door of the Senate could be shut in the face of the Senator designate of a sovereign State because you do not like something that he did, or something he is supposed to have done, or something that he acquiesced in doing.

I will add to that ad captandum argument this further argument, and then I want to go on to the matter of qualifications. I will test this question of qualifications in a way, if it were possible, that would admit of but one decision. One argument is historical, and the other is conjectural. The historical is this, does any man on this committee who has read the debates of the constitutional convention, who has studied that history, who has known the animating motives of the different members, who has known the struggle between Madison and James Wilson as against Hamilton and Gouverneur Morris, with those great old Democrats George Mason and Benjamin Franklin in the background-is there anybody who would venture over his signature to avouch as a belief that if, in the constitutional convention, it had been proposed that Senators "shall be chosen by the legislatures of the States, by and with the advice and consent of the Senate," there ever would have been a Constitution?

I will go further, and suppose that the Congress of the United States would propose a twentieth amendment to-morrow, and it could have all the whereases that you might employ. It could recite:

Whereas the growing use of money in politics is a serious menace to the perpetuity of our institutions, and so forth, and so on and so on: Therefore be it Resolved, That the following amendment shall be submitted to the States, namely, that the States shall have the right to choose a Senator by and with the advice and consent of the Senate.

Gentlemen, there would not be one State in the Federal Union that would ratify any such amendment.

Senator CARAWAY. Let me ask you this: Do you indulge the presumption that if an amendment were submitted to the States providing that no one should buy a seat in the Senate, there would be one vote for it?

Mr. BECK. Of course, that begs the question.

Senator CARAWAY. No, it does not beg the question.

Mr. BECK. I have no doubt that an amendment providing that a man could not buy a seat in the Senate could be adopted, if it were known that all the other processes of law would not function.

What did the framers of the Constitution mean on the subject of qualifications? Gentlemen of the committee, one thing we will agree upon in this discussion, I think, without hesitation, and that is that the members of the convention were master draftsmen. They never wasted a word. They never indulged in "weasel words." There never was a document of such exquisite and perfect clarity. There never was a document so free from the objection that one sentence destroyed another.

Is it possible that where they wrote in the very first section of the Constitution, at the head of it, over its very portal, that the Members of the House should be "chosen" by the people of the States, and that Senators should be "chosen" by the legislatures of the States, that they meant, by providing that each House should be the judge of the returns, elections and qualifications of its members, largely to impair, if not to potentially destroy, the power of choice? Yet there is no middle ground. If "qualifications" is to be whatever the

Senate regards as affecting the moral character of the Senatordesignate, then the power of choice is subject to the paramount view of the Senate as to whether they think he is a fit man.

What did this clause say? This clause said that each House shall be the "judge'-not that each House should fix, but that each House should be the judge of the elections, returns, and qualifications of its members. To judge a qualification fairly implies some legal standard by which you can measure it. It is not an unlimited moral discretion. It is not saying whether a man is intellectually of a certain capacity, or whether morally he is so deficient in the scale of conscience that you do not care to have his companionship in the Senate. To judge the qualifications is merely to determine whether certain qualifications which have been made the legal standard of eligibility have been complied with.

I have here—and I will not take the time of the committee to read it, although I am going to ask your permission, not only because of its distinguished source, but also because of its intrinsic value, to add it to my statement a statement which has been very kindly furnished me by Mr. Charles Warren, a very loyal and distinguished Democrat, the historian of the Supreme Court of the United States, whose work on that great subject has never been equaled, and I question whether it will ever be surpassed, as a monumental history of that tribunal. Mr. Warren has gathered here all the clauses of the Constitution of the thirteen Colonies, which in various forms suggest the same power, except that in some they were very careful to say, "judge of the qualifications as herein prescribed." Mr. Warren proceeds and I wish I had time to read it-to give his own opinion, which is quite in accord with the opinion I am trying to advance, that the word "qualifications" simply meant the qualifications prescribed in the Constitution, which were the sole restrictions upon the otherwise absolute right of the States to choose as they saw fit.

I hope you gentlemen will not adjourn until I get this thought in, because I venture to believe it is a contribution to the subject. The 13 States did not evolve this expression, which is found in all the proposals, and which was carried into the Federal Constitution, out of their inner consciousness. They had borrowed it, as they had so many other expressions, from the great country from which we are sprung. It was a term of parliamentary practice.

