stated. the amendment proposed by the Senator from Georgia (1\Ir. 'Ihe SECRETARY. It is proposed to add at the end of the CLAY] to the amendment of the Senator from Minnesota [ Jr. :KEL oN]. The Secretary will call the roll. amendment the following : The Secretary proceeded to call the roll. The rate of interest charged shall be equal and uniform throughout Mr. CULLO:ll (when his name was called). I am paired the country. generally with the junior Senator from Virginia [Mr. MARTIN]. 1\Ir. LODGE. I suggest that it would be better to say 1\Ir. OVERMA J (when Mr. SIMMoNs's name was called) . I "United States." It is more usual. de ire to announce that my colleague [1\Ir. SIMMONS] has a The amendment to the amendment was agreed to. general pair "\\ith the junior Senator from ,1\Ii.nnesota [Mr. Mr. OULBERSOX Let the amendment be a

Tlle SECRETARY~ It is proposed to. add to the amendment banks of the cmmtry interest on public deposits. I \oted the following ''ords : against the law authorizing the Secretary of the Trensury to The rate of interest charged shall be equal and uniform throughout deposit this money in the banks. I did so because the Govern the United States. ment of the United States ought not to go into the money :;)Ir. CULBERSON. :My request was that the amendment lending business-for that is what it is-in the first place; and, • itself be stated . in the second place, because if we encourage this we encourage The YICE-PRESIDE~T. Tbe Secretary will read the entire the system of high taxes which piles up a surplus in the amendment. Treasury. The Secretary rend as follows : But as long as the law is on the statute book authorizing SEC. -. That all national banking associations designated as regular the Secretary of the Treasury to deposit this money in national depositaries of public money shall pay upon all special and additional banks, and he deposits it there, I am in favor of charging them deposit made by the Secretary of the •.rreasury in such depositaries and all such associations designated as temporary depositaries of public a reasonable rate of interest. It is money drawn from all the money shall pay upon all sums of public money deposited in such people of the United States by taxation. It does not belong to a sociations interest at such a rate as the Secretary of the Treasury any class of our citizenship~ but to all classes. Why should we m!ly pt·escribe, not less, however, than 1 per cent per annum upon loan it to the national banks of fhe country, without interest, the a"~

.Mr. LODGE. The amendment'has been pending here for six The SECRETARY. On page 10, line 4, insert : weeks. It was _discussed fully yesterday. It is a very simple That after January 1, 1909, national banking associations located amendment. outside of reserve or central-reserve cities, which are now required by law to keep a reserve equal to 15 per cent of theit· deposit liabili Mr. CLAY. I do not think it was discussed very fully, be ties, shall hereafter hold in their own vaults four-fifths of such re cause my recollection is that the Senator from Massachusetts, serves, either in lawful money as now required by law or in the after a few minutes' discussion, agreed to refer it to the Com securities enumerated in section 2 of this act, which shall have been • approved by the Secretary of the Treasury : p,·ovided, however, That mittee on Finance. not more than one-third of the reserves required to be kept in the 1\fr. LODGE. It was discussed fully, and then at the request vaults ot such associations shall be held in such securities. of the chairman I let it go over. I said all that was important l\fr. NELSON. That is a very important amendment. I will in regard to the bonds, except that they are exempt from taxa suggest to the chairman that it be printed, and let the matter tion throughout the United States and that they sell higher go over until to-morrow. ! ha-ve here a list of State and municipal bonds-they sell 1\Ir. ALDRICH. That was my purpose. higher than bonds of almost any State; and yet people are The VICE-PRESIDENT. The amendment will be printed talking about their being worthless! and lie on the" table. The VICE-PRESIDENT. The Senator from Texas demands 1\fr. ALDRICH. I ask also that there may be a reprint of the yeas and nays upon the adoption of the amendment of the the bill as it has been amended by the Senate as in Committee Senator from Massachusetts [Mr. LODGE]. of the Whole. The yeas and nays were ordered. The VICE-PRESIDENT. The Senator froin Rhode Island l\fr. CULBERSON. Let the amendment be again read. asks that the bill be reprinted in the form in which it has been The VICE-PRESIDENT. The Secretary will again read the amended. Without objection, it is so ordered. amendment. . l\lr. ALDRICH. I move that the Senate now adjourn. The SECRETARY. Alter the words" Porto Rico," in the amend The motion was agreed to; and (at 6 o'clock and 12 minutes ment already agreed to in the bill, adding "the bonds of the in p. m.) the Senate adjourned until to-morrow, Friday, 1\Iarch 27, sular government of Porto Rico," insert: 1908, at 12 o'clock m. Bonds of the government of the Philippine Islands and bonds ofj:!le city of Manila. The Secretary proceeded to call the roll. HOUSE OF REPRESENTATIVES. Mr. CULLOM (when his name was called). I have a general pair with