son upon which this statement is based is to be found in human nature first of all and in the character of our political institutions.

When Benjamin Franklin emerged from the conference at the termination of the hearings on the Constitution, it is reported that he was asked what had been accomplished. He is said to have replied, "We have given you a Republic-if you can keep it."

In article 10 of the Federalist Papers, James Madison made some sage observations not impertinent here. Among other things he said:

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The most common and durable source of factions has been the various and unequaled distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. * * The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

He pointed out that it is vain to say that enlightened statesmenwill be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen

observed this sage political philosopher

will not always be at the helm.

He went on to point out that a Republic in which the scheme of representation takes place, opens a possible prospect and promises the cure for factionalism which has ended too often the attempt to establish pure democracies. It was his view at least that the structure of our Union afforded a possible remedy for fatal factionalism against which he and all thoughtful men before him and since have sought to soften and, if possible, to overcome.

Lest you should conclude that I am engaging in mere fantasy, let me quote to you the language of our first President in his farewell address to the American people:

I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discrimination. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind-it exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness, and is truly their worst enemy.

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Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

Gouveneur Morris, a member of the Constitutional Convention, used this pertinent language:

There remain three cases in which two-thirds of the whole number are required

speaking of the many instances in which a two-thirds vote is required by the Constitution

These are

said Mr. Morris

first, the expulsion of a member; secondly, the passage of a law disapproved of by the President; and, thirdly, amendments to the Constitution.

Said Mr. Morris, and his reasoning is most cogent and pertinent here:

In these three cases a provision is carefully made to defend a people against themselves, or, in other words, against that violence of party spirit which has hitherto proved fatal to republican government.

Whether Mr. Morris was entirely accurate in this statement need not be debated. What he meant to say was that in certain important decisions a mere party majority could not be depended upon. He insisted upon a substantial majority, and he insisted upon this substantial majority as a defense.

against that violence of party spirit, which has hitherto provel fatal to republican government.

Whether we agree or not at this hour upon this point, Mr. Morris was undoubtedly right. If the important right of free and unlimited debate in the Senate is to be restrained by a mere majority of those present and voting upon the question or by a majority of the whole membership, it is obvious that partisanship can control debate in the Senate. Under a two-party system such as we have, one party must have a majority of the whole number of Members elected before that party can organize the Senate. Once organized, it is easily within the power of a partisan majority to end debate upon any question, however important.

I must now declare to you that such proposals as the Fair Employment Practice Act, which some may say is the inspiration of these several proposals to amend the Senate rule, is to my mind comparatively unimportant. I do not wish to discuss here the merits of any legislative proposal. Such discussion would, of course, be entirely out of place. I content myself merely with saying that I do not know of any instance in human history where by mere legislative action human prejudices have been controlled. And so far as the act to which I have referred, without discussing it, is concerned, I am sure it would either fall of its own weight or would fall into such universal innocuous desuetude-to use the old phrase of President Clevelandas finally to lead to its repeal even if enacted.

I cannot be greatly concerned about antipoll tax legislation. In my State we do not exact the payment of a poll tax as a prerequisite of voting, and I think our decision is right. I have, however, great respect for what I believe to be the clear mandate of the Constitution. I do not raise that question here for the purpose of discussion.

I come, however, finally to what I believe to be the most important and far reaching legislative proposal placed before the American people and the American Congress in my day and time. I have referred to the President's message of February 5, 1937, recommending a reorganization of the judicial branch of the Government. That recommendation was referred to the Judiciary Committee of the Senate upon the date named, that is, February 5, 1937. On February 8, 1937, the distinguished Senator Ashurst of Arizona, the then able chairman of the Judiciary Committee, introduced a bill (S. 1392) to reorganize the judicial branch of the Government, which bill was referred to the Committee on the Judiciary. From that date in early February until June 14, 1937, this bill was before the committee and

under constant debate. The bill was finally reported adversely, with certain amendments, on June 14, 1937. On July 6, 1937, the bill was taken up in the Senate on motion of the then majority leader, the able and lamented Senator Joseph Robinson of Arkansas. The bill was debated from July 6 continuously through July 13, and until July 14 when Senator Robinson passed from the scene of action. His death was then and now universally lamented. On July 22, 1937, the bill was recommitted to the Judiciary with instructions to report a bill within 10 days relating to judicial reform, substantially noncontroversial in character.

There was organized in the Senate of the United States no actual formal filibuster against the President's proposal, but in committeeroom, in conference, and wherever Senators who were opposed to the measure foregathered, the proposal was under constant discussion. From February 5 until the date of Senator Robinson's death, July 14, 1937, the proposal was one of sharp controversy in the press, over the radio, and on the floor of the Senate. I expressly disclaim any purpose to indulge in criticism of the late President Roosevelt or of his court proposal of February 5, 1937. Upon that proposal I have long since expressed my own views. I have no hesitancy in saying that this proposal, although not intended by the then President and not designed by him to have the effect, would have changed the whole character of the American Government, in my opinion. In a sentence, it would have converted the judicial branch of the Government into a mere agency or arm of the Executive, contrary to the intent and purpose of the Constitution.

