3712 CONGRESSIONAL RECORD-. SENATE. AUGUST 8, of the National Home for Disabled-VolunteeT Soldiers; to the by the Russian Government of Jewish citizens; to the Commit­ Committee on Military Affairs. tee on Foreign Affairs. By l\Ir. S~BATH: Concurrent resolution (H. Con. Res. 15) to By .!.\Ir. ,fULLER: Petition of the American National Li•e print 17,100 copies cf proceedings of unveiling the statues of Stock Association and of the Cattle Rai ers' .Association, of Pulaski and Ko c:iuszko; to the Committee on Printing. Texas, in opposition to placing li•e stock and meats on the free list; to the Committee on Ways and ~leans. r Also, petition of the ·Old Age Brotherhood for the enactment PRIVATE BILLS AND RESOLUTIONS. of an old-age pension system; to the Committee on Pen ions. By Mr. MATTHEWS : Papers in support of bill to increase Under clause 1 of Rule XXII, private bills and resolutions pension of Andrew McCullough; to the Co~mittee on InYalid were introduced and seYerally. referred as follows: . Pensions. By Mr. BURKE of Wisconsin : A bill ( H. R. 13370) granting By Mr. SULZER: Resolutioh of District Grand Lodge No. 2, an increase of pension to Harmon L. Palmer; to the Committee Independent Order of B'nai B'rith, relntirn to the tre:ltment on Invalid Pensions. of Jewish citizens by the Russian GoYernment; to the Commit­ By i\Ir. OL.AnK of Missouri: A bill (H. R. 13371) granting tee on Foreign Affairs. an increase of pension to James W. Hollenbeck; to the Com­ mittee on Invalid Pensions. By Ur. CLINE: A bill (II. R. 13372) granting an increase of pension to J. II. Weaver; to the Committee on Im·alid Pensions. SENATE. By Mr. DICKI~SO~: A bill (H. R. 13373) granting an in­ TUESDAY, August 8, 1911. crea e of pension to John C. Bridges; to the Committee on Invaliu Pensions. [Continuation of legislati1ie day of Monday, Aitoust 7, 1911.] By Mr. HAWLEY: A bill (H. R. 13374) granting an increase The Senate met, at the expiration of the recess, at 11 o'clock of pension to I aac Cram; to the Committee on Invalid Pen­ a. m., 'ruesday, August 8, 1011. sions. By Mr. JACOWAY: A bill (H. R. 13375) for the relief of the NEW MEXICO AND ARIZONA. heirs of John Deering and John Edwards; to the Committee on The Senate, as in Committee of the Who1e, resumecl the con­ War Claims. sideration of the joint resolution (H. J. Re . 1:1.) to admit the By Mr. LEE of Pennsylvania: A bill (II. R. 13376) to cor­ Territories of New Mexico and .Arizona as State into the Union rect the military record of Thomas J. Rose; to the Committee upon an equal footing with the original State . on Military Affairs. The VICE PRESIDENT. The pending question is on the By Mr. LEWIS: A bill (H. R 13377) to refunu to the corpo­ fir"'t amendment reported from tbe Committee on Territories. rate authorities of Frederick City, Md., the sum of $200,000, ex­ The Senator from South Dakota [~Ir. CJU..wroRD] has the floor. acted of them by the Confederate Army under Gen. Jubal Early, :Mr. CR.A. WFORD. Mr. President, this is a Republic. It is July 9, 1864, under penalty of burning said city; to the Com­ not a pure democracy; it is a Republic. It is not a govern­ mittee on War Claims. ment by the people dire.ct, but it is a representative government. By .!.\Ir. ANTHONY: A bill (H. R. 13378) granting an in­ One would think from some of the contentions made here that crease of pension to Thomas J. Thompson; to the Committee on we are seriously contempl::i.ting in this country a rnvo1ution Im·::ilid Pensions. tmder which we are about to precipitate our ehes into a pure By Mr. ·MATTHEWS: A bill (H. R. 13379) grunting an in­ democracy and eliminate the representative fc.1ture of our crease of pension to Andrew McCullough ; to the Committee on Go•ernment entirely, or to so control it that repre~entative ·go-r­ Invalid Pen"'ions. . ernment will ha•e in it elf no longer any force or any effect. By Mr. O'SHAUNESSY: A bill (H. R. 13380) grantin?: a pen­ Tile recall of judges, as it is pro11osed in the constitution of sion to Sarah E. Hall; to the Committee on In-valid Pensi(lll . Arizona and presented by argument upon thi floor, is a pro­ Al so. a !Jill ( H. R. 133 1) granting an increase of pension to posal to put into the hands of a small minority the power to Annie Potter Newell; to the Committee on Invalid Pen ions. inrnlve an incumbent of a judicial office in a fight for his posi­ Also, a bill (H. R. 13382) gra,nting an increase of pension to tion as a judge, by merely filing a petition signed, not by a Mary Kennedy; to the ommittee on Invalid Pensions. majority of the rnters, not by one-half of the •oters, but by AlBo, a bill ( H. R 13383) granting an increase of pension to oue-fonrth of the voters-a petition which need not state spe­ Susan Douglas; to the ommittee on Im·alid Pensions. cifically a single charge against that judge. He will be com­ Al o, a bill (H. R. 13384) granting an increase of pen ion to pelled thereby to go to the people of his district and fight for Nicholas E. Gardiner; to the Committee on Inrnlid Pen ions. his retention in his judicial office in the very midst of the term Also, a bill (H. R. 133 5) granting an increa e of pen ion to for -which he has already been lnwfully cho .~ en. Abbie S. Lawrence; to the Committee on Invalid Pension . I do not say that a provision of that kfod takes away from a Also, a bill (H. R. 133 6) granting an increase of pension to State its republican form of government, b.ut I tlo say that such Eliza W. Parkhurst: to the Committee on In•alid Pensions. a provision is umepublican and that it is a stnrtling step By Mr. STEPHENS of California: A bill (H. Il. 13387) grant­ towi1rd pure democracy. ing an increase of pension to Edwin M. Wardall; to the Com­ The fathers who framed the Constitution are dismissed now­ mittee on Invalid Pensions. adays by some people with a sneer. It is i;:aid that they frnmed By l\Ir. WICKLIFFE: A bill (R. R. 13388) for the relief of our Constitution in secret, and that iti:clf pnt a color of sus­ the estnte of Le Roy C. Morris, deceased; to the Committee on picion upon the organic law; tlrnt when yon look now at the men War Claims. who framed that charter, you find that they, in their true colors, were reactionaries and standpatters. No lon~e:r- are Benja­ min Franklin and George Washin~on ::i.nd Alexander- Hamilton PETITIONS, ETC. men to whom we should look for light ant.I guidance in the con­ Under clause 1 of Rule XXII, petitions and papers were laid struction of tile Constitution; they are under sus11icion of bav­ on the Clerk's desk :md referred as follows: inp; covertly, in secret, gone into ome kind of conspiracy By Mr. .A..1. YSBERRY : Resolution of District Grand Lodge against their rnce, and the future, in the interest of property No. 2, Independent Order of B'nai B'rith, relatiYe to the trent­ and corporations and tlrnt sort of thing. This is the kind of ment of Jewish citizens by the Russian Government; to the argument we bear at tbe beginninO' of the twentieth century Committee on Foreign Affairs. about the Constitution of our country. By Mr. BURKE of Wisconsin: Papers to accompany bill The words of Mr. Hamilton wben be -was pre enling the granting nn increai::e of pension to Harmon L. Palmer; to the claims of the Constitution to ratification are just as true to-day Committee on Intalid Pensions. as they were then. He said : By Mr. CURLEY : Petition of H. l\I. Aitken and numerous Give all power to the many and they will oppress the few. others, of Boston, Brookline, and Dorchester, l\Ill.ss., asking that Does anybody deny that now? What did he say about the the duty on raw and refined sugars be reduced; to the Commit­ minority? tee on Wars and l\leans. Give all power to the few and they will oppTess the many. Also, resolution of District Grand Lodge No. 2, Independent Does a11ybody deny th:it now? No. Some would say, "We Order of B'nni B'rith, relative to the treatment of Jewish citi­ do not want to gi"re any power to the few, but we do want to zens by the Russian GoTernment; to the Committee on Foreign gi>e all power to the many.'1 But one proposition is just as Affairs. dangerous as the other. Hamilton said: By l\lr. ESCH: Resolution of District Grand Lodge No. 2, Both, therefore, ought to have the power th.at each may defend itself Independent Order of B'nai . B'rith, relative to the treatment against the other. 1911. CONGRESSIONAL RECORD-SENATE. 3713

Oh no, Mr. President, that is not to be the doctrine now. their plan would have been Inexcusably defective if it had wanted this important feature of good government. The experience of good govern­ Both are not to have the power by which each can defend itsel,f ment affords an illustrious comment upon the excellence of the institu­ against the other, but the power of the minority is to be taken tion. from it and the entire power is to be vested in the many, which Mr. President, l\fr. Hamilton was not the only one to take this he said would oppress the few. A strange doctrine this which view of the matter. Mr. Madison expressed himself about a is now declared before the American people upon the fioor of pure democracy when he was giving his opinion of the Con­ the United States Senate. stitution and the judiciary. He .said: " No," said Mr. Hamilton: From this view of the subject, it may be concluded that a pure The complete independence of the courts of justice is peculiarly democracy, by which I mean a society consisting of a small number of essential to a limited constitution. By a limited constitution I under­ citizens, who assemble and administer the government in person can stand one which contains certain specified exceptions to the legislative permit of no cure for the mischiefs of faction. ' authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Certainly not; the majority there is the tyrant, if there be a tyrant. What is to become of your Bill of Rights if the courts are But what did he say further? not to be independent in protecting the citizen in each one of A common passion or interest will, in almost every case be felt by them and if the bar is to be thrown down and all left to the a majority of the whole; a communication and concert result from the majority? The Bill of Rights was written in letters of blood form of government itself ; and there is nothing to check the induce­ to protect the individual against tyranny, but it is now proposed ments to sacrifice the weaker party or an obnoxious individual. to throw down these barriers because the power in the hands That is exactly true. Who questions the truth of this decla­ of the few to protect themselves against the many is to be ration ()f Mr. Madison? It is the mere brutal power of num­ swept a way ; the majority is to have t~ power under the bers unrestrained, unchecked, no guaranties anywhere for the recall, or something of that kind, to intimidate the only tribunal minority that is the basis of such a government-a pure democ­ under our system which can protect a minority and give it a racy. He says: hearing. There is nothing to check the inducements to sacrifice the weaker What other tribunal is there under our system which can party or an obnoxious individual. give the minority any protection except the judicial department But, .Mr. President, another doctrine is being preached nowa­ of the Government? I want no weapon placed in the hands of days for the government of 90,000,000 of people and a Nation, a ma ·ority, without even a specification, with nothing but an which in numbers and in territorial extent, is one of the greatest arbitrary dictum, with which to sweep away the independence empires of the world. All these safeguards are to be broken of the only department in existence which can protect the few down-for this is the first step in that direction-and the against the ma:Q.y and the many against the few. brutal control of the majority is to be installed and placed in Mr. Hamilton goes on : absolute control of the judgments and decrees of its courts. Limitations of this kind can be preserved in practice in no other So long as I have a voice and a will and a conviction and way than through the courts of justice, whose duty it must be to de­ this kind of doctrine is preached, to the utmost of my strength clare all acts contrary to the manifest intent of the Constitution void. I shall oppose it in the United States Senate and elsewhere. It is said upon this floor that it was usurpation upon the part It is revolutionary. It is bad. Mr. Madison goes on: of the Supreme Court of the United States to assume to declare A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect and promises the that an act of Congress because it was repugnant to this great cure for which we are seeking. charter is void, and that the men who made such decisions were, in effect, guilty of treason and violated the Constitution Some men do not believe that nowadays. The American by upholding it If some declarations I have heard in the Sen­ people, however, do believe it, as we shall find out when the ate are true, John Marshall ought to have been impeached; question comes fairly before them. - · yea, more, he was open to the charge of treason when he de­ In 1 94, following that great riot and mob in Chicago, where cided the great cases of .Marbury v. Madison, McCulloch v. the crowd undertook to take from the United.States the power Maryland, Cohens v. Virginia, Gibbons v. Ogden,· and the Dart­ to carry its own mails, a cry went out before this country that mouth College case, in all of which decisions he wrote in large let­ it was governed by injunction. That cry went into the cam­ ters, it is said, into the Constitution the word NATION. If what paign as an issue, and more than any other contributing cause we hear said here on the fioor of the Senate be true, instead of that revolutionary cry defeated the Democratic Party. We construing the Constitution according to its spirit, so that a welcome the issue again. If you want to go before the Ameri­ great nation might live throughout all the future, Marshall was can people preaching disorder, anarchy, the breaking down of guily of a willful usurpation of unwarranted power, and he restraints, disintegration, the undermining of the courts, you ought to have been recalled. are welcome to all you can make out of it. Try it if you_must. That is the kind of doctrine proclaimed now upon the floor I would like to be on the firing line in a fight of that kind. of the Senate. Fine doctrine this to proclaim from here to Mr. Madison says: The scheme of representation in a republican form takes the place the American people ! and pronounces the cure for which we are seeking. The two great Mr. Hamilton also said: points of difference between a democracy and a republic are, first. the Without this all the reservation of particular rights or privlleges delegation of the government in the latter to a small number of citizens would amount to nothing. This independence of the judges is equally elected by the rest. requisite to guard the Constitution and the rights of the individuals from the effect of those ill humors which the arts of designing men That is a republican form of government made by those men or the influence of particular junctures sometimes disseminate among who we are now told sat in secret and conspired against the peo­ the public theIJ?selves and whicl!, though they speedily give place to ple in th~ interest of property; that is the way they are char­ better information and more dehberate reflection, have a tendency in the meantime to occasion dangerous innovations in the Government acterized by some people now; that is the kind of talk we hear in and serious oppression of the minority party in the community. the Senate about them now. The fathers also had before them That doctrine is not believed in nowadays by some people, the words of Montesquieu: There is no liberty if the judicial power be not separated from the but, thank God, they are few. It is not believed by some peo­ legislative and executive. Were it jomed with the legislative, t he life ple who denounce the man who wrote this as an aristocrat and liberty of the subject would be exposed to arbitrary control, for the and a monarchical sympathizer. judge wouid then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There No man was denounced more in his day than Mr. Marshall. would be an end of everything were the same men or the same body No more angry and ugly and venomous and malicious assaults to exercise these three powers: That of enacting laws, that of execut­ were eyer hurled at the head of a public official than were ing them, and that of trying the cases of individuals. hurled at the head of that great man whom we now reverence. Are these divisions to be now broken down? This judicial If he could have been placed at the power of the excited, department, these judges, stand in the breach and see that the tumultuous, impassioned crowd which thought the decision in most unfortunate and the weakest individual in the Nation Cohens v. Virginia was usurpation he would have been re­ shall have all of his rights-guaranteed to him under the Decla­ called. He would have been hurled from the place which he ration of Independence as well as by the Constitution-the adorned and which he made great. He would have been taken right to life, to liberty, and to the pursuit of happiness. The from the great position which he filled during so many years judge, now absolutely free in adjudging these rights, will, under of his long life and in which he, more than any other man in this new proposal, exercise his duty with the menace of the the history of this Nation, helped to build it or make it possible mob hanging over him. If he does not enter into the passions to build it. of the majority, if he does not enter into their sympathies, if With some people this language of Mr. Hamilton is not he does not become a part of their impulses, if he does not obey popular. He goes on : their will, they are to have a weapon with which they can Upon the whole there can be no room to doubt that the convention punish him. They may recall him. acted wisely in copying from the models of those constitutions which ha~ established good behavior as the tenure of their judicial officers in Oh. we are preaching strange doctrine here. Who ls demand­ pomt of duration, and that so far from being blamable on this account ing this? I know it is not demanded by the great mass of the

