Senator CARAWAY. I do not think we are vitally concerned in Senator Reed's attitude, at all, because he will have to adapt himself to the procedure we finally take.

Senator DENEEN. I have not conferred with the counsel, and I do not know what their plans are.

Senator CARAWAY. You do not know whether they want to offer anything or not?

Senator DENEEN. I do not. would be with Senator Reed.

I take it, however, that the initiative
He complains or makes protest.

Senator CARAWAY. Yes, but it is the issue with the committee. Senator DENEEN. I think it would be proper to have a complaint made, and then answer it.

Senator CARAWAY. Of course the complaint has been here, and we have discussed that.

Senator GEORGE. It was referred to our committee formally; what we all know as the report of the special committee.

Senator CARAWAY. And the testimony taken by them.

Senator GEORGE. And the testimony taken by them. That would be the basis of any hearing.

(At this point counsel returned to the committee room.)

Mr. BECK. Mr. Chairman and gentlemen of the committee, representing the views of my associates and my own views, we have to submit for the consideration of the committee the following suggestion. It seems to us that the Senate in its decision, under which this matter is referred to this committee, decided nothing except that they would not administer the oath until a committee of the Senate had considered the constitutional and other legal reasons which underlie the whole controversy. Therefore it was referred to this committee with a direction to consider two questions, both of which, in the last analysis, are purely legal.

The first question is the prima facie right of Frank L. Smith to be sworn in upon a certificate which has been submitted to the Senate. The second question is the final right of Frank L. Smith upon those credentials to sit in the Senate.

By the final right of Frank L. Smith I do not understand that indefinite right which, if he were a Senator for the next 20 years, would subject him, as any other Senator, to the possibilities of a motion to expel, because that right, of course, is the right that is necessarily predicated upon recognized membership; and therefore no suggestion is made here that a "final right" is a continuing right, which would be beyond the power of expulsion, because there is no such final power

Senator CARAWAY. Will you pardon me a moment?

Mr. BECK. Yes.

Senator CARAWAY. I think the thing that the committee is going to consider and I know that is what the Senate is finally going to pass upon-is whether or not under the state of facts as it may be developed, Mr. Smith will be permitted to take the oath of office as a Senator. That will be a question of both law and fact.

Mr. BECK. Yes, exactly.

Mr. CARAWAY. I do not take it that this committee is going to have anything to do with, or that we in fact will make any report on, whether or not Mr. Smith might be expelled from the Senate.

As a member of the committee, I have never understood that the committee is going into that question.

Mr. BECK. We are entirely in accord, and I was simply trying to explain that of course the question of the final right of Frank L. Smith has no reference to the indefinite and continuing right of expulsion. The question is whether or not there is anything that would deny him his right to take the oath of office, on the face of his credentials, and if so whether there is anything, aliunde his credentials, which would justify the Senate in, not expelling him, but disqualifying him by reason of anything that has happened.

Senator KING. Your position is that the action of the Senate yesterday in refusing Mr. Smith the right to take the oath is not res adjudicata, but that this committee is to inquire into the matter as to whether or not he is entitled to take the oath, regardless of the action of the Senate yesterday.

Mr. BECK. Yes.

Senator KING. You do not regard that action of the Senate as having concluded the matter?

Mr. BECK. On the contrary, it seems to me that the resolution was admirably worded; and, apart from its departure from the precedents of the Senate in other matters, which it is not for me to justify or condemn, it seems to me to have had its ample justification in this respect, and that is that in the rough and tumble of a debate in the Senate the profound constitutional questions which underlie the matter now before the committee could not be discussed to advantage, at least until a committee of the Senate, which is charged with the duty of determining such questions, had given to it a more careful consideration than the Senate could and had made its report; and thereupon I assume, that the Senate can take up the question de novo, and determine, first, as the resolution so clearly says, whether upon the face of his credentials, and without respect to matters aliunde, he should be given his oath of office; and secondly, if he is given his oath of office, whether he should be disqualified.