Certainly, it requires no arguments now to show that the very genius of the American system of government is the judicial protection of the rights of the one man against the ninety and nine; certainly, it needs no argument to demonstrate that the whole Bill of Rights is but a clear and unmistakable declaration that certain immemorial rights of free men in America are above and beyond all government, general as well as local. How may these rights be preserved unless we retain a strong, independent and coordinate branch of the Government-the judicial branch-to give to them validity and life. As a member of the Senate in 1937, I can assure you that those of us who opposed the reorganization of the judicial branch of Government were most anxiously concerned respecting our ability in the beginning to marshal even a scant one-third of the Senate against a powerful and a popular President of the United States-a great leader not only of his party but of American thought. The effort was not actually made to invoke cloture and to limit and restrict debate upon this important issue, but if debate had been limited to one hour by each Senator on the bill as introduced by the chairman of the Judiciary in the early days of 1937, or if the present proposals to give to a scant majority of those voting or the constitutional majority of the whole membership of the Senate the power to limit debate had been the rule, the bill would probably have passed the Senate. I must 1emind you that there were then in the Senate 76 Democrats, but 16 Republicans, 1 Independent Republican, 1 Progressive, and 2 Farmer-Labor Senators.

Why not let the present rule stand; why not limit the right of debate only in those cases where a substantial majority, at least two-thirds of the members present, regard it necessary to close debate? Why talk of constitutional majorities, which in and of themselves must necessarily represent the party in power? Factionalism and partisanship are not necessary represented by political parties at this time, and I wish, Mr. Chairman, to make that abundantly clear. It must be obvious to all thoughtful men that persistent and militant minorities who do not aline themselves with either major political party, and who do not accept responsibility for legislation therefore, nevertheless constantly seek to influence action by both parties. This is a modern development of that partisanship as to which George Washington so clearly visualized the dangers ahead of us, and which most of our statesmen have seen from the first, and it is a type of partisanship against which both political parties should be willing to guard by requiring a substantial majority of the Senate to limit or close debate.

I thank you very much, Mr. Chairman.

Senator WHERRY. Thank you for presenting that able argument. Does anyone have any questions?

Senator HAYDEN. I have no questions.

Senator WHERRY. Senator George, I am interested in the first part of these resolutions relative to the amendment offered, I think, on all of them, which would amend rule 22 notwithstanding the provisions of rule 3 or rule 6, on which filibuster has been made. You have had much more experience with that than I have. I would like to ask you if you feel that these amendments should be adopted? All of these resolutions, it seems to me

Senator GEORGE. I said in this prepared statement, and I will quote it, "At the outset I concede that the rule may properly be made applicable to any pending motion, question, or measure. That is the cloture rule, whatever cloture you have.

Senator WHERRY. So you would be perfectly willing to adopt that much of the resolution?

Senator GEORGE. I certainly would, and I think it should be adopted. Senator WHERRY. Do you feel that that is one of the big hurdles that we should cross here in an attempt to better rule 22, I mean the provisions of it?

Senator GEORGE. I think it is an important obstacle in the way of orderly procedure in the Senate, and I would agree that that feature of the rules certainly should be changed.

Senator WHERRY. You think if that had been done

Senator GEORGE. I am speaking for myself.

Senator WHERRY. I understand, but I am asking you because of your wide experience.

Senator GEORGE. It seems to me that in the testimony that has been brought out here, that pretty much all have been agreed that that change should be made; and that if it were done, fundamentally it would help considerably in getting at the issue, that is, you have got a right to have a vote sometime on the question at issue rather than on some indirect question as we have done by▬▬

Senator WHERRY. You are in full accord, as I understand, with those provisions of the resolutions?

Senator GEORGE. Yes; I am in full accord.

Senator WHERRY. When it comes down to the number of who shall be the ones to decide, either a constitutional majority of the Senate. or a majority of those voting and present, or two-thirds, we are interested in the statistics furnished here last Tuesday by Senator Overton and by Senator Byrd. I think that in only three cases where cloture was carried, in 30 years, was it carried by more than a constitutional majority; and in those cases it was 51 or 52 or 53 votes. is that right, Senator?

Senator HAYDEN. Approximately that.

Senator WHERRY. There wasn't very much difference between that and a constitutional majority, in the 40 years, in the two-thirds rule. Senator GEORGE. That is true, Mr. Chairman, but as I have tried to point out, the vice of a majority rule is the encouragement that it leads to the party spirit, and that party spirit, in my opinion, is a thing that we all should strive to control, and particularly now when we have not the parties with the same old integrity that parties once had but parties that are constantly subjeced to minority pressures of all kinds, and they are almost forced to write into their programs something that this or that or the other minority wishes. It is obvious that the minority has no real responsibility because it isn't a party, but it forces that responsibility on the parties. And under our two-party system it seems to me that it would be the wise thing for both parties to recognize the necessity of safeguarding any of the rules of the Senate which have under ordinary circumstances operated profitably, and therefore not to change the cloture rule by a bare majority, even though it be a constitutional majority which in many instances might amount to two-thirds of those present. Bu we should require a substantial majority before the important right of debate is actually limited or cut off. That is my own view.

Senator WHERRY. Yes, and I thank you for that. I think I understood that.

The question I want to propound to you is: Do you know of any precedent, for this 49 constitutional majority? That is, is there any precedent for that particular number? Now in connection with that, it was brought out here that we expel a member by a two-thirds vote. and I think someone said you silence one man with a two-thirds vote and yet under a constitutional majority you would silence a group of Senators. What I am trying to find out is this: Do you know of any precedent where they use the 49 constitutional majority that has the same value as that?

Senator GEORGE. No; I do not know of any. I know only this, and my recollection hasn't been recently refreshed, that in 1917 at the end of a March 4 Congress, certain important legislation which President Wilson thought ought to be passed was being blocked, and when the extraordinary session of Congress was immediately convened there was a committee appointed, I think of five Senators representing the majority and five representing the minority, to formulate the rule which is Senate Rule 22; and I also remember that Senator Underwood,