-- 3714 CONGRESSIONAL RECORD-SENATE. AUGUST 8,

people with whom I ha\e come in contact; it is not demanded against a woman; it was the murder of another man, ignorant by the farmers on our prairies; it iB not demanded by the mer­ like himself. chants in our stores; it is not demanded by the average citizen Berner was arrested ; he was tried speedily ; he was con­ of this country, if I ha·re any acquaintance with him at all. victed; he was sentenced to 20 years' imprisonment in the Who is demanding it? Certain things happen eyery once in penitentiary-not an inadequate punishment. TheTe had been n. while. It is too solemn and too awful for me to say who is re­ an orderly trial, an orderly sentence, a Tindication of the Jaw. sponsible for it, but e\ery once in a while dynamite is put under One night soon after this sentence was imposed a crowd gath­ · great mills and great properties and great newspapers and they ered on the street. They had a meeting OYer in one of the are torn to fragments, and limbs and arms of fathers are thrown halls; a few inflammatory speeches were made-I call the at­ into the air, widows are made, little children are left fatherless, tention of Senators on the other side to the fact that the judges and generally somewhere affiliated with conduct of that kind- were elected by the people; they were not appointed during 1 do not say responsible for it; that would be too awful and too good behavior, but they were part of the elective system in sweeping-but somehow as an incident, or it is an incident to Ohio-a few inflammatory speeches were made, and, like a certain kinds of disputes, and one side in these disputes is ask­ torch, the flame spread into the crowd in the street below, and ing for this recall of judges as one kind of a remedy. I pro­ for nearly one week there was a reign of terror in the city of pose to speak plain English here. One side in a controver y of Cincinnati, the city of culture, of art, of music, and of wealth. this kind is asking for a remedy like this. There is where it The police were intimidated, the people who loved law a.nd comes from. order were driven off the streets, and the mob was enthroned In Chicago. after that. riot in 1894, one class of people de­ almost as completely as it was in the city of Paris during the nounced the Prc~ idoot of the United State because he insisted days of the Revolution. The courthouse, a magnificent and on using the power of the United States to enable the Govern­ beautiful classical structure that cost millions of do!Jars, was ment to do the business of the United States. The people who destroyed, burned up by this mob. Innocent men were shot denounced President Cle\eland then would like to have a recan down in the streets and pandemonium reigned. of judges. Let us talk plainly about this. You want to put Do you want that kind of a crowd to circulate a petition for judges at the mercy of passion, impulse, and excitement lilrn the recall of the only officer, outside of the goyernor of the that: I do not; and my arm will be palsied and fall helpless to State, clothed with authority to maintain law and order under my side when I ref.use to protest against any influence of this such circumstances? Do you want him 11laced under the men­ kind being brought to bear upon the courts of this country. ace of a crowd like that by being subjected to a recall if he What i this talk about "faith in the people"? Ah, we hear dare put in force some· decree or order against it? a. lot of it. When a man. protests against this sort of thing, There is no part of the United States exempt from occasional immediately it is said to him: "We have faith in the people, outbreaks of this kind. We in the Norfu have no right to look .and you are lacking in faith in the people." I do not stand d'Own across Mason and Dixon's line and criticize our neighbors second to any Member of this Senate in advocating faith in the on account of the fact that tumults and riots arise there, be­ people; but who are the people? Is the majority the people? cause they arise in South Dakota. and in Idaho, in Colorado, in Is the majority, wrought up and excited in tumult, the people? California, in Kansas, in Delaware, and in all the States. I am going to talk plainly-you may think it is almost brutal­ I had been practicing law only a couple of years after I first about the majorities that sometimes assume that they are the went to the Territory of Dakota when a murder occurred in the people. county in which I li\ed. The man guilty of it was arrested, O\er in good consern1ti\e old Delaware, settled by American brought over, and put in our county jail in the county seat town pure bloods ancl peo11l cd by their descendants generation after where I lived. On the Monday fQllowing court conYened. One generation, a few yeni k. 11go in the city of Wilmington a negro of the best judge. in heart and in integrity that ever li\ed was was charged with a Eerious and awfnl crime. There was no to preside. The grand jury met, an indictment was drawn, delay of the courts connected with it. He was speedily tried; there was no question about the conviction of the man; but on he was con\icted; he was sentenced to the gallows. He was the following· morning, when I arri\cd at my office down the waiting simply for the sheriff to execute the decree of the street, the corpse of that defendant was hanging to the flagpole court. Just let me read what the father of the victim said to immediately in front of the courthouse, almost under its eaves, the mob as he sat beside the bier where his daughter lay dead: and at a time when the court was being held. Onr cup of bitterne s is full, but we ask you to join us in our appeal Do not talk to me as though there was only one side to this - to all citizens of our Commonwealth to refrain from violence. question in this country. Some one ought to speak out when Mr. President, what did those American citizens do? They eYerybody is Crying-and there is contagion in the cry-" faith went to the jail and broke through five steel gates; they ham­ in the people." I have faith in the people; I ha\e faith in all mered them down; they went fato that jail and they took that the people; I believe vox popull, TOX Dei ; but it is the delib­ man who had been convicted by a jury, who had been sen­ erate Yoice of all the people, not the -voice of an angry, excited, tenced to death by the court, out onto the commons; they tumultous, shifting, temporary majority of the people; and I kindled a fire; they put him to death by slow torture; they denounce with all the earnestness I possess these cries of " faith danced around the burning corpse like wild savages; and after in the people " which conceal and cover situations like these I their awful deed was done, they cut off the toes and fingers haye described. and distributed them in the crowd as mementoes of their bar­ They say Judge Walter Clark, of North Carolina, is a radical. barism. .All right. Let me give you some facts he published about the e Talk to me about the majority of the people always being mobs. My radical friends, listen to it when you are preaching trusted. God knows I have faith in the people-in all the :.rour professions of faith in the people. Faith in the people ! people, the whole people, in their mature deliberations, in their We all haTe faith in the people, in the deliberate judgment of final verdict-but these same people ought to have some ·re­ all the people, but :fn.ith in an excited majority, a tumultuous straint built up under which even a poor criminal like that majority, an enraged majority, a temporary majority, a shift­ ~hall be protected against the assault, the impulse, and the ing majority-faith to the extent which woulcl put into the passion of the fleeting, shifting majority .of the moment. I am hands of that temporary and shifting and angry majo1ity the going to talk plainly, even if it may seem brutal. Some one power to destroy the independence of the courts? No; never, so ought to speak out against all this cant and this preaching help me God; never. Such blind worshipping idolatry of the about faith in tbe people to cover tip an attempt to put in the majority as that? Never. · hands of an angry, shifting, fleeting majority the power to Judge Walter Clark gi\es the statistics. He gi-ves the num­ 0·1erawe and menace the courts of,the country. Fine doctrine ber of lynchings that occurred in the United States, as showu that. by a report issued pre\ious to the time be wrote this articl~ Mr. President, Cincinnati is a great city, a city of culture, and he shows that in the United States, according to the State a city of a.rt, a city of music, a city of refinement, a city of official reports for 1892 the Jast which had been compiled when wealth. I ham here a statement written by M1·. J. S. Tunni­ he wrote the article, which was published some time ago, there son, of Cincinnati, a conservative, calm, dispassionate state­ were 107 executions by process of la.w for homicides and all ment, made by a man of ability, made by a close observer, made other capital offenses and 236 by lynching, while for the 10 by a man who was on the ground, in which he describes the years, 1883--1892, the a\·erage l\'US more than 2 executed by Cincinnati riot of 1 88. l'alk to me about having faith in the lynching to 1 by law. He also stated that it appeared from u majority under some circumstances and use the general cry recent message of the governor of North Oarolina lli'lt 8 per­ ":fn.ith in the people " to prevent looking a situation like this sons were executed by lynching during his term while only 5 that Mr Tunnison describes squarely in the face! No. Let us were executed by the sheriff. . pull the mask off. Mr. Tunnison says that a man named Berner Yet we hear this sentimental, nonsen ical talk here-I call it was accused of the crime of murder. It was not an offense that, because I believe that is the right name for it-about 1911. CONGRESSIONAL RECORD-- SENATE. 3715 faith in the people as a justification for a proposal to destroy in his pocket. He had no common interest with us. He was the independence of the courts. If Senators on this floor are there to serve a term and go back at the end to his home in 1nfiuenced by such talk it shows how courts and judges may the East; and if ever I had experience with snobs, arbitrary be weak enough to listen to it if the fate of judges is placed in and petty tyrants, who thought they owed nothing to the people such a balance. of the Territory or to anyone on earth except to the power Let us i;ave them, God help us; let us save them as long as which appointed them, it was with these carpetbag judges. we can from any such influence as this. Arizona may have had an experience of that kind; I do not When it is asserted here that the people are supreme, that know. It may be that experience of that kind explains why they employ judges and stand toward them in the relation of a they have been tempted to put this dangerous provision into master toward a servant what is meant is the majority of the their constitution. people. Listen to what Hannis Taylor says in a recent article: If Congress should admit Arizona into the Union with this Herein lies the error. The judges are not the servants and agents constitution which provides that their nisi prius judges shall be of the majority. The judges are the servants of both the majority and elected for only two years, with the power of impeachment, the minority, and must of necessity be independent. they certainly do not need any such remedy as this. I read somewhere-and I have made a little note of it-how But they appear to want it, and I am disposed to let them one time an angry, excited, tumultuous crowd swarmed about have it, after making my protest against it. I give that as the the gates of Westminster Hall and sought to influence Lord explanation for my vote, notwithstanding my earnest denuncia­ .Mansfield in a decision he was about to render ; they told him tion of this principle. that if his decision should be so and so he would be the most But what is the reason for asking for the recall of judges all popular judge in England. He faced the angry crowd and said: around over the United States? The Senator from Oklahoma I wish popularity, but it is that popularity which follows and not that which i run after. It is that popularity which sooner or later [Mr. OWEN] printed a list of the States, showing that they all never fails to do justice to the pursuit of noble ends. have provisions for impeachment, and the great majority of He held fast to his integrity and made his decision without them have provisions for the removal of judges by the governor heeding the cries of that angry multitude. That is the kind of upon the address of t:tie legislature supported by a two-thirds incentive we want in our judges, not the influence or fear of the \ote. It is very seldom that existing remedies are invoked, and crowd. they say, " This will never be invoked." If it never will be Now, Mr. President, I said last evening that I believe in popu­ invoked, what do they want it for? It is the extreme cases in lar government. I believe in the popular government we have which it may be invoked that measure the danger. If they come in my State, where we have the initiath"e and the referendum. only once in 50 years, it may be in a case in which it will be I believe, however, these provisions are weapons designed to be an awful weapon in the hands of an infuriated crowd. We must used not for the purpose of taking direct charge of the Govern­ consider that in measuring its danger. That is why I oppose it. ment, but as a weapon of protection, to be used only in emer­ Mr. President, I have talked with a good deal of energy and gencies; they were put into our fundamental law for that pur­ emphasis here, but I make no apology for it. It is because I pose, to be used in that way only. I am absolutely in favor of have been trying, not in polished and finished phrase, but with. them. I do not believe the referendum should be allowed upon earnestness, to faithfully express the convictions of my inner­ a petition signed by only 5 per cent of the voters-only one­ most heart Having done that, Mr. President, I yield the floor. twentieth of the voters being given the power to invoke this Mr. CLAPP obtained the floor. remedy, and thereby hang up and suspend the operation of Mr. THORNTON. If the Senator from Minnesota will yield what may be a very valuable and useful law, because, per­ to me for a temporary interruption, not exceeding five minutes, chance, the American Express Oo. or some other special interest I will be very much obliged. does not want it to go into effect. That is done sometimes. l\Ir. CLAPP. I yield with pleasure to the Senator from Let us look at both sides of it. I think the petition should Louisiana. be signed by a larger number than 5 per cent, but I am heartily Mr. THORNTON. Mr. President, I had not expected to say in favor of the remedy as an emergency weapon, and I would anything on the subject under discussion and would not do so oppose its repeal ; so would the people of South Dakota. now if it had not been for the statement made on the floor of But how far are we going? There is a proposition in my this Chamber yesterday by the Senator from New York [Mr. State now to have what they call a party recall. What do RooT] to the effect that every vote by a Senator in favor of the you think of that? The theory of it is that when the officer is admission of Arizona with a constitution as it is now presented elected and installed he is a tool and instrument of the party to us signified that Senator's approval of the recall of judges, which elected him, and the other people are to have nothmg to and every vote cast by a Senator against the admission of say about it. If a certain percentage of the people belonging Arizona signified his disapproval of the recall of judges. Inas­ to his party petition for his recall, then he must submit to their much as I do not favor the recall of judges, but do intend to dictation, having bound himself by written pledge to resign his vote for the admission of Arizona with that feature in her con­ office. Where are we going when men are found who seriously stitution, I can not permit that statement to pass unchallenged. propose such schemes of partisan control over public officers as I am perfectly sure that my opposition to the recall of judges is that? quite as sincere as is the opposition of the Senator from New The majority, the deliberate majority, of this country will York. But I am also sure that I have not the right, because of never agree to such propositions as these. The deliberate, JllY objection to that feature of the Arizona constitution, to deny thoughtful majority of this country will hold to these constitu­ satehood to that Territory on account of my disapproval of a tional restraints upon the action of the impassioned, hasty, im­ measure which has the approval of the people of that Territory pulsh'e, temporary, shifting majority. Our fathers believed in and which affects her citizens only and which does not violate them, and we will continue to believe in them no matter how any provision of the Constitution of the United States. many extremists may preach a different doctrine. You can not In the closing days of the last Congress, when this measure carry a State in this Union, after deliberate and fearless dis­ was submitted to the Senate, I voted for the admission of cussion, in favor of any such revolutionary proposal as this Arizona with that feature in her constitution, and I did so for recall of judges, in my opinion. the reasons I have just stated. Now, I think, l\Ir. President, I have uttered my protest pretty On my return to this extra session I found on my desk a let­ emphatically. I believe those who think as I do ought to utter ter from the nonpartisan statehood committee thanking me for an emphatic protest. my attitude on that matter, and I at once replied that my vote But you ask me what am I going to do about the resolution must not be construed as an approval of the recall feature of admitting Arizona. I confess I never had a more difficult their constitution, because I did not approve of it; but it should question to settle with myself. Much as I oppose the principle be construed as a recognition of the rights of the people of of putting the recall of judges into the constitution of Arizona Arizona to make their own constitution according to what they or into any other State constitution-and if such a proposition thought was best for their own people, and I would continue to were proposed in my State I would travel over it and protest recognize that right just as long as the question came up before against it everywhere-this question comes up to me: If the the Senate. Later on I was waited on by a delegation from that people in Arizona wish to put into their organic law something committee, and to them I repeated verbally what I had pre­ that I believe they should not, and yet something which they viously written. can lawfully put there and which is a matter they must deter­ If my own State enacted a law which concerned her citizens mine for themselves, why should I say they shall not do so? only and did not contrav-ene any provision of the Constitution They may have had troubles there. They have been living of the United States, I would resent the attempt of any outside under a carpetbag government. Senators from the South know body to invalidate that law because it did not agree with their what it is to live under a carpetbag government. So do I. individual opinion. I consider that the people of Arizona have I began my practice in a Territory where every judge before in this respect an equal right with the people of Louisiana. I whom I tried cases came into the Territory with a commission can justify to myself my vote for the admission of Arizona as 3716 COKGRESSION AL RECORD-SEN ATE, AUGUST 8, a State containing this measure, but I could not justify to my­ as a formidable adjunct in local, and in securing delegates to self my vote against the admission of that Territory as a State national, convention.~. because it contained a measure not meeting with my personal As ociated with these two benevolent individuals there is an­ approval, but solemnly and deliberately enacted by the people other form of citizen who invades the Territory as a field for of that Territory, believing it to be for their best interests. exploitation, and that is the man who is the servant of the big For these reasons I shall vote against the Nelson amendment. ma ter, but the master of the small servants-the man who is I thank the Senator from Minnesota. in touch with great and important interests. He seeks the Mr. CLAPP. Mr. President, this debate, as usual in the Sen­ Territory not to make a home, not that the wilderness may ate, has finally taken a very wide range. We have been treated blos om, but that he may exploit the resources of the Territory, at one extreme with the reproduction of the French Revolution material and political. He finds and, by the natural kinship of with all its horrors, portrayed with a rapidity and vividness ug­ the vicious, recognizes his allies. gestive of a modern moving-picture panorama, apparently un­ These three forces form as unconscionable a bunch of com­ mindful of the great historic truth that revolutions are simply mercial and political plunderers as ever 'oozed up through the the fruits of delayed reforms. At the other extreme we have seepage of our complex civilization. New Mexico and Arizona been treated to the picture of incongruous, absolutely impos­ were no exception to the common fate of Territories, and they sible situations, with a seriousness on the part of the artist were not without this plunderbund exploiting itself in both those which would really indicate that the artist regarded as possible Territories. that which is not only improbable but also impos$ible. It has been said the time has come when we should speak Divested of these extraneous matters and relieved somewhat plainly upon this floor; and without any unnecessary zeal, seek­ from the hysteria which I must, in candor and franknes , admit ing to avoid the possibilities of exaggerated expres ion, I pro­ I can but believe has been in part inspired for a purpose, the pose to deal with this subject to-day without gloves. The genesis­ que tion before the Senate is whether the Senate, so far as it of the pending re olution is as follows: has the authority, shall admit the Territory of Arizona with a Some time ago Congress passed a law known as enabling constitution to the liking of the people of Arizona, or whether acts, providing that the people of New Mexico and Arizona we. assuming a superior knowledge and coming from various ruight call constitutional conventions for the purpose of creating States of the Union, but none of us from Arizona, shall arrogate constitutions that they might be admitted to the Federal Union. to our elves to say what shall be wise for Arizona, and by mere The fact that Congress passed these enabling acts amounted to brute force compel the citizens of that prospective State to sur­ a decision by Congress that the Territories were sufficiently render the rights of freemen and adopt a constitution in con o­ pc,pulated and the people were capable of self-government, and nance not with the views of the people of Arizona but to con­ so far as these two questions were concerned were entitled to form to the views of men who never have and probably many be admitted to the Union. So that phase of the question is ne\er will even cn st a shadow within the confines of Arizona. eliminated from any further discussion. I must refer to the situation which exists ordinarily in Ter­ The plunderbund is always a small minority in a Territory. ritories. The first settlers of a 'l'erritory present a picture that The trouble is that the man who has gone to the Territory to appeals to the average American citizen. There is something make himself a home; the man who has gone there perma­ _grand and heroic about the real pioneers. They carry, in a cer­ nently-having no participation in the political affairs of that tain ense, their lives in their hands. They are the pioneers Territory except within a very limited scope-is not encour­ who blaze the pathway for the civilization which is to follow. aged to participate in political affairs; but this group I have It is a striking tribute to the lawmaking genius of the Anglo­ described have nothing else on earth to do except to look after ·saxon tltat the first wave of pioneer life, in.advance of the leg­ the politics of the Territory. Then they are backed with the islature and in advance of the courts, establishes a condition of prestige of the powers, both political and commercial, behind law and order where justice, without the refinements that are them. So a minority small numerically becomes, at times, au later wrought out in our judicial system, is administered with a overshadowing force in the machinery of legislation and politi­ broad and liberal spirit, with a fairness seldom equaled when cal methods. This is too true even as to States, but especially all the complicated machinery of government has followed in so in a Territory, where the lessened participation lessens the wake of the pioneer. interest. Following the real pioneer, when population is dense enough Under this law to authorize the gathering of these constitu­ to form a Territory, there come two great generic classes of tional conventions, New Mexico held a convention. I do not people. There is an inviting field in the Territory for the man know how it happened; it may be that the population of New who is of constructive genius, who goes there not alone to build Mexico is more scattered; that it can not exercise itself in such himself a home but to develop a waste and make it blossom as a concrete form as the population of Arizona. All I do know one of the flowers of civilization. is that, judged by the character of the New l\Iexico constitution, Accompanying that, along another line, there is another cla s judged by the avidity with which it was approvingly hailed by of men who find an inviting field in the Territory. They are ernry friend of special privilege, it was very evident that this the men who believe that in public service they may really plunderbund had succeeded to an overshadowing extent in serve the public, and they seek the political opportunities of a framing the New Mexico constitution. In saying this I would Territory. not discredit or minimize the fact that there are thousands of But, unfortunately, in this world the evil seems to mingle with_ good, loyal, home-seeking, well-meaning citizens in New Mexico; the good, and accompanying these somewhat venture ome but but in ome way they were unable to cope with the forces decently inspired streams of immigration there follow two arrayed against them. others. First, the lawyer who has outworn his welcome in con­ The enabling act in each case provided that when the con­ vention and court and must find a new field for exploitation. stitution came to Washington it should be submitted to Congress Under the benign influence of patronage he is appointed to a and the Pre ident. Congress might approve it; the President position in the new Territory. In view of his somewhat frayed might approve it. If the President did accept it, then if Con­ and tatte:red reputation, one would think that the appointing gress did not affirmatively disapprove it before the end of the power was inspired by a generou impulse to make a return for next regular session it would become a valid enactment. past services. But although this lawyer bas outworn his wel­ The New Mexico constitution met the approval of the Presi­ come in convention and in court, he can still in the livery of dent, but the Arizona constitution did not. hea\en serve the devil as a Territorial judge. Now we turn to the conditions in Arizona. The distin­ Let me digress to say that upon the bench in some of the e guished Senator from New York [Mr. RooT] yesterday u ed an Territories there are men who, less conspicuous in their field illustration in describing the genesis of free government when of operation, have displayed as high and inspiring an impulse he referred to the Battle of Concord and the Battle of Lexing­ and devotion to the public as any man upop. any judicial bench. ton. As I recall history, the "embattled farmers" of Lex­ But, unfortunately, the Territory has become the dumping ington and Concord risked their lives not to keep from the ground for the worn-out, played-out lobbyist. people the right of government, but to give the right of govern­ Following in bis wake and along with him there is the poli­ ment to the people, yet the Senator used this illustration in au tician who not only has worn out his welcome at conventions, argument against the pending resolution. but has worn out his welcome even with the people. He must It so happened that in Arizona they were more quickly find a resting place, and he is dumped into the Territory. aroused; they were able to more quickly come to'gether as a In view of his somewhat depleted political capital, one at first concrete force, at all events; and the well-meaning people of glance would think that the appointing power that gave him Arizona triumphed. They made popular government the issue this reward was actuated by a spirit of generous regard for past in the election of .the convention which submitted a constitution services. Far from it, for although he is somewhat shattered, he to the people, a constitution which gives the people the fullest is still literally " in the ring " ; he can still serve the same possible direct participation in State government, and after a master mind, in the background, in the Territory, by appearing campaign of unusual interest they adopted the constitution 1911~ CONGRESSIONAL RECORD-SEN ATE. ·3717 almost four to one. Their proposed constitution did not meet the primary exercise of the right of a free people, to delegate the npproval of the special interests nor their political allies. its administration, as is usual, but reserving to themselves the I want to refer for a moment to the struggle of those people right, inasmuch as they vote for an officer before they know in their courageous effort which resulted in securing their pro­ what kind of an officer he will make, to vote against him when posed constitution. I know something of it, because it has been they discover what kind of an officer he actually turns out to my fortune to be more or less in communication with them. be, should he prove unsatisfactory. This is what in common Many of them are personal acquaintances of mine. parlance to-day is called the recall When the question came up for the establishment of a consti­ These are called by their opponents " experiments," and we tutional convention in Arizona the power of the men who are constantly met by the statement that the initiative, refer­ sought to exploit the Territory for selfish purposes, political endum, and recall are experiments, when the fact is just the and commercial, was arrayed against the ·men who were fight­ reverse. The natural fundamental thing is for a people to act ing for self-government. I am reliably informed that a Cabinet for themselves. When they delegate the function to others, such officer of the Government entered the Territory of Arizona and delegation is the experiment. It may be necessary, but none threw the weight and prestige of his great office in conjunc­ the less experimental tion with the plunderbund, in its efforts to prevent the voters I want to submit this case to the Senate: Take an individual of .Arizona from adopting a constitution in the interest of the who has acquired some property. He delegates to an agent the people of that Territory. They were threatened by the great management of that property, but reserves to himself the right corporations operating there that pending and contemplated de­ to terminate the agency when he finds, in his judgment, the velopment would cease in the Territory. I have been reliably agent is not fulfilling the full measure of the service of that informed that a representative of the Government pointed one of employment. We are now confronted with the proposition, the editors of Arizona who was favoring the constitution to the strange as it may seem, that to reserve that right is an experi­ site whereon it had been decided to place a public building, and ment. I want to remind the Senate that the bestowal of the suggestively inquired whether he thought more of the constitu­ authority to the agent is the experiment, and the withdrawal tion than he did of the public building. It should be said to and restoration to the principal is a fundamental principle, the everlasting honor of the editor that he held the right natural and not experimental. So in government, the moment of self-government above all other considerations. I under­ you reach the point of free government every single delegation take to say to-day upon the floor of the Senate that, bar­ of authority is experimental. The natural logical thing, just ring the sacrifice of life and blood, the grand struggle of so far as a free people can, in view of a wide extent of terri­ the people of .Arizona to establish a free government upon tory and dense population, would be to do these things them­ princ1ples that are the inevitable logic of free government and selves; and every delegation of· authority is an experiment. in the interest of the people, instead of being a contrast with The retention by or restoration to the people of the authority is not the "embattled farmers" of Lexington, is a splendid supple­ the experiment. No one holds official position in higher honor ment upon the field of civic life and civic development in the than myself, yet we must not lose sight of the fact that after sacri.fice for civic righteousness to the sacrifice and devotion all public officials, from President to postmaster, are simply that manifested itself at Concord, Lexington, and Bunker Hill. public servants; the positions created and persons selected not The Senator was, I fear, unfortunate in citing the example of for their benefit but for public service. the "embattled farmers" of Lexington in his argument against For one, I am not very much exercised over the result of the political rights of the "embattled farmers" of Arizona. this vote. A great many people who believe in progressive The people of .Arizona succeeded in their effort, and by a policies and progressive principles are somewhat unduly the vote of 12,847 for and a vote of 3,822 against, secured their con- subject of worry and disappointment if, for any reason, the stitution-a vote of almost 4 to 1. . progress of a movement is temporarily delayed or misdirected. And now the question which confronts the Senate is whether That never worries me for a moment, because I realize that a or not the Senate, within the power which it may exercise, fundamental principle can no more be permanently stayed than shall accord to those people that form of government recognized the operation of any other natural law. The forces which make to be republican within the purview of the Federal Constitution, for a policy ultimately in free government are as absolutely which they themselves selected in defiance of all the power and resistless as is the law of gravitation. threats that were brought to bear and made against them, or Reference has been made two or three times during this de­ whether, arrogating to ourselves the assumption of a superior bate to the relation of Deity to the genesis and history of free Imowledge, we shall use the mere brute force of votes to deprive government, so I have no apology to offer for making one myself. them of the right to have the government which they themselves I want to say that when the Master had completed that short, have twice solemnly declared they desire. brief, and marvelous ministry he had set in motion a force that The .Arizona constitution, with its broad recognition of the somewhere and sometime in human history was destined to right of a people to govern themselves, independent of the dic­ find fruition in free government. Those who opposed free gov­ tum of bosses, lobbyists, and special interests, did not meet that ernment might attempt to thwart it, those who honestly feared general approval in certain circles which the New Mexico con­ its progress might with calamitous conjuring of overwrought stitution met, and as a result a resolution has passed the House fear rebuke it, or with supercilious contempt they might sneer providing for again submitting to the people of .Arizona one at its policy, but no human power could prevent its final phase of the proposed constitution. fruition. It seems, when we come to analyze this constitution, that For 18 weary centuries it dragged its length across the pages what has so disturbed the serenity of the reactionary spirit in of human history, sometimes held temporarily in abeyance and and out of the Senate is the fact that the people of .Arizona sometimes diverted, but ever moving onward, obedient to a propose in their constitution nothing experimental at all, but resistless law, until finally it found its fruition in a broad sense propose to simply retain that which originally and naturally is in the establishment of this Government. I want to say, supple­ the first fruit-in fact, the very heritage-of free government menting that, that obedient to that same great resistless law, the itself, and that is the right to be a part and parcel of the Gov­ moment that free government became an established fact there ernment They, in common with other States, propose to was a force supplementing the forces which had developed,, it delegate some authority to a legislature, but they also propose, from its foundation that was to develop it to its finish. Under in case the legislature does not pass laws which it ought to pass, that force while men may sneer and men may honestly fear­ that then, not as an experiment but as an original proposition and I pity above all men the man who honestly fears human in the exercise of the power which originally is given a free progress, because he is doomed to disappointment-by a law as people, the people themselves, with a certain percentage asking absolutely resistless as that law which through those 18 cen­ for it, and in certain orderly methods prescribed by law, shall turies led to free government, free go\ernment is bound to lead reserve the power to legislate for themselves and in the interest to popular government. You may by cunning devices divert of all the people. This is called the initiative. the current of human purpose, you may by force and frnud They also propose that a governor may have the right of veto seem for a time to stay its progress, but day by day it as is usual, but, inasmuch as this is a delegated power, be­ moves majestically to its final goal, and its final goal is popular cause primarily the people themselves would have that right, government. The spirit which led man from Calvary to Inde­ instead of experimenting in reserving the right, they place a pendence Hall, from Lexington to Yorktown, from Fort Sumter limit on the experiment in granting the right of veto by re­ to .Appomattox will in the peaceful field of civil dernlopment serving the ultimate right to themselves. That is, if a bad law lead him from the point where our fathers left free govern­ is rushed through the legislature by sinister influences and the ment, suspended between the twin fears which sat as ominous governor will not veto it, the people may do so themselves. This watchel's, to its final analysis, a government by the people in is called the referendum. fact as well as in theocy. They also propose, instead of administering the law without let A great deal has also been said in thls discussion about ths or hindrance, without delegation of authority, which would be fathers of the Constitution. I yield to no man in my de>otion 3718 CONGRESSIONAL RECORD-SENATEw. AUGUST 8, to the loyalty, the patriotism, and the wisdom of the men who or how bad he may be, should have the power, throu0 h patron­ founded this Government; but they were only human. They age and the tremendou prestige of an administration, either had no vision beyond the most thoroughly possible developed to name his succes or or to renominate him elf. So, startling human vision; nor can we forget that much of their work was u it may be to some of our reactionary friends, :firn States accepted by a narrow margin in the constitutional convention of this Union have already pas ed laws where the voter within and by a narrow margin when it was adopted by the States. his party-not experimenting, but withdrawing the experiment, They made the Constitution, and the Constitution contains cer­ which has proved u direful failure, of dele..,.ated power to po­ tain declarations of principle; those declarations of principle litical bosses and Federal machines and exerci ing it himself never have been and never will be repealed, not because ()f the as an original power inherent in free government in the hands wisdom of the men who formulated them, but because principle of free men-is now in a position to determine for himself who is ·immortal and immutable. the choice of his party shall be as presidential nominee. On the other hand, they placed in that great instrument cer­ The makers of the Constitution tried another experiment. tain limitations upon the free play of the natural forces of free Tbey did not think that the people generally could be trusted government, not the guaranties of principles which I have just witll the election of United States Senators, and so they pro­ referred to, but limitations upon the natural direction of the vided for the delegation of this autho1ity to legislatures; and spirit of free institutions. Some of those limitations have now, when we propose to restore that power to the people, already been removed by natural operation; and I believe that hands go up in holy horror at the suggestion of " a novel every single limitation in the Federal Constitution which is a change," of "an experiment." Again, I remind Senators that limitation upon the ultimate exercise of the right of free gov­ the natural thing for the people to have done was to have ernment by a free people in the manner best adapted to their elected Senators as they elect governors. The experiment was use will inevitably yield to that law of free government which in trusting the agent, and withdrawing that trust is not the carries free government in its last analysis to popular govern­ experiment, but a return to the natural order of things. The ment. experiment was in first granting it to the agent. So, State after I want to illustrate some of these principles. The men who State, obedient to the great law which I have described, has framed the Constitution had just escaped from the tyranny of formulated a system whereby to-day the American people can government, and they were afraid of government. The result exercise their own will and their own choice in the selection was that they sought to minimize government. You find that of United States Senators. effort running all through the Constitution and the history of A good deal has been said during this debate from the stand­ the Constitution. On the other hand, they saw around them the point of "holier than thou," on the a sumption that a few men effects of a democracy subject to that turbulent spirit that know more than everyone else; that the people must be guarded always succeeds the time when the cohesiveness of a common against their own indiscretion. It happened to be my privilege danger has pas ·ed and the cohesiveness of a settled purpose has to be the first man who ever on the floor of the Senate advo­ not yet .developed. So, they were afraid of the people ; and, cated the election of United States Senators by the people from while on the one hand they sought to minimize the power of the tandpoint of the benefit to the Senator himself. the Government, on the other hand they sought to minimize the I came into this Chamber 10 years ago, and I began to study power of the people; and thus between these two great fears the membership of the body. I saw sitting down here a great those men worked and wrought at the foundation of this Gov­ Senator from the State of l\fassachusetts, l\fr. IIoar. I saw a ernment. man who eemed to be ab olutely oblivious to the ordinary po­ Among other things they feared to have the people vote litical methods and the power of political bosses and machines; directly for President, and the consequence was they developed and knowing that behind every effect there must be cause, I the idea of an electoral college. No student of the Constitution began studying the situation in that State. I found that while on this floor will, I think, dispute me when I say that the pri­ Ma sachusetts had its fair average of political bosses and ma­ mary idea of those men was that the electoral college should be chine methods, yet in conjunction with the great character of as absolutely independent in the performance of its functions as her Senators, like Sumner, Wilson, and Webster, the people of the voter was in the selection of the members of the electoral l\fa sachusetts especially, with reference to. this Senator, had college itself; but here they ran counter to the law to which I de1eloped a plan whereby they placed him and his office above have referred. You can no more establish an open, outward the political methods and machine forces of that State. And so, barrier against the final exercise by the citizen of the right of in tead of finding that he had lifted him elf above his environ­ suffrage than you can turn back the wheels of human progress. ment, I found his environment had been lifted to a higher alti­ The result was that in a few years the American people prac­ tude. tically did away with the presidential elector, although they I then took up the study of a southern Senator, many years still retain the form. my Renior, whom I came to love almost as a son loves a father. Without ever changing a line in the Constitution the Ameri­ I refer to the great Senator from Afabama, Mr. .MorO'an, the can people began a proce s whereby to-day within the States, of man who e mere dictum upon thiR floor was almo t the conclu­ course, counting the votes within the States, the American sive declaration of constitutional law. I found that man, in people as ab olutely vote directly for President as though there turn, seemed to be absolutely oblivious of all political methods were no presidential electors on the ticket. In my State, and and machine forces usually surrounding a United States Sena­ no doubt in other States, they have gone so far as to provide tor. Recognizing again that for every effect there must be a that the voter need not even go through the formality of voting cause, I studied the situation in Alabama, and I found that for the elector, but may mark his ballot opposite the name of they not only had developed the primary system, but had car­ the presidential candidate, and that carries ipso facto the vote ried it so far that when a Senator passed from his seat and the for the electors. people came to nominate his successor through primary election Now, we are told that the casting by the people of a direct they nominated two, one to take the office immediately, the vote for President is an experiment. Why, Senators, the delega­ other, in case anything happened to him between that time and tion of that power was the experiment. The natural thing was another primary election, the governor, if it was to be an ap­ for the people to have voted for President as they voted for pointment, the legislature, if an election, would be guided by the governor or constable. The delegation, I say again, was the will of the people, practically carrying the nomination of a Sen­ experiment, and, at the risk of tiresome repetition, I am going a tor to the second degree. to emphasize that thought, because running all through this Then I could understand how that man who so long adorned discus ion in Congress and outside of Congress is the idea that a seat here could be so independent. He was indep ndent we are presenting some new things here; that we are asking in the sense not that he had lifted himself above an environ­ for changes and experiments, when the fact is we are simply ment, but his environment had been lifted to a higher level. trying to bring something to bear looking to a reduction in the Then it was that it came to me, with a force that it had never scope of experiments in delegated government, which have been come before, that we want the direct election of United States tried and too often found wanting. Senators not alone as a right on the part of the people, but as By the same token-and here I am going to startle my something that would add prestige and dignity to the office and Bourbon friends, if they take any stock in my prophecy. They to the strength and independence of the Senator himself. may reject the prophecy; I am not a prophet myself nor the son Now, the delegated elections of President and Senators were of a prophet, although I was named after a gentleman who not the only experiments which were tried. The e men, la.bor­ had some little· local reputation along that line; but I am ing in the shadow of these two great fears, sought to minimize willing to risk his reputation as a prophet on what I am now the power of government. going to say-that is, that by the same resistless logic of se­ The first draft of the Federal Con titution contained the quence by which the American people finally came to vote for word "nation" 23 times. My memory may be at fault, but I President they are going to establish a method by which they think that was the number. In the second draft it had been can directly nominate a President. It is absolutely foreign to stricken out 12 times. I am speaking again from memory. our theory ?f government that any man, I care not how good And now, without any question as to the correctness of my 1911. CONGRESSIONAL RECORD-SEN ATE. 3719 statement, before it was finally brought for submission to the ning back on my part almost to my boyhood. But it so hap­ American people, the word " nation " was stricken out wherever pens that we are alike in one respect-neither one of us has It occurred. The people who framed this Government were acquired the habit of permitting anybody else to do our think­ afraid of a nation. They had escaped the tyranny of one gov­ ing, and consequently we sometimes differ. I can not support ernment, so they sought to hold down the power of the Govern­ his amendment. I think the pending resolution is sufficient, ment which they were creating. even for those who do not themselves believe in the recall. But no great people could ever work out their destiny, no Now, it is proposed by the pending House resolution that the matter what form of federation they had. It requires a nation people of Arizona shall vote again, and whether they reject or that a people may reach their highest destiny. And so the retain the right of recall, ·they may come in; but, that it may be - American people, notwithstanding the limitations of the written said their action heretofore may have lacked deliberation, they Constitution, proceeded to build a nation. Almost the first act are to vote again. It would seem as though that was enough. was that of Thomas Jefferson in the acquisition of the Louisi­ First, they braved all the power, political and commercia1, of ana · Purchase; and I want to say here it will always stand as vicious a plunderbund as ever invaded a Territory in electing as a splendid monument to the patriotism of Thomas Jefferson the members of their legislature. They braved that same force that he lifted himself above the environment, abo-rn the shackles again in framing their constitution, and now we ask them to of tradition and the advocacy of the strict construction of the once more exercise their deliberate judgment in the face of this Constitution, and favored an exercise of authority which, with tyrannical and overshadowing force. one possible exception, was regarded by all public men to be It does seem to me that when we say to the people of Arizona, in excess of constitutional warrant. "You, perhaps, have acted without consideration; we think you It was even proposed that the .Constitution might be amended ought once more to act," we have gone to the very limits of the and this purchase ratified, but the American people had started arrogant power which reactionary force ever assumes toward to make a nation of this people, and they did not stop to ratify the spirit of human progress. And to say to those people that by amendment to the Constitution. under no circumstances shall they come into this Union with the From there we went on until to-day this Republic is not only recall, i~ an exercise of arbitrary power that is unwarranted engaged in work within our borders far beyond the ch'eam of and unjustified.. If we were passing a Federal law which would any man of that age, but also engaged in the construction and affect the people of our States, and it seemed to us from our operation of railroads and canals in territory beyond the sea. knowledge of the views of our constituents that they did not The next great step in making a nation was the decision of desire the recall, that would be another question. Here we are John Marshall. But I want to say that no judicial decision attempting to say to the people, who as yet have no Representa- ever made a nation. A nation rises superior to written law, and -tive upon this floor, except the mute eloquence of their own it can only rise by virtue of an inspiration in the hearts of the solemn decision, that they not only shall not have what, by an people. It can only be cemented by the blood of a people. We overwhelming majority, after a full canvass, they have decided have been treated to-day to the picture of a mob here and a they desire, but it is proposed that they shall not even pass upou mob there. I remember, as a boy, when the great city of New the question. That the price of statehood shall be the absolute York was throbbing and quivering in the clutch of a mob, show­ surrender of their convictions upon a vital question is not only. ing that within democracy there was evil. But overshadowing the unwarranted exercise of brutal power, but it is even worse. that mob in New York there stretched from one ocean to the It is a covert attempt to bribe the electorate of a prospective other two contending hosts, one battling to maintain the Union, State to vote against. their convictions in order to have the privi­ the other battling to sever it; one possibly as honest in its lege of American statehood. A. fine lesson, indeed, to place be­ convictions as the other, but a host which showed that above all fore a free people at the threshold of their entrance to an en­ selfish purposes the great bulk-the great rank and file of citi­ larged right of suffrage. zenship-can rise to sacrifice, and in that spirit of sacrifice can If my State had adopted this measure, and it was possible for alone be found the final sheet anchor of free government. this Congress to place a check upon it, I would, if an appeal for It is not in judicial decisions. Every mob but one that the fair play fell upon deaf ears, stand here until men less vigorous Senator from South Dakota referred to to-day was formed in yielded in the struggle of nature before I would ever surrender the very shadow of the judicial power which he said would the right of Minnesot..a to legislate for herseJf; and as those be broken down if the right to recall a judge was given to the brave people of Arizona have no direct and personal representa­ people. Every exercise of that mob force that he so eloquently tive upon this floor, I believe it is the duty of the men who be­ and so vividly depicted this morning was in the very shadow of lieve in free goyernment, who believe in patriotism, in loyalty a condition which he protests against being touched or changed and devotion to principle, to stand here in defense of the right by the unholy hand of this progressive movement, which is of the people of .A.Tizona to frame their own form of consti tu­ based upon the belief that you can no more stop halfway down tion within the recognized limits of the Federal Constitution; the hill than you can stop the law of gravitation itself. and no one contends seriously that that question is involved; When the shattered squadrons of Lee melted away at Ap­ no one who knows the people of Arizona would even suggest its pomattox the American people, not by judicial decree but in a consideration. sea of blood, amid all the horrors of war, had put the word Now, let us see what all this frenzy and fury is about; why "nation" back into the Constitution, to remain there as long this conjuring and reproduction of the French Revolution; why as this Republic, under the protecting regis of Deity, shall be this array of mob excitement; why this prophecy, doleful as the vanguard of human progress. it is, that we are tearing down the pillars of free government, I simply cite these things to show that it is no reflection all because the people of Arizona believe not in an experiment upon the wisdom of our ancestors that we have been obliged of self-government, but in retaining the right of self-government, to go beyond their views upon these questions. and limiting the experiment of delegated authority; and that is The distingui hed Senator from Utah [l\fr. SUTHERLAND]­ all that is inYolved in the genesis and philosophy of that dis­ and no one will accuse him of being a radical-and the dis­ cussion. Talk about our seeking to tear down the pillars of tinguished senior Senator from Michigan [1\Ir. SMITH]-and free government! Popular government is aimed at the political no one will accuse him of being a radical-both to-day admit boss, t.)le lobbyist, the special interests masquerading in the that this sacred instrument was a mistake so far as the elec­ form of public service. If these three forces constitute the pil­ tion of United States Senators goes. But the peculiar logic lars of _free government, God, indeed, is merciful that he veils of their attitude is that they tear from this holy shrine that from our vision the final wreck and ruin of the Republic. particular trapping they have denounced, but to touch one If you could imagine grouping a thousand people .at some more thread is unholy desecration-I must suggest it savors of pomt where there was no form of law and order, the first thing egotism-the putting of the judgment of a few against the those people would do would be to prescribe rules, not for the fixed purpose of the mighty millions of freemen who make this majority-Heaven knows, the struggle of the ages has been the Government all that it is. struggle of the majority lacking organization against the tyr· Now, having analyzed those changes, I come to the more anny and the viciousness of the few exerting an ever preponder­ direct propositions involved in this joint resolution that has ating power through the genius of combination-our laws come from the House. It provides that the people of Arizona, against murder are not to restrain the majority, for, fortu­ who have framed their constitution with an initiative, a refer­ nately, the majority of Americans are not prone to murder, but ~ndum', and a recall, may have the recall in case they vote once they are· to restrain a small and vicious minority. So that more upon that question. But my distinguished colleague, the thousand people would gather and prescribe some kind of law Senator fro~ Minnesota [Mr. NELSON], has offered an amend­ and order. · ment providing that they can come in only upon their absolute Now, what would be the natural· thing? It would be for those rejection of the right of recall of judges. people to decide for themselves their rules, and if they under­ I am loat:t;i to differ with my distinguished colleague. He and took to delegate that to a council that delegation would be the I have been political companions fNevada, Missouri, l\Iontana, South Dak.ota, Colorado, .Arkansas, The recall is not aimed at the upright judge. He has no more and Maine. Utah has adopted an initiative and referendum to fear from it, it could no more hold him in terrorern, than an amendment which is inoperative because of failure of the legis­ approaching reelection. It is not aimed at any faithful officer lature to enact necessary legislation. any more than the criminal code is aimed at that great major­ The States in which the initiative and referendum amendment ity of our people who abhor crime; nor does the history or has been submitted by the legislatures but has not yet been attitude of our people toward our elective judges justify the voted upon by the people are California, Washington, Wyoming, claim that they can not be trusted to deal fairly with the North Dakota, Nebraska, Florida, Idaho, and Wisconsin. judges as re~ards their reelection. The claim that the recall The States that have adopted the Oregon plan of popular would intimidate the fearless judge on the one hand or lead to election of Senators are Oregon, Nebraska, Nevada, Minnesota, an unreasonable exercise of the suffrage by the people on the New Jersey, Ohio, Kansas, California, and Wisconsin. other hand is refuted by the fact that our judges fearlessly per­ The States that have adopted the Oregon plan of popular vote form their duty in the face of approaching reelection, and the for candidates for President and Vice President are Oregon, people retain the faithful judge ofttimes to a point where reten­ Nebraska, New Jersey, North Dakota, and Wisconsin. tion of salary and official power becomes a grateful tribute from Let us see who is opposed to it, and in this characterization I the voters for services already rendered the public rather than do not, of course, include all. a return for further services which advancing years lessen the As bearing upon the question of the sinister purpose which possibility of being rendered. lies behind this struggle, I want to say, first, that every political 1911. CONGRESSIONAL RECORD-SEN ATE .. 3721

