of the Seventeenth Amendment, the only exercise of the possible power was a disclaimer of any intention to regulate primary elections. Gentlemen of the committee, I want now to address myself to the big question, and it certainly is one of the greatest questions that ever confronted this generation, far greater than the question that I argued two years ago as to the relative powers of the President and the Congress; far greater. And it is no disrespect to you, gentlemen, to say that I only wish I could get this question into the same tribunal that decided the case of Myers against the United States, because it is a pity that there is not some way that a question which so gravely affects the due equilibrium between the rights of the Government and the rights of the State can not in some way be passed upon by that judicial tribunal which is the supreme conscience of the American people in matters of constitutional morality.

Senator NEELY. And also the tribunal that is absolutely safe from any punishment by the public at any subsequent time for any erroneous decision it may render. The Members of the Senate have to go back and face the people of the United States at an election. The judges of the Supreme Court of the United States of course are immune from that hazard. They can decide as they choose. We have to try to some extent to decide the way we think a majority of the people of the country believe we ought to decide, when their view coincides with what we consider our duty.

The CHAIRMAN. If you will pardon me, the desire seems to be pretty general now that we finish this hearing this morning, if possible, and Mr. Beck has only 35 minutes.

Mr. BECK. Senator, I have taken so much time on the facts, and the constitutional argument I regard as of so much importance, that I would not want to be restricted to 35 minutes.

The CHAIRMAN. I think you should have more time, and it is possible that the committee may sit for some time after the Senate begins its session to-day. Gentlemen of the committee, can we prolong our session?

Senator KING. Let us go on until 12, anyway.

The CHAIRMAN. We will try not to interrupt you, and you may discuss the point you have in mind.

Mr. BECK. I will only say, in reference to what the Senator from West Virginia has just stated, that without in any way questioning the natural disposition to consult the "folks back home," this question involves the matter of one's oath of office to support and maintain the Constitution of the United States, the views of one's constituents to the contrary notwithstanding. There never was a question in which your oath of office was so signally involved. You are either going to support the Constitution or you are going to throw down one of its basic pillars.

Senator CARAWAY. I presume you are now stating only your personal opinion?

Mr. BECK. Yes, Senator. I suggest that only in reply to Senator Neely, who, I am sure, does not mean that in a matter of the true interpretation of the Constitution, the question of public opinion enters. I am sure he did not mean that.

I am going to try to throw some light upon the origin and the meaning of the word "qualifications," which has not, I think, been

thrown upon it in any previous discussion in this case, and it may, perhaps, be convincing to the members of the committee.

I take it that every member of this committee will agree with me that if the clause of the Constitution "Each House shall be the judge of the elections, returns, and qualifications of its members" were out of the Constitution, no one would contend for one moment that the Senate could refuse to Illinois the right to send such person as the State of Illinois may choose; that the only possible doubt in this controversy is as to the very general use of the word "qualifications" as conferring some undefined and illimitable power on the part of the Senate to determine for itself whether a man the State thinks fit is, in the view of the Senate, unfit, and that therefore the door must be closed in his face.

Before giving my own interpretation of the word "qualifications," based upon the political history of the country and of the country from which we are sprung, I want to recall what happened in Philadelphia 140 years ago, when the Constitution was framed. It was no compact between the thirteen States and a new entity called the United States. The United States was not the creator, it was the created, and the Constitution is a solemn compact between thirteen sovereign States, to the full benefit and privilege of which other succeeding States have been admitted, as to the conditions upon which a new entity called "The United States" should be brought into being for certain general purposes, as to which the States did not regard themselves as competent to act.

In that constitutional convention, as all of us who have read its history know, there was a fight of unexampled bitterness upon two grounds, one of which is very pertinent to this discussion. The first was the claim of the larger States that they ought to be represented in some way relative to their population or wealth, and the second was as to the manner of choosing Senators. So bitter were the divisions, so keen the acrimony, that the small States finally said to the president of the convention, "You will take what we say, namely, equal representation both in the Senate and the House, or the convention is at an end."

As we all know, and it is one of the most pathetic incidents in our history, at that supreme moment Washington looked at Franklin-because the end of their labors had seemingly come; they had been in session six weeks, they were getting no nearer the solution, they were in an irreconcilable conflict-and Franklin rose and suggested an adjournment for 48 hours, and made one of the most beautiful speeches, I think as beautiful as Lincoln's speech at Gettysburg, that marvelous speech in which he suggested that a chaplain be brought in so that they could all fall upon their knees and invoke Almighty God to help them.

Senator NEELY. Do you not think it might be a good thing if that procedure were followed in the matter of primary elections, and prayer could be had before they were started?