In other words, I take it that the purposes of the resolution are simply these: That even if your committee should report to the Senate, and the Senate should subsequently determine that in obedience to the best precedents, on the face of these credentials, which I understand are beyond dispute, he should be given the oath of office and be allowed to face his accusers in the Senate on the floor of the Senate, nevertheless the Senate, in the desire to expedite the solution of the whole controversy, also wanted the opinion of this committee as to whether, the oath being thus administered, he should be disqualified by reason of facts that are not now before the committee.

The CHAIRMAN. The resolution reads as follows:

Resolved, That the question of the prima facie right of Frank L. Smith to be sworn in as a Senator from the State of Illinois, as well as his final right to a seat as such Senator, be referred to the Committee on Privileges and Elections; and until such committee shall report upon and the Senate decide such question and right, the said Frank L. Smith shall not be sworn in

And so forth.

The Senate has definitely decided, by this resolution, that until not only the question of prima facie right, but of final right, to a seat,

shall be determined by our committee, and it reports to the Senate, he shall not be permitted to occupy his seat.

Senator GEORGE. If I may be permitted to make this observation, this resolution is in the exact form of the resolution in the Roberts case in the House, and what was done under the Roberts resolution in that case I take it is a fair guide to what should be here done, and I think Mr. Beck has perhaps conceived the full force of the resolution. We are first to decide his prima facie right, and of course that will be one matter on which we will offer a recommendation or resolution; and also the final right is

Senator SMITH. Do we separate the two questions and make two reports? My understanding of this resolution is that we are to determine the one question, and then having determined that, before we take any action we are to determine his final right to a seat as the evidence may justify us, in view of what has transpired in the election.

Senator CARAWAY. That is, whether or not he is disqualified by

reason

Senator SMITH. Yes.

Senator CARAWAY. I do not think there is any dispute about that. Senator KING. My view, if I understood you, Senator Smith, would be this, that the resolution means that if this committee should determine that the credentials are sufficient to entitle him to be sworn in, and there is nothing appears to disqualify him, they could make a report recommending that he be sworn in, reserving the question of expelling him or excluding him, whichever view the committee may take, for further consideration; or they may consider the whole matter at the same time and make one final report. But there is nothing there that would preclude us, in my view, from dividing the report.

Senator CARAWAY. That is not my understanding of the resolution, that we are to determine now whether or not, under the whole statement of the case and the facts as we may find them, he is entitled to be admitted to the Senate.

The CHAIRMAN. Not only that, but the exact language of the resolution reads, "until such committee shall report upon and the Senate decide such question and right."

Senator CARAWAY. Yes; I know.

The CHAIRMAN. I think that was the clear intention of the Senate. Senator CARAWAY. The prima facie right to take the seat on the credentials alone, was the thing that was denied him by the resolution, without action of this committee. Now, this committee is expected to examine the law and to hear what evidence anybody wants to offer touching the question of his right to sit in the Senate. Senator EDGE. You mean what evidence? Do you mean the evidence that the Reed Committee has already taken?

Senator CARAWAY. Yes; or any other evidence we might take along that line.

Senator DENEEN. I understand that he bases his final right to take his seat on the credentials offered by Governor Small. Those credentials are not in controversy?

Senator GEORGE. Oh, no.

Senator DENEEN. Those are the credentials he submitted.

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Senator CARAWAY. Do you understand that the committee is empowered to go into the question of the election-and we all know what we are talking about there the conditions that surrounded the primary election, and take into consideration all those things and determine whether he is entitled to a final seat?

Senator DENEEN. I do not understand that that was the intention of the resolution.

The CHAIRMAN. The resolution says that on the final right to take the seat it shall be referred to a credentials committee.

Senator CARAWAY. We have everything that you have on that question. We had it before the Senate.

Senator DENEEN. The other credentials are not submitted. Senator CARAWAY. Before the Senate we had all the facts that we could have had. That is, you would have had to examine the certificate on its four corners to determine whether it was correct in form, and that the Senate had the right to make this order. If that is so, there would be no committee to pass upon the question. We had everything we could have before the Senate when the credentials were offered to the Senate.

