Divine Right!

Save for the President's pew and the diplomatic section, the Senate galleries were crowded long before 11 a. m. People sat on the floor in the aisles, breaking the rules. Word went about that Senator-designate and Senator-elect Frank L. Smith of Illinois was in the Republican cloakroom. Curious first row gallery-sitters craned their necks over the railing, hoping to see something, breaking another Senate rule. The hour of 11 approached. Senators sauntered to their desks, rustled papers. A gratuitous informer in the gallery pointed, whispered: "See that handsome man with the white hair; that's Jim Reed; keep your eye on him." Members of the House stood in groups in the rear, sat on the lounges. Vice President Dawes took his chair. Senator Deneen of Illinois came in from the cloakroom with Mr. Smith, who took a lounge seat with the Illinois members of the House. Mr. Deneen addressed the chair: "Mr. President, I send to the desk the credentials of Colonel Frank L. Smith of Illinois, and ask that they may be read."

The Debate. Thereupon, begun a debate that lasted eleven hours (almost two full Senate days). Mr. Deneen and the other defenders of Mr. Smith insisted that he be seated first and investigated after ward. Mr. Deneen cited many a precedent,* challenged the right of the Senate to deprive Illinois of its legally appointed, constitutional representative. Senator Reed of Missouri, who had last summer investi gated Mr. Smith's public utility campaign fund, summed up the case against him. Said Mr. Reed: "It is absurd to say the oath must first be administered, then a hearing held and expulsion take place. That would seem to be a rather ridiculous performance. We have held a hearing, we have the evidence before us. . . .

"The evidence demonstrates such fraudulent conduct as to show his unfitness. It also discloses enough to make it a justifiable conclusion that his appointment comes from and springs from his election, and that it never would have been made except for that election, an election which, the evidence discloses, was wickedly and fraudulently accomplished. It is that which taints and challenges these credentials here presented. . . . If the Senate does not guard its own portals and protect its own integrity, then there is no power outside the Senate to protect that integrity."

As the other end of the scale of argument, were the states' rights champions, who said flatly that the Senate had no Constitutional right to reject a duly elected Senator-- be he a moron, a crook, a leper or anything else. Said Senator Bingham of Connecticut, a Republican: "The Senate has no divine right to keep itself 'holy and unspotted from the world.' It was created by the people of the United States to do for them certain things which they could not do so well themselves. To choose their representatives was not one of them. . . . Is the Senate empowered to say that any of us in Connecticut who ever sold a wooden nutmeg shall not come here?"

Senator Overman of North Carolina, a Democrat, echoed Mr. Bingham from another angle: "If the right to reject a Senator had been followed, there would not have been a Southern Senator on the floor in the days following the Civil War."

In the gap between Mr. Reed and Messrs. Deneen, Bingham, Overman, there were a host of compromising opinions. Many Senators, who objected to Mr. Smith's huge campaign fund, wanted to seat him, hear him and then oust him.

On the second day, the debate turned on personalities rather than on the Constitution. Senator Blease of South Carolina, one of the few Democrats who battled for Mr. Smith, threatened to bolt his party if it should ever need his help in organizing the Senate. Other Democrats turned to prod Senator Watson of Indiana, because he had tried to keep Mr. Smith away from the Senate several weeks ago and now he was fighting to seat him. Senator Pat Harrison, caustic funnyman from Mississippi, concluded with a Pat-ism: "In the years to ' come, Mr. Smith's [as was Mr. Newberry's] case will be like the upas tree, deadening with poison all who come into its shade. I leave it to you; go to your folly if you want to."

The Vote. After the eleventh hour, the Senate voted, 48 to 33, to adopt Senator Reed's resolution, which refuses a seat to Mr. Smith until the Committee on Privileges and Elections shall have reported on his case and the Senate itself shall have taken final action. All except four Democrats, all the insurgent Republicans, six regular Republicans and the lone Farmer-Laborite (Mr. Shipstead) voted to shut the door on Mr. Smith.

The Constitutional Significance. 1) The Senate has established the precedent of keeping a Senator out while it is investigating his right to be in. 2) It did so by a resolution needing only a majority approval; whereas a two-thirds majority is required to oust a Senator once he has taken the oath of office. 3) James M. Beck, able Constitutional lawyer, began last week to fight for Mr. Smith before the Senate Committee on Privileges and Elections.

The Political Significance. 1) The 69th Senate has passed a vexing problem to the 70th Senate, and perhaps saved it from an extra session. 2) In "'the 70th Senate, the Democratic and insurgent strength will be increased; hence, the ultimate ousting of Messrs. Smith and William S. Vare seems almost certain. 3) If these two Republicans are refused their seats, the 70th Senate's political line-up will be: 47 Democrats, 46 Republicans, 1 Farmer-Laborite. Thus, the votes of Senators Shipstead and Blease might decide the right to organize the 70th Senate. In case of a tie, of course, Vice President Dawes can vote.

*One of which concerned Senator Ree Smoot of Utah, who was first allowed to take his seat in the Senate in 1903 while charges of polygamy were pending against him. Later, the Committee on Elections and Privileges recommended that he be unseated; but the Senate voted to keep him because the polygamy charges were not proven. . . .