What did it mean in English parliamentary history? It did not mean that the House as against the electorate, the people, should be the judge as to whether a man was a fit man for the particular district or borough to send, but it meant the determination of a constitutional struggle between parliament and the Crown as to how disputed elections should be heard.

Senator CARAWAY. Was not that very question involved in the Wilkes case?

Mr. BECK. Yes.

Senator CARAWAY. And Wilkes was excluded time and again for no other reason than that they did not approve his morals.

Mr. BECK. Exactly; and the result was that he was finally seated; and from the time that Wilkes was seated, and triumphed, and vindicated the right of the people of Middlesex to send him even though he were an outlaw and a criminal, from that time until the time that Charles Bradlaugh was denied admission to Parliament

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because, being an atheist, he could not take the oath, it has never been questioned in the Parliament of England that there was any power to throw out a man from the House of Commons simply on the ground that he was ineligible for lack of moral character.

Senator CARAWAY. Can you tell us the date of the Wilkes case? Was it prior to the adoption of the Constitution?

Mr. BECK. It was; it was in 1769.

Senator CARAWAY. Shortly before the Constitution was adopted, that very qualification had been invoked by the English Parliament. Mr. BECK. And it was decided in favor of the right of the people of Middlesex.

Senator CARAWAY. Oh, no; Wilkes was not seated until very much later than that.

Senator NEELY. When was Wilkes finally seated?

Mr. BECK. I have all the facts set forth in this little book of mine. May I come back to that in just a moment, Senator, because I want first to amplify my thought, and support it by a citation that makes the word "qualifications" fairly intelligible.

Gentlemen, in the time of James I, that despotic king, desiring, to be an absolute monarch, decided that in the future all disputed elections should be sent into the courts of chancery. Courts of chancery, of course, were king's courts. At all events, the judiciary was then very subject to royal influence. The House of Lords acquiesced in this, and the House of Commons would not.

In Anson's Law and Custom of the Constitution, at pages 169 and 170, this assertion of the right of the House of Commons is described as follows [reading]:

On

Sir Francis Goodwin, an outlaw, was returned for the county of Bucks. the return of his election being made, it was refused by the clerk of the Crown on the ground of the outlawry. The clerk issued a new writ on his own authority, and Sir John Fortescue was returned.

The House inquired into the matter, and having examined the clerk of the Crown, resolved that Goodwin was duly elected and ordered the indenture of his return to be filed in the Crown office.

The Lords first took the matter up and asked an explanation of the Commons; the Commons refused to discuss the question. A message then came from the Lords that the King desired the two Houses to confer upon the election. The Commons thereupon demanded access to the King, and stated the grounds of their action. The King asserted that returns "being all made into the chancery are to be corrected and reformed by that court only into which they are returned," and he desired the House to hold a conference with the judges. This, after a long debate, the House determined not to do, but submitted an argumentative memorial to the King, meeting his objections and alleging precedents for the right they claimed. It is noticeable that of the five precedents set forth two only are cases of disputed returns, two are cases of disqualified persons being returned, and one a case of a member being returned for two places.

The King was not satisfied with the answer of the House; he still desired a conference between the Commons and the judges. To this the Commons reluctantly assented; a conference took place before the King and council, and the King in the end admitted the right of the House to be a court of record and judge of returns, though he claimed a corresponding jurisdiction for the chancery; and he suggested as a compromise that the elections of Fortescue and Goodwin should both be held void and a new writ issued. This was done, and the right of the Commons was not afterwards questioned, nor that of the chancery asserted. Senator CARAWAY. The point there was the right of the commons to be the judge of the election and qualification of its own members. Mr. BECK. Exactly, and the right was a right of the House of Commons asserted against the King's claim to determine such questions in the courts. As a matter of fact, as I imagine the Members

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all know, the English Government in our time has gone back to King James's precedent, and, with the full consent of Parliament, all election cases are now decided in the courts. I am not at all sure that that is not the wisest disposition, but the point is this, that from the time of that victory over the King-not over the electorate, but over the King-it became the established principle that the House of Commons did not have to determine the election of a member in the courts; that they themselves were to be the judge of the elections and returns and qualifications of the members.