the junior Senator from Virginia [Mr. MARTIN]. I THURSDAY, March ~6, 1908. have transferred that pair to the senior Senator from Iowa [Mr. The House met at 12 o'clock m. .ALLisoN], and I vote " yea." Prayer by the Chaplain, Rev. HENRY N. OoUDEN, D. D . Mr. GAMBLE (when his name was called). I again an The Journal of yesterday's proceedings was read and ap•_ nounce a general pair with the senior Senator from Nevada proved. [Mr. NEWLANDS]. By an arrangement I transfer that pair to MESSAGE FROM THE SENATE. the senior Senator fi·om Maine [Mr. HALE] and vote. I vote A. message from the Senate, by .Mr. CRoCKETT, its reading "nay." clerk, announced that the Senate had insisted upon its amend Mr. OVER1\1AN (when his name was called). I again an ments to the bill (H. R. 16882) making appropriations for the nounce that I have a general pair with the Senator from Cali legislative, executive, and judicial expenses of the Government fornia [Mr. PERKINS]. If he were present, _I should. vote" nay." for the fiscal year ending June 30, 1909, and for other purposes, .Mr. OVERMAN (when 1\Ir. SIMMoNs's name was called). I disagreed to by the House of Representatives, had agreed to again announce that my colleague [Mr. SIMMONS] is paired the conference asked by the House on the disagreeing votes of with the Senator fi·om Ohio [Mr. FoRAKER]. If my colleague the two Houses thereon, and had .appointed 1\Ir. CULLoM, 1\Ir. were present he would vote "nay." W ARBEN, and 1\Ir. TELLER as the conferees on the part of the The roll call was concluded. Senate. Mr. NELSON. I am authorized to state that if the Senator The message also announced that the Senate had passed the from South Dakota [Mr. KITTREDGE] were present he would following resolution, in which the concurrence of the House of vote " nay " on this question. Representatives was requested: The result was announced-yeas 31, nays 18, as follows: Senate concurrent resolution 49. YEAS-31. Resolved by the Senate (the House of Representatives concurrirtg), That the Secretary of War be instructed to investigate and report a Aldrich Burrows duPont Long plan for the preservation and commemoration of old Fort Kearney, Ankeny Crane Flint Piles in the State of Nebraska. Borah Cullom Gallinger Richardson Brandegee Curtis Guggenheim Sutherland AGRICULTURAL APPROPRIATION BILL. Brown Depew Hopkins Warner Bulkeley Dick Kean Warren 1\fr. SCOTT. 1\fr. Speaker, I move that the House resolve it Burkett Dillingham Knox Wetmore self into Committee of the ·whole House on the state of the Burnham Dolliver Lodge Union for the further consideration -of the agricultural appro NAYS-18. priation bill. Pending that motion, I wish to ask unanimous Bankhead Gamble La Follette Smith, Mich. consent that the time for closing general debate on this bill be Clay Gary McEnery Stephenson Culberson Gore McLaurin Teller extended for one hour, that hour to be occupied by the gentle Foster Heyburn Nelson man from Texas [1\fr. BEALL]. Frazier Johnston Owen The SPEAKER. Is there objection? [After a pause.] The NOT VOTING-41. Chairs hears none. Allison Davis McCumber Scott Bacon Dixon Martin Simmons Mr. SULZER. I understand the gentleman yields that hour Bailey Elkins Money Smith, Md. to my colleague, the gentleman from Texas; with that under Beveridge Foraker Newlands Smoot standing I have no objection. Bourne Frye Nixon Rtone Briggs Fulton Overman Taliaferro The motion to go into Committee of the Whole was then Carter Hale Paynter 'l'aylor agreed to. Clapp Hansbrough Penrose 'Tillman The House accordingly resolved itself into Committee of the Clark, Wyo. Hemenway Perkins Clarke, Ark. Kittredge Platt Whole House on the state of the Union, 1\fr. FosTER of Vermont Daniel McCreary Rayner in the chair. So l\lr. LoDGE's amendment was agreed to. The CH.A.IRl\IA.N. The House is in Committee of the Whole 1\Ir. JOHNSTON. 1\Ir. President, I wish to offer an amend House on the state of the Union for the further consideration of ment in regard to the reser-ves. On the 12th of February I of the bill H. R. 1915 , the agricultural appropriation bill. fered an amendment requiring the banks to keep 10 per cent 1\Ir. BEALL of Texas. Mr. Chairman, a long time ago in of their reserves in their vaults, of which 5 per cent might be one of the constitutions of one of the original States there in bonds. I thought then that that was as large an amount as appeared this declaration: "That a frequent recurrence to we could probably carry through the Sen "lte, but having changed the principles of the constitution is one of the things abso my opinion about that, I have changed the amendment so that lutely necessary to preserve the advantages of liberty and to it requil·es 12 per cent of the reserves to be kept in the vaults maintain a free government." The high character of those of the banks, of which 4 per cent may be in bonds, increasing who framed this declaration and the solemn circumstances the amount required to be held in the reserve from 6 per cent under which it was uttered constitute my defense for taking to 12 per cent. it as a text on this day. I am well aware of the fact, The VICE-PRESIDENT. The Senator from Alabama pro- :Mr. Chairman, that under present conditions the Constitution poses an amendment. which will be read. - is often sneered at instead of revered. But tbe utterance 1