made available. Certainly if there is anything there you can present it. It is a matter of record. Mr. Vare can not add to it or take from it, as far as the record is concerned. You are unable to tell us any time or any probable time when Mr. Vare may appear, or any probable time when he can consult with his counsel. That is unfortunate; but here are these other lawyers and agents of his, who have been concerned in this business. Practically all of the matters that we have before us are matters of record. We took the testimony of some witnesses orally; but at the taking of all of that testimony, I think in every instance Mr. Vare was represented by counsel who are now living. Mr. Vare was represented when this committee conducted its investigation of the records of the last election in Pennsylvania-I mean the general election that we have under investigation. They saw all of the records that the representatives of this committee saw. Those records are available. If there is anything in those records to which you desire to call the attention of this committee, the committee, of course, will gladly hear whatever you have to present. There is no claim here that you have other oral testimony to produce. If that had been the claim, it is very hard for me to understand—I speak for myself alone-why Mr. Vare, at the conclusion of this testimony, did not offer the testimony instead of saying that he had nothing to present. So I am asking you, much as Senator Goff asked you, but in a little different form, why you, as counsel for Mr. Vare, can not go through these records, and if there is anything in them that you desire to present to this committee, present it. The committee will be glad to give you a reasonable time in which to do that; but we feel the necessity of making some kind of a report to the Senate before this Congress adjourns. We want to extend to you and to Mr. Vare every consideration that either justice or humanity calls for. We are under a public obligation, however. Mr. BROWN. Senator Reed and gentlemen of the committee, the whole thing appears to me to be a situation that is incomparable, as far as my reading has gone, in this country. I do not recall any case, certainly none before-and I have read all of the precedents of your honorable body-there has been no case anywhere, in or out of the courts, that is on a footing in pari passu with this. The whole situation is one that comes down after all, to my mind, to a humanitarian principle, entirely irrespective of the man's title to a seat in the Senate, whether or not he is entitled to his seat. Our courts and the courts of this country have been practically uniform in deciding that there are cases where humanity is above the law; that is, that there may be a situation that impels you and me (pardon the comparison) to perform a duty, but if we are confronted by the intervention of an act of God surely no one can criticize us for not pressing to the end that obligation which we think we are called upon, under our oaths, to fulfill. That is this case. I can not advise with this man. God knows I would if I could; but he is down in Florida now, and after you are through here to-day I probably will have to go to Florida, leave my business and go away, take a week to go down there and back again, and do what? Go and sit with almost tearful eyes looking at this helpless man. That is the proposition. If I attempt to talk to him about the case, or what is done here, he goes down, and that is the end of it. He will talk to me two or three minutes. That is my situation. Pardon me for referring to you, Mr. Chair man. The CHAIRMAN. That is all right. Mr. BROWN. You tell me that there is nothing in it that he can help with, that I can not understand; but these records are volumes, hundreds and hundreds of pages, thousands of pages of testimony. You have had your committee working, and I do not know what that report is, or what you found to compare it with. Why, it is an insuperable task for me. The CHAIRMAN. We have not made any final findings in this case. We have held this case open for the purpose of hearing anything that you might have to present. We have conclusions that we have talked about, provided there is no further evidence; and we have assumed that there was not any further evidence of a material character until these requests came from Mr. Vare. Now, Mr. Brown, let us just talk about this frankly. The unfortunate thing about this case is that the committee was obstructed in its work. Mr. BROWN. I am not responsible for that. The CHAIRMAN. You personally; no. Mr. BROWN. IS Mr. Vare responsible for it? I do not know. Mr. BROWN. Well, that I do not know. I can not judge of it. Mr. BROWN. Pardon me, sir. The CHAIRMAN. That is all right, Mr. Brown. I would not be impolite to you for anything in the world. Mr. BROWN. And the same here, sir. The CHAIRMAN. The cold fact about it is that we had that filibuster. There is not anybody that is foolish enough not to understand that the purpose of it was to destroy the work of this committee and to prevent it from making a report, and that it was done in Mr. Vare's behalf, and we have the right to assume at his instance. We tried to