What was meant by qualifications? I had intended-but it would take too much time-to go back to Blackstone and show that in England there were qualifications, just as there are in our Constitution, except that they were much more elaborate. But there were qualifications, stating, for example, that no one who is not 21 years of age should be a member of the House of Commons; no one who held certain public offices should be a member of the House of Commons, etc.; but these were all statutory regulations of Parliament as to eligibility. Parliament being omnipotent, there was no question of the right of Parliament, vis-a-vis the constitutent States, as in our case; but, it being purely a question of Parliament making the constitutional form of government as they went along, they have described, by statute, certain conditions as to eligibility, and, outside of these, every man is as of right eligible to a seat in the House of Commons, and he can not be disqualified unless there be some written disqualification in a statute, or unless there be some doubt as to whether the people actually elected him.

I think the first colony to adopt this phrase with reference to judging the qualifications, going back to the time of King James, did so in 1701. This is in Mr. Warren's memorandum. But, from the very beginning of our colonial history, this phrase was always in constitutions and charters, and it was always an assertion of the right of the legislative body of the colony as against the colonial governor, who was a Crown appointee, to determine who were the members of the house.

When, therefore, the Constitutional Convention met, they included this clause without any discussion or debate. Gentlemen of the committee, do you think for one moment that if they could have conceived as a possibility that 140 years later Members of the United States Senate would be discussing whether the word "qualifications" might not include a latitudinarian power to disqualify the choice of the State for any reason that met the approval of the Senate-do you think that they would, without debate, have included an expression that was fatal to the rights of the States, that destroyed their power of choice, that destroyed their power of choice in a matter that was vital to their continued efficiency and integrity as sovereign States? No.

"We

What they meant by it was plain, it seems to me, if you judge it from the background of English history. It was simply this. do not propose that the courts shall try elections. We are quite competent to decide these questions ourselves, and each House shall be the judge of the returns, the elections, and the qualifications," obviously meaning thereby the qualifications prescribed by law. Whether a qualification can be added to the constitutional questions by a statute of the United States is an open and debatable question.

Senator GEORGE. Do you think it is open?

Mr. BECK. The best opinion is to the contrary, that no statute could superadd

Senator GEORGE. Your view is that the weight of the opinions is that way, at least.

Mr. BECK. Yes.

Senator GEORGE. I think so.

Senator SHORTRIDGE. Against such a proposed law?

Mr. BECK. Yes, sir. It is against superadding by statute. Senator SHORTRIDGE. When you say it is an open question, I take it that you mean it has not been decided by the courts. Mr. BECK. It has not been decided by any court. You remember the national prohibition case, where the court upheld the constitutional provision that only legislatures of the States could ratify a constitutional amendment. Ohio adopted a provision that no constitutional amendment was valid without referendum, and the Supreme Court very properly held that it was invalid; that they could not add to the methods of ratification prescribed in the Constitution. By analogy of reasoning, I believe, just as firmly as I am here, that the Supreme Court would hold that it was intended as a part of the fundamental bargain of the sovereign States that every State could send any man they pleased, always provided that the choice did not offend the few restrictions upon such power that the Constitution adopted.

Senator EDGE. Your view is that even if Congress added to the corrupt practices act of 1925, to which you referred, a maximum amount which could be legally spent by a candidate-or nominee, rather for the Senate, if that amount were exceeded and the matter taken to the Supreme Court, it would be declared unconstitutional.

Mr. BECK. I am not so sure that I would say that, Senator, because the power to regulate elections proceeds under another clause of the Constitution, which does give the Federal Government power to regulate the manner, places, and times of elections.

Senator EDGE. I thought you were confining the qualifications to the qualifications in Article 2, and that Congress had no legal power to add additional qualifications.

Mr. BECK. There is a difference between the regulation of elections and the disqualification as to eligibility. They are two different things. Eligibility is a prior status, and must be determined by some kind of a law. To regulate elections and to prescribe that only a certain amount of money can be spent is the exercise of a different power, as to which the Constitution has given some power.

Senator DENEEN. Mr. Beck, the Senate has decided that very point in an Illinois case, the Lyman Trumbull case. It has decided that Illinois could not add to the qualifications.

Mr. BECK. Yes. That was the Trumbull case.

Senator GEORGE. But I think it is equally applicable to the Congress, as a congress.

Senator SHORTRIDGE. Mr. Beck, I presume you know it has been argued, in the consideration of the subject matter before the committee now, that the Senate or the House, as the case may be, has greater power than the Congress.

Mr. BECK. Yes.

Senator SHORTRIDGE. That each House is all-supreme in the matter of determining the qualifications of its Members; wherefore