boss in this country is opposed to the Arizona constitution. have, and are entitled to be entrusted with the exercise of that E-very lobbyist is opposed to it. Every special interest, that, power. under the guise of public service, would place itself on the legis­ Mr. REED. Mr. President, notwithstanding all attempts to lative floor and there assume to hold the balance between the avoid the unpleasant truth, the very proposition that is em­ people and the interests, is opposed to it. I do not mean by bodied in the joint resolution now before us, and the very propo­ that, of course, that everyone who is opposed to it belongs to sition that has been from, the first contended for upon the other any of these classes. I simply mean that the Arizona constitu­ side, is that the Territory of Arizona shall not have equal rights tion in its very nature awakens the hostility of those classes. when she comes into the Union, or after she comes into the I hold in my hand an editorial written by Mr. H. C. l\Iiller, Union, with the other States. There is no use in disguising editor of the St. Peter (Minn.) Free Press. I want to say of facts behind hairsplitting language. The attitude of Senators on Mr. Miller that, like the country editor to-day, he is a man the other side is that this Territory shall not be admitted as a who is a student of public questions. There has come a wonder­ State unless she relinquishes her right, a right which every ful change in our country press in that regard. Our country other State of the Union possesses, to recall her judges if she editors to-day study these questions; they analyze these ques­ so desires. You propose to follow the ward beyond the date of tions. I myself, of com·se, feel especially grateful to the country majority. You put shackles upon him, not to be worn until editors of my ·own State, for bad it not been for their loyal the day he arrives at the age of discretion. You intend to com­ support in my first and succeeding elections I would not to-day pel him to wear those shackles when he has become of full age. have the privilege of tanding upon this floor. l\Ir. Miller says: All this has been well said by the Senator from l\fississippi In common with other country newspapers, the Free Press received [l\fr. WILLIAMS]. I take exception, however, to the illustra­ an offer from the Western Newspaper Union of plates containing a speech of Senator SUTHERLAND, of Utu.h- tion you have employed. I take exception to treating the Mind you, not the franked speech, which would cost only the 200,000 people of Arizona as you would treat an idiot under price of printing-and which many of us even sometimes strain guardianship or a minor who has not arrived at the years of our financial resources to print that we may send to our discretion. friends and the public our utterances-but plates containing a I say to the Senator from New York [Mr. IlooT], and I say to the President of the United States, that among the 200,000 speech of Senator SU'J.'HERLAND, of Utah- .people of Arizona there are men who are the equal of any against the initiative and referendum. No doubt many papers will ac­ cept the offer because of the saving of money, and many other papers, man in this Senate, and if it were not for that reverence we feel among them the Free Press, will and did refuse the offer becau e they for the high office I might even intimate some of them are in­ prefer to say in their own way what they think of the proposition. It tellectually and morally the equal of the President of the must cost a good deal of money to furnish the plates for that speech free to the newspapers, and evidently some one must be deeply interested United States. in getting the measure-initiative and referendum-defeated. To talk about these American citizens who ha-ve gone out We often hear it asked, "Why is it that this movement for into that com1try, who have conquered the wilderness, built popular government has developed so recently?" There is a cities, maintained law and order, established schools, erected reason for it. Down to the days of the rebellion, the great churches, who carried with them education and refinement, question that engrossed the American people was largely aca­ and who are capable of fulfilling eYery duty of the citizen, as · demic in one sense, although intensely practical, as it finally though they were children to be guarded by the superior wis­ proved. It was a di cussion of great constitutional questions. dom of the wise men who happen to be in this body, is to in­ Following the rebellion, there came that wonderful and mar­ sult a brave and a noble people. velous development of our industrial activities that taxed the I have no quarrel with the Senator from Texas [Mr. BAILEY], energies of our people to the utmost. It is only within the last who takes the view that this constitution does not establish a few years that the American people have begun to witness the republican form of goYernment. I do not agree with his effect of this development, to witness its invasion of every line premise, but it affords him logical ground to occupy in his oppo­ and every avenue of public affairs from the city council up, or sition to the reception of this Territory as a State. But when from somewhere else up to the city council, as different states­ it is admitted, as it is admitted by others here in this Chamber, / men might see fit to place the order. It is only within the that this is a republican form of government, then the sole ( last few years that an occasion for an editorial like that would question remaining is, Shall the power of the President of the have existed. Now we find this sinister force seeking to prevent United States, in the teeth of the declaration of Congress that a restoration to the people of the powers of self-goyernment. the State shall be admitted if it adopt a constitution republican I Well may we recall 1the warning of the departed Dolliver, who in form, be arbitrarily exercised to deny this people admission so graphically depicted the hand, grown so bold as to forget into the sisterhood of States. I say that whene-ver a power is its cunning, which seeks to dominate all political action to-day, a1:bitrarily exercised it reflects but little credit on the man and realize that the time has come when the American people who employs it. shonld take the power back into their hands as a potent instru­ I have read the remarkable veto message. It amounts to mentality to offset that influence, and to counterbalance in the this, and no more, namely, Arizona shall be refused admission equation of independence and integrity, of the official himself. because its constitution is not such as I would have written. In closing, I shall only add one word more as a plea for the If this doctrine is to be followed, then no State will hereafter people of Arizona. I want to remind the Senate once more that be admitted unless it shall adopt a constitution which is satis­ we face a condition there that is difficult to describe without factory, not to its people, who are to live under it, but to the trenching upon the delicate subject of discussing on this floor gentleman who happens to sit in the office of President, and the action of other departments of this Government. I refer who does not live under it. Thus we substitute the will of the to the presence of a Cabinet officer using there the great power President for the will of the people of a State. His decree of his position against the effort of the people to frame their takes the place of law. The people of Arizona were, by Con­ own constitution. They defied that power. They defied the gress, given the privilege of adopting a constitution for their combined power of the corporations, and they defied the power government. We are now adding a codicil to that law. It of that force which sought Arizona as it has sought other Ter­ reads this way : ritories, that they might plunder and exploit the affairs of the Provided, however, That they shall adopt a constitution which, in people. The people themselves deprh1 ed of full participation the opinion of the ·President of the United States, is a wise instrument. in government were engrossed in their effort to build their The President concedes in his messao-e that Arizona's con­ homes and establish their habitations. Notwithstanding the stitution does in fact establish a republican form of govern­ people of that Territory defied that power. called their consti­ ment. Having admitted that he bas conceded the entire case. tutional convention and passed a constitution by a vote of al­ No man can deny that. If we abandon the ground that the most 4 to 1, we now ask them to vote· once more upon that, only proper reason which can be assigned for ever denying a that there may be no question of what they really desire. Territory admission is that it has not adopted a republican I do think in doing this we have gone to the extreme limit form of government, we enter a new and dangerous field. We of a just exercise of legislative power, and I believe it would abandon the present constitutional requirement. We, in effect, be abominable, iniquitous, unjust, and violative of the spirit of place a new clause to the Constitution, a new condition in our free government for us, by the mere brutal force of votes and laws, namely, that a Territory shall adopt a constitution sat­ numbers, to say to the people of Arizona, "You shall not have isfactory to the man who happens then to occupy the position a constitution unless you frame it according to our views and of Chief Executive. When you take that step you pass from our judgment." It is that spirit of "holier than thou" that has a position where rights are based upon a rule of law to on& brought so much misery to the children of men; that has so where the right becomes a mere privilege, dependent upon the stubbornly, although vainly, sought to obstruct the cause of caprice of an individual. That, sir, is a most dangerous step progress. It is counter to the spirit of free government. Free to take. government rests upon the theory that the great rank and file Suppose, sir, we were to have a President two years from of the people know what they want, know what they should now-and I will say to you we are going to have a new one- 3722 CONGRESSIONAL RECORD-SENATE .. AUGUST 8, suppose this new President believes very earnestly in the graphic notes of said speech for the Albuquerque Morning Journal, the said speech appearing in the Morning Journal of the 16th of October, recall of judges and really thinks that no State should be ad­ and that the following are excerpts therefrom and true and correct mitted to the Union unless it adopt the initiative, the referen­ transcript Of said stenographic notes, to wit : " I first will say that dum, and the recall. Suppose, further, that another Territory I will not veto a bill letting New Mexico in [applause], and, second, that I shall recommend that the promise of the Republican platform, were to ask for admission, or this Territory, then being still upon which I had the honor to be elected President, shall be carried out of the Union, were to ask admission upon a constitution out in good faith, and that the Territories of Arizona and New Mexico written according tO' the views of the present Chief Executive, shall be admitted to the Union, so that we shall have nothing but States between the Atlantic and the Pacific, but that in the course and the new Democratic Chief Executive or the progressive of this administration you will come in, and come in as full-fledged Republican Chief Executive or what e-rer he may be should States, and come in with a good constitution. I sincerely and pro­ say, "I refuse to admit you to statehood because you failed foundly hope, and I mean to bend every effort that I can to bring it about." to put the initiative, the referendum, and the recall into yom And further deponent saith not. constitution." Instead of the constitutional limitation we have HARRY P. OWE~. now we would then have the arbitrary, dictatorial, unjustifi­ Subscribed and sworn to before the undersigned on the 10th day of able go1ernment of man's opinion. We substitute for the Con­ August, 1911. H. N. PACKERT, stitution the mandate of one individual We place over and Notary Public, Bernal'illo Oounty, N . Me:v. above the Constitution the dictum of one man who happens to My commission expires October 12, 1911. be President of the United States. I am surprisecl that the present Chief Executive, who claims to so love the law, who Mr. President, I think I have a little light to throw upon the claims to so love the Constitution, who claims to so desire to President's change of position. These statements were made in preserve the bulwarks of our liberty, should be the first to sub­ 1909. The Territories, of course, were and still are infested by stitute his individual opinion, individual judgment, individual Federal officeholders; infested by Federal postmasters appointed liking for the solemn language of the Constitution of the by Federal officials. The President at that time, in my opinion, United States. believed that he could control the situation and force his opin­ Mr. President, I am afraid there are some things in this ions then upon the people of those Territories. In support of this fight that lie outside of the Constitution, that lie outside of the statement I read the following telegram: arguments which have been produced here against this meas­ PHOENIX, ARIZ., August ~, 1JJ11. ure. These Territories have been asking admission for many, E. B. O'NEILL, many years. This Territory was solemnly guaranteed its 208 Ninth Street SFJ., Washington, D. O.: admission many, many years ago; and they have been dis­ It is a well-known fact that Hitchcock, during the campaign for the election of delegates to our constitutional convention, traveled over cussing for years in those Territories the terms of their con­ Arizona with different Federal officials holding quiet little receptions at stitutions. The initiative is not new in the language of Arizona which plans were made for the defeat of the candidates who tood or New Mexico. The referendum was not thought of merely pledged for a progressive constitution. Taft's name was freely used and on the day they adopted this constitution; it had been dis­ insinuations made concerning projected Federal buildings. His friends told the Arizona Gazette to be good or Republican patronage would cussed there for years. cease. The Gazette refused to be coerced, and patronage did cease; The recall was an old story when the events to which I am practically every postmaster in Arizona immediately became active in fighting the progressive candidates. It is well known his visit influ· about to call your attention took place. There was once a enced papers in Tucson, Yuma, Globe, and Prescott. President of the United States; he was then appealing to these C. H. AKERS, Acting Ohairnwn. people " who can not be trusted to govern themselves " ; he J. L. IRVIN, Secretary. was asking for their support then, and I suppose, of course, 1n this instance looking only for "the sober judgment of the 1\fr. President, the objection to the constitution of Arizona is people" that we hear so much about in this Chamber. That not the judicial recall. The objection-the real objection-lies man went down into the domain that is embraced by these in the fact that the President, through his satellites and office­ two Territories, and while down there made a spee.ch. I want holders, was unable to dictate to the people of Arizona. So, to read you some telegraphic copies of affidavits which were having failed to dictate, we find him now arbitrarily using the made in relation to that speech : ' power that is vested in him to deny 200,000 people admission ALBUQUERQUE, N. M:EIX., August 10, 1911. into this Union. J. D. HAND, Washington, D. 0.: The Senator from New York [Mr. RooT] says that we should if TERRITORY OF NEW MEXICO, aounty of B ernalillo: not admit these people they have this clause in their con­ D. A. MacPherson, of lawful age, being first duly sworn, deposes and stitution. I take it, sir, that the people of Arizona have been says that he is the publisher of the Albuquerque Morning Journal, and treated to a judiciary, appointed by the President, that has was such publisher on the 15th and 16th of October, 1909 ; that on the caused them to take a rather extreme view of judges. In my 15th day of October, 1909, he received from the staff correspondent of said publication a report of the remarks of President Taft ·delivered at humble opinion the people of Arizona desire the judicial recall Gallup, N. Mex., on said 15th day o.t October, 1909, in part1 in words as because so many Federal judges so exercised their powers that follows: the people often prayed God to exercise the right of Divine "Now, my friends, I might just as well make the announcement now, so as to relieve any doubt on the subject, that I was elected on recall , a platform that declared in favor of the admission of New Mexico and I have lived-we all have li\ed in our various States and Arizona as separate Sfates, and that so far as I can properly exercise know how much the people reverence the law and how they will any influence as Chief Executive-for bear in mind that I am now the legislature-I expect to exercise tha.t influence to carry out the prom­ stand and uphold the hands of the judges of our courts. ises of the platform upon which I was elected." Right or wrong, whether they agree or disagree with their de­ That said above-quoted excerpts from the said remarks of President cisions, the people uphold the judges wherever they are. There Taft were published in the language above quoted in the issue of the Albuquerque Morning Journal on October 16, 1909; and further de­ are only a few spots in this land that I know of where the peo­ ponent saith not. ple distrust the judiciary, and that is where Feueral judges, D. A. MACPHERSO~. appointed by the President, have been put over the people. It Subscribed and sworn to before the undersigned on this the 10th is the judicial wrongs perpetrated in the Territories which have day o:f August, 1911. HABRY P. OWEN, caused the people to distrust that particular variety of judge. Notary Public, BernaliUo Oounty, N. MeJJ. It happened in Oklahoma, as my friend here representing Okla­ My commission expires February 7, 1914. homa [Ur. OWEN] knows; it happened in North Dakota, as was I also desire to read another telegram, as follows : charged here the other day by the Senator from North Dakota; ALBUQUERQUE, N. MEX., August 10, 19il. it has happened in every Territory that Territorial judges-not J. D. HAND, Washington, D. 0.: all of them, but too many of them-have been regarded by the President Taft, at Albuquerque, October 15, 1909: "I first will say people with distrust. Justly have many of these judges been that I will not veto a bill letting New Mexico in. • • • I shall distrustecl. recommend that the promise of the Republican platform, on which I had the honor to be elected President, shall be carried out in good Mr. President, I want to say to the Senator from New York faith, and that the Territories ot Arizona and New Mexico shall be [Mr. RooT], who stands here and says that he represents a. admitted to the Union, so that we shall have nothing but States be­ Stale with 9,000,000 people, and who therefore, assumes the tween the Atlantic and the Pacific • • •; but that in the course of this administration you will come in, and come in as a full-fledged right to dictate to the free people of the Territory of Arizona, State, and come in with a good constttutfon, I sincerely and pro­ that I bel.ieve they will average as high in intelligence as the foundly hope, and I mean to bend every effort that I can to bring it citizens of the great Empire State. I assert that, with the about." judicial recall or without it, under any form of government they D. A. McPHERSON. may ever set up, they will give this country as good a gov­ I place in the REcoRD, Mr. President, another telegram : ernment as Tammany gives New York City; and that if we ALBUQUERQUE, N. MEX., August 10, 1911. are to judge, not according to the Constitution, if we are to ad­ J. D. HAND, Neto Willurd, Washington, D. 0.: mit Territories into the Union, not according to the precepts TEXRITORY OF NEW MEXICO, Oounty of Bernalillo: of the Constitution, but according to the judgment and opinion Harry P. Owen, being duly sworn, deposes and says that on October 15 1909, he stenographically reported the speech of President Taft, of one man, then I trust that man will not be a representative delivered at the Alvarada Hotel, and on said day transcribed his steno- of that organization to which I have just referred. ·- 1911. CONGRESSIONAL RECORD-SENATE. 3723

1\Ir. President, one thought . about this message. Here is a constitution is well calculated to degrade and to subordinate the caEc of special pleading that I think is unequaled. It does no.t judiciary to the other two departments of the Government. amount eTen to a good plea of avoidance. The President recog­ We have grown and prospered under the system of government nizes the fact, as he must recognize the fact, that the only con­ devised by the fathers as no other nation in the history of the stitutional ground upon which these people can be denied admis­ world, and experience has demonstrated that ours is the best sion is that they have not adopted a republican form of govern­ form of representative government ever conceived by the brain ment. Ha1ing recognized that fact, the President seeks to of man. Are we ready to destroy this edifice? .A.re we pre­ escape responsibility for denying them admission, and sustains pared to give our approval to a principle which, if generally his position by a species of sophistry-if I may say that it rises applied, would undermine our institutions? to Hle dignity of sophistry-such as never before appeared in an If the recall of judges is a wise measure for the proposed Ameriean state paper. State of .Arizona, why should it not be adopted in every other Mark you, Congress had passed a bill and the President had State o~ th·e Union? WhF should it not be applied to the signed a bill providing for the admission of these· Territories Federal judiciary? How long would this Republic survive the when they adopted a constitution republican in form. Under general introduction of this pernicious principle? .A.n untram­ the circumstances, when the constitutions were presented, meled judiciary is the bulwark of our liberties, and if you there was nothiI:1g necessary to be done by Congress or necessary dethrone it you substitute tumult, lawlessness, and anarchy and to be done by the President, except simply to ascertain that hasten the dissolution of the Republic. the constitutions were republican, to approve or disapprove. I assert that this Government' can not endure without a The President concedes in this message that if the matter had stable judiciary system in the Nation as well as in the State, come to him in that particular form he ought to ha·rn gone no and if you countenance or approve this provision of the .Arizona further than to ascertain that the constitutions were, within constitution you strike a blow against the entire judiciary of the meaning of the law, republican ·constitutions. But when the United States. the statehood measures came here we did something to them. My vote shall be recorded against this joint resolution as it What was it? We added a provision that a section of the comes from the House. I shall not yield my judgment and my .Arizona constitution and a section of the New l\iexico constitu­ devotion to the basic principles of representative government to tion should be again voted upon. That made it necessary for the demand of 12,000 citizens of Arizona or of any other section the President to sign the bill, but did it change the moral posi­ of the United States. tion because we had simply placed an additional requirement The VICE PRESIDENT. The question, first, is on agreeing upon these States, and that requirement was in the nature of to the amendments to the original joint resolution. There are an obstruction to the very thing the President condemns? a few committee amendments which must first be acted upon. Manifestly, then, if it was the duty of the President to have The Secretary will report the first amendment. appro1ed these constitutions because they were republican in l\Ir. OWEN. .l\Ir. President, I desire first to call the attention form, before we added that amendment, it was his duty· after­ of the Senate to a few telegrams I have from .Arizona, which wards to have done the same thing, and yet here is the excuse are only a few among many, setting forth the desire and wishes he offers for refusing to approve. It is so pitiable that I hesi­ of the people of Arizona : tate to read it into the RECORD, and would not do so if it were PHOENIX. Aruz., August B. not already a matter that had gone into a public document. I Hon. R. L. OWEN, Washington, D. 0.: read: We are standing firm for Flood resolution; telegrams to contrary do It may be argued from the text of that act- not represent vote of people on constitution ; show to O'Neill. 1 Arizona .Statehood League-L. W. Coggens, President; J. L. That is, the act providing for admission- Irwm, Secretary; C. W. McKee; H. W. Ryder.; J. B. it mny be argued from the text of that act that in giving or withhold­ Long; H. S. Griswold ; Warwick Scott ; Ch.as. R. Price. ing the approval under the act my only duty is to examine the pro­ posed constitution, and if I find nothing in it inconsistent with the Fed­ eral Constitution, the principles of the Declaration of Independence DOUGLAS, ARIZ., A.uyust 6. or the enabling act, to register my approval. But now I am discharg: Senator R. L. OWEN, Washington, D a.: ' I ing my constitutional function in respect to the enactment of laws The people of Douglas in mass meeting have adopted resolution ask· and my discretion is equal to that of the Houses of Congress. ' ing the friends of statehood in-both Houses to stand by the Flood reso­ lution-the sentiment practically unanimous. I believe this is the senti­ In what way was his discretion enlarged because we amended ment throughout the Territory. this act? How did that change his responsibility? How did R. B. Srns. ~ - that affect the issue in this case? We had provided that if they came in with a constitution that was republican in form, DOUGLAS, Amz., August 6, 1911. they should be admitted 'Yhen that constitution had been ap­ The Senate of the Unitea States pro\ed as to its form; but because it went to the P1·esident (Care Senator Owen, Washington, D. C.) : At ::i mass meeting held in Douglas, Ariz., for the consideration of the afterwards in the form of a bill frnm Congress, he seized upon statehood situation the following resolution was unanimously adopted: that circumstance to inject into the question for the first time Resolv ed by the citizens of Douglas in mass meeting assembled, That his personal opinions and Yiews. it is the desire of the people of Douglas that the friends of statehood in Senate shall support the Flood resolution . .Mr. President, I solemnly protest to the Senate of the United FRANK RAMSEY, States and the country against substituting for the language of Acting M ayo1·, Chairman. the Constitution, which provides that States shall be received H. C. BA.UMLEil, ·Secretary. when they ha:rn adopted a republican form of government, a DOUGLAS, ARIZ., August 7, 1J)11. proposition to the effect that States shall only be received when United States Senate their constitution meets with the appro>al of the man who (Care Hon. R. L. OWEN, Washington, D. C.): happens to be Chief Executive. When you do that you do a The people of Arizona have spoken. Give us statehood under the dangerous thing. li'lood resolution. LESLIE GATLIFF. It Mr. President, we are called on here to act, and I want to I present the reasons for my vote. I think the t"eto message of DOUGLAS, Amz., August 8, 1911. the President ought to be here, the roll ought to be called, and United States Senator OWEN, every Senator required to register his vote. I should like to · Washington, D. 0.: see how many Senators' opinions ham been changed o>ernight, Beware of the eleventh-hour telegrams. There has been no meeting ot the Douglas Chamber of Commerce. Tools of the " interests " are and I should like to know how far the patronage of the White known to be active against the Flood resolution in the hope of defeating House can a'ffect the consciences of men. But I believe the statehood or rendering abortive the expressed will of the people. mes~age will not be here, and as reluctantly as I do it, I never­ . H. c. BA. U::\1LER, theless shall support the proposition of the Senator from Secretary Mass Meeting. Michigan. Mr. President, I have listened with great interest and respect Mr. O'GORUAN. l\.fr. President, in the closing hours of this to the views of my distinguished colleagues in discussing this debate I ha1e no desire to prolong the discussion. I fully question, and I wish briefly to outline the different points o( indorse every statement made on the floor of this Chamber view in regard to these two Territories. The Sena tor from Mis­ yesterday and to-day in condemnation of the provision in the souri [Mr. REED] has just called the attention of the Senate to Arizona con"titution in relation to the recall of judges, and I the extreme difficulty of amending the constitution of the State desil·e to enter my solemn protest against what I conceive to be of New Mexico. In the first place, one-third of the members of the most destructive and the most revolutionary assault ever the lower house of the Legislature of New Mexico may prernnt made upon the stability of our Government. proposals to a.mend. One-third of the senate of the Legislature In the wisdom of our fathers the functions of government of New Mexico may prevent proposals to amend, except that were distributed among three departments, each absolutely after the expiration of two years and at the regular session of independent of the other. This plan proposed in the .Arizona each eighth year thereafter a majority of both houses, approved 3724 CONGRESSIONAL RECORD-SENATE. AUGUST 8,

by the governor, may propose an amendment. But after the enter the Union with a constitution I disapproYe in these re­ amendment has been proposed the same must be- @ects. I favor allowing New Mexico to goYern itself, whether ratified by a majority of the electors voting thereon and by an affirma­ her constitution meets my approval or not, so long as it ddes tive vote equal to at least 40 per cent of all the votes cast at said elec­ not violate the Constitution of the United States. tion in the State and by 40 per cent of all the votes cast in at least one­ half of the counties thereof. The Senator from New York lays down the proposal that I am opposed to tying the hands of the majority and giving while he believes in the people, after mature thought he does the minority a variety of vetoes over the majOrity, as the con­ not believe in the exercise of the right of mere majority rule stitution of New Mexico proposes. by the people, and he calls attention to the constitutional law in This feature objected to by me is regarded as a great virtue which the majority has bound itself against excess. In reality by the Senator from Minnesota [llr. NELSON], who believes in tbe people are vested with all authority in the governing busi­ ness and could not, if they would, di\est themselves of this making it difficult to amend the constitution and think~ the minority should have a veto over the majority. indefeasible right under our system of gornrnment. This doc­ I believe in the people's rule. He opposes the people's rule trine is the Yery essence of the Declaration of Independence, for fear the people may be swept a way by passion and uncon­ which declares that all government must rest upon the consent trollable impulse. I favor majority rule. He opposes majority of the governed. That is the doctrine laid down by the bill of rule and favors minority veto. rights in every one of our 46 States. The bill of rights of the While the Senator from Missouri was speaking I called his State of New York declares that- in the name and by the authority of the gcod people of this State, doth attention to the adoption of the constitution of Texas. This ordain, determine, and declare that no authority shall, on any pretense constitution was framed by a convention which met at Austin whatever, be exerci ed over the people or members of this State but July 4, 1845, and concluded its labors August 27, 1845. It was such as shall be derived from and granted by them. submitted to the people and ratified October 13, 1845, by 4,174 I remind the Senator from South Dakota [l\Ir. CRAWFORD] votes against 312 votes. Texas at that time, as shown by the that the bill of rights of South Dakota declares: first census after Texas came in, bad 154,000 whites, or about All men are born equally free and independent and have certain inherent 30,000 votes. On the frontier the voters were probably more rights, among which are those of enjoying and defending life and liberty, numerous than in average communities, because there would of acquiring and protecting property, and a pursuit of ba.ppine s. To secure these rights governments are instituted among men, deriving probably be more than one voter out· of five persons, which is their just powers from the consent of the governed. the usual rule. But if there were 30,000 votes for a goyernor at tllat time, probably the vote cast for an amendment would be And so, in all 46 States the same doctrine is repeated and very greatly less. It would not be surprising if the vote for reiterated over and oyer again in a great Yariety of forms. questions of policy would only be 50 or 60 per cent of the Mr. Sl\IITH of Michigan. Mr. President-- greater vote cast for the governor and State officials. Out of the The VICE PRESIDENT. Does the Senator from Oklahoma 30,000 votes in Texas that might have been cast for governor yield to the Senator from Michigan? only 4,174 votes were cast for the constitution of Texas, or Mr. OWEN. I yield to the Senator from Michigan. about 14 per cent. l\fr. S:L\IITH of Michigan. A few days ago the Senator from Oklahoma printed a statement in the RECORD showing the con­ This New Mexico 40 per cent rule for State and half of the stitutional provisions of various States bearing upon the re­ counties are two artificial obstructions, intended to prevent the moval of judges, and through an error, of course, and without people of New l\fexico from amending their own constitution, any intent to mislead, the Senator did not correctly quote and this contest over New Mexico and Arizona is but the the constitution of Michigan upon that subject. example on a small field of a great contest that is going on 1\Ir. OWEN. The Senator from l\Iichigan means to say that throughout the United States. It is the world-wide contest the quotation was not completed. between the rule of the organized minority and the unorganized Mr. S~IITH of Michigan. It was not completed. majority. I believe in the rule of the majority under reason­ Mr. OWEN. It was not completed. The purpose of the quo­ able constitutional safeguards and restraints, and I do not tation was merely to show the right in the legislature to recall, believe in the rule of the organized minority through consti­ but not to show the reasons assigned for removal, which ex­ tutional vetoes, through machine methods, through craft, through plains why the quotation was not more fully made. bribery, through coercion, which are the weapons commonly l\fr. SMITH of l\Iichigan. It practically becomes important used by the minority for the coercion and control of the un­ that the judge who is charged shall have a right to know the organized majority. reasons and answer. The language of the constitution, if the I believe in the initiative and the referendum b€cause it Senator will pardon me-- arms the majority not among them.selves but against those who 1\fr. OWEN. Yes; I shall be glad to have the Senator put it are trusted with temporary power. We have hearq much in in. this debate about the people protecting themselves against tllem.­ l\fr. Sl\HTH of Michigan. The constitution of l\Iichigun, selves by the restraints and safeguards of constitutional law. article 9, section 6, says: I say, l\Ir. President, that the people in drawing their consti­ For reasonable cause, which shall not be sufficient ground for jm­ tutions have fixed the powers which they delegate to their peachment, the governor shall remove any judge on a concurrent reso­ chosen citizens for its proper exercise; they have done so not lution of two-thirds of the members elected to each house of the legisla­ to protect themselves against themselres, but to protect them­ ture ; and the cause for which such removal is required shall be selres against their own officials. They have drawn constitu­ stated at length in such resolution. tions so as to restrain, not themselves, but to restrain the offi­ · I, of course, know that the quotation was intended to be cor­ cials who are trusted by the people with their governing busi­ rect, and I simply rise for the purpose of placing in the RECORD ness. a correct quotation of the constitution of .Michigan upon this It is a tory fallacy to charge the people with intending to subject. deny to themselw;s the governing power. Mr. OWEN. I am pleased to have it in the RECORD. The fallacy is fl atly and overwhelmingly denied and contra­ The difference in the point of view between the Senator from dicted in every one of the 46 bills of rights and in the Declara­ :Minnesota [llr. NELSON] and myself is tllat I bcliern the people tion of Independence, declaring all the powers of governing to who elect the judges in Arizona should have the right to recall be in the hands of the people-irreyocable and indefeasible. them as proposed in the Arizona constitution, nnd the Senator Where else should it be in a republic of sclf-goYerning men? from l\Iinnesota thinks they may do so after tlley are admitted, The Senator from Xew York [Mr. RooT] lays down the proposal but should not be allowed to do so at tlle time of admission, but that a vote to admit Arizona and New Mexico commits every Sena­ as a condition of admission should be compelled· to vote this tor to t:Ue principles laid down in tho e constitutions; that when power out of the constitution, though they could vote it back we vote to admit Arizona -with the recall of judges we commit into the constitution the following month. our~elves to the approval of the recall of judges. I entertain a Mr. President, I think it is well in cousidering the recall of Tery wfferent view. I do not approve the constitution of New judges to remind the Senate that in the early days of gov­ Me_ ico. I do not approve the provision making it impossible ernment the judge was a branch of the executive. Originally to impose an intelligence qualification on the electorate of that the king held court, and at a later day the king's bench was proposed State. But in yielding to them the right of self-gov­ established. These powers were gradu:illy transferred from the ernment I yield it because I think any State has the right of king to the bench as an arm of tlle executh-e to determine what self-government, and to deny it is to deny to them a consti­ justice was, what right was, and there was a vast volume of tutional right which is fundamental and which on my oath I unwritten law due to the practices of the people, the so-called can not justly deny. common law. The judges determined what was right, what I am strongly oppo ed to the constitution of New Mexico in was just between men, what was the common and the equity favoring the corporations at the expense of the people and in law and then the statute law. It was a necessary agency of the being unamendable, but I am not committed to these principles Executive for the ascertainment of what justice was and what of government because I concede the right of New Mexico to the law was. 191 1 ~ OONGRESSI0NAL · RECORD- SEN ATE. 3725

