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HEARING

BEFORE THE

COMMITTEE ON PRIVILEGES AND ELECTIONS

UNITED STATES SENATE 85

999

SIXTY-THIRD CONGRESS

FIRST SESSION

TO CONSIDER THE CREDENTIALS OF THE
HON. HENRY D. CLAYTON, APPOINTED BY THE GOVERNOR

OF ALABAMA AS A SENATOR FROM THAT STATE

AUGUST 27, 1913

WASHINGTON
GOVERNMENT PRINTING OFFICE

1913

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JOHN W. KERN, Indiana, Chairman. LUKE LEA, Tennessee.

WILLIAM P. DILLINGHAM, Vermont. ATLEE POMERENE, Ohio.

MOSES E. CLAPP, Minnesota. JAMES A. REED, Missouri.

GEORGE SUTHERLAND, Utah. CHARLES F. JOHNSON, Maine.

WILLIAM 0. BRADLEY, Kentucky. JAMES K. VARDAMAN, Mississippi.

GEORGE T. OLIVER, Pennsylvania.
WILLIAM HUGHES, New Jersey.

WILLIAM S. KENYON, Iowa.
THOMAS J. WALSH, Montana.
WILLIAM H. THOMPSON, Kansas.

CLAUDE G. BOWERS, Clerk.

1, OF D. SEP 18 1913

:

ء ، ہے

APPOINTMENT OF HON. HENRY D. CLAYTON AS A SENATOR

FROM THE STATE OF ALABAMA.

p. m.

UNITED STATES SENATE,
COMMITTEE ON PRIVILEGES AND ELECTIONS,

Washington, D. C., Wednesday, August 27, 1913.
The committee met at 7.30 o'clock

Present: Hon. John W. Kern (chairman), Hon. Luke Lea, Hon. Atlee Pomerene, Hon. James A. Reed, Hon. Charles F. Johnson, Hon. James K. Vardaman, Hon. Thomas J. Walsh, Hon. William H. Thompson, Hon. Moses E. Clapp, Hon. William O. Bradley, and Hon. William S. Kenyon.

The CHAIRMAN. The committee will come to order. The matter of the credentials of Hon. Henry D. Clayton, appointed by the governor of Alabama as Senator from that State, is before the committee.

Senator BANKHEAD. The Senator from Arkansas, Mr. Robinson, will present this case first. Afterwards Mr. Evans, representative of the governor, will address the committee.

ARGUMENT OF SENATOR JOE T. ROBINSON.

Senator ROBINSON. Mr. Chairman and gentlemen of the committee, this case as presented by us presents purely a question of law. There is no dispute as to the material facts necessary for its determination.

Senator Johnston, deceased, was chosen by the Legislature of Alabama as a United States Senator from that State for the term beginning March 4, 1909, and ending March 3, 1915.

Subsequently the seventeenth amendment to the Constitution was ratified and became effective, as appears from the proclamation of Secretary of State Bryan on May 31, 1913. Afterwards Senator Johnston died, and the governor of Alabama appointed Mr. Henry D. Clayton to serve until the meeting of the legislature of that State, which will be in the year 1915, in the regular course of its meetings. The governor of Alabama in appointing Mr. Clayton and in exercising the authority to make this appointment did not act hastily or without due deliberation, but only after procuring the very best counsel and advice available. He consulted with many of the most eminent lawyers in Alabama, including his official legal adviser, Mr. Evans, who is present and will participate in this discussion.

The attorney general of Alabama, a number of other lawyers in that State, and Members of the House of Representatives and of the United States Senate were also consulted in reference to this matter. He reached the conclusion that under the Constitution, as it now exists and as it then existed, it was not only within his power but his duty to make this appointment.

The Senate, being the sole judge, is called upon to determine this question, and it becomes necessary to construe the seventeenth amendment. While the question is new, it is one that may have been

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