Mr. BECK. It might be. After two days, and further debate, finally, on July 16, through Benjamin Franklin a great compromise was effected, and what was the compromise? First, that in the House the States should be represented relatively to their population; that in the Senate each State should have equal representation. And as to the manner of choosing Senators, what was the com

promise? The men who were in favor of creating a powerful, consolidated central government, of whom Hamilton was the great exponent, were not in favor of the States having any right to select the members of the powerful body, to be called the Senate, except the polite right of suggesting a list of eligibles, because the proposition first was-and it was the wish of the larger States, and especially of the advocates of a powerfully consolidated Union-that the States should suggest eligibles, and the House of Representatives should elect the Senate. They answered that with an indignant "No," and if they had not, the convention would have come to an end.

Then, not wholly defeated, the larger States said, Well, if we are going to create the Senate with these unique powers that make them virtually the elder statesmen of the Republic, make them more powerful than the Members of the House, and make them peculiarly representatives of the sovereign States, yet the Nation we are creating ought to have some right to say something about the character of men, and therefore why not do this? Why not allow the States to suggest eligibles, and then allow the President of the United States to select the Senators?

Again they said, No; under no circumstances will we allow that. Finally, as one of the compromises of the convention, they agreed to the proposition that the Senate should be "chosen"-that was their word-by the legislatures of the State.

Having given this unlimited and absolute grant of power to choose for themselves the kind of men they would have in the Federal council, then it was suggested, "Well, suppose a State sends a boy here." It was a period when youth had tremendous vogue. Pitt was prime minister when he was only 21 years of age.

The men who were creating the Federal Government said, We have some concern in what the Federal Government will do, and therefore we are going to restrict this absolute power by providing that a man to be a Senator must be 30 years of age.

They further said, A great many people are coming to this country and getting quickly naturalized. Perhaps we will have a man who but a few years ago was an Englishman, or a German, or an Austrian. Very well; we will restrict the absolute power of the States by stating that he shall have been a citizen of the United States for nine years. Then, perhaps, according to the English custom at that day, a man from New York might be selected by New Jersey, and that would defeat the basic principle of equality, for if New Jersey, with its close relations to New York, could send a New Yorker to the Senate as one of its Senators, there would be three United States Senators from New York, and only one from New Jersey, and they were not going to have the equality of the sovereign State in the Senate disturbed. So they said, We are going again to restrict the absolute right of choice by stating that a man must be an inhabitant of the State. And, lastly, they said that Federal officeholders should not be chosen, for manifest reasons.

When you have what you have there, an absolute grant of power on the part of the States to choose whomever they will, and then some partial restrictions, certainly it is true of this, as of any compact framed and signed by men, that you can not carve into the absolute grant of power exceptions beyond those that have specifically limited.

the grant. That would be the natural construction, as I have said, and but for this final power over "qualifications," it would be the only construction you could put upon it; for if that were not so, if the Congress had unlimited power, or if each House separately had unlimited power, to prescribe the kind of a man they wanted, then they could. practically nullify and destroy the right of a State to choose anybody, because all they would have to do would be, by the process of exclusion, to say the kind of a man they wanted, and the power of the State would diminish to a vanishing point. There can not, of course, be any question as to that. If they had unlimited power to limit the State's right of choice, the Federal Government could do as the man did who said, "I will take any color provided it is red." The Federal Government could say, "I will take any kind of a man, provided he is this kind of a man, or that kind of a man, or the other kind of a man," and in that way the choice of the State would be limited to the vanishing point.

When you find in the words of the Constitution that a man is to be chosen-such is its word-chosen by the State, what does it fairly mean? It means that as a part of the fundamental compact, without which the States would never have gone into the Constitution, without which the United States would never have been born, each State had a right to choose. To choose is to discriminate. To choose is to marshal the good and the bad in a man's character, to marshal his mental qualifications against his moral, to determine from a variety of complex conditions that enter into human nature whether that man, whatever be in one scale and whatever may be in the other, is the particular man who will represent that State to advantage.

Daniel Webster was sent to the Senate by Masssachusetts until he died. He did not have a particularly good private character. He was loose in his private life. He did not pay his debts. It did not affect him, when the United States Bank bill was before the Senate, to write to Nichols Biddle, of the United States Bank, and ask for a retainer. He was a man who drank habitually to excess, and yet Massachusetts had an entire right to say, This man is the greatest intellect of his time, the greatest expounder of the Constitution since John Marshall, and no matter what his personal failings are, no matter how loose he may be in his money matters, no matter how badly he pays his debts, no matter where he borrows his money, nevertheless, we of the State of Massachusetts have a right to select this man, because of all our citizenship, upon the whole, he is the man who will be Massachusetts' greatest contribution to the Federal Union and to the interests of Massachusetts.

One could amplify such instances a hundredfold; and, by the by, Senators, right in that connection, could any more powerful argument be used against the latitudinarian construction now sought to be given to the Constitution than that in 140 years of constitutional history, with party passion often running mountain high; with men in past times who were quick on the trigger, metaphorically and actually; with Benton and Webster and Clay and Calhoun hardly speaking to each other; when sometimes the aisle of the Senate was the aisle to the dueling field; when there were the most bitter attacks upon the personal integrity of men; when the passions between men were powerfully excited as they have never been in what may now well be called an era of good feeling never was there a suggestion that the

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