When we established in this country our Government and forced the laws of conformity th~t our puritan fathers persistently refused to obey; and afterwards, with Jeffreys on the bench, crimsoned established the three branches, each of which was measurably the pages of English history with massacre and murder, even with the independent of the other, but not absolutely independent, and blood of innocent women. Ay, sir, it was a judicial tribunal in our col'ltl not be absolutely independent, they were spoken of as own country, surrounded by all forms of law, which hung witches at Salem; which atttrmed the constitutionality of the stamp act, while it coordinate branches, as if one was as important as the other. admonished "jurors and people" to obey i and which now, in our day, I t~1ke issue with any such principle. They are not equally lends its sanction to the unutterable atrocity of the fugitive-slave act. important. Thirty-two legislatures can recall judges, but no .Ur. Sumner; as late United States Sena.tor from I\Iassa.chu­ court can recall a legi lature. The great power in this country setts, may answer the Senator from New York [l\Ir. RooT] on is 'e-~ted in the so·rereign people. The people of this country the question of the infallibility and impeccability of courts. theu delegate that power, first of all, to a law-making branch, I ha\e heretofore said all that I care to say upon the recall who shall declare what the law is, what the law shall be, and of judges, and upon what I have said I firmly stand. There who shall make the law. and who shall amend the law, as the has been nothing said in this debate that justifies in any de­ adrnncing progress justifies. gree a change of my opinion with regard to it. I believe in Fjrst by the Constitutional Convention · the people delegate the fundamental doctrine that the people ·of this country are the power to lay down the organic law. Then they delegate sovereign; that they will exercise the right of sovereignty with under the Constitution the power to the legislature. Then the discretion, with moderation, with long forbearance, with great statute law follows. patience, and that they never will at the ballot box indulge in The legislature by statute defines the executive department any act that can be characterized as the act of an " unrestrained with the duty of carrying out the law as framed by the legis­ mob," which is the chief argument, apparently, against the lath"e branch; and because the executive may not know the recall of judges. real meaning of the law another branch is established-the Our critics say if the people can recall judges the judges judiciary-whose function it is to declare what the Jaw is, the will yield the judicial judgment to popular opinion: If this be meaning of tbe common and equity and maritime law and of the a true criticism, then such judges will yield the judicial judg­ legislati"re will. ment to the boss who nominates, may renominate, and may pro­ I believe in the independence of the judiciary. I would not mote. Public opinion is a better and safer influence for judges be willing to support any system that I thought would impair who may be influenced on the bench than the influence of a the judiciary's indep~noence; but I insist upon it that men are political boss or his commercial allies. mortal, and if men get places upon the Federal bench or upon .Mr. President, on July 11 the Senator from Utah [Mr. SUTH­ the State bench, and do not exercise their dutY properly, they ERLAND] fiercely denounced the initiative and the referendum ought to be subject to the so-vereign will of the people. '.fhe of the Arizona constitution as "wild and visionary," "utterly will of the people will not be exercised as by a raging, furious, vicious and impracticable," and so forth. turblllent mob, de cribed on the floor of the Senate as char­ At the same time the Senator from Utah criticized the com­ acteristic of the action of the American people. It will be exer­ posite citizenship of Oklahoma, the constitution of Oklahoma, ci~e-0. if at all, in the quiet seclusion and safety of the booth-in and the Senator from Oklahoma. He denounced those who be­ tlie ballot bo.r. Each man will quietly deposit his opinion, and lieve in these doctrines us "quackS in politics," as " self-con­ if it is pos~ible · to imagine a place far remo\ed from mob stituted reformers," us "self-constituted guardians of the peo­ violence. from turbulence, it is in the quiet and protected clois­ ple's rights," as "visionaries," "dreamers," "agitators," ters which the law lays around the ballot under the Au - "demagogues," "political · zealots," "false pilots or arrant tralian syi;;tE>m. I myself wish to ha.\e it appear upon the record kna\es," and so forth. that I regard the judiciary of America as occupying a very dis­ In answer to these epithets, apparently addressed to those tinguished place. I ha.le a very profound respect for the Ameri­ who, like myself, believe in these doctrines, I make no response, can judiciary, but I do not regard these functionaries as infalli­ except to say that abuse is often "the refuge of defeated argu­ ble, and I would be untrue to my own opinion if I failed to say ment." what I think with regard to the judiciary. I want to let the dis­ The arguments in favor of the initiati\e and referendum I tinguished Charles Sumner, of Massachusetts, appear in this presented on the floor of the Senate in discussing the ndmission record when he criticized the Supreme Court of the United of Arizona on March 4, 1911, and I shall not repeat them here. States, on Se1)tember 7, 1854, before the Republican State con­ The Senators from Oregon [l\Ir. BOURNE and l\fr. CHAMBER­ vention at Worcester, Mass.: · LAIN] and the Senator from California have exhausted the ar­ J ~r. Sumner's reception in the convention was quickened by recent gument in its support, and I do not care to consume the time of events in which he had borne part. It is thus described in a report of the Senate with repenting it the convention : · . "..lt this point the Hon. Charles Sumner entered the hall. His recep­ The astonishing thing about the diatribe of the Senator from tion was such as is rarely accorded to a i;mblic man. The wbole vast Utah is that he is denouncing the principles of the constitu­ audience rose as one man to welcome him, and tbe most deafening tion of Utah, which provides for the initiative, the refel'endum, cheers of welcome resounded for several minutes. We have never seen a more hearty and enthusiastic demonstration in honor of any man. and the recall It wns the spontaneous homage of trne men to the man wbo had upheld The constitution of Utah provides as follows: the freedom standard and carried it into the thickest of the fight-to AnT. 6, SEC. 1. Tbe legislative power of the State shall be vested: tlie man who llad upheld the honor of Massachusetts in the Senate, 1. In a senate and house of representatives, which shall be desig­ vindicated her opinions, and thrown back upon her assailants tbe nated the Legislature of the State of Utah. taunts and insults which they had never ceased to heap upon her. The 2. In the people of the State of Utah, as hereinafter stated: cheering as our Senator appeared upon the platform and took his seat The legal voters, or such fractional part thereof of the State of Utah was loud and long continued." as may be provided by law, under such condit]ons and in such manner and within such time as may be provided by law, may initiate [initia­ Here is what he said about the Supreme Court in commenting tive] any desfred legislation and cause the same to be submitted to a on the Dred Scott decision: -i;ote of the people for approval or rejection, or may require any law For myself, let me say that I hold judges, and especially the Supreme passed by the legislature (except those laws passed by two-thirds vote Court, in much respect ; but I am too familiar with the hi tory of judi­ of the members elected to each house of the legislature) to be submitted cial proceedings to regard them with any superstitious reverence. [Sen­ to the voters of the State before st£ch laio shalL take effect. [Refer- sation.) Judg-es are but men, and in all ages have shown a full share errduro. J • of human frailty. Alas! alas! the worst crimes of history have been The lega.I voters, or such fractional part thereof as may be provided perpetrated under their sanction. 'fhe blood of martyrs and of pa­ by law, of any legal subdivision of the State, under such conditions and tri(\t'J, cr.rini; from the ground, summons them to judgment. It was a in such manner and within such time as may be provided by law, may judicial tribunal which condemned Socrates to drink the fatal hemlock initiate any desired legislation and cause the same to be submitted to and which pushed the Savior barefoot over tbe pavements of Jerusalem, a vote of the people of said legal subdivision for approval or rejection, or may require any law or ordinance passed by the law-making body bendin~ beneath His cross. It was a judicial tI"lbunal which, against the testimony and entreaties of her father, surrendered the fair Vir· of said legal subdivision to be submitted to the voters thereof before g-inia as a slave ; which arrested the teachings of the great Apostle to such law or ordinance shall take effect. (As amended Nov. 6, 1900.) the Gentiles and sent him in bonds from Judea to Rome; which, in the ART. 8, SEC. 11: Judges m.ay be remoi:ed from office by the concurrent name of the old religion, persecuted the saints and fathers of the vote of both houses of the legislature, each voting separately: but two­ Christian Church and adjudaed them to a martyr's death in all its thirds of the members to which each house may be entitled must concur most dreadful forms; and afterwards, in the name of the oew religion in such vote. The vote shall be determined by yeas and nays, and the enforced the tortures of the inquisition, amidst the shrieks and agonies names of the members voting for or against a judge, together with the of its victims. while it compelled Galileo to declare, in solemn denial of cause or causes of removal, shall be entered on the journal of ench the great truth he had disclosed, that tbe earth did not move round the hom;e. The judge against whom the house may be about to proceed sun. It was a judicial tribunal which, in France, during the long reign shall receive notice thereof, accompanied with a copy of the cause of her monarchs, lent itself to be the instrument of very tyranny, as alleged for his removal, at least 10 days before the day on which either during the brief reign of terror it did not hesitate to stand forth the bouse of the legislature shall act thereon. unpitying accessory of the unpitying guillotine. Ay, sir, it was a judi­ Mr. President, here we find in the constitution of Utah the cial tribunal in England, surrounded by all forms of law, which sanc­ tioned every despotic caprice of the Henry VIII from the unjust initiative, the referendum, and the recall, and we find the honor.­ divorce of his queen to the beheadin"' of Sir Thomas More; which able Senator from Utah [Mr. SUTHERLAND], holding the honors lighted the fires of persecution that gfowed at Oxford and Smithfield and dignities of the people of that State, denouncing the prin­ over the cinder of Latimer, Ridley, and John Rogers; which, after elaborate argument, upheld the fatal tyranny of ship money against the ciples laid down in the constitution of his own State. patriot resistance of Hampden ; which, in defiance of justice and hu­ Nothing could induce me to do such a thing, but I do not manity, sent Sidney and Russell to the block; which persistuntly en- attempt to reproach the Senator from Utah .for his conduct in 3726 CONGRESSIONAL RECORD-SEN ATE. AUGUST 8, the matter for the reason that I can not belieye that he realized Eighteenth. It did not protect the people against a second the impropriety of such an act or that he is aware of the bias trial for the same offense. of his own mind which leads him to such conduct Nineteenth. It did not protect an accused against being com· I belieye that the point of view of the Senator from Utah can pelled to be a witness against himself. only be explained by the fact that he gives voic~ to the peculiar Twentieth. It did not protect the citizen against being de­ forces outside of the constitution of Utah which hold the organic prived of life, liberty, or property, without due process of law. law of Utah in contempt and which have defeated "the perma­ Twenty-first. It did not protect pri-rate property being taken nent will of the people" of that State as expressed in their for public use without just compensation. organic law for the last 10 years. Twenty-second. It did not secure, in criminal prosecutions, The Senator from Utah quotes Prof. Stimson as admirably the right of a speedy and public trial by an impartial jury in stating: the place where the crime was committed. The constitution is the permanent will of the people; the law is but Twenty-third. It did not protect the accused in the right to the temporary act of their representatives, who have only such power be informed of the nature and cause of the accusation, of the as the people choose to give them. right to be confronted with the witnesses against him, of the The Senator from Utah used this language, but it is obvious right to have compulsory processes in obtaining witnesses in that he has entirely forgotten what "the permanent will of the his favor, and to have the assistance of counsel in his defense. people" of Utah happens to be on this vital issue of self-govern­ Twenty-fourth. It did not protect the right of the citizen in ment-the initiaUre, the rteferendum, a.ii,d the recall. common lawsuits to a trial by jury. For five successh·e legislatures in Utah the so-called "repre­ Twenty-fifth. It did not protect the citizen against excessive sentatiyes of the people" have refused to enact the statute law bail, against excessive fines, nor against cruel and unusual needed to vitalize the provisions of the Utah constitution and punishments. make effectiYe the initiative and the referendum. What kind of Twenty-sixth. It did not safeguard the rights reseITed by " representative" government is this that we have in Utah, the people against invasion by the Federal Government. where "the permanent will of the people" is thus ignored by The Constitutional Convention was a secret conclave, no their so-called "representatives" in the legislature, and where member being allowed to report or copy any of its proceedings, the Senator from Utah, representing that great State and hold­ which were kept a profound secret for 50 years, until all the ing its honors and its dignities, ridicules and derides and holds actors were dead. The membership of the Constitutional Con­ up to public scorn the constitutional provisions of his own vention was notoriously conservative, consisting of such men State? as Elbridge Gerry, who declared "that democracy was the We must inquire into this peculiar and extraordinary situa­ worst of all political evils." (Elliot's Debates, vol. 5, p. 557.) tion. My just observation that the Constitution of the United Edmund Randolph observed that, in tracing the political States as framed was not sufficiently democratic induces the evils of this country to their origin, "every man (in the conven­ Senator from Utah to ridicule the manners of the Senator from tion) had found it in the turbulence and follies of democracy." Oklahoma and to suggest that he should be prosecuted for omnis­ l\fadison thought the Constitution " ought to secure the per­ cience for making this ludicrous discovery. manent interests of the country against innovation." (Elliot's In view of the distinction of the critic and the public charge Debates, vol. 1, p. 450.) that the Senator from Utah was a recent candidate for the Hamilton urged a permanent Senate "to check the impru• Supreme Bench of the United States, it becomes necessary to dence of democracy." justify the observation made by the Senator from Oklahoma Gouverneur l\Iorris urged a life Senate, saying " such an aris­ that the Constitution as framed was not democratic. I shall tocratic body will keep down the turbulence of democracy." do this with great brevity. Madison, in the Federalist, warned the people against " the First. The Constitution permitted a life President. superior force of an interested and overbearing majority," and Second. The Constitution did not provide for the nomination so forth. or election of the President by the people, but by electors far Twenty-seventh. The Constitution is undemocratic in making removed from the people. no provision for its adoption or subsequent amendment by direct Third. The Constitution did not provide for the nomination popular vote, although this was the method of the various or election of Senators by the people. States. Fourth. The Constitution provided for an uncontrolled judi­ The Constitution is undemocratic, as I have shown, ln omit­ ciary, in striking contrast to the laws of eyery State in the ting a bill of rights and the great fundamental principles con­ Union, including Utah. . tained in the Declaration of Independence. \ Fifth. A minority of the House can prevent the majority James Allen Smith, professor of political science, Uni-rersity proposing an amendment to the Constitution. A minority of of Washington, well says: the Senate can prevent the majority proposing an amendment to From all evidence that we have the conclusion ls Irresistible that the Constitution. A President can prevent a majority of both they sought to establish a form of government w hich 1co i£ld etrecturillv Houses proposing an amendment to the Constitution. A small ciir b and restrain demucracy. They engrafted upon the Constitution minority of the States can prevent the amendment of the Con· so much of the features of popular government as was, in their opinion, stitution. sufficient to insure its adoption. Sixth. No provision for the adoption of the Constitution was The convention of July 4, 1776, was thoroughly democratic, arranged by popular yote. as is the Declaration of Independence. And some of the delegates who approved the Constitution from The Constitution of the United States was made thoronghly Virginia at least disobeJ·ed the instructions of the people. undemocratic by a thoroughly reactionary con-rention, leading Seyenth. The Constitutional Convention usurped the power Democrats being absent, such as Thomas Jefferson, Samuel ln framing the Constitution. Adams, Patrick Henry, and so forth. OnJy 11 States Yoted for r.rhey were only n uthorized to prepnre amendments to the its adoption. Only 55 members out of 65 attended ao.d ouly 39 Articles of Confederation, not frame a new Constitution. members signed it. Its ratification was only secured with the Eighth. The Constitution did not protect the right of free greatest difficulty, and in no States was it submitted to a Yet~ speech. of the people themselves. l\Iassachusetts, South Carolinn. New Ninth. The Con§titution did not protect the right of free Hampshire, Virginia, and New York demanded ameuclruents, religion. and North Carolina and Rhode Island at first rejecteJ the Con­ Tenth. It did not protect the freedom of the press. stitution, and except for the agreement to adopt tlle first 10 Eleventh. It did not protect the right of the people to peace­ amendments and make it more democratic it would have ~s­ ably assemble. suredly failed. Twelfth. It did not protect the right of the people to petition George Washington, as President of the Con-rention, was de­ the Government for the righting of grievances. barred from sharing in the debates. It had one very great Thirteenth. It did not protect the right of the States to have merit-it established the Union.· It had one great demerit-it troops. was not democratic. Fourteenth. It did not protect the right of the people to If a knowledge of the Constitution be a prerequisite to qualify keep and bear arms. a citizen or a Senator as a candidate for the Supreme Court of Fifteenth. It did not protect the people against the quartering the- United States, then, with great respect, I humbly submit of soldiers upon them without their consent. that the Senator from Utah has not qualified under the rule. Sixteenth. It did not protect the right of the people to be Certainly he is not justified in attempting to ridicule the sug­ secure in their persons, houses, papers, and effects against gestion that the Constitution was not democratic. unreasonable searches and seizures nor against warrants, ex­ All democratic constitutions are flexible and easy to amend. Tbis follows from the fact that In a government which the people really cept upon suitable safeguards. control the constitution is merely the means of securing the supremacy Se-renteenth. It did not protect the people against being held ot publlc opinion and not an instrument for thwarting It. • * • tor crime, except on Indictment. A government i! democratic just in proportion u it re ponds to the 1911. C.ONGRESSIOK AL RECORD-SEN ATE. 3727

will of the people. and since one way of defeating the will of the people Washington, North Dakota, Wyoming, Colorado, Nebraska., Wis­ is to make it difficult to alter the form of government, it necessarily follows that any constitution which is democratic in spirit must yield consin, and Florida have submitted it to the people for constitu­ readily to changes in public opinion. (Spirit of American Government.) tional amendment, and why it is an active issue in nearly all of An unamendable constitution and a judiciary not responsible the remaining States of the Union. It explains why Arizona to the people is dangerous to the stability of government. When has put this principle in its constitution, and why the· people of public opinion bec01nes greatly aroused and can find no ea:vres­ Illinois voted for it by nearly four to one. sion through the constitution, and the ji1,diciary, as a ruling This is a world-wide movement, Mr. President. It is the law vower, obstructs such public opinion, it may easily lead to revo­ of Switzerland, of Australia,· and of New Zealand. It is an issue lution and to war, as it did do when the Supreme Court of the in the Canadian States. It means the rule of the people against United States, by the Dred Scott decision, nationalized slavery, the rule of the machine, and it means nothing less than this. and the Constitution not being amendable by the majority left And no sophistry and no ridicule and no evasion will ever no apparent remedy but the dissolution of the Union or war. serve to stop this issue from sweeping the United States. The The Federal court now vetoes acts of Congress and nullifies governnient of cities by commission, with local initiative, refer­ national policies, such as the control of the trusts or an income endum, and recall involves this, and is a part of this movement. tax or other benevolent laws passed in rece:pt years for the The Senator from Utah was the first Senator to arise and protection of the humbler working masses. denounce the initiative, the referendum, and the recall, and in The judicial branch can nullify the acts of the legislative doing so he was obliged to denounce the constitution of his own branch, although the Constitutional Convention, reactionary State-" the permanent will of the people" in his own State, though it -was, four times refused to grant the right to the according to the words used by the Senator from Utah himself. Supreme Court to declare an act of Congress unconstitutional. Mr. President, men and their opinions are controlled by their The Constitution, as drawn, was intended to gtve a veto to education and by their environment. I am subject to this rule, the minority, and to restrain the majority, for the benefit of the and the Senator from Utah is no exception to it. He obviously minority, ·and,. in plain words, benefit the so-called vested inter­ gives expression to the views of the controlling powers of his ests, property rights, and special privilege. own State outside of the constitution of Utah, and I deem it The glowing terms of praise which we now bear from the my duty to call the attention of the Senate and of the country Senator from Utah [Mr. SUTHERLAND] of an unamendable con­ to the fact that the only Senator so far who has denounced the stitution, and of a judiciary not responsible to the people, has initiative, the referendum, and the recall has done so ill the been the language of special privilege and of the adrncates of face of the constitution of his own State. minority rule and of commercial and political oligarchies since I deem it my duty also, Mr. President, and I perform this duty the day this Constitution was framed. It seems an amazing with painful reluctance b~ause of a sincere per onal regard for thing that the Senator from Utah should denounce the initiative, the Senator from Utah, to call attention to the fact that the the referendum, and the recall, provided for in his own con­ ruling power of the State of Utah, whose views, I believe, speal~ stitution. These are the tools of Democracy. The initiative, through the Senator from Utah, is openly charged with com­ the referendum, and the recall are the sword and buckler of the prising one of the most powerful political machines, religious majority. It arms the majority with power and puts the Gov­ hierarchies, and commercial oligarchies ever established on ernment in the hands of the people. earth. I do not assume to have any personal knowledge of the Mr. President, by the illitiati\e, the people may initiate any conditions of that State, but a predecessor to the Senate from law they do want; and, by the referendum, they may veto any Utah, ex-United States Senator Frank J. Cannon, himself raised law they do not want; and, by the reca.11, they can remove from a .Mormon, has set forth in great detail a description of this office any official for inefficiency. extraordinary religious and commercial monopoly. I shall not reproach the Senator from Utah for his strange Mr. SMOOT. Mr. President-- bias, for his point of view that denounces the principles of the The VICE PRESIDENT. Does the Senator from Oklahoma constitution of Utah and incidentally denounces the principles yield to the Senator from Utah? of the constitution of Oklahoma; nor would I answer him and Mr. OWEN. I yield to the Senator from Utah. I his criticisms at all did I not deem it of vast importance to the Mr. SMOOT. Mr. President, the Senator from Utah [l\Ir. rI people of the United States that the mechanism of self-govern­ SUTHERLAND], to whom the Senator from Oklahoma is refer­ ment should be adopted and should not be defeated by the ring, is not now in the Chamber; he is out of the city. If he ,/ Senator from Utah and those who stand with htm. were here no doubt he would answer a great many of the in­ It is a very significant fact that the Western Newspaper sinuations which the Senator has already cast upon him. Union is sending out printed plates of this speech against the I wish to state that if the Senator thinks it proper for him initiative and referendum and the recall. Who is paying the to pick up a magazine article written by a man who he him­ bills for that tremendous expense? These bills do not pay self ought to know is utterly unworthy of being believed in any themselves; somebody is paying a large amount of money to way, shape, or form, for the purpose of casting a reflection publish these plates which the Western Newspaper Union seem upon a Senator or a State I am surprised at his idea of justice to be furnishing gratis to the country newspapers in Minnesota, in such a case. Charges are easily made, but are not so easily in Oklahoma, and everywhere else. It is not a pleasing thing proven. I say now to the Senator from Oklahoma that the to the Senator from Oklahoma to hear of the press of the statements which he has repeated here are absolutely uncalled country using these plates denouncing the principles of the for, unfounded, and untrue. constitution of Oklahoma and ridiculing the Senator from Mr. OWEN. Mr. President, I think, if they are untrue, they Oklahoma. The vindication of the opillions of the people and ought to be demonstrated to be untrue. They have been given of the constitution of Oklahoma makes an answer unavoidable. the widest publicity throughout the United States. I have Mr. REED. .Mr. President-- seen no adequate answer. I suppose there may be one forth­ The VICE PRESIDENT. Does the Senator from Oklahoma coming, but I do think that if it is true that Senators a.re yield to the Senator from Missouri? named to this floor by the prophet of the Mormon Church, the Mr. OWEN. I do. Senate of the United States ought to know it, and the country Mr. REED. Would the Senator from Oklahoma give us some ought to know it. If it is not true, the charge ought to be idea of about how much it would cost to furnish these plates answered; it ought to be denied; it ought to be shown to be to the country press ·of the United States? absolutely false, because it affects the good name of the Senate Mr. OWEN. I do not know what the expense would be, but of the United States and of one of the great States of the 1t would be enormous, because the number of country news­ Union for whose people I have great respect. papers is very large. l\Ir. SMOOT. Mr. President-- Mr. REED. I am interested in knowing whether the Senator The VICE PRESIDENT. Does the Senator from Oklahoma believes that less than $50,000 would be used in covering that further yield? expense. · Mr. OWEN. I yield. Mr. OWEN. I should not think that $50,000 would begin to Mr. SMOOT. Mr. President, I suppose this is not the proper cover it place or time for me to discuss this question, but I want to say The triumphant reign of monopoly and of special privilege to the Senator from Oklahoma that I deny the statements, and 1n this country is due, in my opinion, to a sillister combination I say to him and to the country that they are not true. Because between machine politics and organized special privilege. The there is no denial of published articles which are written by a initiative, the referendum, and the recall is the open door to man for whom no one in his 0'7n State has any regard or the overthrow of this dangerous alliance, and this is the reason belief in his word, are they to be accepted as true? And is it why South Dakota, Montana, Oregon, Oklahoma, Maine, Mis­ possible that the Senator thinks such statements should or souri, Arkansas, Nevada, and Utah have adopted it in their could always be followed by a denial? It seems to me that, if constitutions, and explains why the legislatures of California, that were the case, there are other people who would have to be XLVII-234 3728 CONG.RESSION.AL RECORD-SEN ATE. .AUGUST 8,

denying statements made against them almost all the time. I viduals ·thus committed in childhood. For example, he describes will i::imply content myself by saying to the Senator that the how a 14-year-old boy is required to rise and say before the con­ ~tatements .are not true. gregation as a creed: )Ir. OWEN. Does the Senator think that it onght to go Brethren and sisters, I feel called upon to say :i. few words. I am not nninquired into? able to edify you, but I can say that I know this is the church and Kingdom of God, and I bear my testimony that Joseph Smith was a ~fr. S~IOQT. Why, Mr. President, I have not expressed an prophet and that Brigham Young was his lawful successor, and that the opinion in relation to an inquiry into the matter; but the Sen­ Prophet Joseph F. Smith is h~ir to all the authority which the Lord hns a.tor was reading a statement, and seemingly approving of it conferred in these days for the salvation of-men. And I feel that if I live my religion and do nothing to offend the Holy Spirit, I will be as the absolute truth. I am not here to defend the Mormon saved in the presence of my Father and His Son, Jesus Christ. Witll Church; I was elected by the people of the State of Utah, irre­ these few words I will give way. Praying the Lord to bless each and specti rn of their religious belief, and I repre ent e-rery man everyone of us is my prayer in the name of Jesus Christ. Amen. and woman in that State; I do not care what his or her religion Ex-Senator Cannon describes how the individuals who thus may be; I am here as a citizen of the United States; and I will pledge their allegiance are kept in line by the e.~amination and go just as far as the Senator from Oklahoma eyer dared go ·in espionage of monthly ward teachers, who enter the homes of the maintaining ernry principle of liberty and a clean, an honest, people with authority an.d see that they are faithful and that ancl a representati"rn GoYernment. they renew or continue to allege their loyalty and fidelity. They Mr: OWE1r. Mr. President, I am pleased to have the assur­ teach the simple elemental virtues of Christianity, abstinence ance of the Senator from Utah, but I haye deemed it my duty from alcohol, tobacco, tea, and coffee, and on this sound ronncta­ to call the attention of the Senate to this matter, and I think tion of decency and on the pledge of loyalty continunlly re­ it dcserYes to be inquired into. Certainly, the provision for iterated they lay a foundation of fidelity that make of the ordi­ the initiatiYe, the referendum, and the recall has been in the nary Mormon a subject of the prophet, a ·rns~al, an obedient cornrtitution of Utah for 10 years. Why has it not been '°ital• fo11ower of the orders-political or commercial-of the prophet. ized, and why does the Senn.tor from Utah [Mr. SUTHERLAND] There ne\er was in the history of the world an oligarchy more denounce the initiati1e, the referendum, and the recall? Do thoroughly and completely organized than in Utah, if this narra­ both Senators from Utah agree to that position? I should like to tile be anywhere near the truth. ask the senior Senator from Utah whether or not he approves the This description I present to the Senate for the reason that initiatirn· and the referendum or whether he denounces them also? it' has gone into every quarter of the United States antl, in )fr. S~IOOT. Mr. President, I ham taken no part in this effect, it is a most serious attack upon the high standing Ullll discus ion, nor do I care to do so at this time. I suppose that good name of the Senate of the United States itself. anefore he denounces the principles of the constitution of OkJa­ following statement: honm and sends bis denunciation broadcast as-plate matter. .llong with this strain of commercial greed in Smith there is an l\fr. Sl\IOOT. Mr. President, does the Senator infer or does equally strong strain of religious fanaticism that justifies the greed and sanctifies it to itself. He belie>es (as Apostle Orson. Pratt taught, he state thn t I have denounced-- by authority of the church) tbat "the kingdom of God is an order Mr. OWEN. I am not referring to the Senator. of go>ernment established by divine authority. It is tile only legal l\fr. SMOOT. The constitution· of Oklahoma and sent cer­ government that can exist in a.ny part of the universe. All other governments are illegal and unauthorized. • $ $ Any people at­ tain matter broadcast to be printed in the papers? tempting to gonrn themselves by laws of tbcir own making, and by · Mr. OWE:N. The junior Senator from Utah [Mr. SUTHER­ officers of their own appointment, are in dii:ect rebellion against the LAND] did so. He denounced the initiative and referendum, kingdom of God." \ Smith believes that over this kingdom tbc Smiths have been, by "·hich is a principle of that constitution .. divine revelation, ordained to rule. Ile believes that bis authority Ur. Sl\IOOT. Well, I misunderstood the Senator-- is the absolute nnd unqnestionable authority of God Himself. Ile be­ 1fr. OWEN. He denounces the manners of the Senator from lieYes that in ail the afi'airs of life he bas the same right over bis \ subjects that the Creator has over His creatures. Ile believes that be Oklahoma, he denounces his knowledge of the constitution, and has been appointed to use the Mormon people as he in his inspired he denounces the people of Oklahoma, and I suppose from what wisdom sees fit to use them, in order the more firmly to establish has appeared in the press that the denunciation has gone out God's kingdom on earth against the powers of evil. as plate matter. I have no objection to the Senator doing what Messrs. Gannon and O'Higgins, in their last article, use the he thinks proper, but I see fit to answer him . following headlines: .Mr. SMOOT. Well, 1\Ir. President, .I thought that the Senator Political headquarters of the State of Utah. Headquarters of the was referring to me. .. l\Iormon Church. Utah-Idaho Sugar Co., Joseph F. Smith, president; Inland Crystal Sult Co., josepb F. Smith, president; Zion's Savings l\lr. OWEN. Oh, not at all. I did not. I am ~nswering a Bank & Trust Co., Josep h F. Smith, president; State Bank of Utah, Senator who denounces the initiative and the referendum on the Joseph F. Smith, president; Zion's Cooperative Iercantile Institute, :floor of the Senate which is written in the constitution of Joseph F. Smith, president; Consolidated Wagon & Machine Co., Josepb F. Smith, president; Ilome Fire Insurance Co., Joseph F. his own State. I say that there must be some kind of an ex­ Smith, president; Beneficial Life Insurance Co., Joseph F. Smith, planation of that, and I can not understand any other explana­ president; Salt Lake Knitting Co., Joseph F. Smith, president; the tion than that he voices hostility of the ruling powers outside Dcseret News, Joseph F. Smith, president. of the constitution of Utah, because I belie-re the initiative and They conclude with chapter 20, as follows: referendum will break down any commercial or political oli­ CHAPTER 20. gnrcby whateYer, anywhere, and that the controlling powers of CONCLUSION. Utah know it and for that reason oppose it. Ot the men who could have written this narrative, some are dead, :.\fr. Frank J. Cannon, assisted by Mr. Har\"'ey J. O'Higgin~, some are prudent, some are superstitious, and some are personally for­ with great solemnity and the most earnest assurance, declare to sworn. It appeared to me that the welfare of-Utah and the common good of the whole United States required the publication of the facts the people of the United States the truth of the history they that I have tried to demonstrate. Since there wns apparently no one ha1e narrated in regard to the ruling po"IT"ers of Utah in Every­ else who felt the duty and also had the information or the wish to body's Magazine. They declare that the Senators from Utah write, it seemed my pince to undertake it. And I hnve done it ~ladly; for when I was ubscribing the word of the Mormon cbief for tne ful­ are named by the Mormon "prophet,'' Joseph F. Smith, that fillment of our statehood pleJges, I enga!;ed my own honor, too, and this church controls the political conditions of Utah, and that gave bond myself again t the very treacheries that I have here recorded. they have broken faith with the people of the United States in We promised that the church bad forever renounced the doctrine of polygamy and the practice of plural-marriage living, by a " revelation every promise they have made to conduct the affairs of that from God " promulgated by the supreme prophet of the church, and State in the spirit of American institutions. accepted by the vote of the whole congregation assembled in conference. The predecessor of the Senator from Utah, ex-United States We promised the retirement of the Mormon prophets from the political direction of thefr followers, the abro~ation of the claim that the Mor­ Senator, l\lr. Cannon, de cribes the manner in which commercial mon Church was tho " Kingdom of uod " reestablished upon earth to passports to hea1en are given by the Mormon hierarchy to its supersede a.ll civil government-the abandonment by the church of any loyal followers. He fully describes how the Mormons and authority to exercise a temporal power in competition with the civil law. We promised to make the teaching and practice of the church gentiles alike :ire exploited by a powerful oligarchy in con­ conform to the institutions of a republic in which all citizens aro trol of Utah. He describes how the children are hypnotized by egual in liberty. We promised that the church should cease to ac­ early and frequent vows to the church, and how their loyalty is cumulate property for the support of illegal practices and un-America.Il government. kept constant by everlasting reiteration of vows of loyalty and And we made a record in proof of our promises by th~ antipolygamy testimony of loyalty, given from month to month by the in.di- manifesto of 1890 and its public ratification ! by the _petiti~n for 'am- 1911. CONGRESSIONAL RECORD-SENATE. 3729