Senator NEELY. Mr. Chairman, I think it was unanimously admitted that at the close of the debate in the Senate nobody questioned the regularity of the credentials, upon the face of the document. Everyone says that the credentials are regular on their face. Senator SMITH. Yes. To sum it up in a word, this committee is charged with the responsibility of finally determining whether or not Mr. Smith will be allowed to come, either under the certificate or under the election.

Senator SHORTRIDGE. I do not agree to that proposition at all.

Senator KING. I suggest that we hear Mr. Beck and his associates as to what they wish to suggest, and then the committee can decide what they desire, under the resolution. Let us get their view and construction of it.

Senator WATSON. I would like to know whether this is an executive session or not. The newspaper men out here are anxious to know. The CHAIRMAN. At this preliminary meeting we do not want anybody else in. At this preliminary meeting we are going to find out what we are going to do finally.

Senator NEELY. I move that we proceed as in open executive session.

The CHAIRMAN. Pardon me, gentlemen; I think until we determine on our procedure, we had better make it an executive session; but if you desire, we will vote on that.

Senator EDGE. We can not keep it an executive session.

Senator NEELY. Let us vote, and see what the majority of the committee wants to do about it.

Senator EDGE. Everybody knows what is involved in this case. There is nothing to conceal. It is a matter that everybody knows

about.

Senator WATSON. I suppose in the matter of fixing a program, we might do that by ourselves, without anyone else present.

The CHAIRMAN. That is all we are doing now. We are not arguing the case; we are just determining how we will proceed.

Senator WATSON. That is purely executive, for the committee to consider; do you not think so?

Senator EDGE. All right; I will defer to the chairman's wishes.
The CHAIRMAN. General Beck, we will be glad to hear from you,

now.

Mr. BECK. I do not understand, Mr. Chairman, that there is any substantial difference between the members of the committee and those representing Colonel Smith with respect to the action of the Senate. It evidently did not decide that the credentials did not give him a prima facie right to his oath; it simply postponed action until the committee should express its opinion. Consequently, a fortiori, it certainly never expressed an opinion as to the final right of Senator Smith upon these credentials.

Therefore it comes to a question of how this committee is going to preliminarily reach its own conclusions, sitting as judges and reporting them to the Senate for its consideration in turn.

You have here a very anomalous thing, I think almost a thing without precedent. There is no accuser of Frank L. Smith here. There is no contestant. There are no rival credentials. There is no dispute, as one Senator has said, that Governor Small is Governor of Illinois, and that these credentials are signed by the Governor of Illinois, and that he had the legal power to appoint Frank L. Smith to fill the vacancy caused by the death of Senator McKinley. Therefore it is quite unlike, I venture to submit, the Roberts case, where not only was there a specific accusation formulated in writing charging him with a crime under the statutes of the United States, and to which was superadded something to which no attention was called so far as I could gather it, in the debate in the Senate; namely, there was a statute of the United States in the Roberts case, which was, if constitutional, the supreme law of the land, which disqualified Mr. Roberts from sitting in Congress if he violated its provisions, namely, the Edmunds Act; and therefore, he having violated the provisions of the Edmunds Act, and being charged with such violation, and there being an express statutory disqualification-if Congress can superadd to the qualifications in the Constitution any other you have an issue which Mr. Roberts could meet with intelligence and with a reasonable degree of security, such as a man should have when he is charged with the possible forfeiture of one of the highest positions in the gift of the American people.

I think in this matter of procedure, counsel for Mr. Smith should know whether or not the credentials are in any way questioned. I understood a Senator to say, and I understand it to be so, that they are not; and of course it is common knowledge

The CHAIRMAN. I think all will consent to have it appear of record that there is no question about the credentials.

Mr. BECK. I suppose counsel for Mr. Smith may also assume, unless advised by the committee to the contrary, that every qualification of the Constitution which restricted the otherwise absolute power of the State to send whom it pleased to the Senate is granted; that is, say I can assume that the only restrictions which the Constitution imposes upon the power of the State to make its own selection, he has met?

I

The CHAIRMAN. The constitutional qualifications are admitted, as to age, and residence.

Senator CARAWAY. Yes; as to age and residence.

Senator GEORGE. And inhabitance.

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