reasonably anticipated. Its solution does not call for the application of unfamiliar rules of construction. Many recognized legal authorities analogous but not exactly in point-because it is apparent that there can be no case exactly in point, this being the first that has arisen under the new amendment-may be invoked in its determination.

It is my purpose to undertake to disclose what appears to be the scope and purpose of the new amendment, involving the rules applicable for its construction and the definition of the terms applicable to this discussion, especially those contained in the last clause of the new amendment-the seventeenth amendment.

This amendment, while designed to change the manner of choosing United States Senators, is not revolutionary and is not therefore intended to deprive any State of its right to equal representation in the Senate. It recognizes, in my humble opinion, that there must be a transition period, affording opportunity for the States to readjust their laws and machinery so as to put in operation the amendment without a violent disturbance and without great expense and inconvenience to the public. For these reasons the last clause was embraced in the amendment.

While of course this clause must be considered in connection with all the others, it is believed that this case is controlled by this language: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

This language expressly exempts from the amendment two things— the "election" and the "term" of any Senator chosen before the amendment became valid. It anticipates the conditions that inevitably followed the adoption of the amendment and sought to preserve until reasonable opportunity was afforded the States to readjust their laws to the new method, their full representation, which, I claim, was and should have been a controlling consideration in framing the language ratifying this amendment.

It was impossible to anticipate, or even to approximate, the date when the new amendment should go into effect, because that was contingent on the action of the various State legislatures and might not have occurred for many years. The amendment could only become valid upon its ratification by the required number of the States, through their legislatures. It is a well-settled principle that a resolution of ratification, once adopted by a State legislature, is final and can not be rescinded; it is equally well settled that the failure or defeat of a resolution before one legislature does not bar or estop a subsequent legislature from adopting it.

So that it is clear that when this amendment was framed it could not be anticipated when it would go into effect; and for that reason the saving clause was adopted in the form in which it is here presented.

The exemption operates on the thing and not on the person by its express terms. It is the election and the term that are exempted. The exemption of the election of a Senator chosen before the amendment became valid prevents it from being retroactive. The exemption of the term provides a reasonable transition period in which the amendment should be put into operation, and at the same time preserves the equal representation of the State, which I have already said has always been considered a controlling principle.

All agree that clause 3 relieves members chosen before the amendment was adopted from the necessity of again becoming candidates during their respective terms. Those who dispute Mr. Clayton's right contend that this is the sole purpose of clause 3, and that Senator Johnston's term expired, within the meaning of clause 3, when he died.

Before advancing the affirmative grounds on which Mr. Clayton's right to a seat is based, let us analyze this position. If this be correct, why was the word "term" used? The word "election" would have been sufficient to preserve the right of Senators already chosen when the amendment was adopted, and the word "term" is unnecessary. Moreover, apt expressions, free from ambiguity, could have been chosen. It is not presumed that inapt and unnecessary language was selected in framing constitutional provisions. This is a well-established rule of construction, which I must apologize to this committee, all of whom are lawyers, for even referring to. Simple expressions were available to convey the meaning if it were to be narrowed so as to exempt the person instead of the term from the operation of the amendment. For instance, the words "tenure," "seat," and perhaps "service" are illustrations. There could have been no doubt as to the meaning of the language if it were written:

This amendment shall not be so construed as to affect the tenure of any Senator chosen before it becomes valid as part of the Constitution

Or

This amendment shall not be so construed as to affect the seat of any Senator, etc. And the same is true of a large number of other equally simple words, free from all ambiguity and doubt. But in this case, in framing this amendment, these simple words have a fixed meaning, as, for instance, the word "seat." It is used in that sense in the Constitution in the clause which says:

The seats of the Senators of the first class shall be vacated at the expiration of the second year; of the second class, at the expiration of the fourth year; and of the third class, at the expiration of the sixth year, etc.

But these simple expressions, which would have conveyed beyond any doubt the meaning which some contend this clause has, were available, but were discarded for language which, to say the least, has raised in the mind of many lawyers a very grave doubt as to their meaning, but which I contend when thoroughly construed gives to the governor of Alabama authority to make an appointment.

It is also a well-established rule that effect must be given to all the words used. If, in stating these propositions of law, authority be needed to support them, I have such authorities at hand. They are so familiar to most lawyers that I shall not presume to present them at length, further than to refer to them and cite in my brief some authorities which sustain them.

Effect must be given to all the words used. It is not only true that the legal presumption exists that the framers of this provision chose apt language to express its meaning, and that the language actually used is not apt to express the meaning imputed to it by those who oppose seating Mr. Clayton, but it is also a recognized canon of construction that effect must be given to all the language, to every section, clause, and word. I am quoting now from the authorities which

I cite in my brief, and which are available. The principle is so well established that it seems unnecessary to argue it.

As already stated, if the third clause in the amendment was intended to apply to the incumbent, inapt terms are used and no effect is given to the word "term." You must treat it as a mere repetition, because the word "election" was sufficient.

Senator KENYON. Would the word "election" cover the case of a man who had been appointed prior to the adoption of the amendment? Senator ROBINSON. It would not; and I wish to make that distinction later; and in my judgment the new amendment applies to the case of the Senator from Georgia, whom I assume the Senator from Iowa has in mind.

Senator KENYON. No; I had not any particular case in mind.

Senator ROBINSON. That is the case of the Senator from Georgia, Mr. Bacon; and in my judgment, as I shall show further on, the new amendment does, in all probability, apply to his term. I will state the reasons for that later.

Two primary rules of construction familiar to all lawyers are thus violated, and the framers of the seventeenth amendment are convicted of ignorance or carelessness in the performance of the grave duty of preparing a constitutional provision. The absurdity of this construction, however, does not end here. It overrides an even more universal rule strictly applicable in determining the meaning of a constitutional provision.