nesty and the acceptance of amnesty upon conditions; by the provi­ tions have powerfully encouraged. As soon as the Mormon hierarchy sions of Utah's enabling act and of Utah's State constitution ; by the discovers that the people of this country, wearied of violated treaties acts of Congress and the judicial decisions restoring escheated church and broken covenants, are about to exclude the political agents oi the property; by the proceedings of the Federal courts of Utah in reopen­ prophet from any participation in national affairs, the advisers of. hls ing citizenship to the alien members of the Mormon Church; by the inspiration will quickly persuade him to make a concession to popular acquiescence of the Gentiles of Utah in the proceedings by which state­ wrath. As soon as " the interests " realize that the burden of shame in hood was obtained; and, finally and most indisputably, by the admission Utah is too large to be comfortable on their backs, they will throw it off'. of Utah 1nto equal sovereignty in the Union, since that admission would The Presidents of the United States will be unable to gain votes by never have been granted except upon the explicit understanding that patronizing the crucifiers of women and children. The national admin­ the State was to uphold the laws and institutions of the American istrations will not dare to stand against the efforts of the Gentiles and Republic in accordance with our covenants. the independent Mormons of Utah to regain their liberty. And Utah, " THE INTERESTS " BACK THE CHURCH. the Islam of tbe West, will depose its old sultan and rise !ree. Of all these promises the church authorities have kept not one. The THE TRUTH SHALL TRIU:YPH. «loctrine and practice of polygamy have been restored by the church, With this hope-:-in this conviction-I have written in all candor and plural-marriage living is practiced by the ruler of the kingdom and what no reasons of personal advantage or self-justification could have his favorites with all the show and circumstance of an oriental court . induced me to write. I shall be accused of rancor, of religious antago­ There are now being born in his domains thousands of unfortunate nism, of political ambition, of egotistical pride. But no man who knows children outside the pale of law and convention, for whom there can be the truth will say sincerely that I have lied. Whatever is attributed as entertained no hope that any statute will ever give them a place within my motive, my veracity in these articles will not be successfully im­ the recognition of civilized society. peached. In that confidence I leave all the attacks that gnilt and The prophet of the church rules with an absolute political power in bigotry can make upon me to the public to whom they ·will be addressed. Utah, with almost as much authority in Idaho and Wyoming, and with '.rhe truth, in its own time, will prevail, in spite of cunning. I am will­ only a little less autocracy in parts of Colorado, Montana, Oregon, ing to await that time, for myself and for the Mormon people. Washington., California, Arizona, and New Mexico. He names the Rep­ resentatives and Senators in Congress from his own State and influ ­ .l\fr. President, I know nothing about the truth of this matter. ences decisively the selection of such " deputies of the people " from It may be absolutely false from beginning to end; it may be many of the surrounding States. Through his ambassadors to the Gov­ ernment of the nited State, sitting in House and Senate, he chooses utterly unworthy to be uttered, but it is a very serious matter, the Federal officials for Utah and influences the appointment of those coming from an ex-Member of this body, ex-United States for the neighboring States and Territories. He commands the making Senator Frank J. Cannon. I do not know whether it is true or and unmaking of State law. He holds the courts and the prosecuting officers to a strict accountability. He levies tribute upon the people of false; I do not pretend to know; but I think that the Senate Utah and helps to loot the citizens of the whole Nation by his alliance ought to know the truth of this grave accusation, and ought to with the political and financial plunderbund at Washington. He has know it by a proper investigation and inquiry into it. enslaved the subjects of his kingdom absolutely, and he looks to it as the destiny of his church to destroy all the governments of the world Mr. President, I very greatly regret that the principles of and to substitute for them the theocracy-the "government by God " the initiative, the referendum, and the recall, which are con­ and administration by oracle-of his successors in office. tained in the constitution of Utah, should be now openly de­ And yet, even so, I could not have recorded the incidents of this be­ trayal as mere matters of current history-and I would never have writ­ rided and flouted by the Senator from Utah without sound ten them in vindication of myself-if I had not been certain that there reason or argument It is Yery extraordinary that a Senator, is a remedy for the evil conditions in Utah, and that such a narrative holding the honors and the dignities of a State, should ridicule as this will help to hasten the remedy and right the wrong. Except and denounce the principles laid down in the constitution of his for the aggressive aid ~iv e n by the national administrations to the lea?­ ers of the Mormon Church, the people of Utah and the intermounta1n own State, but it is no more extraordinary than the fact that States would never have permitted the revival of a priestly tyranny in five succeeding legislatures in that State should have refused politics. Except for the protection of courts and the enforced silence of politicians and journalists, polygamy could not have been restored in to vitalize the constitution of Utah by passing the necessary the Mormon Church. Except for the interference of powerful influences statutes for its enforcement. These five legislatures have been at Washington to coerce the Associated Press and affect the newspapers urged to perform this duty by those who believe in the doctrine of the country, the Mormon leaders would never have dared to defy the sensibilities of our civilization. Except for the greed of the predatory of self-government and in the doctrine of the rule of the ma­ "interests" of the Nation, the commercial absolutism of the Mormon jority. The mere fact that these legislatures have refused to hierarchy could never have been established. The present conditions in perform this obvious duty, and the fact that the Senator from the Mormon kingdom are due to national influences. The remedy for those condJtlons is the withdrawal of national sympathy and support. Utah denounces these doctrines of the constitution of Utah, WHO IS TO RULE IN UTAH? is a circumstance of vast importance in the light of the charge Break the power at Washington of Joseph F. Smith, ruler of the that the 1\Iormon Church as a political and commercial oli­ Kingdom of God, and every seeker after Federal patronage in Utah will garchy controls the political affairs of that State and dictates desert him. Break his power as a political partner of the Republican the appointment of Senators from that State. Party now-and of the Democratic Party should it succeed to office-­ and every ambitious politician in the West will rebel against his throne. l\Ir. President, I would not willingly say anything that would Break bis power to control the channels of public communication wound the feelings of the Senator from Utah, but when he uses through interested politicians and commercial agencies, and the senti­ his position as a Senator to denounce the principles of good / ment of the civilized world will join with the revolt of the "Amel"ican government, in which I believe-which I believe of vital im­ movement" in Utah to overthrow his tyrannies. Break his connection with the illegal trusts and combines of the United States, and bis finan­ portance-when he denounces the initiative and the referen­ cial power will cease to be a terror and a menace to the industry and dum, when he denounces the principles of government laid commerce of the intermountain country. The Nation owes Utah such a rectification, for the Nation has been, down in the constitution of Oklahoma and ridicules the people in this matter, a chief sinner and a strong encourager of sin. of Oklahoma, and when his argument goes out all over the '.rbe Republic must overthrow the modern Mormon kingdom, or that United States as a campaign document against the people's kingdom will sap the honor and power of the Republic. Both can not survive as temporal sovereignties under their present exclusive preten­ rule, it is my duty to the people of Oklahoma and to the cause sions. The Republic must vindicate its own jurisdiction, by State and of popular government to enter a vigorous protest against the Nation, over the temporal affairs of men within its borders, or it must argument submitted by the Senator from Utah and to make rest content with such fragments of sovereignty as encroaching eccle­ siasts care to leave it. 'l'he records of the world may be searched in such answer as will give that argument its proper place before vain for an instance in which a government deriving its powers from the electorate of the United States. the consent of the .!?overned, and a government claiming to derive ex­ No one should be surprised that the Mormon Church should clusive and world-wide authority from God on high, were able to occupy in harmony the same teaitory. They have never done it; they can not oppose the initiative, the referendum, and the recall, and no one do it now. should be surprised that the income-tax amendment should be HOW UTAH CAN BE FREED. voted down by the Legislature of Utah. (March 9, 1911.) The Nation need not fear that in breaking the pretensions of the It is but natural that the Senator from Utah should be power­ modern Mormon kingdom it will be enga!rtng in a religious persecution. It is not religious persecution to deny the representative of a foreign fully influenced by the opinions of the controlling powers of potentate a seat in our Senate. It is not religious persecution to insist his State, without whose support I believe he could not appear on the obserYance of a solemn covenant. It is not religious persecution on the floor of this Chamber. It is but natural that he should to demand that a hierarchy shall keep out of politics. In my story of the modern :Mormon kingdom I have denounced not doctrines, but d ecep­ give voice to the opinions of those at the head of this religious tion ; not the keeping of faith with God, but the breaking of faith w ith hierarchy. It is but natural that, under the circumstances of men ; not the religion which cheers and sustains, but the hierarchy his environment, he should oppose the rule of the majority which hides under the altars of that religion to prey and plunder. The Nation can mllke the same distinction. and oppose those democratic agencies which would overthro1 v And the Nation owes such a rectification not only to Utah, but also the rule of the minority. It is but natural t hat he shou1.d to itself. The commercial and fi nancial plunderbund that is now prey­ regnrd with disapproval the views of the Senator from Okla­ ing upon the whole country is sustained at Washington by the help of the agents of the Mormon Church. The prophet not only delivers his homa; that he should ridicule the Senator from Oklahoma and own subjects up to pillage ; he helps to deliver the people of the entire the liberty-loving people of that State; that he should denounce United States. His Senators are not representatives of a political the idea of amending the Consitution of the United States as party; they are the tools of " the interests" that are his partners. The shameful conditions in. Uta.h are not peculiar to that State; thev undemocratic. It would be but natural, Mr. President, in view are largely the result of national conditions, and they have a national of the conservative opinions of the Senator from Utah and who etl'ect. The prophet of Utah is not a local despot only ; he is a national appears to believe in the absolute perfection of the· Constitution enemy; and the Nation must deal with him. I do not ask for a resumption of cruelty, for a return to proscrip­ of the United States, that the Senator from Utah should be pre­ tion. I ask only that the Nation shall rouse itself to a sense of its re­ ferred as. a candidate for the Supreme Court of the United sponsibility. The Mormon Church has shown its ability to conform to States, as ex-United States Senator Cannon alleges. the demands of the Republic-even by " revelation from God,'' if neces­ sary. The leaders of the church are now defiant in their treasons only Mr. President, I have no doubt of the industry, high ~naracter, because the Nation bas ceased to reprove and the national administra- and good citizenship of the great body of the people of Utah, 3730- CONGRESSIONAL RECORD-SENATE. AUGUST 8,

Mormons and gentiles, and nothing which I have said could be the approval of both constitutions, for there ure many things construed as any unkind reference to the people of that State. in each of them thnt, in my judgment, ought not to be in the My reference has been to a religious and commercial oligarchy organic law of a State. described by Frank J. C:innon, which appears to be engaged in I can not, however, concur with the Senator from New York the go·rnrning business in Utah, and which I regard as un-Amer­ [l\Ir. IlooT] in his proposition, and it is to that proposition ican jn the highest degree, and as most injurious to the people mainly that I de ire to address myself in the brief time I shall of Utah, and especially .to the Mormons. The Mormon Church ask the indulgence of the Senate. ought to go out of the political business, as it agreed to do. If His proposition is that a ·rnte for the admission of ArizQJla, it is true that the Mormon "-prophet" names the Sena.tors from with the constitution her people have adopted, is equivaleni to Utah on this floor, and uses the power of a religious hierarchy an assertion by the voter, I mean the senatorial voter, that he to accomplish this, he is able to do a positive harm to the peo­ believes that it is wise to establish the recall of judges. This ple of the United States outside of Utah and to the people of can not be a sound proposition, and if I may depart a moment Oklahoma, which I ham the honor, in part, to represent. from its abstract consideration and address myself to him and The mere fact that the Senator from Utah criticized the to those who believe with him personally, I can easily prove that Senator from Oklahoma and the State of Oklahoma would not it is not a sound proposition. hnxe induced me to call attention to this matter had I not felt The constitution of Arizona establishes the unrestricted initia­ that the issue of popular government is one of vital importance tive, the unrestricted referendum, and the unrestricted recall. to the people of the United States. The amendment proposed by the Senator from Minnesota [1\Ir. I might pause to remark that I was not present in the Senate NELS-ON] proposes to change but one of these provisions, namely, when I was assailed by the Senator from Utah, but I do not the recaU- of judges. · complain of it at all, because Senators are so frequently away The Senator from New York [Mr. RooT], as I understand from the floor that a Senator would have to be silent and be him and have understood others who follow his leadership, denied the right to criticise the views of a fellow Senator if he intends, if the amendment proposed by the Sena tor from Minne­ could only do so when a Senator were present. sota shall be adopted, to vote for the admission of both New I have been surprised that the Senator from Utah should Mexico and Arizona. If he so does, he will vote for a consti­ have gone out of his way to assail Oklahoma and its constitu­ tution which provides, in the case of Arizona, for the unqualified tion, and I am willing to believe that it was done in a spirit of initiative. Will those Senators who have outlined this course levity and ridicule for the purpose of denouncing the doctrine for themselves agree tbat in so doing they are asserting their of popular government, for which Oklahoma is distinguished, indorsement of the principle of the initiation of and direct but I have not been willing to leave this volley of epithet, legislation by the people? No. sarcasm, and ridicule against the principles of the constitution There is in this constitution the establishment of a system of Oklahoma which her liberty-loving people believe in to re- for unqualified referendum to the people of acts of the general main unanswered. ' assembly or legislature. The Senator from New York does not In answering I have endeavored to do my duty to the people believe in that principle of government. There is much room of Utah and to the Republic and to the cause of the popu­ for difference of opinion both with respect to the initiative and lar government in which I deeply and profoundly believe, and the referendum. I believe in them, qualified as I have sug­ to vindicate the great Constitution and to defend the wisdom gested, but the Senator from New York does not believe in and the patriotism of my own beloved people of Oklahoma. them, and yet he, and those who are with him in this respect, The VICE PRESIDENT. The question is on agreeing to the apparently intend to vote for the admission of Arizona with committee amendments to the original joint resolution, which this priuciple implanted in it and established by her constitution. must be acted upon prior to action upon the substitute. Now, I am not quarreling with or even criticizing a vote so Mr. CUMMINS. 1\Ir. President, I can not even hope that any cast; I believe it is properly cast; but I instance it to show that word uttered by me at this stage of the dispute, when the he does not believe, no Senator can belie·rn, that a vote to admit opinions of Senators have become so thoroughly and completely Arizona with the constitution which her people have adopted crystallized, can influence the decision which the Senate is about is an indorsement of either the referendum, the initiative, or the to render upon this important subject. But I feel so deeply the recall or any other provision in her constitution. It is a state­ \ conviction that many Senators with whom I agree upon the ment by each Senator that he believes the constitution adopted recall of judges are about to inflict upon our institutions a by the people of that Territory is not in conflict with the Con­ severer blow by their votes upon the joint resolution shortly to stitution of the United States, and it is an assertion of his be submitted to the Senate than could possibly be inflicted by opinion that it does establish or create a republican form of \ allowing the people of Arizona the privilege of recalling sueh go>ernment, but it is not an indorsement of the policy which members of the judicial department as they think ought to l.le the people of that Territory choose to adopt for their own recalled that I am impelled to suggest the reasons which will go\ernment. · guide me to the vote I shall cast. Again, after the amendment of the Senator from Minnesota I regret very much that all the emphasis of this debate has shall have been adopted, if it be adopted, there will remain in been placed upon the wisdom or the unwisdom of establishing the constitution of Arizona a provision for the recall of short­ in the laws of Arizona the recall of judges. I do not believe term legislative and administrative officers. I know from my that . the emphasis of the contro-versy ought to b~ _placed upon association with Senators that many of them are not convinced either the initiative, the referendum, or the recall. From my that it is wise or right to incorporate such a proYision in the point of view the discussion of the merits of the initiative, the constitution of a State. I believe that many of them, if they referendum, and the recall are irrelevant and immaterial, if I were residents of Arizona, would have voted against a constitu­ may use a phrase common in the trial of causes. My vote upon tion with such a provision in it. If they vote for the admission the subject under consideration will not be determined by the of Arizona is it to be said that they are affirming before the opinions I hold concerning these policies of government or con­ people of this country the wisdom of a system which recalls cerning either of them. executive and legislative officers? No; they are voting for the Lest, however, it may be said that I am unwilling to ayow admission of a State, and the only thing which we affirm in vot­ my belief touching these doctrines, I do not hesitate in saying, ing for the admission of a State with a constitution adopted first, that I believe in a qualified or restricted initiative for by the people who are to form the State is that we belie-re the direct legislation; second, that I believe in an unqualified and organic law thus established is in harmony with the Constitu­ unrestricted referendum for the approval or disapproval of leg­ tion of the whole country, and that under it the people will islative acts; third, I doubt the necessity or wisdom of the re­ enjoy a republican form of go:vernment. call for legislative and executive officers elected for the short I join issue with those who believe that we have the right to terms now common in this country; fourth, I am opposed to the pre cribe a constitution for Arizona or any other Territory recall for judges. which seeks admission to the Union. I do not challenge the I have thus stated my belief with respect to these principles power of Congress to exclude the people of Arizona and the of government, not because I think them material in the contro­ people of New Mexico from participation in· the Union of States versy before us, but because I desire to escape the reproach that jm;t so long as Congress desires to exclude them. We. how­ I was unwilling or reluctant to declare before the people of this erer, have passed that stage in this contro\ersy. The enabling country just what I belieYe concerning them. If I believed that act passed a year or more ago, determ"ined that these two Ter­ my yote for the joint resolution before us, either as reported ritories, with respect to their population and with respect to by the committee or as proposed to be amended by the substi­ their people, their habits, their tendencies, their powers of tute of the Senator from Minnesota [Mr. NELSON], implied an self-government, were ready for admission to the Union. That indorsement of all the constitutional provisions presented by is no longer open, as it seems to me, for either discussion or New Mexico and Arizona, I woul

is whether we shall approve the constitution which they have adoption of the constitutional amendment, which would now in fair and properly regulated elections provided for them­ render such a State constitution impossible. The question was selres. whether Nebraska should be admitted to the Union with that The Senator from New York and others who have followed sort of a constitution, and one of the most valiant advocates him have said that the enabling act imposes upon Congress the for human rights who ever stood in this Chamber, a man un­ duty of approving these constitutions and bis conclusion was compromising in bis views, stalwart in all bis opinions, brave that if we find anything in the constitutions which we would and fearless a.s a fighter for the cause he believed to be just, not have voted for had we been residents and voters of the Ben Wade, of Ohio, insisted that Nebraska should enter the Territory, then we ought to vote against the admission of the Union even with this obnoxious clause in her constitution. It Territories. I can not believe that that is the law. I believe was sought then to impose a condition, and the opposition to the that when you vote to exclude Arizona because you would not position I am now taking was represented in a resolution which have made for her such a constitution as her own people have attempted to impose upon Nebraska forever the condition that provided, you are striking a vital blow upon the institutions of there should be no discrimination in her constitution so far as your country. race and color are concerned. So this constitutional question, I know that we have the power to do it. So has a judge the if I may so term it, although I believe it is a moral question power to render an unjust or a corrupt decision. We must rather than a coustitutional question, arose and was debated. always repose final power somewhere. Our power in this re­ Senator Wade almost alone stood for the proposition that it spect is unappealable and unreviewable, and therefore no one was not within the power of Congress to impose upon a State can question its exercise. But there is a moral obligation upon that was to be admitted on an equal footing and with all the those who are invested with power that ought to be as effective, rights and privileges of other States a provision which she and I believe is as effective, as the formal or verbal power could not herself remove when admitted to the Union. How­ with which we are intrusted. ever, the minority opinion then has become the universal opin­ We are falling into a dangerous tendency in these days, a ion now. tendency that I hope the Senate of the United States will There is no lawyer in this Chamber, there is no lawyer any­ speedily correct by its own example. We are becoming careless where, who will assert that Arizona could not lawfully, imme­ and indifferent in regard to the exercise of power. If we have diately after her admission to the Union, incorporate into her the power, if we have the jurisdiction, then we exercise it constitution the very provision which now excites the opposition apparently without much regard for the consequences that may of Senators upon this floor; and no one will contend that; hav­ ensue. Courts strain and torture the words of a constitution ing so incorporated the provision by the due process of amend­ in order to find in it authority which they believe the Gov­ ment into her constitution Congress could, by any legislation, ernment ought to have, or they strn.in and torture its words either affect that provision of her organic law or disturb her in order to take out of it a power which they think the legis­ relations to her sister States on account of it. lature and the executive ought not to have. It is a sad and Is it not in the highest degree illogical, is it not the climax of demoralizing tendency, and we ought to1 be the first to cherish follyt to say that we have the right to exclude Arizona from the tradition and to cherish .the principle that unreviewable th~ privileges of statehood because she has a provision in her power shall be exercised according to the right and morals constitution which we do not indorse, and at the same time and justice of the case. admit that next year she may exercise all the rights of state­ The executi"ves not only of the United States but of the hood and incorporate th.at provision into her constitution, and States as well seem nowadays to have no hesitation .about in­ that then we will be powerless to either amend it or to exclude vading the powers, the privileges, the rights of the legislative her from her rights and privileges as a Commonwealth of the department of the Government. We seem to grow blind to the Union? distinction which our forefathers attempted to draw between I am not now speaking. of our power, but I believe that our these departments of the Government. The legislatures of the right at this time is limited by our power after she shall be­ States seem to have forgotten that they ought not to control come a member of the sisterhood of States. If she presented or direct the executives who are elected for the purpose of here a constitution which we found in the organic law of executing and enforcing the laws, and we invade from time to some State already admitted and that was repugnant to or in­ time a region which, unde1· the Constitution of the United consistent with the Federal Constitution, or that we believed States as well as the constitution of every State in the Union. established a government unrepublican in form, then we co.uld ought to be free from any intrusion of our department of the say to her before she entered, "You can not come in"; just Government. as the courts would say to her after she was in that any pra.­ Here we are, a Congress which has the power to say that vision of her constitution inconsistent with the Federal Constitu­ Arizona and Xew l\Iexico shall not be admitted as States until tion had no force or effect, and just as Congress could say to any they make and ndopt a constitution that fits cur ideas of what State which would so amend her constitution as to greate a gov­ constitutions should be, and that embodies our views with re­ ernment unrepublican in form, "You must change your constitu­ gn rd to what the organic Jaw should contain, and we are in tion or you can no longer enjoy the companionship of repub­ gra,·e danger of exercising a power that we undoubtedly have lican governments." against common right and common justice, and against the To me our duty is plain. I do not intend to emphasize my fundamental principles which hold the Union together. My objections to the recall of judges. I recognize the right of the proposition is to me as plain and as simple as the most ele­ people to establish such a system in their government; but, as mental law of mathematics. My proposition is that if Arizona one of the people, I do not believe in that system, and I would after her admission to the Union may lawfully establish a do everything in my power to prevent, were I a citizen of Ari­ constitution which she presents to us for her admission to the zona, the establishment of the recall of judges; but in order to Union; then we have no moral right, although we have a con­ carry into effect my views with respect to that subject I am stitutional power, to say that she shall not enter the Union asked here to do infinite violence to the Constitution of my until she conforms to our view in her policies and her systems country, infinite violence to the institutions of which we are so of administration. proud. I am' asked to usurp a power that Congress ne-ver · This is not a new question. I thought at first, when the sub­ ought to exercise, and can not exercise morally, although if it ject became imminent, that I would endeavor to review the legis­ does exercise it there is no appeal from our act in that respect. lative history of the United States upon it It is exceedingly I ask Senators to pause a moment before they shall attempt to interesting ; it is exceedingly instructive. There was a time take into their hands rights which are just as sacred to the when most of the lawyers of the Congress of the United States people of Arizona as are the rights wbieh we enjoy under the believed that in admitting a State into the Union Congress could Constitution of the country. impose a fundamental law upon it, which after admission would I intend, for these reasons, to vote against the substitute for be superior and paramount to any change or amendment the the joint resolution proposed by the Senator from Minne ota people of the States might desire to engraft upon the consti­ [Mr. NELSON], and I intend then to vote for the constitutions tution. which the people of these Territories have established. I It has been many times attempted in the Congress .of the would vote for them even though the other House had suggested United States to admit States upon such a condition, but always no amendment whatsoe\er. upou tbe hypothesis that after admission the condition so im­ I regard the provision in the constitution of New Mexico with posed would be effective and operative against the will of the respect to the amendment of her constitution ns in the la t people of the State. Such was the discussion, for instance, upon de.gree tyrannical, as in the last degree indefensible; but it is the admission of Nebraska to the Union, as you will remember, not for me to say to the people of New Mexico, "You shall \ery soon after the clo e of the Civil War, and while feeling still amend your constitution thus and thus"; it is for them to ran high, Nebraska had adopted a constitution which ·limited declare how they desire to be governed; a.nd so long ns t t.~y the suffrage of her people to white men. This was before the present a constitutional system of organic laws which is ill 3732 CONGRESSIONAL RECORD-SEN ATE. AUGUST 8,

harmony with the Federal Constitution, and which does estab­ ADMIRAL COUNT HEIHACHIBO TOGO, IMPERIAL JAPANESE NAVY, lish and create a republican form of government, so long will I ·The VIOE PRESIDENT. The Chair desires to announce that submit and yield my views upon these matters to the rights, the Senate hAs as its guest Admiral Oount Heihachiro Togo, the inalienable and sacred rights, of the people of that Terri­ Imperial Japanese Navy. tory. Mr. ROOT (at 4 o'clock and 32 minutes p. m.). Mr. Presi~ Mr. BRADI,EY. Mr. President, I listened this morning with dent, I move that the Senate take a recess until a quarter before a <>Teat deal of pleasure to the very able speech of the Senator 5 o'clock to enable its Members to pay their respects personally fr;m 1\Iinnesota [Mr. OLAPP]. I almost made up my mind that, to our distinguished gue t. notwithstanding my fixed opinions on this subject, I would vote The motion was agreed to. for the admission of Arizona, letting her, of course, tak~ care of The Senate thereupon took a recess, when the Members of the herself and pay the price of her folly; but after thinking about_ Senate were presented to Admiral Oount lleihachiro Togo, the matter and remembering that men are judged by their votes Imperial Japanese Navy, and the members of his suite. more than by their speeches I have come to a different conclu­ [Before the pai·ty withdrew from the Ohamber the Vice Presi· sion. dent said: "Admiral Count Heihachiro Togo expresses his I want to say at the outset that there is no Senator in this thanks to the Senate. He does not know that all Senators Ohamber who has a greater respect for the opinions of the peo­ beard him, and so he has asked me to voice his thanks for ple than have I, but when I speak of th~ opinions of the people him."] I speak of opinions formed deliberatel1' in hours of calmness At the expiration of the recess the Senate reassembled. and not of opinions formed in hours of eAcitement, for the whole history of the world bears me out in the truth of the NEW MEXICO AND ARIZONA. assertion that at times the people need to be protected from The Senate, as in Committee of the Whole, resumed the con­ themselves. sideration of the joint resolution (H. J. Iles. 14) to admit the 1\lore than nineteen hundred years ago the people demanded Territories of New Mexico and Arizona as State into the the crucifixion of the Savior of mankind, and I believe when He Union upon an equal footing with the original States. was surrendered into their hands by Pontius PiJate that 1hat was Mr. BRADLEY. Mr. President, it requires, as one of my the first instance in history of the exercise of the referendum. friends suggested a moment ago, the Japanese Navy to take After He bad been crucified and the veil of the temple had been a Kentuckian off his feet, and now that we have returned rent in twain and darkness and earthquakes came history fails from Japan, in a very few moments I shall conclude what I to record that the people ever recovered their reason and asked have to say. for the recall of Pontius Pilate. I recite this history of affairs in Kentucky becau e I be­ Mr. President, I want to give this Senate the adrnntage of a lieve it is instructive. After the court of appeals had decided little history in our State showing how uncertain the voice of that the law was unconstitutional, not having the necessary the people is at times and how dangerous would be the propo- two-thirds to address the judges out of office, tbe Relief Party . sition to allow the recall of judges. In 1818, I believe, times went to work to bold another election, for the purpose of elect­ were hard in Kentucky. The people rose up and demanded that ing a sufficient number to address the judges of the court of a State banking system should be created. The legislature met, appeals out of office. and in response to that overpowering call incorporated 46 banks l\feanwhile laws had been passed increasing the time for re­ with a capital of $9,000,000. In less than one year disaster plevin and staying issual of execution in order to prevent col­ came upon the State; in less than one year the only bank we lection of debts. had in Kentucky that was reliable-the old Bank of Kentucky­ The point of frenzy which had been reached by the people at suspended, and in less than one year all of the 46 banks had that tiµie seriously threatened civil war. '.rhey had an election, gone into bankruptcy. That was an appalling period. Gov. Desha being the candidate of the Relief Party for governor. The re ult of that election was again an overwhelming victory The legislature met in 1820 and repealed the charters of the for those who believed in relief. Howernr, there was not yet a 46 banks, leaving the banking system of the State in its origi­ two-thirds majority. The legislature met; the matter was taken \ nal condition; but again the cry of the people was raised; hard up; and finding that they could not addre s the judge out of ottice times were upon us, and the people demanded that there should they concluded to and did pass an act abolishing the court \ be something else done by the creation of a bank. So when the of appeals an