get the ballot boxes over in Pennsylvania. We had obstructions there. Mr. Vare's name was not directly concerned, but those who obstructed were among his adherents; and the moment Mr. Vare, through you, gave his consent to the turning over of those ballot boxes they were turned over, which pretty clearly shows who held the key to the door and who had kept it locked. Now, there is the delay. All this occurred, Mr. Brown, before Mr. Vare was afflicted. I want to take this opportunity to say-and I know I speak for every member of the committee that we have no personal feeling in this matter except one of profound sympathy for Mr. Vare's affliction. Mr. BROWN. I believe you, sir. The CHAIRMAN. I wish he were as stalwart a man here to-day as he formerly was, and capable of going on the floor of the Senate and defending himself with all of the vigor that he once possessed. We do not want to do anything in the nature of a harsh thing; but we are trying to find out whether there is not a solution to this problem, or whether we are to be asked just to abandon this work incomplete, let the committee go out of existence, and make no report to the Senate because Mr. Vare is ill and no one can say that he ever will be well; no one can say when he will be able to consult with his counsel; no one can tell us what will transpire or what will probably or likely transpire. Mr. BROWN. Doctor Kirby is here, and can probably give you some medical information. The CHAIRMAN. Even if Mr. Vare were unfortunately to die-we all hope that will not occur-nevertheless this committee is under a duty to report to the Senate; and if the evidence is not here, all of it, we will have to report such as we have been able to get, because this hearing is in the nature of a public investigation for the purpose of ascertaining the facts; and if Mr. Vare, who happens to be the party particularly in interest, is unable to furnish us with certain facts which he may possess, we are in the same situation that we would be in if some other witness had unfortunately died. That is to say, we still must report what we have been able to find out; and, of course, in fairness to Mr. Vare, we might well say that he was unable to appear, and what else he might have to offer we are unable to determine. Clearly, however, we must do something. If you could say to us that in 10 days, in 20 days, in 30 days, Mr. Vare would be able to appear-if you would make a showing here before the committee as you would in court, if you were asking a continuance, of the evidence that Mr. Vare proposed to produce—we might then be able to handle the situation as we do in court. Mr. BROWN. Well, Mr. Chairman, may I have the favor of having Doctor Kirby tell you the situation from the medical standpoint? Then I should like to say a word after he finishes. The CHAIRMAN. Yes; we will hear Doctor Kirby. Senator LA FOLLETTE. Before Doctor Kirby makes his statement, Mr. Brown, this committee has taken several hundred pages of oral testimony which involved the primary election in Pennsylvania. Have you made a study of that record? Mr. BROWN. No; I have not, sir. I have not made any study. There may have been a faux pas committed by me in this matter, because when the Senate adjourned I then said to him, "Well, the Senate has adjourned now. It is done. These Senators have all gone home, gone away from there, recessed. I am willing to go on and represent you when I hear from this committee what is the next step to take about it-some report or something." I have not gone through all this testimony. Senator LA FOLLETTE. Months have gone by since you made your appearance upon the record as Mr. Vare's attorney; and you state that you have not even read the oral testimony taken? Mr. BROWN. Oh, I have not read all of it. I have glanced over some of these hundreds of pages. Senator LA FOLLETTE. I am asking you frankly, Mr. Brown, whether you have made any such study of that record as you would have made had you been anticipating that you would proceed as Mr. Vare's attorney in a case in court?. Mr. BROWN. No; I have not. There is no question about that. I have not made that close, analytical study in comparison with what may have been done by the other committee investigating this whole general subject. I viewed the subject as a whole-the primary, the election, and the correlation between them-so as to present the picture, if it ever was presented, in some tangible, intelligible form, with proper help from the client. Senator LA FOLLETTE. This committee, through duly authorized agents, made an examination of certain of the election records and paraphernalia. At that examination there were present the duly authorized agents and counsel and representatives of Mr. Vare and Mr. Wilson. Have you ever conferred with the representatives of Mr. Vare, your client, concerning the physical records that were gone over at that time? Mr. BROWN. Only generally-just that they were taking testimony here, or not taking testimony, making examinations of the records; that is all I know of. Senator LA FOLLETTE. You know nothing about what was found? Mr. BROWN. No; I do not. Senator LA FOLLETTE. You have not been over the result of that