Nothing is better established than the principle in interpreting constitutions that words have been used in their plain, natural, and ordinary meaning, presumably. The courts have repeatedly announced this rule, and it is so familiar that perhaps an apology is due for citing authorities to sustain it. With your permission, however, I will refer briefly to just two or three such cases, quoting from Mr. Justice Story's decision in the case of People v. New York Central Railroad Co. (24 N. Y., 486):

A constitution is an instrument of government, made and adopted by the people for practical purposes, connected with the common business and wants of human life. For this reason, preeminently, every word in it should be expounded in its plain, obvious, and common sense

Again:

Words must be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers and by the people who adopted it (meaning the constitution). They judged of it by the meaning apparent on its face, according to the general use of the words employed.

I cite in my brief a large number of cases to support that, but I presume there is no contention about the correctness of that principle. What is the plain, natural, and ordinary meaning of the words "affect" and "term," used in clause 3 of the amendment? The language is:

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The ordinary meaning of the word "affect," as defined by the courts, is: "To act on" or "to concern.' Not to affect means, not

to change, not to act on, not to concern.

I have found no case which does not support this definition in which the word can be regarded as having been used in the sense in which it is apparently used in this clause.

So, in construing the clause under consideration, we may substitute for the word "affect" the words which mean the same thing and which define it, so that the clause will read:

This amendment shall not concern the term of any Senator chosen before it became valid as part of the Constitution.

Or

This amendment shall not act on or change the term of any Senator chosen, etc.

What is the plain and ordinary meaning of the word "term"? And here, in my judgment, we arrive at the vital issue in the case. Senator BRADLEY. What about the word "affect" there?

Senator ROBINSON. The word "affect" I have just defined as meaning to act on, to change, or to concern, and I have in my brief a number of authorities, some of which at least are available as supporting that definition.

Some of the courts have said, in defining the word "affect," that it is so simple and so plain that it is difficult of definition; and then they have said that it ordinarily means to change, to concern, or to act on. So that not to affect means not to concern, not to change,

not to act on.

I repeat: If you substitute the meaning of this word for the word itself, you have here a clause which says:

This amendment shall not be so construed as to act on the term of a Senator chosen before it becomes valid as a part of the Constitution.

The word "term" is used in connection with an office, as, for instance, the "term of a Senator." "Term," I understand, means a fixed and definite period. It is almost universally so construed.

The Hon. Hannis Taylor, among the most eminent living authorities on constitutional law, strongly supports this construction of the amendment. In a very clear and forceful article he reviews the proceedings of the Federal convention of 1787, indirectly bearing upon this controversy, and shows that in all the discussions the necessity for fixing a definite Senatorial term was prominent in the deliberations of the framers of the Constitution. The final result represented a compromise which was carried into the Constitution. The theory that representation in the Senate should be based on population was discarded, and all of the States given equal representation in the Senate without regard to their area or population. It was thus determined that among the fundamental principles upon which the Senate was created is that every State shall have two Senators who shall serve for a term of six years. The seventeenth amendment retains both of these principles. There is not an express or implied attempt to alter either of them, or to deny to any State its right to equal representation. The policy of these principles is important. It prevents the concentration of political power in the great centers of population, and preserves to the smaller States their dignity and power as factors in the Federal Government.

The seventeenth amendment changes the method of electing Senators, but Senators are still, in an important sense, representatives of their respective States. The principle of maintaining the equal representation of the States grows rather then diminishes in importance with the ever-increasing complexity of national political problems. The reason for the seventeenth amendment and the

causes for its ratification are found in the fact that the system of electing by legislatures has been discredited by deadlocks and the frequent practice of frauds and corruption. The senatorial term of six years will be continued under the election of Senators by popular vote, as in the case of Members of the House of Representatives, their term being two years.

The "term" is rarely synonymous with the incumbent. The term of a Senator is a definite period of six years. While the word "term" is not used in the provision of the Constitution creating the Senate, it is established by the words:

The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof for six years.

There can be no doubt that the term of a Senator means the fixed period for which he is chosen; that is, six years. There would be no such thing as an unexpired term if it were not for the classification into three classes of Senators:

The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every two years.

It is the introduction of this clause which modifies the first clause creating the Senate; but otherwise, were it not for this last clause quoted, every Senator would serve six years without regard to the time of his selection, and there would be no such thing as an unexpired term. Even in the case of the death or the resignation of a Senator, his successor would serve for six years the full senatorial term-were it not for the classification clause which I have referred to. So, it must be apparent to everyone that there is in the Constitution a definite entity to be known as the senatorial term or the senatorial period. This is as much a part of the Constitution as the Senator himself, and it can not be said to be a strained construction when we give to the word "term" the meaning that is usually given to it by the courts when construing similar provisions.

The plain and ordinary meaning of the word "term" in this connection is the definite period prescribed by the Constitution, and does not expire with the death or resignation of a Senator.

Senator WALSH. I have not been able to follow fully the course of reasoning by which you arrive at the conclusion that were it not for the classification provided a Senator elected upon the death of another, before the expiration of his term, would serve for the full period of six years.

Senator ROBINSON. The language of the Constitution or, of the clause referred to, is that—

The Senate shall be composed of two Senators from each State, chosen by the legislature thereof, for six years.

So, if that were the sole provision in the Constitution, every Senator would be chosen for six years; and if the Senator died or resigned his successor would serve the six-year period. But the clause that provides for classification requires that one-third of the Senators be elected every two years, and that modifies this first clause to that

extent.

Senator WALSH. But suppose we dismiss that classification, and we have a provision there that they are elected for six years, and then