1911. CONGRESSIONAL RECORD-SEN ATE. 3733

own lightning and knock down his own church, that is the constitution and then to adopt it at the ensuing election, or be Lord's business." denied statehood. So I suppose the idea of these Senators is that the State be- Mr. President, I am unwilling that the case before the Sen- longs to the people of Arizona, and if they want to adopt a ate shall be tried on a frivolous pleading and a false issue. constitution which will destroy their own State, that is their The senior Senator from New York [Mr. RooT] cites the recent business, and they ought to be allowed to adopt it and be case of Coyle against Oklahoma in the United States Supreme admitted into the Union, but I can not give a vote here that will Court In that case the court held that the State of Oklahoma send my record down in history as approving anything of that was not bound by the provision in her constitution accepting sort. I do not believe that the recall is republican. It think it the restriction in the enabling act of Congress against changing is the destruction of one of the great departments of government, the location of her State capital for a term of yeai·s. Under the judiciary, and the destruction of the judiciary will lead to this and numerous other decisions it is manifest that while confusion and ruin. your coercive amendment may constrain Arizona to strike the Recognize such a principle as this and you make every judge recall of judges from her constitution as the price of her ad­ a coward. Why? Becam~e when he comes to decide a case the mission, she immediately on her admission could proceed to first thing he will do will be to try to ascertain what the people restore it. Vain strategy is spurious strategy. One of the want, for feal' the people will put him out of office if he fails to first and fundamental questions confronting Congress on an indorse them, and the result of it will be that their will, how- application for admission to statehood is whether the constitu­ eyer frenzied, will be carried out, and that there will be no tion presented is the will of the people of the Territory. The independence in the judiciary. I can not give a vote that will attempt, even if successful, to temporarily substitute the will lead to the belief that I indorse a thing of this sort either of Congress for the will of the people of Arizona can accom­ directly or indirectly. The judiciary is the harbor of safety. plish no benefictent purpose. The natural effect of the un­ it may be resorted to when the legislative or the executive de- gracious challenge to the intelligence and patriotism of that partments, controlled by political passion or interest or by the people would be to provoke and aggramte the alleged distemper excitelllent of the hour, do things which are extravagant or dun- which the Senator from New York professes to fear. gerous. The last appeal of the citizen, the last appeal of the The Senator from New York says that a vote for the resolu­ despised minority, the last appeal of the oppressed is to the tion as reported is a vote in favor of the recall of judges. I courts of the country, and if the courts are to be hampered in suggest that the Senator reexamine the resolution. Words of their action, if they are to be made cowards in their opinions, approval are nowhere there employ·ed. The resolution expressly then I say we may bid farewell to liberty and give ourselves requires that question to be resubmitted to the people of the over to anarchy and destruction. Territory. The question is not whether Senators believe in the l\Ir. SHIVELY. l\Ir. President, the joint resolution to admit recall of judges. The resolution does not require Senators to New Mexico and Arizona to statehood came from the House and believe in or approve of the recall of judges. The test is not, was referred to the Committee on Territories of the Senate. Be-I and never has been, that Congress must believe in and sub­ fore that committee hearings were had. Everyone who desired scribe to everything in the constitution presented by an apply­ to be heard had his opportunity to present his facts, submit his ing Territory. Had such been the test in the past, we would suggestions, and declare his opinion. After full hearings the I have no Union of 46 States to-day. If the Territory in other Committee on Territories, by an overwhelming majority, de- respects is qualified for statehood, and presents a constitution clared in favor of the resolution in the form now presented and that does not contravene the Federal Constitution and does directed the chairman of the committee to report it to the Senate create a republican form of government, it is sufficient that with the recommendation that it do pass. The senior Senator Congress be satisfied that such constitution is the will of the from Minnesota [Mr. NELSON] presents an amendment to the people of the Territory. resolution. As every Senator who has spoken professes to favor A number of the earlier State constitutions provided for re­ statehood for these Territories, the only questions before the call of judges by the governor. Nearly all of the State constitu­ Senate arise on the proposed amendment; and what are these? tions of to-day authorize the recall of judges by the legislature. Both from representations made before the committee by For some years past Oregon has had the recall of judges by the reputable citizens of New Mexico, and on the face of the instru- people. Thus far not a single petition for such recall has been ment itself, it became apparent that the New Mexico constitu- filed in that State. I can not conceive of such recall as being tion practically locked away from the people of the proposed necessary or expedient or wise in Indiana. Our judiciary is J State the possibility of future amendment. To supply an oppor- elective and the term of office six years. At the end of this tunity to correct this mischief, the resolution provides for the period the judge retires, or in due time must submit his record submission to the people of that Territory a modification of as a judge and his character as a man for approval or disap­ their constitution, prescribing a more liberal procedure for proval at the polls. But whatever may be the tenure of the amendment. This proposed modification goes to the people of judiciary in the several States to-day, each State at and after the Territory as a single, distinct proposition, to be voted up its admission to the Union ordained its judiciary agreeably to or down, as the electors may determine for themselves. The the will of its own people. We are no more commissioned to resolution is in no sense coercive on New Mexico, as her admis- form a constitution for Arizona than we are to dictate a con­ sion is made to depend, not on her acceptance of the proposed stitution to New York or Indiana. And it is idle to attempt to modification, but on her submission of it to the will of her distinguish between Congress prescribing a constitution for a people for either adoption or rejection, as they see fit. people applying for statehood and excluding such a people from Against this provision of the resolution the amendment sub- statehood until they bring a constitution that conforms in all mitted by the Senator from Minnesota [l\Ir. NELSON] preserves substantial respects to the will of Congress. and approves the novel and extraordinary provision of the New A fictitious and misleading issue becomes confusing to those Mexico constitution, which renders amendment well-nigh lin- who advance it. By his own logic the senior Senntor from possible. On the other hand, the resolution as reported is not New York and those who agree with him are required by their only not unusual or extraordinary, but has excellent authority vote for the Nelson amendment to approve that device for back of it. It enables the Legislature of New Mexico to submit primary legislation known as the initiative., The recall of public to the people of New Mexico an amendment to their constitution officials is a condition attached to the tenure of elective office. on the same terms and by precisely the same vote as is required The initiative is more fundamental in character and touches by the constitution of Minnesota to submit an amendment to more vitally the chemistry of government. The Senator quotes the people of that State. with fervid approval the noble response of the men of l\lassa- Now as to Arizona. The people of Arizona saw fit to incor- chusetts in 1776 in denying the appeal of their temporary legis­ porate in their constitution a provision authorizing the recall lature for permission to form a constitution for their State. of puQlic officials. The resolution as reported requires that the Those men had felt the touch of sinister power. They were un­ Territory submit an amendment to such provision to the effect willing to trust even their own representatives to form a con­ that such recall shall not apply to judges. This amendment stitution when they had not been selected and instructed with would go to the people of Arizona as a single question, un- special reference to that high function. Yet the Nelson amend­ entangled with and separated from any and all other pro- ment requires the Senate to force on distant Arizona a con­ visions in their . constitution. Nor is the resolution made stitution other than that ordained by her own people or close coerdre on the will of Arizona. It only requires a review and against her the door of admission to statehood. determination of the narrow and precise question of the recall The Senator improvised and exhibited to us startling hypo­ of judges under such auspices as to free it from the innumerable thetical cases of a court under the terror of a recall. He con­ other considerations that attend a vote on a constitution as a eluded by invoking the trial of Louis XVI, and parading before whole, and, on such review and determination, admits Arizona the Senate the specters of Marat and Danton and Robespierre. to statehood, with the tenure of office of her judiciary as she This reference to history proves too much to be of Yalue to the shall have ordained it. As against this procedure, the Nelson Senator's cause. It reminds us that only two generations be­ amendment requires Arizona to submit a like amendment to her fore that trial, a Louis XIV, in his pride of power and contempt 3734 CONGRESSIONAL RECORD-SEN ATE. AUGUST 8, of the people, exclaimed, " I am the state! " The exclamation You are not required by the pending resolution to have it. I was true, and described government in France. The French do not want the recall of judges in Indiana. I am not required people were, and through their whole history had been, excluded to have it. Other Senators do not want it in their States. from participation in political power. They felt the touch of They are not required to have it. Many States have provisions that power only in the merciless burdens it brought them. in their constitutions which the people of other States would Their only function was to contribute their sweat and blood not tolerate in their own State constitutions. Under our sys­ and tears to maintain the splendor of a throne and feed the tem these differences can never become the subject of dispute profligacy of a court. There was no open field of popular rights, or discord or rancor. Each State is free to ordain the consti~ no opportunity to develop and train the temper, the faculties, tution best suited to its own interests and conditions. This the capacities for government. Centuries of despotism left no adaptability of the system to the varying and diverse opinion , sen e of true freedom. The sense of wrong and resentment institutions, necessities, and situations inevitable over a wide toward power remained. Liberty, equality, and fraternity were region of territory is its strength, its glory, and its beneficence. empty names. When the :flood of pent-up passion broke over As the constitution of a State is apt to reflect the civil his­ France the fraternity of vengeance and the equality of death tory and political experience of the people who framed it, so seized the scepter. radical provisions in a constitution presented by a Territory Freedom is a growth, not a creation, and the great trinity are usually efforts to take bonds against radical wrongs , uf­ in France was but half made up. Liberty could stagger and fered under Territorial government. The Territory is gov­ plunge, but was incapable of regular step or orderly course. erned from Washington. That there have been appointments Louis XVI became the sacrificial victim. He loved France, of men of splendid talents and inflexible integrity to Federal but was helpless to arrest a storm, the fury of which had been service in the Territories, I personally know. There al o have gathering long before be was born. He inherited his fate as been fished up from the sluices of subterranean politics in the he inherited his crown and the system of power that -came States and thrust on the people of Arizona men who hardly with it. That system was the seedtime; the revolution was the would have been trusted to referee a dog fight in the com­ harvest. His trial was a grotesque mockery of law, as had munities from which they came. These men made merchandise been the system of power a mockery of justice. 1\Iarat and of their trusts, and treated the people with the disdain char­ Danton and Robespierre were the sanguinary usufruct of what a<'teristic of irresponsible power. If there ever was a com· bad gone before. That trial and these names present no para­ munity that earned the right to harbor the di trust that some ble pertinent to this debate except an admonition against the writer has des<'ribed as divine, it is the community going mistaken maxims of power which measure the stability, effi­ through the vicissitudes of Territorial government. ciency, and beneficence of government by its distance from the As if to justify anew this distrust, it is whispered around the people. _ Senate that unless the Nelson amendment be adopted the re o­ If history is to be invoked, Mr. President, I prefer that lution will encounter opposition elsewhere and not become law. which suggests something of the genesis of popular govern­ I can not anticipate tawdry heroics. There is no room in the ment and illustrates the real dangers against which its found­ situation for a Leonidas at the Pass or an Horatius at the ers in this· country sought to intrench it. When the civiliza­ Bridge. Arizona is at the mercy of the Federal Government. tion of the west disappeared in the deepening gloom of the Congress has the right to admit her to statehood and the naked Dark Ages there survived in the forests of Germany a fierce, power to exclude her from it on whatever pretext or on no pre­ stiff-necked, indomitable, freedom-loving people, who in their text whatever. But to require her to strike from her constitu­ primitive way as ociated liberty with law. They maintained tion on the day before her admission what confessedly she may the right of assembly to consult and devise measures for the lawfully restore the day after admis ion is to do a foolish common weal. They established and maintained a rude form thing. It is the kind of offensive challenge that arouses the of trial by jury. With their loud yeas and nays they elected pas ions it pretends to curb. It augments and accentuates the leaders, not ma ters, and impressed their will on their govern­ alleged mischiefs it pretends to correct. It magnifies and ment. When those hardy Angles and Saxons invaded England vitalizes an incident into a cause. It exhibits Federal power as they bore with them these rudiments of civil liberty and rooted blindly attempting to conh·ol as a matter of prerogative that them into the soil of British policy and jurisprudence. which the people of the Territory are entitled to control as a The growth was slow and painful, but persistent. The har­ matter of right. vest from that ancient seedtime appears in the l\Iagna Charta, The resolution as reported commits no such follies. It wrung from the unwilling King John ; in a Coke holding the isolates the question of the recall of public officials as applied broad shield of the law between a trembling subject and his to judges from all other questions in the constitution presented enraged king; in a Bill of Rights forced from resisting pre­ by Arizona. Then it puts up to the people of that Territory rogative; in defiant re istance to the principles of the ship tllis que tion for reexamination and review free from every money and the tea tax; in an American Declaration of Inde­ distracting influence. It leaves the subject of what the tenure pendence and the successful struggle to maintain it; in a Fed­ of offic shall be to determination by the people who must work eral convention and Constitution, creating a Union of States out their destiny under the constitution as they ordain it. It and providing that the " United States shall guarantee to every leaves to every speech made in the Senate against the recall of State in the union a republican form of government"; in an judges its rightful influence on that determination. It sounds early amendment to that Constitution providing that all powers no note of truculent menace or threat or coercion. It pre ents not O.elegated to the United States "nor prohibited to the States a procedure becoming alike to the justice of Congress and the are reserved to the States regpectively, or the people" ; and in rights of a people who aspire to membership in the Union of innumerable other acts and agencies by which the champions States. of civil liberty took pledges to the peace, order, and security of Moreover, Mr. President, suppose the electors of Arizona society. shall choose to abide their constitution as it was made. Think Our political and civil institutions were not born of some you that because of that a black tide of political and ocial di - sudden l:pheaval that inverted society and dissolved all gov­ integration is to engulf the United States in a common ruin? ernment, ()at of a long and arduous struggle to fix bounds to No American community has yet committed political and social power and enforce 'the recognition and obsenance of right8. suicide. It is the right of a free people to err, and retrieve the Their heraldry runs in unbroken strain through a thousand error. It is their right to make mi takes and lose and profit years. In the long struggle were fashioned the character, the by them. It is their right to stumble and recover. The way faculty, the capacity for self-government. Distrust of power of civil liberty is thick with thorns, not strewn with roses. became well-nigh a relirdon. The men who adopted the gaa1·­ Whether the radicalism of the Arizona con titution prove a anty to every ~ State o{ "a republican form of government" delusion or a succe.ss, the country will m~rk the experiment and were profoundly distru tful of power. They bad learned in the gain by the lesson. school of bitter xperience that nothing can bind, or· restrain, All questions as to the eligibility and qualifications for state­ or circumscribe, or limit, or chain the power of government hood of Arizona touching her resources, population, institutions, but power. Think you that by this provision of the Constitu­ and the character. of her people were foreclo ed by the enabling tion those men ought to establish brakes and erect barriers act and require no discussion here. Certain it is that Arizona against the power of the people? All the debates on this pro­ was not settled and built up by cowards or weaklings or defec- vi ion in the convention and all the decisions of the courts con­ tives. These shrank from the struggle and remainecl at home struing it uniformly show it an inhibition against monarchy or to bewail all change as decay. Only the strong and the brave aristocracy or oligarchy within a State and not a restraint on spirits dared the hardships and dangers of the wilderness and the popular element in government. pushed outward the frontiers of western civilization. It was The lesson that history enforces is that within the limita­ men and women of faith and courage that settled Arizona, or­ tions fixed in the ~"'ederal Constitution the principle of local ganized order, uncovered her resources, built schools, churches. self-government should be recognized and respected by Con­ libraries, and promoted those other agencies of social progress gress. You do not want the recall of judges in New York. that have enfranchised her for statehood. The spirit, temper, 1911. CONGRESSIONAL RECORD-SENATE. 3735

and character of her people are nobly illustrated in that striking town meeting. Mr. Madison has elaborated on that provision personality, who, through nearly a quarter of a century, served more than once, and it is the accepted legal principle that a her at this capital. Senators about me well remember with republican form of government is a representative government, what commanding intelligence, iron courage, tireless vigilance, where the people act only through their representatives. and unfaltering fidelity on all occasions through all those years Now, how can you harmonize that with a referendum? If he asserted the rights and guarded the interests intrusted to the people en masse are to make a law, is that a republican his care. form of government? I think not. We are here to see that It is to such a people that the plan of the Nelson amendment Arizona, if she becomes a State, shall come within the rule of is addressed. Section 2 of that amendment requires that on the a republican form of government. The proposed constitution is same day on which the people of Arizona vote on striking from not within sight of that rule. their constitution the recall. of public officials as applying to There is mighty little room for sentiment in dealing with this judges they shall also vote for candidates for all of the State, question. It is a legal question. The question before us is as congressional, legislative, judicial, county, and other offices cre­ to the legal sufficiency of the proposed constitution. It violates ated by their constitution. If the provision to strike out fails the rule of a republican form of government in almost its every at the polls, then the election is made a nullity. In other provision. They have undertaken to strike out on new lines in words, all the trusts honors, and emoluments of all the offices government that bear no resemblance to the lines of a repub­ created by the new constitution are thrown into a jack pot and lican form of government. tendered as the lofty insh·umentality with which to compose I would not support the constitution adopted by the people and settle the judiciary of the incoming State! I do not pretend of New Mexico because it contains that provision in regard to to understand high professions of devotion to the principle of the referendum, which is nonrepublican in principle. I would a fearless, impartial, and incorruptible judiciary when coupled not support the constitution of Arizona because it provides for • with support of a proposition the political morality of which the recall of officers other than in the manner recognized since scarcely rises to the level of total depravity. I do know that the foundation of this Government I would not permit the it is the inseparable fate of the championship of power as child to come into the household and change the whole arrange­ against the championship of rights to be associated only with ment of it. I would not permit the child to come into th~ low standards and sordid ideals and to find its fittest agencies household with a demand that it should be governed by rules only in "t!orrupting influence and debauching methods. It is other than those that had been tried out and found sufficient. within the naked prerogative of the Senate on the vote about We want no freaks in this household of States. We want to be taken to strike Arizona as she waits at the door of state­ these people to come in along conservative lines, and to stay hood with the lash of blind and unreasoning power. If we there as a conservative political organization. deliver this stripe, the shame will be ours, not hers. When For those reasons, and for others not necessary to enumerate, the last insolence of office shall have been exhausted, Arizona because those reasons are sufficient, but for the reasons I have will enter on her rightful estate. The stripe here delivered will stated I shall vote against the recognition of both of these have fallen away. The record here made would remain the only constitutions, and I shall ask for a division of the question as memorial and a memorial only to the unspeakable littleness that between the two Territories asking for admission. could inflict it. Mr. President, there are many questions, did the time permit, Mr. HEYBURN. Mr. President, I shall not, under the cir­ that I should like to express myself briefly upon, but I realize cumstances, detain the Senate more than a few moments. The that at this hour and under the circumstances that surround us discussion of this question has proceeded upon the assumption it would be inappropriate to do so; but before closing I desire, that Arizona was a State; that there was some element of in the presence of Senators, to give them an· example of what sovereignty that must be respected by Congress; that we must, the referendum is. There [exhibiting] is an official ballot in in settling this question, deal with the constitution as though one of the States of the Union that was submitted at the last it were the organic, soyereign law of a State. Much of false election under the referendum provision. It is impracticable to logic has resulted from that false premise. have it made a part of the CONGRESSIONAL RECORD; it is 7 feet / Arizona is simply a Terl'itory subject to the absolute will of long, 14 inches wide, and is printed in pica. I do not know Congress, and the people there are not sovereign in any sense of how many thousand words it contains, though I had intended J the word. We have authorized her to experiment on making a to have them counted, but I ask that that ballot be printed as a constitution. We did that with the constitutional limitation public document in order that it may be available as an ex­ always in view. We can not make two kinds of States. There ample and as a warning to people who may hereafter propose must be uniformity in the character of State government. this kind of freak legislation. ( S. Doc. No. 88.) Under the Constitution, who is it who is to guarantee this The VICE PRESIDENT. Without objection, the request will principle? The language is, "the United States shall guarantee be complied with. to every State a republican form of government." If this be­ Mr. BAILEY. Mr. President, the admission of Arizona as comes a State on the very instant that it crosses the line be­ provided for in this resolution obviates a very serious objection tweeu the unorganized and the organized political body and into which I felt to her admission as proposed in the resolution on the realm of statehood, that principle applies; and when she which the Senate voted toward the close of the last session. knocks at the door the question is, "Have you complied with The pending resolution proposes the admission of these two section 4 of Article IV of the Constitution?" That is what we Territories without expressly committing any Senator to any are doing now. These people have not any SOYereign rights as or to all of the provisions contained in their constitutions, yet, and it is a question as to whether or not they are going to whereas the joint resolution on which the Senate voted at its receive them. Section 4 says: last session distinctly and expressly approved the constitution The United States shall guarantee to every State-- of Arizona. I was not able then, nor am I able now, to under­ Mark you, it is the United States that does it, all of them. stand how any Senator could vote for a resolution expressly The United States as a Government shall guarantee-­ approving a constitution unless he in fact approved it. The To every State in thls Union- question as it is presented now is so different from what it then. And of course you write in there the words, "or that may was that I would vote for it if I believed that the Arizona con­ come into the Union"- stitution establishes a republican form of gO"rermnent. a republican form of government, and shall protect each of them against I can not, however, vote for the admission of a State who8') lnvasion- constitution establishes the initiative and referendum system of She has assumed more than a passive attitude; she has as­ legislation, because I do not believe that such a system constitutes sumed responsibility when they become States of protecting a republican form of government. The men who framed the them against foreign and domestic strife. I read on: Federal Constitution thoroughly understood the different kinds and on application of the legislature, or of the executive-when the of government. They understood that _there were monarchies, legislature can not be convened-against domestic violence. aristocracies, and democracies, and they understood that That is a very important provision to bear in mind in de­ democracies were divided into two kinds, a direct or pure termining our action in this matter. democracy, and a representative democracy, which they called Senators have talked about the right that we would violate. a republic. We are not here to take away any right or to violate any right I can no more believe that a system of government which com­ of citizenship. We are here only to determine whether or not mits the legislative function to the people in their primary we shall grant statehood and on what terms. and collective capacity is a republican form of government than . A republican form of government, as was said by l\fr. Madi­ I could believe that a system which chose a man to act -as son, and it is the best pronouncement that has been made of any governor for life and then authorized him to appoint the .ler,1s­ yet upon that question, is one where the people exerciNe a gov­ lature of a State would be a republican form of government. ernment through their representatives and not directly, as in I shall not now detain the Senate wLth a discussion .of that 3736 CONGRESSIONAL RECORD-SENATE. AUGUST 8,

qtic:-tlon. hut on some future occasion I shall do so, a.nd if no law as already made than to see it assemble n.nd make the lnw measure comes before us making it appropriate, it is my pur­ which wise and upright men would be compelled to construe. pose, when the Senate shall have ample time, to introduce a The common is no place to make the law, and the common is resolution and to discuss it at length. no place to construe the law. Lawmaking requires special, However, Mr. President, I want to say-and that is the particular, profound knowledge. I do not flatter all legislators purpose for which I rose-that, in my opinion, the attack upon with the suggestion thut they possess such knowledge, but they the Arizona constitution has been made at the wrong point. must possess it if they are qualified for their task, and here The recall is infinitely less objectionable to me than either in these assembly chambers of the Nation and down in the the initiative or referendum, and the referendum is not half assembly chambers of the seTeral States alone can wise and so objectionable to me as is the initiative. equul laws be made for the people of these States and of this .As I understand the question, the initiative certainly, and Republic. · tlle referendum in slighter degree, proposes an abandonment I shall vote against the ru:nendment of the Sena.tor from of the principle of representative government and substitutes Minnesota, because a vote for it seems to say, at least by in­ direct legislation by the people for legislation by their repre­ ference, that if .Arizona will not recall her judges she may sentath·es. That violates, it seems to me, the very basic princi­ recall her legislator , her governors, and all of her other ple of this Republic. But the recall, sir, if a mistake at all, is officers. It also permits her to set her legislature adrift with­ a mere mistake of administration and not a mistake of principle. out recalling them, and through her initiative and referendum The recall is neither more nor less than the establishment of an to substitute direct legislation by the people for legislation by official tenure at the pleasure of the people. It fixes a ma.xi- their representati\es. Because I can not subscribe to that view, • mum term beyond which the officer can not serve without going Mr. President, I shall vote against that amendment, and because back to the people for a renewal of his commission, but within I can not subscribe to what this joint resolution seems to imply, that limit he holds his place simply at the pleasure of the although it does not expressly declare it-and in that respect it people. is incomparably less offensive than the old one-I shall vote I must not be understood as giving my sanction to such a ngainst it. If I believed that this constitution erected in Ari­ proposition, for I am sure that while it is merely an administra­ zona a republican form of government, I would support it, but ti'rn mistake it is still a grave mistake, which will, in time, believing, as I do, that the initiative, coupled with the referen­ dri"rn from the public service the men most worthy to perform dum, and both of them coupled with the recall, establishes a. it. I am absolutely certain that high-minded men, men of direct democracy as conb·adistinguished from a representative great intellect and exalted character, would not take the chance democracy, which in modern times we call a republic, I can not of passing through a contest for a nomination and then an support it election to procure an office when they understood that within :Mr. NEWL.A.NDS. .Mr. President, the Territories of New 60 days after they entered upon the discharge of its duties they Mexico and Arizona are applying to be admitted to the Union might be called upon to face still a third contest to retain it. of States, basing their applications upon constitutions which I haT"e no opinion clearer or firmer than that which leads me to ha-rn been adopted by a popular vote, pursuant to an enabling believe that the recall applied to all officers of the government act passed by C~mgress. Both of these constitutions contain would ultimately deter the very class of men whose service the provisions which are objectionable-one ultraconservative in State and the Republic ought to seek from accepting these great cha-meter, in that it places undue restraint upon the people offices. But the men who advocate the recall and apply it to of New Mexico in the exercise of the power of amendment of all officers, including judges, are consistent, and you deceive their constitution; the other ultraradical, in that its provision yourselves if you think that you can apply the recall to executive for a recall does not confine the contest to the mere considera­ and legislative officers without ultimately applying it to judicial tion of the record of the incumbent, but entangles that con­ officers. Do not lay that flattering unction to your souls. Let sideration with another, and that is the contest of a iivar me tell the venerable Senator from Minnesota [Mr. NELSON], candidate who may have superior power, influence, and popu·

for whose patriotism and for whose wisdom I entertain a pro­ larity, and who upon those grounds, and not upon the bad I found respect, that if his amendment should prevail Arizona record of the incumbent, may succeed to the place. \ would come into the Union, and, moved to resentment by the Mr. President, I represent in part a State whose legislation I very condition which you had imposed upon her, before her for many years has been of a progressive and adrnnced char­ statehood was a year old she would submit this same con­ acter. Years ago we destroyed the corporate oligarchy which stitutional amendment to her people and they would adopt it. controlled both parties in that State and whose vise was neces­ It makes no difference whether you adopt the amendment of the sary to success, and we established popular government. We Senator from l\!innesota or you pass the joint resolution as it is have established there the initiative, the referendum, and the proposed by the committee, it is certain that the people of .Ari­ recall. We haye established the direct primary. We have es­ zona will not abandon the recall of judges at the behest of the tablished the Oregon plan of selecting United States Senators .American Congress; and they ought not to do so. If the initia­ through the agency of a primary, and as the result of these in­ tive, the referendum, and the recall constitute a republican form creased powers of the people legislation and the administration of government, then, sir, it is a matter for the people of Arizona of that State have been measurably improved. to determine for themselves, and you trifle with the most serious We have to-day upon the statute books measures which were de­ problem in this joint resolution when you tell them to eliminate nied recognition for years, and which were demanded by right the recall of judges and still leave the initiative and the refer­ and justice-an employers' liability law, an 8-hour-day law, an endum. act organizing a railroad and public-utilities commission, rec­ .Mr. President, I am about to say what no Senator in this ognized throughout the intermountain and Pacific coast region body, perhaps, will agree with-I might safely go further and as one of the most capable and efficient commissions of the say that I am about to say what no man in this country will country. agree with now, but when they test this system they will all We have exercised there the power of referendum with ref­ come to an agreement with it later. If I must choose between erence to a statute involving in the highest degree the question ·fools or rascals for judges and fools or rascals for legislators, of law and order-a referendum inaugurated in the heat of I will take the fool and the rascal for a judge; and I will do passion, but conducted throughout its discussion with temper­ so because, if you have wise legislators, who make just and ance and terminating in a popular decision, which upheld pub­ wholesome laws, no judge will ever be foolish enough or de­ lic order, a contest absolutely educational to the entire people graded enough to sit in the presence of the people and construe of the State in all the essential principles of free government those laws against the plain letter of them. On the other and carrying with it not only the beneficial result then deter­ hand, if you have ignorant and corrupt legislators, then, sir, mined, but an educational effect that will be far-reaching in you must have unwise or corrupt legislation, and the greatest its results in the history of that State. curse that can fall upon the Nation is to have their laws made .And so, Mr. President, I stand as the friend and the advocate of in ignorance or in corruption. It is not the judge I fear, sir, so these advanced measures in the adoption of which Oregon and much as it is the legislator, for, after all, the judge must read Wisconsin have been so conspicuous, and under these measures the law as the legislator writes it, and the jury must decide the the State which I represent is as thorough an evidence of free case according to the testimony as witnesses deliver it. Give us government and absolute self-government by the people them­ wise men to make our laws, and I will have no fear about the selves as can be indicated anywhere in the country. men who construe them or the men who execute them. Mr. President, I am inclined to share with the Senator from I am not sure, Mr. President, but it is the present inclina­ Idaho the view that we are not to attach any great overwhelm­ tion of my mind, though I speak it with some reserre and I ing sanctity to the action of Territories asking admission to the may subsequently modify it, that if I were compelled to declare Union of States, mere infant communities about to enter upon my belief to-day, I would say that I would rather the multi­ the maturity of their powers. We have the right to adriiit them tude should assemble in front of this Capitol and decide the or not, as we choose, and we are to-judge whether the require·· 1911. CONGRESSIONAL RECORD-SENATE. 3737 ments as to population, as to intelligence, as to capacity for self­ A1izona to reconsider the course it adopted in the constitution government are fulfilled; and for my part, in a proper case, it submitted in relation to the recall of judges. I would not hesitate to exercise that ~ower where any gross There are Senators here who believe in the recall of judges. impropriety appears in the organic act. There are many other Senators who do not believe in the recall But whilst I object to these features to which I have referred of judges. I am one of those who does not believe in the recall in both the New Mexico and the Arizona constitutions, I regard of judges. I do not think it a wise provision to put into a the so-called Flood amendment as a happy solution of the diffi­ State constitution. But I recognize the right of the people in culty. I have faith that if there is submitted to the voters of Arizona to determine that as they may see fit. New Mexico the single proposition whether undue restraint shall I do desire, however, that a protest shall be made againit it· be placed upon them in the amendment of their organic act, that we shall say to the people of Arizona we do not approv~ they will determine that single question wisely, uncomplicated a provision for the recall of judges. I think we ought to say to as it is with other general provisions of the constitution and them-and we do say by the House joint resolution which has uncomplicated as it is with anxiety as to -the admission of the been reported favorably by the Senate Committee on Terri­ State. I shall expect the Territory of Arizona to decide, and tories-" we protest against this provision for the recall of I have faith that the people of that Territory will-when there judges, and we ask you to hear that question again and to re­ is presented to them the single question whether the recall of consider it and to vote on it again." But we say at the same judges shall be made under the conditions imposed by the in­ time that we recognize that the principle of States rights ought strument which they have framed-decide that question as to be applied to a Territory asking admission as a State as we will aecide it in this body-leaving to the future the fram­ well as to a State, and I see no logic or reason or right in say­ ing of the recall of judges, if it should be deemed wise, uncom­ ing that Arizona shall not insert in its constitution the same plicated by considerations of the power, the in1luence, or the provision which has already been inserted in the constitution popularity of a rival candidate who at the supreme moment, of the State of Oregon; I do not think it wisely inserted· but when the incumbent's record and character are at stake, is I say if the State of Arizona, after a reconsideration or' this called upon to contest with him for the election. matter, after hearing the protest which the Congress makes I shall therefore vote for the report of the committee. when it fails to admit it without asking its people to consider Mr. MARTIN of Virginia. Mr. President, I shall take only a this provision again, adheres to that provision and desires to very few moments. of the time of the Senate, and even those enter the Union with a constitution containing a provision for few moments I shall occupy with much hesitation. the recall of judges, she ought to be admitted with that pro­ The joint resolution which has been reported to the Senate vision in her constitution. That is exactly what has been done by the Committee on Territories is substantially the joint reso­ by the House joint resolution which has been favorably re­ lution which passed the House of Representatives. The Com­ ported to the Senate by the Committee on Territories. mittee on Territories did recommend two or three minor amend­ I think, Mr. President, that the Committee on Territories bas ments, which I have no doubt will be adopted and which will be disposed of this whole matter justly and wisely. It leaves tbese ad\antageous. The joint resolution which passed the House of questions to the determination of the respective States. I do not Representatives and which has been reported to the Senate by belie\e that we would gain anything by departing in any re­ the Committee on Territories does not accept either in the case spect from the report submitted to the Senate by the Committee of New Mexico or in the case of Arizona the constitution which on Territories. the people of those States adopted. There were some minor .Mr. SMITH of Michigan. Mr. President, a parliamentary departures from those constitutions which I will not advert to, inquiry. deeming it unnecessary and at this late hour inappropriate. The VICE PRESIDENT. The Senator will state it. I will refer to one chief point of difference in relation to each Mr. SMITH of .Michigan. I desire to ask whether the Territory. amendments of the committee are first in order. So far as New Mexico is concerned, the provision for the The VICE PRESIDENT. They are. The Senator from amendment of the constitution of that State amounts to a prac­ Minne ota [Mr. NELSON] having offered a substitute, it is essen­ tical prohibition of any amendments. I will not go into a dis­ tial first, under the rules of the Senate, to act upon amend­ cussion o! the circumstances which in all probability led to the ments intended to perfect the original joint resolution before adoption of such antiquated, cumbersome, and unreasonable pro­ the question upon the substitute is put. The pending question visions in relation to amendment, but simply advert to the fact is the first amendment reported by the committee, which the that the provisions are practically a prohibition on that State Secretary will read. of the right of amendment. T·he first amendment of the Committee on Territories was, in If the amendment of the Senator from Minnesota [Mr. section 4, on page 7, line 1, after the word " voter," to strike NELSON] is adopted, New Mexico would be admitted to the out " at his request" and insert " and only one ballot to each Union with a constitution containing that provision practically elector," so as to read: Said separate ballots shall be delivered only to the election officers prohibitive of any amendment. The House joint resolution, authorized by law to receive and have the custody of the ballot boxes which has been reported favorably to the Senate, objects to that for use at said election and shall be delivered by them only to the in­ provision. It does not undertake to dictate to the people of dividual voter and only one ballot to each elector at the time he offers to vote at the said general election and shall have the initials of two New Mexico in respect to the matter, but it does call attention election officer3 of opposite political parties written by them upon the to the antiquated and cumbersome provision in relation to back thereof. amendment, and does require the people of New 1\fexico to re­ consider that matter and to vote upon it again. But whether The amendment was agreed to. the people of New .:;\Jexico adopt the provision recommended by The next amendment was, in section 4, page 7, line 7, after the House joint resolution or adhere to the recommendation the word " and," to insert " if the elector desires to vote upon contained in its original constitution, the Territory is to be ad­ said amendment, the ballot," so as to read: Said separate ballots shall not be marked either for or against the mitted as a State. The Congress of the United States simply said amendment at the time it is handed to the elector by the election enters its protest against this unreasonable provision concern­ officer, and if the elector desires to vote upon said amendment, the ing amendments to the constitution. It asks thereto the atten­ ballot must be marked by the voter, unless he shall request one of the tion of the people of New l\Iexico, and requires them to reconsider elect.ion officers to mark the same for him, in which case such election those provisions and to have another vote on them. But the officer so called upon shall mark said ballot as such voter shall request. Congress at the same time tells the people of New Mexico that The amendment was agreed to. whatever they determine in respect to that matter will be ac­ The next amendment was, in section 4, page .7 line 12, after cep ted by the Congress and the Territory. will be admitted as the word " request," to insert : a St.a.te. Any elector receiving such ballot shall return the same before leaving In a similar manner I will refer to the only acute point of the polls to one of the election judges, who shall immediately deposft difference between what is recommended by the House joint the same in the ballot box whether such ballot be marked or not. resolution and the constitution of Arizona; that is, in relation The amendment was agreed to. to the recall of judges. The VICE PRESIDENT. -This completes the amendments of Mr. President, I adhere to the time-honored Democratic prin­ the committee. The question now is on agreeing to the amend­ ciple of States-rights. I believe that New l\Iexico ought to be ment in the nature of a substitute proposed by the Senator from permitted to frame her own constitution. I believe that the Minnesota [Mr. NELSON]. people of Arizona ought to be permitted to make their consti­ Mr. SMITH of Michigan. Mr. President, I realize that it tution. I am not advocating that any violent measures shall would be very improper to detain the Senate at this time, and be applied to either State, but I do feel that the Congress acts I shall not do so. However, I feel very sure that Senators will wisely when it enters its protest against the recall of judges. I indulge me for a moment while I say tbat for many years I think the Congress acts wisely when it requires the people of have been the consistent and earnest friend of Arizona and 3738 OONGRESSION AL RECORD-SEN ATE .. AUGUST 8,