investigation? Mr. BROWN. I have not. There has been no report made of the result of it, or what they have found. I have heard rumors of this, that, and the other thing; but nothing definite has ever been brought to me. Senator LA FOLLETTE. The point is, of course, that all of the records were made available and were gone over in the presence of representatives of this committee, representatives of Mr. Vare, and representatives of Mr. Wilson; and, if I understand your answer correctly, you have not conferred with the authorized representatives of Mr. Vare who were present during all of this examination. Mr. BROWN. Oh, I have talked generally-Mr. Kelly and I have talked over matters from time to time and all; but to make a close analytical and professional legal study of the whole proposition, I have not, because I did not consider that the time had arrived when I would be called upon to make that investigation which would be helpful to the presentation of the case. Senator LA FOLLETTE. Mr. Kelly is also one of Mr. Vare's attorneys in the matter? Mr. BROWN. Yes; he has been assisting in the matter. Senator LA FOLLETTE. It seems to me that in fairness to this committee, Mr. Brown, realizing full well that the committee feels a certain obligation to the Senate in this matter, as Mr. Vare's attorney or chief counsel in this matter you ought to go over that testimony, you ought to go over those records, you ought to confer with the representatives of Mr. Vare who were present at the examination of the election paraphernalia, and you ought to prepare as best you can any statement or any refutation, if you feel that there is any evidence there that should be or can be refuted, and you ought to state to this committee a reasonable time in which you will be prepared to make such presentation if you desire to do so. In other words, it seems to me, in fairness to this committee, that it should have a statement from Mr. Vare's chief counsel, after an examination of the records and evidence before this committee, as to whether or not in your opinion as his counsel there is any further evidence which you desire to present, either oral evidence or evidence to be deduced from the records that have been examined by the committee, and what that evidence shows from the point of view of your client. Mr. BROWN. I suppose counsel will have submitted to them, of course, the evidence this committee has taken, and the results of any findings of this committee or the representatives of this committee. Senator LA FOLLETTE. This committee has made no findings in this case, as the chairman has already stated on several occasions at this hearing. The committee has held the case open pending such time as Mr. Vare or his counsel would be ready to proceed under the terms of the most recent resolution adopted by the Senate, giving him opportunity, if he so desired, to present further evidence or to give further testimony before this committee. Would you be willing, Mr. Brown-I am speaking now only for myself; I do not know whether the other members of the committee agree with me or not-would you be willing to make a survey of this evidence and of these records, and, within a reasonable length of time, be prepared to state to this committee whether or not, in your judgment as Mr. Vare's chief counsel in this matter, there was any further presentation of evidence which you desired to have the committee take? Mr. BROWN. Senator La Follette, if this committee determines that Mr. Vare can not have an opportunity to appear here in person, that, of course, will have to be done. Senator LA FOLLETTE. We are not determining that now. Mr. BROWN. I say that because I can not confer with my client. I am handicapped in a way in not being able to confer with him. Senator LA FOLLETTE. But you can confer with all these records that are in evidence before the committee; which you say now, after the lapse of many months, you have not done. Mr. BROWN. I have not done it in detail as if we were preparing a case for an appellate court, or anything of that kind. The CHAIRMAN. You can confer with Mr. Kelly, who has been in this case all of the time, and is familiar with it-much more so than Mr. Vare. Senator KING. I think it is only fair, however, Senator Reed and Senator La Follette, to state-and Mr. Brown ought to be advised of the fact that Mr. Clapp and his associates, representing this committee, made a detailed examination of the stubs, the records, the ballot boxes, the ballots, and the election paraphernalia, and they made certain statements of fact with respect to what they found. Now, I confess that I am considerably embarrassed in reaching a conclusion. It does seem to me that you ought to be permitted, that Mr. Vare ought to be permitted, to know just what those witnesses whom we relied upon, part of our organization, found. Mr. BROWN. Yes, sir. Senator KING. If they found certain stubs torn, it would occur to me that if you deemed that material you ought to have an opportunity to make an explanation. If they found, in a large number of divisions, certain fraudulent acts, it occurs to me, subject to correction upon more mature deliberation, that if you believe that that |