New Mexico. I have believed that they should come into the Mr. JONElS. .Mr. President, I hold in my hand a clear con­ Union without further delay. Again and again I have trav­ cise, comprehensive, conservative discussion of the initi~tive ersed both those Territories. I am familiar with their geog­ referendum, and recall by Clinton W. Howard, president of th~ ra,::ihy, with their resources, with their recent development, and Washington State Bar Association. I should like to make it no Senator in this Chamber has a higher respect for the char­ a part of this discussion by asking unanimous consent to have acter of their people than myself. I greatly desire to see these it printed in the RECORD. Territorie.s come into the Union now. In the language of the The VICE PRESIDENT. Is there objection? . The Chair Senator from Oklahoma [ Ir. GoBE], whom I have no hesitation hears none. whatever in quoting, I prefer to see these States looking out of The matter referred to is as follows: the window from the inside rather than into the window from In the formation of our present system of Government, both national the outside any longer. Their population, their development, and State, and under which we have grown to be the most prosperous and powerful people on the face of the globe, none rendered more their character, their resources entitle them to membership in efficient and patriotic service than the lawyers. That they do not the American sisterhood of States, and under no circumstances possess the same influence in governmental matters at this time is due would I lay a single straw in the way of this accomplishment P3:rtly to the complex nature of our present civilization, which has withdrawn many of our brilliant members from the public councils to It has been said that the Territories have made their own the service of private interests, often justly claimed to be In conflict constitutions in their own way, as was their right. So they with those of the public. Again, some of our profession inspired by the lust of office, have become too prone to be regarded as ieaders In move­ have. I wish I had the time to discuss that aspect of the situa­ ments for ·the time being supposedly popular, but which in the end tion, with which we are now confronted. I had thought that usually result in disaster to the public welfare. Taken as a class I would go into the question of the power and extent to which however, I believe that there ls no body of men more devoted to theif country, or who entertain a greater reverence for its institutions and the Federal Government may appropriately go in fixing the laws than the lawyers. status of a people applying for admission into the Union. I Mindful of om· country's history, and inspired by 'devotion to its know how far it has gone in the past, and the limitations of interests, this association was formed. Among the objects of which are : To advance the science of jurisprudence, to promote the ad­ our power, but time forbids thorough discussion and I desist. ministration of justice, to secure proper legislation to encouro.qe a Three times I have voted as a Member of the House of Rep re· thor:ough legal education, to uphold the honor and dignity of the pro· fess10n of law, and to cultivate and encourage cordial intercourse sentatives to admit these Territories as States, and I rejoice among the lawyers of the State of Wa.shlngton. that we are upon the eve of a final settlement of this con­ In furtherance of some of these objects, our by-laws impose upon the troversy, so intimately related to the welfare and happiness of president the duty, in his annual address, of reviewing statutory these loyal and patriotic people. changes of public interest in the State. But, l\Ir. President, with a disposition to compose differences, INITI.A.TIVE .A..""lD REJi'ERE..'WUll. The las~ Ie.gis,Iature submitted to the people the question whether with the desire to get them across the threshold and into the statutory mitiative and referendum shall be provided for in the orn-anic Union, with the desire that no further obstacle may intervene to law of the State. The act does not authorize amendments to the "con­ stitution by the initiative, but pertains to the enactment, or repeal of prevent them from coming in at this time, I believe it is the statutory laws. ' height of wisdom for us to so change the pending enabling act There is possibly no subject of current thought or legislation so much as to meet the wishes of Senators who are not satisfied '\vi.th the m~sunderstood by both the advocates. nnd opponents thereof, as the initiative and referendum. Many of 1ts advocates conceive the notion present organic law of Arizona. that this is a new and untried panacea for all the political ills which Mr. President, I do not wish to engage in controversy. I shall government amon~ men ls heir to. On the other hand many of its opponents entert:im the conviction that this method of l~islation was provoke no discussion, because there is no Senator on this floor first suggested m the Populist platform at the convention held in who will go further or do more than I will do for the admission· Omaha some 18 years ago. of these two Territories without further delay. But it is be­ Each is in error, as the application of the principle of the inifritlve cause I want tllem admitted, because I am their friend, because and referendum is older than the history of legislation in America is reco~zed, to more or less extent, in every State in the Union and is of I do not wish them to be longer delayed, that I shall support familiar and frequent application in the legislative history of this mte. the amendment of the Senator from Minnesota. All depart­ The constitution of the State of Washington, while drafted by a con• vention, was not promulgated by it, but was adopted by a vote of the ments of the Federal Government must concur t.o make our people. At the same election the question of woman's suffrage tate­ action effective, and it is of no avail if we lead them to the wide prohlbit.ion, and p~rmanent selection of the se~t of government precipice and imperil their security. were respectively submitted to the voters for their determination \ It is impossible to amend our constitution without the affirmative \ It is said that Arizona is unanimous for the recall of judges. vote of a majority of the electors voting thereon. Nor cn.n any con­ I deny it. All day long I have been receiving telegrams from vention be held to draft a new constitution without authority from the voters of the State; nor can any constitution drafted by such new con­ boards of trade, from mayors of cities, and from citizens of vention have any force or validity until the same shall have been sub­ the Territory begging that this clause be eliminated and state­ mitted to and adopted by the people. These respective provisions recog­ hood assured. I can not pause to read the telegrams. It nize to the fullest extent the principles of the initiative and referendum. Nor were these provisions incorporated into our constitution by chance, would not be right to those Senators who are gathered a.round but came there advisedly and as the result of years of constitution me and who have imperative and important engagements that making in America. they must fill in a few moments. But these telegrams which I Many of the earlier constitutions of the different States of the Union were drafted and proclaimed by the act of constitutional conventions, hold in my hand, from Republicans and Democmts alike, are which conventions were neither initiated by the people nor the work all of the same purport and ask that the way may be made thereof ratified by a vote of the people. The first popular initiated and easy and certain for their prompt admission and that the ratified constitution in America was that of Massachusetts, in the rear 1780. In the constitutions o! the New England States nnd some of amendment of the Senator from Minnesota may be adopted. the Southern States we first find the fullest development of the princi­ Mr. President, I would do violence to myself if I put my rea­ ple that in the enactment of the fundamental 1aw the people must be son for supporting this amendment solely upon the ground of consulted, both as to the propriety of having a constitution at all and of ratifying or rejecting the work of the convention which drafted the expediency; but, sir, I do not favor the recall of judges in the same. manner prescribed by the constitution of Arizona. I do not Under section 6 of Article VIII of our Constitution no debt beyond believe it will be helpful to accurate, well-cons1aered, and care­ a certain limit can be incurred by municipalities without the consent of three-fifths of the voters thereof, and the plan of submitting to the ful judicial procedure. I think it would result in confusion and decision of the voters numerous questions such as pertain to the con­ lack of stability in the law and lessen our respect for the judi­ struction of schools, the changing of county seats, the incorporation cial office and demoralize the administration of justice, which of cities, the construction or purchase of municipal utilities of various kinds, local option in liquor matters, and many others that could be is the shield and reliance of the weak as well as the stl'Ong, and mentioned are of so frequent and common occurrence among us, and in that it will do great harm to our country if it should generallv many other States, as to excite little comment or nttentlon. prevail. However, I am well aware that the people of this new TR.ACES HISTORY OF MOVElIENT. State may fas'blon their own constitution as they desire, and Beginning with South Dakota in 1897, the initiative and referendum has been extended to general legislation in South Dakota, Arkansas that their course will be beyond the reach of the Federal au­ Utah, Oregon, Missouri, Maine, Oklahoma, Colorado, Montan:i, and thority, and I am glad this is so. I do not desire to penalize Arizona. It is advisory in Delaware. It is now before the people for them now for their action in this matter, but in order that irrec­ enactment in California, North Dakota, Wisconsin, Idaho, Wyoming, Nebraska, and Washington. Proposals to submit it have been defeated oncilable differences may be composed and that no further in 10 other States. Nevada and New Mexico have the referendum. obstacle may arise, I shall vote for the amendment of the In America this principle of control by the people is traceable to Sena tor from l\Iinnesotu and then for the admission of both Ter­ very early conditions in the history of the New England States nnd in some of the Southern States. It came from the old folkmoots, or ri tori es. I wish time would permit the reading of the elaborate town meetings, and it is well worth remembering that in many ot report of my brilliant and able colleague, Mr. lliMILT-ON, made these meetings, as well as in the guilds of England which preceded to the House of Representatives a few years ago; his summary them, all qualified to belong were compelled to be members and were by fine or other appropriate penalty obliged to attend the meetings 3.Ild is so convincing and his deductions so fair that I am sure no one particlJ,Jate in the deliberations thereof. . can traverse his report without concluding that the people cf In 1638 the town of Portsmouth, R. I., by popular vote, enacted the these Territories are eminently qualified for full membership in following by-law, which is submitted as an example of many of like imRort existing in other towns : ' · the Union, and I hope this day may find them safely there, It is ordered that if any of the Freemen of this Body shall not with all the blessings and all the responsibilities we enjoy. repair to the publlck meetings to treate upon the publick aJfairs of tht

I 1911. CONGRESSIONAL RECORD-SEN ATE.

Body upon publick warning (Whether by beate of the Drumm or other­ public institutions, shall take effect until 90 dR.ys after the adjourn­ wise) if they fayle one-quarter of an houre after the second sound, they ment of the session at which it is enacted. This, except as to the shall forfeitt 12 pence; or if they depart without leave they are to matters mentioned, deprives the legislature of putting any law into forfeitt the same summ of 12 pence." immediate force, regardless of the emergency existing therefor. -But These assemblies were later imitated in Illinois, Indiana, Iowa, Ore­ that is not all; regardless of the emergency and necessity for the act gon and California ; in fact, in the early history of every State. They and irrespective of whether it may have been enacted in response to an :ire' the natural outgrowth of frontier life in remote communities sepa- overwhelming demand by the people therefor, it is within the power of a rated from centralized authority. . . small minority, consisting of only 6 per cent of the vote cast for gov­ I merely refer in the most cursory manner to the history of this ernor, to hold up such law without other act than the filing of a refer­ subject with a view of allaying alarm on the one hand or too much endum petition. Unless a special session of the legislature is called to eagerness on the other, to view the initiative and referendum as a new submit such law to a special election of the people the State can thus and untried principle in legislation. be deprived of the benefit of such enactment for a- period approximating It would be instructive and exceedingly interesting to trace the his­ 20 months, a.nd that, too, notwithstanding that at such election it may tory of these early assemblies of the people through the period of popu­ be approved by an overwhelming majority of the voters of the State. lar enactment and ratification of laws, and the reasons for this system The experience of the University of Oregon on two separate occasions falling into disuse and the substitution of the dMegate system therefor. illustrates the entire probability of meritorious measures thus being To so do, however, would unduly prolong this paper, and I refer you held up. for a comprehensive review of the entire subject_ to "The People's In Oregon the constitution may be amended by a vote on initiative Law," by Charles Sumner Lobingier, published in 1009 by the Mac­ petition the same as statutory law may be enacted. As this State has millan Co. had the widest- experience of any in this species of legislation, you will TltIED OUT IN ALL STATES. be inte1·ested in and instructed by reading the addre·ss oi Hon. Frederick There is, therefore, nothing new, no.vel, or a.l~m.ing in the. ~~re V. Holman, late president of the Oregon Bar Association, delivered at statement that a given State has recogmzed the pnnciple of the uutia­ its annual meeting November 15, 1910, at Portland, Oreg., and also his tive and referendum, since there is not a State in the Union that at address on "Results in Oregon," delivered February 4, 1911, at the some neriod of its existence has not lived under a constitution at least Civic Federation of Chicago banquet. Mr. IIolman treats the entire enacted by the referendum, excepting the State of Delaware, and that subject from a lawyer's standpoint, and his observations and conclu­ State at this time has a statutory advisory initiative and referendum.. sfons should be carefully read by every voter in this State. The closing The question, however, of immediate and paramount importance lS paragraph of his latter address is as follows : whether or not it is wise to extend the npplicatlon of this principle to "Brie.fly, to summarize, then, we find that the so-called 'reserve' power the entire field of legislation or limit it in this State, as heretofore, to is greatly abused; that measures in overwhelming numbers .and many constitutional matters and to legislative questions as are of such general of them loosely drawn, are being put upon the ballot; that the per­ or local importance as to challenge public attention and insure suffi­ centage of those who do not participate in direct legislation is increas­ cient interest being taken therein on behalf of the voters to which the ing; that lack of intelligent grasp of many measures is clearly indi­ question is submitted that a fair and impartial expTession of opinion cated; that legislation is being enacted by minorities to the prejudice will be obtained. of the best interests of the majority; and that the constitution itself is While the proposed change in our constitution permits a law to be being freely changed with reckless disregard of its purpose and char­ initiated on the petition of 10 per cent of the number voting for gov­ acter." ernor at the preceding election, and to be referred on like petition of 6 The recent history of constitution making in Mississippi, South Caro­ per cent, but in no case more than 50,000 to be required to initiate, or lina, Delaware, Louisiana, Kentucky, and Virginia illustrates the wis­ more than 30,000 to refer, the vote cast upon each question or measure, dom of proceeding cautiously in the matter of the enactment of laws however, to equal one-third of tbe total votes .cast at the election, and by universal franchise. While each of the States last mentioned, with while it is provided that the legislature, in case the amendment be the exception of Delaware, had, until recent years, constitutions enacted adopted, shall provide tot· the publicity of proposed measures, it is a by the vote of the people of the State, conditions have arisen which grave questi-0n wllether it will be the part of wisdom for the people of impelled the people of these States to reverse their political history this State to adopt the proposed amendment. Our State not only covers and to return to the system of framing and promulgating constitutions a vast area, but is one of great diversity in resources, and it is but by the act of constitutional conventions, without submission of the human nature for people to take little or n-0 interest in that which is same for ratification to the vote of the people. This may be clearly everybody's business, unless it affects them in some particular manner, styled a retrogression from the principle of popular government by the so as to challenge their minute attention to the same. people. Whatever the peculiar local conditions there may have been which induced the people of these States to this course, the fact that l'OTERS Mi;ST SHOW Th"'rEnEST. they felt obliged to take such course is a sufficient warning thn.t the This condition does not prevail 'in matters of .universal ent, which excites general interest in a State. Its functions are ciple of the enactment of statutory law by a vote of the people finds no weighty and difficult, far transcending those of the regular legislature. basis or justification in the recent political history of this State. I Hence the best men in the State desire a seat in it, and, in particular, know of no popular demand for legislation of any character, excepting eminent lawyers become candidates, knowin~ bow much it will affect the reapportionment bill, that has not found a ready response from the ( the law they practice. It is therefore a body superior in composition legislature of the State, and under the primary system of nominating J to either the senate or the house of a State. Its proceedings excite members to that body I can see no excuse for any contention that it more interest, its debates are more instructive, its conclusions are more will not in the future continue to represent the wishes of the people. carefully weighed." · · It was attempted at the last session of the legislature to meet the But this situation is not true as to every law that may be proposed; requirements of the constitution by making a new apportionment as to in fact, it applies to very few of them. If some plan could be devised senators and representatives. It M'eing impossible to agree upon a as in the ancient guilds and town meetings to compel every elector to measure none was passed. We might as well be frank among ourselves go to the polls and vote, we would undoubtedly have an expression of and concede the real reason for the failure of the passage of any such sentiment which would represent the average wish and intelligence of measure. The large centers of population were anxious for the passage the State, at least so far as it is possible for electors to advise them­ of such a law, for the reason that it would result in giving them greater selves concerning matters of remote bearing and interest to their im­ local representation in one or both bodies ·of the legislature. The more mediate community. On the other hand, this law would compel all sparsely settled portions of the State were opposed to the passage of to become actively interested in every proposed enactment or suffer the such a law, because it would correspondingly reduce their existing leg­ consequences of their neglect to do so. islative influence. Now, the strange inconsistency in this matter is We were told that the direct primary would result in the selection this : The sparsely settled communities whose representation by the by the people of competent, impartial, and fearless advocates of their reapportionment would be correspondingly reduced in legislative in.flu­ interests, and since that law is now in effect there can be consistently ence were opposing the apportionment bill for this reason ; while, on the no claim that the people will not be fully represented by their members other hand, they were favoring the initiative and referendum measures, in the legislature. which would work exactly to the same end as the reapportionment. STABILITY IS FALSE WE.A.KNESS. As the matter now stands the agricultural counties of eastern Wash­ The principal inherent vice in all initiative and referendum legisla­ ington have much greater proportionate influence in the legislature, tion lies in the fact that it must be adopted or rejected as proposed. through their representatives, than they will have if the legislative It furnishes no opportunity for the interchange of ideas, which is equation is transformed to the electoral vote of the State, and I predict always fruitful of a fuller and better understanding of the subject. now that if the initiative and referendum amendment is adopted and This is the prime virtue of constitutional conventions, and the reason used to any considerable extent it will result in the control of the that the result of their labors is so generally indorsed by the people is State going to a combination of voters in the large cities, to the ignor­ the fact that discussion, suggestion, and mutual concession has per­ ing of the wishes of the agricultural communities. fected the Idea which all wish to attain, but which few are competent to WOl\IA.N-SUFFRAGE MATTER. draft unaided by su~gestion from others. The reason that a senate and 'The legislature of 1909 submitted, and at the election in 1910 the house of representatives was provided, instead of one le~islative body, people ratified, an amendment to· our constitution granting to women was for the . purpose of further conserving this opportnnity for the in- the right of suffrage. It might be the part of wisdom to give these terchange of ideas. . newly enfranchised electors a little experience in voting for candidates T he courts have frequently held acts of the directors of private cor­ before imposing upon them the additional onerous duty of directly par­ porations void where tile directors have decided upon a given course by ticipating in the enactment or rejection of ·the statutory law of the separately agreeing thereto not in a meeting at which all or a ma­ State. jority were present. The reason assigned is that no opportunity was SHORT-BALLOT MOVEMENT. thus afforded for mutual deliberation. If this opportunity is so bene­ ficial in the management of corporate affairs as to require action taken In the last year and a half there has arisen an organization known in the absence thereof to be held void, how much greater the necessity as the "Short-Ballot Organization," with which the so-called reform in applying such rule in the management of the affairs of a great State. movement is in full accord. The " short-ballot " principle is defined by this Another inherent vice in this method of legislation is to be found organization, as printed in the January, 1911, issue of Equity (a publi­ ln the fact that since a measure may be enacted or defeated by a cation devoted to direct-legislation record, the referendum news, and majority of the votes registered thereon it will not infrequently happen the proportional representation review), as follows : that through lack of general interest i-n the subject matter of the legis­ "The dangerously great power of politicians in our- country is not lation the same may be enacted or defeated by less than a majority of d1ie to any particul8.l· civic indifference of the people, but rests on the the voters who participated in the general election, since under the fuct that we are living under a form of democracy that is so unworkable proposed amendment only a majority of those voting upon the subject as to constitute, in practice, a pseudodemocracy. It is unworkable is required to enact <>r reject a law, if one-third of the votes cast in because- such election be registered on the measure; that is, 17 per cent of the "First. It submits to popular election offices which are too unim­ vote may enact 01· reject a law. portant to attract (or ~rve) public attention; " Second. It submits to popular election so many offices at one time LEGISLATIO!lr lS DEL.A.YEO. that many of them are inevitably crowded "Out from proper public at­ · Under the ,,proposed amendment no act, law, or bill, excepting such a.s tention ; and may be necessary for the immediate preservation of the public peace, "Third. It submits to popular election so many offices at one time health, or .safety, support of the Stare government .awl its existing that the business of making up the elaborate tickets necessary at every 3740 CONGRESSJON AL RECORD-SEN ATE. AUGUST 8,

election makes the political machine an indispensable instrument in opportunity to appear and be heard, which princtple of our law ls the electoral action. very keystone to the protection of life, liberty, property, and reputa­ "Many officials, therefore, are elected without adequate public tion. 'Ihe proposed amendment is a clear reversion to the democratic scrutiny and owe their selection not to the people, but to the makers days of ancient Greece, when the populists, inspired by the orator o! the of the party ticket, who thus acquire an influence that is capable of day, tried, adjudged1 and sentenced, exercisrng on the spur of the great abuse. moment those functions which the wisdom of a~es has established "The 'short-ballot' principle is: should be divided into executive, legislative, and judicial departments. " First. That only those offices should be elective whlch are im­ portant enough to attract (and desen·e) public examination. LINCOLN WOULD HAVE FALLEN. " Second. That very few offices should be filled by election at one The Hon. Charles G. Dawes, late Comptroller of the Currency, in a time, so as to permit adequate and unconfused public examination of recent address, viewed this subject in the light of history, in words so the candidate::.' forcefully applicable to the subject under consideration that I have It is difficult to comprehend why each proposition above outlined is taken the liberty to quote him at some length. During the course of not applicable to the initiative and referendum in statutory matters. his remarks he said : Laws too unimportant to attract or deserve public attention may be " Suppose we had had this power of recall vested in the people of the so submitted. It is entirely possible and probable that so many laws United States when A-firaham Lincoln stood against the voice of the may be submitted at one time that many of them will inevitably be radical and the voice ot the aggressive and again t the clamor ot the crowded out from proper public attention, so that many laws may unthinking, against the thousands of those demanding that he take be thus enacted without adequate public scrutiny and owe their immediate action on this or that question, and that in consequence he enactment not to the people but to the makers and framers of such had been compelled either to be precipitate in some of those issues upon laws, who thus acquire a legislative influence that ls capable of great which hung the safety of this Republic or to abandon the helm of the abuse. If we are to draw any analogy from the suggestions of this struggling ship of state. organization, it is that only matters of a constitutional nature or " Every great man in our history whose memory the people love and those sufficiently important to attract and deserve public examina­ revere has had at one time to stand against what was the immediate tion, such as are already provided for in the laws of this State, should positive popular demand for action, and it was because he stood against be subject to initiative and referendum control, and that only such the demand that we to-day look upon him as great. few important measures should be submitted at one time as to per­ " The men who stand as the beacon lights in American history were mit of adequate and unconfused public examination of the same. It not the men who were always at the head of every popular movement must everywhere be conceded that the vote for candidates is larger among the people of the United States, and if this country is to endure than for measures submitted at the same election. Hence any reasons this kind of a man, in the future of o'ur country as much if not more calling for restrictions on voting for candidates must apply with tha.n in the past, must have his opportunity to stand by his policy even greater force to voting upon measures. ~m1~st •the clamor of the majority against him at the time being. The last Federal census gave the State of Washington the largest percentage of increase in population of any State in the Union. While "Suppo e that there had been the right of recall among the soldiers undoubtedly its climate and resources vastly contributed to this in­ of the Army of the Potomac during the Battle of the Wilderness ! Sup­ flux of population, the wisdom and stability of its laws helped in no pose that Gen. Grant had not had the chance to work out his policy I small degree. The constitution under which we have existed, with Suppose that Grant had not had the chance to save this Government! few amendments, for nearly 22 years was adopted by a vote of the My friends, in government as in war, before an Appomattox we can not people after a convention of able men had in a painstaking manner always avoid a Wilderness. carefully considered its various provisions. Now, since the recent " We have had instances where popular clamor had its way. This legislative history of this State does not show a disregard of the will country even yet does not forget the humiliation it su.ffered at the of the people, as reflected in legislative enactment, and since many beginning of the Civil Wal', when the time which was being taken by conservative people and investors view with alarm the tendency of wise men for the preparation of the forces of the North was too long certain Western States to adopt what they are pleased to call freak for the impatience ot a people bent on action; and we had the cry legislation, it is well worth the serious consideration of all of the "On to Richmond!" and a brave Army was sent to battle, contrary to voters of the State whether it would not be to our material advance­ sound judgment, in response to an overpowerJng demand of a people ment as a State if we should, by our votes upon the proposed amend­ who were not informed of the real situation, and as a result came the ment to the constitution, decline to adopt the initiative and referen­ crushing, bitter, terrible humiliation of null Run. dum at this time, or at least in its present form, and until some "Do not make of your Republic a Bull Run. I saw President Mc­ corollary legislation shall be proposed which shall prevent the abuse Kinley at the beginning of the Spanish War, when he put in jeopardy to which the proposed change is at present susceptible, and until the his leadership of his party and of his people in his endeavor to avert electorate of the State is required by law, as in the ancient guilds and the war as well as to. obtain time for adequate military preparation town meetings, to attend upon and participate in all proposed initia­ and an almost overwhelming demand came from the people for Imme~ tive and referendum legislation. diate ac~lon ; but his firmness in not yielding to it, gentlemen, is his true claim upon fame." COUMISSION GOVERNME~T. In apparent contrast to the democratic tendency of control by the SUPREME COURT JUDGES TOUT FOR VOTES. people is the act authorizing cities containing 2,500 and less than The last legislature, in my judgment, enacted an unwise measure 20,000 inhabitants to organize under what is known as the commission when it restored to the direct primary the nomination of supreme court form of government. Its principles are now too generally under tood judges. This method was in use a few years since, and under it three to justify comment, further than to say that its main object ls ap­ judges wel'e elected to the supreme bench. There were numerous can­ parently to consolidate power and authority, including that of the didates, and it was indeed a pitiful sight to see them gumshoeing up appointment of all subordinate municipal officers, in the hands of three and down the State looking after votes like a ward politician. The men-a mayor and two · commissioners. However, the initiative, ref­ life which judges lead separates them from the people. They prac­ erendum, and recall are expressly provided for, and franchises for tically become recluses, and few excepting attornevs know the nature most all public utilities, excepting steam railroads, must be authorized or extent of their vastly important service to the State or are able to by a majority of the electors voting thereon at a general or special judge of the ability and character of their work. I believe that the election. It might be well to postpone the incorporation into our great majority of the people of this State want to vote right on the constitution of the initiative, referendum, and recall in State matters question of the election of supreme court judges, and that they would pending the observation of its operation in local affairs, since as to the frankly admit what everyone excepting members of the legislature latter, should the same prove to be detrimental to the development knows to be the fact-that not 5 per cent of the voters of the State of the municipalities of the State, the same can be changed by the legis­ know who the supreme judges are or what terms are next to become lature. vacant, and are only too anxious to have some responsible body set its Chapter 17 of the acts of the last session was introduced and seal· of approval upon the nominees for this office. This was amply passed to cover a local situation alleged to exist in Spokane. The demonstrated in the last ·election, when the nominees of the Republican object claimed for it was to authorize that city to adopt the commis­ Tacoma convention were elected by very large majorities, and that, too, sion form of government. The act is properly applicable only to cities in the face of repeated misrepresentation and abuse. Supreme court of the first . class. Among other things, it purportS" to validate the in­ judges should eithe1· be appointed by the governor or elected by the· clusion in such charters of the initiative, referendum, and recall. people upon nomination by a nonpartisan convention, as recommended Under the subsequent decision in Walker v. City of Spokane. the by resolution of this association, passed at its last meeting, which e.ct proved to be unnecessary. Its phraseology, however, is' such resolution is as follows: as to leave possible room for the contention that the legislature in­ "\Ve favor an absolutely nonpartisan judiciary and to that end tended to make operative some charter provisions theretofore invalid recommend that the statutes be so amended as to provide for the by reason of contlic.1: with statutory enactment or for want of the nomination of all judges, by judicial conventions, composed of delegates same. Whether the legi lature attempted to or could under our con- elected by the whole people for that purpose only, and that no other ' stitution and in this manner relieve such cities of existing legislation business shall be transacted by such convention than to nominate inconsistent with their charters present some interesting questions judges, the judges so nominated to be elected at the general elections." tliat should be determined at an early date. Fortunately under our constitution no such permanent and irreconcilable conflict betwt>en WORKME~'S COl\IPEXSATION. State and municipal control can arise as prevails in Ore~n, which At the last session a workmen's compensation act was enacted which, conflict in that State is so conci!;lely pointed out by Mr. Holman in for protection to the employee, finds no parallel ln the history of any his address before the State Bar Association. other State In the Union. That some such law should have been en­ a'cted is conceded by all right-thinking men. The law, as framed and RECALL AMENDMENT. orig"inally introduced, and which in response to a popular wave would pos­ The last legislature also proposed an amendment to the constitution sibly have been enacted by an initiative vote had we such system in force to be voted upon in the November, 1912, election, providing for the at the time, was clearly unconstitutional. It was later amended by recall of all elective officers, excepting judges. The exception is the its friends, but only after the benefit of conference, discussion, and only merit contained in the proposed amendment. The experience of committee work had brought out and developed the bill in all its some of our cities with this freak species of legislation has alreadv phases. In view of the fact that the validity of this act is now pend­ made them the laughing stock of the country. A public officer should ing before the supreme court of the State, it would be highly im­ ha>e the courage of his convictions, but in these days 0£ vicious mis­ proper for me at this tirae to comment upon its various proviRions. representation by the partisan press there ls no official, however, up­ Suffice to say, that sooner or later some valid, fair, honest, and im­ right and honorable in the dlscharcre of his duties, who is not subject partial law covering this subject will be enacted in this State, and I to the whims and caprices of a minority of bis representatives and predict that such result is much more likely to be accomplished by the liable at any time. at great expense and inconvenience to himself and combined wisdom of the legislature, after full consideration and dis­ to the public, to be called upon to defend his title to the office. Few cussion, than by the vote of the people of the State for or against a men are ever elected to public office without there being cast against particular bill and as submitted with no oppo1·tunity of amendment. them in such election a greater percentage ot the vote than is re­ quired to compel such officer to contest again for the office to which PUBLIC UTILITIES COMMISSION. he has been elected, by the initiation of a reca.11 election under the pro­ The last legislature substituted for the railroad commission a publlc posed amendment; all of which can have but one effect, namely, to utilities commission, and vastly enlarged its powers, bringing under its induce the agitator and demagogue to run !or office, while deterring jurisdiction, in additfon to railroads, telegraph, telephone, and ware­ men of charnctcr and ability from offering their services to the public. house companies theretofore under the jurisdiction of the railroad com­ Our laws already make ample provision for the removal from office of misi:>ion, the various electric-lighti power, street-car, gas, and water com­ unfaithful public officials; the method, however, usually requiring some panies in the State and to a lmited extent the municipally owned 1911. CONGRESSIONAL RECORD- SEN ATE. 3741

utilities. The bill as originally •drawn assumed the same jurisdiction of .LA WYERS ARE LIGHTHOUSE KEEPERS. the municipruJy owned utilities as of those of private companies. The Lawyers, of all others, should be the lighthouse keepers; to see to it municipalities of the State, however, following the deplorable example that the channel is marked, the reefs and shoals indicated, so that the of those of Great Britain-whose course has done more to retard the ship of state may safely proceed upon her course, freighted as she is development of street and interurban railways, electric-light and gas with the life, liberty, property, and reputation of her citizens. It there­ plants in Great Britain than any other single factor-succee~ed in in­ fore becomes our public duty to examine and weigh carefully these ducing the legislature to relieve them largely from the operat10~ of the measures which the last legislature has submitted to the people of the act. The main justification for acts of this character is that the State, State for ratification or rejection at the November, 1912, general through its proper commission, may· stand between the producer of a election. commodity and the consumer thereof, to the end that ·the best and most At no time in the history of the State as now is such an opportunity efficient product may be furnished to the consumer under the most rea­ afforded and obligation imposed upon the lawyers to give to their fellow sonable circumstances and price. There is no well-founded reason why citizens wise and impartial c9unsel on these matters of grave public · this principle is not applicable to municipally owned plants the same as concern. It is our sworn duty to lay aside every motive of private in· private ones. terest and, with a view solely to the public good, resume the pl!!.ce in However, municipalities are required to keep the same systi:m of the public confidence and council which our predecessors occupied in bookfl, to publish their rates, and to change them only upon noti~e to the formation of our Government. In the discharge of this duty we the commission, as a're privately owned utilities. A faithful comphanc.e may be publicly abused and our motives misrepresented. It may then with this act will soon result in advising the citizens of a given munici­ be a help and inspiration to recall the words of James Otis in his pality whether their public utilities are self-supporting and ~ asset of memorable address delivered in Boston in 1761 in opposition to " writs the city, or are running at a loss and in part, at least, maintamed from of assistance " : general taxation. "The only principles of public conduct that are worthy of a gentle­ 'fhe State of Wisconsin, which is conceded to be fairly progressive in man or a man are to sacrifice estate, ease, health, and applause, and its legislation, rec~nlzes the principle of a legalized monopoly in J?Ublic even life, to the sacred calls of his oountry. These manly sentiments utilities ; that is, iI there is a privately owned plant or a municipally in private life make the good citizen, in public life the patriot and the owned plant (each cf which is under like control by the commission) hero." aire:idy doing business in any community, neither the city can eng3:ge in, nor any citizen or corporation can obtain a franchise to en~age 1?• Tile VICE PRESIDENT. The question is on agreeing to the a lffie business in that community without first obtaining from the rail­ road commission of the State an order of public necessity and con­ substitute offered by the Senator from Minnesota [l\Ir. NELSON] . venience, the theory being that the commission will require the existing l\1r. NELSON. I ask for the yeas and nays on the amend- utility, whether publicly or privately owned, to take care of the public in ment submitted by me. . an efficient manner and at a reasonable cost and not impose upon it the burden of maintaining several plants of the same character, since his­ The yeas and nays were ordered, and the Secretary proceeded tory has shown that sooner or later they are consolidated, and much to call the roll needless equipment eliminated, and the cost thereof is uniformly urged Mr. BR.A11.TDEGEE (when his name was called). On this to 11e taken into consideration in fixing the rate of return to be earned by the consolidated enterprise. amendment I am paired with the senior Senator from Ohio [Mr. BURTON]. He being absent, I withhold my ·rnte. GOVEBNMENT BY SEKTIMENT. Mr. CULBERSON (when his name was Called). I transfer This State, to its everlasting disadvantage, is to-day reaping the dis­ [Mr. astrous results of government by sentiment and hysteria instead of by my general pair with the Senator from Delaware DU law. The school and other public lands to which it is justly entitled PONT] to the Senator from Indiana [l\Ir. KERN], and vote are being withheld on one pretext and another until approxiinately one­ "nay." third of the area of the State is embraced in so-called forest. and other a reserves. In the older States of the East, South, and Middle West, vll­ Mr. DILLINGHAM (when his name was called). I have lages, towns, and cities have everywhere grown up around the water­ general pair with the senior Senator from North Carolina [l\Ir. falls and power sites of its rivers and streams. The opportunity of like TILLMAN], which I transfer to the senior Senator from Massa­ developi;nent here has been denied to the people of this State, and pri­ marily, if not indeed exclusively, justified upon the plea that it is chusetts [Mr. LonGE] upon all votes during the present legisla­ essential for the Federal Government to pursue this course in order to tive day. On this question I vote" yea." protect present and future generations f,rom the control of grasping l\Ir. BURNHAM (when l\1r. GALLINGE&'s name was called). water-power monopolies. . l\Iy colleague [l\Ir. GALLINGER] is necessarily absent. He is The utter baselefisness of such a plea is shown by the opinion of the supreme coprt of this State in the case of Tacoma -v. Nisqually Power paired with the Senator from Arkansas [l\1r. DAVIS]. Co. (57 Wash., 420). The point in this case to which I particularly Mr. OWEN (when l\1r. GoBE's name was called). I announce refer is the holding that the public, in this case represented by a that my colleague [Mr. GoBE] is paired with the Senator from municipal corporation, has the paramount right by eminent domain to appropriate to its own use, and that of the public which it represents, Connecticut [Mr. McLEAN] . ;' a privately owned water-power site and plant, notwithstanding that the Mr. CLAPP (when Mr. GRONNA's name was called). The / same be at the time employed and engag-ed in a public-service capacity. junior Senator from North Dakota [Mr. GRONNA] is unavoid­ ( This being the law of this State, how can it ever be claimed that there is any justification for the contention, repeatedly reiterated on tbe part ably detaine(l from the Chamber: He is paired with the Sena­ of the Federal Government's policy, that it is necessary to withdraw tor from California [Ur. PERKINS]. If present, the Senator from u e vast water-power sites of this State, and to permit their devel­ opment only under such regulations as Congress may prescribe in oqler from North Dakota would vote "nay." . to prevent the absorption of the same and a monopoly to the detriment Mr. SHIVELY (when Mr. KERN'S name was. called). My of the public. In addition to this most every use to which a water colleague [Mr. KERN] is unavoidably absent from the city. If power in this day can be economically devoted would result in it fall­ he were present, be would vote "nay." He is paired with the ing within the jurisdiction of the public-utility commission of the State, which has ample power to protect the people against extortion or any Senator from Delaware [l\Ir. DU PONT]. of t he consequences so recklessly predicted by the so-called conserva­ Mr. CRANE (when l\1r. LoDGE's name was called). l\Iy ool­ tionists. league [Ur. LonaE] is detained from the Senate. He is paired '.rhe by-laws do not contemplate a review of Federal laws by the President, but provide for a report from the committee on Federal with the Senator from South Carolina [Mr. TILLMAN]. If my legislation, of which Judg-e Hanford is chairman. I shall therefore colleague were present, he would tote "yea" on this propo­ make no further reference to such legislation, as it will be fully covered sition. in a much more comprehensive and able manner by the chairman of such committee. l\1r. NELSON (when l\fr. McCu:MBER's name was called). The Senator from North Dakota [l\fr. McCUMBEB] is unavoidably GOVERNME:XT OF LAWS. absent. He is paired with the senior Senator from Mississippi Our present system was designed to and has established a government not of men but of laws. The constitution adopted by the people, with [Mr. PERCY]. If the Senator from North Dakota were present, its coordinate branches of government, was intended to operate as a be would vote " yea." check a.nd a restraint upon each department and upon the people them­ l\fr. WILLIAl\IS (when Mr. PERCY,s name was called). l\Iy seh·es. It established a representative form of ,government, with definite tenure of office, and, as i1 in prophetic anticipation of the present move­ colleague [Mr. PERCY] is paired with the Senator from North ment for return to government by a pure democracy, provided in arti­ Dakota [Mr. l\IcCUMBER]. If my colleague were present, he cle 1, sf>ction 32, that " a frequent recurrence to fundamental princi­ would vote "nay." • ples is essential to the security of individual rights and the perpetuity of free government:· Ur. PERKINS (when his name was called). On the pending The proposed initiative and referendum amendment denies to the amendment I am paired with the junior Senator from North execntive the veto power as to laws so enacted. This power has seldom, Dakota [Mr. GnoNNA]. He is absent on account of sickness in if e•er. been abused in this State, but, on the contrary, has often been the means of preventing unwise and sometiines vicious legislation. While his family. If he were present, he would vote " nay " and I this particular amendment applies only to statutory enactment, leaving should vote " yea." such statutes like those passed by the legislature subject to existin"' l\1r. SMITH of l\faryland (when l\Ir. RAYNER'S name was ·constitutional limlta1.lons and judicial interpretation, it can not be denied that the ultimate object of its authors and other advocates of called). l\Iy colleague [l\Ir. RAYNER] is paired with the senior the direct le!!islativc- movement is to establish the principle that all Senator from Utah [:Mr. SuTHEBL.AND]. power, legislative, executive, and judicial, shall be exercised by the un­ Mr. restrained will of the majority. However, the plan submitted here like Mr. 'CURTIS (when the name of SMITH of South Carolina that in other States, does not even possess the merit of being consistent was called). I was requested to announce that the Senator with this claim of majority rule, since under it minorities may control from South Carolina [Mr. SMITH] is paired with the Senator as, in fact, they are doing in Oregon and elsewhere in many matters submitted. · from Delaware [l\Jr. RICHARDSON] . The deliberate judgment of the people may always be relied upon. l\Ir. SMOOT (when l\fr. SUTHERLAND'S name was called). Not every expression of popular will, however, is what the people them­ l\Iy colleague [l\Ir. SUTHERLAND] is unavoidably detained from s<:lves wish when they have had opportunity and time for re.fl.ection. the Senate. He has a general pair with the Senator from Mary­ Too often in our history have agitators. attempted to commit the people [l\fr. If to unwise mea~res by di.sph,1.ying banners, whic.h j:o the pnblic view land RAYNER] . my colleague were here, he would vote rPad "For reform," but on the back of which can usually be found the "yea." .label, "Candidate for office." The roll call was concluded. CONGRESSIONAL RECORD- SEN ATE. AUGUST 8,

l\fr. TAYLOR. My colleague [Mr. LEA] is absent from the NOT VOTING-19. city on account of illness in his family. Burton Gore Lorill er Richardson Davis Gronna Mccumber Smith, S. C. Mr. MYERS. I was requested to announce that the Senator du Pont Kern McLean Sutllerland from Arkansas [Mr. DAVIS] is paired with the Senator from Frye Lea Percy Tlllman New Hampshire [Mr. GALLINGER]. This announcement will Gallinger L<>dge Rayner stand for the day. So the joint resolution was passed. It is as follows: The result was announced-yeas 26, nays 43, as follows: Resolved, etc., That the Territories of New Mexico and Arizona are YEAS-26. hereby admitted into the Union upon an equal footing with the original States, in accordance with the terms of the enabling act approved June Bradley Curtis Nelson Smith, Mich. 20, 1910, upon the terms and conditions hereinafter set forth. The ad­ Brigas Dillingham Nixon Smoot mission herein provided for shall take effect upon the proclamation of Burnham Gamble O'Gorman Stephenson the Pt·esident of the United States. when the conditions explicitly set Clark, Wyo. Guggenheim Oliver Warren forth in this joint rei'olution shall have been complied with, which Crane Hey bum Page Wetmore proclamation shall issue at the ca1·llest practicable time after the Crawford Kenyon Penrose results of the election herein provided for shall have been certified to Cullom Lippitt Root - the President, and also after evidence shall have been submitted to him NA.Ys-43. of the compliance with the terms nnd conditions of this resolution. Bacon Clarke, Ark. Martin, Va. Simmons The President is authorized and directed to certify the adoption ot Bailey Culber on Martine, N. J . Smith, Md. this resolution to the governor of each Territory as soon as practicable Bankhead Cummins Myers Stone after the adoption hereof, and each of said governors shall issue his Borah Dixon New lands Swanson proclamation for the holding of the first general election as provided Bourne Fletcher Overman Taylor for in the constitution of New Mexico heretofore adopted and the Bristow Foster Owen Thornton election ordinance No. 2 adopted by the constitutional convention of Brown Hitchcock Paynter Townsend Arizona, respectively, and for the submission to a vote of the electors Bryan Johnson, Me. Poindexter Watson of said Territories of the amendments of the constitutions of said pro­ Chamberlain Johnston, Ala. romerene Williams posed States, respectively, herein set forth in accordance with the terms Chilton Jones Ileed Works and conditions of this joint resolution. The results of said elections Clapp La Follette Shively shall be certified to the President by the governor of each of said Terri­ tories; and if the terms and conditions of this joint resolution shall NOT VOTING-21. have been complied with, the proclo.mation shall immediately issue by Brandegee Gore Mccumber Smith, S. C. the President announcing the result of said elections so ascPrtained, Burton Gronna McLean Sutherland and upon the issuance of said proclamation the proposed State or Davis, Kern Percy Tillman States so complying shall be deemed- admitted by Congress into the du Pont Lea Perkins Union upon an equal footing with the other States. Frye Lodge Rayner SEC. 2. That the admission of New Mexico shall be subject to the Gallinger Lorimer Richardson terms and conditions of a joint resolution approved February 16, H>ll, and entitled "Joint resolution reaffirming the boundary line between So Mr. NELSON'S amendment was rejected. Texas and the Territory of New Mexico." The joint resolution was reported to the Senate as amended, SEC. 3. That before the proclamation of the President shall Jssue and the amendments were concurred in. announcing the result of said election in New Mexico, and at the same time that the State election aforesaid is held, the electors of 1.'he joint resolution was read the third time. New Mexico shall vote upon the following proposed amendment of The VICE PRESIDENT. The question is, Shall the joint their State constitution as a condition precedent to the admission of resolution pass? said State, to wit: "Article 19 of the constitution, as adopted by the electors of New l\Ir. BAILEY. I ask for the yeas and nays on the passage of Mexico at an election held on the 21st day of January! A. D. 1911, the joint resolution. be, and the same is_ hereby, amended so as to read as fo lows: The yeas and nays were ordered, and the Secretary proceeded "'ARTICLE 19. to call the rol1. " 'AME:NDllE"XT. Mr. CULBERSON (when his name was called). I transfer "'SECTION 1. Any amendment or amendments to this constitution my general pair with the Senator from Delaware [Mr. nu may be proposed in either ·house of the legislature at any regular ses· PONT] to the Senator from Indiana [Mr. KERN], and vote" yea." sion thereof; and if a majority of all members elected to each of the two houses voting separately shall vote in favor thereof, such pro­ l\Ir. BURNHAM (when Mr. GALLINGER's name was called). posed amendment or amendments shall be entered on their respective I desire to make the same announcement in reference-to my journals with the yeas and nays thereon. co1league [l\Ir. GALLINGER] as I made on the previous roll call. " ' The secretary of state shall cause any such amendment or amend­ ments to be published in at least one newspaper in every county of .Mr. OWEN (when .Mr. GORE'S name was called). I wish to the State, where a newspaper is published once. each week, for four announce that my colleague [Mr. GoRE] is paired with the Sen­ consecutive weeks, in Enghsh and Spanish when newspapers in both ator from Connecticut [l\Ir. McLEAN] . of said languages are published in such counties, the last publication to be not more than two weeks prior to the election at which time l\fr. CLAPP (when l\Ir. GnoNNA's name was called). I make said amendment or amendments shall be submitted to the electors of the same announcement again for the junior Senator from the State for their approval or rejection ; and the said amendment or North Dakota [l\Ir. GRONNA] as on the previous roll ca.ll. If amendments shall be voted upon at the next regulat· election held in said State after the adjournment of the legislature proposing such he were present, he would vote "yea." amendment or amendments, or at such special election to be lleld l\!r. WILLIAMS (when l\fr. PEncY's name was cal1ed). I not less than six months after the adjournment of said legislature, at wish to repeat the announcement I have previously made. My such time as said legislature may by law provide. If the same be ratified by a majority of the electors voting thereon, such amendment colleague [1\fr. PEBcY] is paired with the senior Senator from or amendments shall become part of this constitution. If two or 'North Dakota [Mr. McCm..IBER] , If my colleague were present. more amendments are proposed, they shall be so submitted as to enable he would "yea." the electors to >ote on each of them separately : Provi

SEC. 4. That the probate clerks of the several counties of New Mexico amendment a part of the constitution of the proposed State of Arizona, shall provide separate ballots for the use of. the electors at said first and thereupon the same shall become and be a part of said con titution ; State election for the purpose of voting upon said amendment. Said but if the same shall fail of such majority, then section 1 of article separate ballots shall be printed on paper of a blue tint, so that they 8 of the constitution of Arizona, as adopted on February 9, 1911, shall may be readily distingui hed from the white ballots provided for the remain a part of said constitution. election of county and State officers. Said separate ballots shall be Except as herein otherwise provided said election upon this amend­ delivered only to the election officers authorized by law to receive and ment shall be in all respects, except as to the educationa1 qualification of have the custody of the ballot boxes for use at said election and shall electors, subject to the election laws of Arizona now in force. be delivered by them only to the individual voter and only one ballot to each elector at the time he offers to vote at the said general elec­ MESS.A.GE FROM THE HOUSE. tion, and shall have the initials of two election officers of opposite A message from the House of Representatives, by J. C. South, political parties written by them upon the back thereof. Said separate ballots shall not be marked either for or against the said nmendment at its Chief Clerk, announced that the House had agreed to a con­ the time it ip banded to the elector by the election officer, and if the current resolution (II. Con. Res. 3) providing for the printing electot· desire:!; to vote upon aid amendment, the ballot must be marked of 17,100 copies of the proceedings upon the unveiling of the by the voter, unless he shall request one of the election officers to mark the same for him, in which case such election officer so called upon shall ·statue of Baron von Steuben in Washington, D. C., December mark said ballot as such voter shall request. Any elector receiving 7, 1910, in which it requested the concurrence of the Senate. such ballot shall return the same before leaving the polls to one of the The message also announced that the House had passed the election judges, who shall immediately deposit the same in the ballot box, whether such baUot be marked or not. No ballots on said amend­ following bills, in which it requested the concurrence of the ment except tho. e so banded to said electors and so initialed shall be Senate: deposited m the ballot box or counted or canvassed. Said separate bal~ H. R. 2925. An act to extend the privileges .of the act ap­ lot shall have printed thereon the proposed amendment in both the English and the Spanish language. There shall be placed on said ballots proved June 10, 1830, to the port of Brownsville, Tex. ; two blank square with dimensions of one-haif an inch and opposite one H. R. 6098. An act to authorize the Campbell Lumber Co. to • of said squares shall be printed in both the English and the Spani h lan­ construct a bridge across the St. Francis Ri'ver from a point in guage the word ~ "For constitutional amendment," and opposite the · other blank square shall be printed in both the English and Spanish Dunklin County, 1\.10., to a point in Clay County, Ark. ; language the word<; "Against constitutional amendment." H. R. 6747. An act to reenact an act authorizing the con­ Any elector desiring to vote for said amendment shall mark his struction of a bridge across St. Croix River, and to extend the ballot with a cross in the blank square opposite the words "For con­ stitutional amendment." or cause the same to be so marked by an elec­ time for commencing and completing the said structure; tion officer as aforesaid, and any elector desiring to vote against said H. R. 7693. An act to authorize the town of Logan, Aitkin amendment shall mm·k bis ballot with a cross in the blank square County, Minn., to construct a bridge across the Mississippi opposite the words "Against constitutional amendment," or cause the same to be so marked by an election officer as aforesaid. River in Ait1..'in County, Minn.; SEC. 5. That said ballots shall be counted and canvassed by said H. R.11021. An act to authorize the Levitte Land & Lumber election officers, and the returns of said C'lection upon said amendment Co. to construct a bridge across Bayou Bartholomew, in Drew shall be made by said election officers direct to the secretary of the Territory of New Mexico at Santa Fe, who, with the governor and chief County, Ark. ; justice of said Territory, shall constitute a caµvassing board; and they, H. R. 11022. An act to authorize the bridge directors of the or any two of them, shall meet at said city of Santa Fe on the third Jefferson County bridge district to construct a bridge across the ·Monday after said ell'ction and shall canvass the same. If a majority of the legal votes cast at said election upon said amendment shall be Arkansas River at Pine Bluff, Ark.; In favor thereof, the said canvassing board shall forthwith certify said H. R.11321. An act to authorize the Twin City & Lake res.ult to the governor of the Territory,. together with the statement Superior Railway Co. to construct a bridge across the St. Croix of votes cast upon the question of the ratification or rejection of said amendment; whereupon the governor of said Territory shall by procla­ River between Cliisago County, Minn., and Polk County, Wis.; mation declare the aid amendment a part of the constitution of the and proposed State of New Mexico, and thereupon the same shall become H. R.12051. An act for the relief of the city of Crawford, in and be a· part of said constitution; but if the same shall fail of such majority, then article 19 of the constitution of New Mexico as adopted the State of Nebraska. on January 21, 1911, shall remain a part of said constitution. The message further announced that the House had agreed Except as herein otherwise prnvlded, said election upon this amend­ to the report of the committee of conference on the disagreeing ment shall be in all respects subject to the election laws of New Mexico 11ow in force. votes of the two Houses on the amendments of the Senate to SEC. 6. That the fifth clause of section 2 of "An act to enable the the joint resolution (H. J. Res. 1) to correct errors in the en­ people of New Mexico to form a constitution and State government and rollment of certain appropriation acts approved March 4, 1911. be admitted into the Union on an equal footing with the original States; and to enable the people of Arizona to form a constitution ENROLLED BILLS SIGNED. ~nd be admitted into the nion on an eqnal tooting with the origmal The message also announced that the Speaker of the House States." approved June 20, A. D. 1910, be, and the same is hereby, amended so as to read as follows : had signed the following enrolled bills, and they were there- " Fifth. That said State shall never enact any law restricting or upon signed by the Vice President: abridging the right of suffrage on account of race, color, or previous S.1149. An act permitting the Minneapolis, St. Paul & Sault condition of servitude." · EC. 7. That before the proclamation of the President shall issue, Ste. .Marie Railway Co. to construct, maintain, and operate a nnnouncinj? the result of said election in Arizona, and at the same time railroad bridge across the St. Croix River between the States that the State election is held, as aforesaid, the electors of Arizona of Wisconsin and Minnesota; shall vote upon the following proposed amendment to their State con- stitution as a condition precedent to the admission of said State, to wit: S. 2732. An act to authorize the Providence, Warren & Bristol "Section 1 of article 8 of the constitution of the State of Arizona, Railroad Co. and its lessee, the New York, New Haven & Hart­ adopted by the electors of said State at an election held on the 9th ford Railroad Co., or either of them, to construct a bridge across day of February. A. D. 1911, he, and the same is hereby, amended, so as to read as follows: the Palmers or Warren River, in the State of Rhode Island; and " 'ARTICLE s.-REl\IOVAL FROM OFFICE S. 2768. An act to authorize the St. Louis-Kansas City Elec- " 'i. RECALL oF PUBLIC OFFICERS. · tric Railway Co. to construct a bri~ge across .the Missouri River "'SECTION 1. Every public officer in the State of Arizona, except mem-1 at or near the town of Weldon Spnngs Landing, .Mo. bers of the judiciary, holdi.ng an elective office, either by election or PETITIONS AND MEMORIALS. appointment, is subject to recall from such office by the qualified electors , . . of the electoral district from which candidates are elected to such Mr. 0 GORMAN presented a memorial of the Ancient Order office. Such electoral district may include the whole State. Such of Hibernians of Richmond County, N. Y., remonstrating against number of said electors as. shall equal 25 per cent of the num~er of the ratification of the proposed treaty of arbitration between votes cast at the la t precedmg general election for all of the candidates . . . for the office held by such officer may, by petition, which shall be known the United States and Gre.at Britam, which was referred to the as ~ r('call petition, dema:r;id his recal!.'" Committee on Foreign Relations. '.fhe ballots to ~e provided for said first State election shall have He also presented a memorial of the Commercial Club of prmted thereon this proposed amendment and there shall be placed on . . said ballots two blank squares with dimensions of one-half an inch and Omaha, Nebr., remonstratmg agamst the passage of the so­ opposite one of said squares shall be printed the worils "For constitu- called cold-storage bill, which was referred to the Committee tional amendment" and opposite the other blank square shall be printed n· 11.fanufactures the words "Against constitutional amendment." O .1., · • • .Any elector desiring to vote for said amendment shall place a cross He also presented petitions of J. McDentt. G. J. Shepar, in th~ blank square . opposite the wo.rds "For constitutional amend- G. Kane J. Walker, B. Alpert, M. Barkis J. S. Roberts ment,·' and those desirmg to vote agamst such amendment shall place Q · ' J L r-.~ttl ·b J W 1 R K 'hl J A ' a cros in the blank square opposite the words "Against constitutional J. uig1 ey, · · ~ ei ? • • oo ey, · o ' · · Mauer, amendment." and said ballots shall be counted and canvassed by the J. Sarg, C. Schandling, William A. Regan, V. Havens, D. l\1ay, election officers of sa~d Stati: authorized by law to count and canvass C. J. Durand Edward Lange, W. H. Powers and G. L. Woods the ballots cast at the election for State officers; and the returns of , kl 'N y . d f S J F · 'l\K • ' said election upon said amendment shall be made by said election officers of Broo yn,. · ·, a~ o · · ra~ier, i. Fens1er, P. H. direct to the secretary of the Territory bf Arizona at Phoenix, who Gard, W. Miller, J. Hirsch, J. B. Smith, G. Helmke, H. T. with the govel'!lor and chief justice of said Territory, shall consti: Smith G. Doffieim W. J. Abbott L. Spitz M:. T. Gibbons F A. tute a canvassing board, and they, or an:v two of. them, shall meet ' Le' J V C 11'· ' . ' · at said city of Phoenix on the third Monday after said election and Hunter, Leonard e, . · o ms, George L. Crutcher, H. E. shall canvass the same. If a majority of the legal votes cast at said Verbeck, E. B. Sauer, Percy Shaw, A. Brodeck, L. K. Clark, elect.ion upon said amen~ent sh~ll be .In favor thereof, the said can- T. El. Flanagan E. A. Brophey J. B. Hanover A. A. Kearin • • nssmg board shall forthwith certify said result to the governor of the .. ! f ' . ' . . ' Territory; together with the statement of votes cast upon· the · question- and A. A. Gulich, o New York City, N. Y., praymg for the of the ratification or· rejection of said amendment; whereupon the repeal of the duty on lemons, which were ordered to lie on the governor of said Territory shall, by proclamation, declare the said table.

XLVII-235

. . 3744 · CONGRESSIONAL RECORD-HOUSE. AUGUST 8, ...

Mr. BRADLEY presented a memorial of District Grand HOUSE OF REPRESENTATIVES. Lodge No. 2, Independent Order of B'nai B'rith, remonstrating against the treatment accorded certain American citizens in TuEsnAY, August 8, 1911. Russia, which was referred to the Committee on Foreign Re­ lations. The Honse met at 12 o'clock m. Prayer by the Chaplain, Rev. Henry N. Couden, D. D., as BILLS INTRODUCED. follows: Bill were introduced, read the first time, and, by unanimous Our Father in heaven, we thank Thee for the light of this consent, the second time, and referred as follows: new day, with its splendid opportunities to expand our minds By Mr. JONES : and enrich our lives by a faithful and conscientious service to A bill (S. 3178) granting an increase of pension to James B. Thee and our fellow men. Inspire us to do this in t;he spirit of Sales; to the Committee on Pensions. the Lord Jesus Christ. Amen. By .Mr. CURTIS: The Journal of the proceedings of August 7, 1911, was read A bill (S. 3179) granting an increase of pension to Andrew J. and approved. Barker; A bill ( S. 3180) granting a pension to Casl.iQ.e Mortimer; ENROLLED BILLS SIGNED. A bill ( S. 3181) granting an increase of pension to Joseph T. The SPEAKER announced his signat-ure to enrolled bills of Reno; the following titles: A bill (S. 3182) granting an increase of pension to William S.1149. An act permitting the Minneapolis, St. Paul & Sault Greer; Ste. .Marie Railway Co. to construct, maintain, and operate a A bill (S. 3183) granting an increase of pension to James M. railroad bridge across the St. Croix River between the States Dilley; of Wisconsin and Minnesota ; A bill (S. 3184) granting an increase of pension to Godfrey S. 2732. An act to authorize the Providence, Warren & Bristol Hammarberg (with accompanying papers); Railroad Co. and its lessee, the New York, New Haven & Hart­ A bill (S. 3185) granting an increase of pension to Joseph D. ford Railroad Co., or either of them, to construct a bridge across Miller (with accompanying paper) ; the Palmers, or Warren, River, in the State of Rhode Island; A bill ( S. 3186) granting an increase of pension to Abijah and S. Chears (with accompanying papers) ; and S. 2768. An act to authorize the St. Louis-Kansas City Elec­ A bill (S. 3187) granting an increase of pension to Jason tric Railway Co. to construct a bridge across the Mi sourl Ham (with accompanying papers); to the Committee on Pen­ Rtrnr at or near the town of Weldon Springs Landing, Mo. sions. CORRECTING ERRORS IN ENROLLMENT. By l\fr. BRADLEY: :Ur. FITZGERALD. . Mr. Speaker, I call up the conference A bill ( S. 3188) granting an increase of pension to Roscoe C. report on House joint resolution No. 1, to correct errors in the Tartar (with accompanying papers); to the Committee on Pen­ enrollment of certain appropriation acts approved .March 4, sions. 1911, and ask unanimous consent that the statement_be read in By Mr. OWEN: lieu of the report. A bill (S. 3189) granting an increase of pension to Thomas The SP.IDA.KER. The gentleman from New York calls up the Monjion; conference report on House joint re olution No. 1 and asks A bill ( S. 3190) granting an increase of pension to Peter unanimous consent that the statement be read in lieu of the Cassey ; and report. Is there objection? A bill (S. 3191) granting an increase of pension to Samuel P. There was no objection. Strahan (with accompanying papers); to the Committee on The conference report (No. 132) is as follows: Pensions. STATUE OF BAROS VON STEUBEN. CONFERENCE REPORT, The committee of conference on the disagreeing votes of the The VICE PRESIDENT laid before the Senate the following two Houses on the amendments of the Senate to the joint reso­ concurrent resolution of the House of Representatives (H. Con. lution (H. J. Res. 1) to correct errors in the enrollment of cer­ Res. 3), which was read and referred to the Committee on tain appropriation acts approved March 4, 1911, having me~ Printing. after full and free conference have agreed to recommend and do Resolv ed by the House of Representa1ives (the Senate concur ring),• That there shall be printed and bound in the form of eulogies, with ac­ recommend to their respective Houses as follows: companying illustrations, 17,100 copies ot ~e proce~dings upon the That the Senate recede from its amendments numbered 2 unveiling of the statue of Baron von Steuben m Wa.shrngton, December and 3. 7 1910 of which 5,000 shall be for the use of the Senate, 10,000 for the use' of the House of Representatives, 2,000 to be delivered to the That the Honse recede from its disagreement to the amend­ National German-American Alliance for such distribution as said alli­ ment of the Senate numbered 1, and agree to the same. ance may desire to make, and the remaining 100 copies shall be bound That the House recede from its disagreement to the amend­ in full morocco and distributed through the Department of State to the descendants of Baron von Steuben and the speakers who took part in ment of the Senate amending the title of the joint resolution, said celebration. and agree to the same. JOHN FITZGERALD, ROUSE BILLS REFERRED. J. A. S. BURLESON, The following bills were severally read twice by their titles J. G. CANNON, and referred to the Committee on Commerce: Managers on the par t of the House. H. R. 2925. An act to extend the privileges of the act ap­ F. E. W ARBEN, proved June 10, 1880, to the port of Brownsville, Tex.; GEO. C. PERKINS, H. R. 6098. An act to authorize the Campbell Lmnber Co. to MURPHY J. FOSTER, construct a bridge across the St. Francis River from a point Managers on the part of the Senate. · in Dunklin County, Mo., to a point in Clay County, Ark.; H. R. 7693. An act to authorize the town of Logan, Aitkin The Clerk read the statement as follows: County, Minn., to construct a bridge across the Mississippi STATEMENT. River in Aitkin County, :Minn.; H. R. 11021. An act to authorize the Levitte Land & Lumber The managers on the part of the House at the conference on Co. to construct a bridge across Bayou Bartholomew in Drew the disagreeing votes of the two Houses on the amendments of County, Ark.; the Senate to the House joint resolution No. 1 to correct errors R. in the enrollment of certain appropriation bills approved March H. 11022. An act to authorize the bridge directors of the 4, 1911, submit the following written statement in explanation Jefferson County bridge district to construct a bridge across the Arkansas River at Pine Bluff, Ark.; and of the effect of the action agreed upon and submitted in the ac- companying conference report, namely : · . H. R. 11321. An act to authorize the Twin City and Lake Superior Railway Co. to construct a bridge across the St Croix It is recommended that the two amendments of the Senate River between Chisago County, Minn., and Polk County, Wis. striking out the preamble- of the resolution and amending the H. R. 12051. An act for the relief of the city of Crawford, in title thereof be ngreed to, and that the Senate recede from its the State of Nebraska, was read twice by its title and referred two amendments striking out the provision reimbursing the to the Committee on Military Affairs. University o:t Idaho the sum of $500 and the provision repealing that part of the naval appropriation act approved March 4 last, ADJOURNMENT. having reference to partial payments to builders of naval vessels. Mr. SUITH of Michigan. I move that the Senate adjourn. JOHN J. FITZGERALD, The motion was agreed to, and (at 7 o'clock and 25 minutes A. S. BURLESON, p. m.) the Senate adjourned until :Wednesday, August 9, 1911, J. G. CANNON, at 12 o'clock meridian. Managers on the part of the House.