A great debate on the question how loyalty shall be secured in the
Rebel States is for the time silenced in order to consider how loyalty
shall be secured in this Chamber. Everywhere in the Rebel States
disloyal persons are struggling for power; and now at the door of the
Senate we witness a similar struggle. If disloyalty cannot be shut out
of this Chamber, how can we hope to overcome it elsewhere?
More than once at other times I have discussed the question of
loyalty in the Senate. But this was anterior to the adoption of the
Fourteenth Constitutional Amendment. The case is plainer now than
then, inasmuch as there is now an explicit text requiring loyalty as a
“qualification.” Formerly we were left to something in the nature of
inference; now the requirement is plain as language can make it.
By the new Amendment it is provided that “no person shall be a Senator
or Representative in Congress, … who, having previously taken an oath,
as a member of Congress, or as an officer of the United States, … to
support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof.”
These words are precisely applicable to the present case. They lay down
a rule from which there is no appeal; and this rule is not merely in
the statutes, but in the Constitution. It is the plain declaration that
loyalty is a requirement in a Senator and Representative. If we do not
apply it to ourselves now, it is difficult to see with what consistency
we can apply it to others. Your course here will affect the meaning of
this Constitutional Amendment, if not its validity for the future.
I do not stop to argue the question if that Amendment is now a part
of the Constitution; for I would not unnecessarily occupy your time,
nor direct attention from the case which you are to decide. For the
present I content myself with two remarks: first, the Amendment has
already been adopted by three fourths of the States that took part in
proposing it, and this is enough, for the spirit of the Constitution
is thus satisfied; and, secondly, it has already been adopted by “the
_Legislatures_ of three fourths of the several States” which have
Legislatures, thus complying with the letter of the Constitution.
Therefore, by the spirit of the Constitution, and also by its letter,
this Amendment is now a part of the Constitution, binding on all of
us. As such I invoke its application to this case. In face of this
positive, peremptory requirement, it is impossible to see how loyalty
can be other than a “qualification.” In denying it, you practically set
aside this Amendment.
But, even without this Amendment, I cannot doubt that the original
text is sufficiently clear and explicit. It is nowhere said in the
Constitution that certain specified requirements, and none others,
shall be “qualifications” of Senators. This word “qualifications,”
which plays such a part in this case, occurs in another connection,
where it is provided that “each House shall be the judge of the
elections, returns, and _qualifications_ of its own members.” What
these “qualifications” may be is to be found elsewhere. Searching the
Constitution from beginning to end, we find three “qualifications,”
which come under the head of _form_, being (1.) age, (2.) citizenship,
and (3.) inhabitancy in the State. But behind and above these is
another “qualification,” which is of _substance_, in contradiction
to _form_ only. So supreme is this, that it is placed under the
safeguard of an oath. This is loyalty. It is easy to see how infinitely
more important is this than either of the others,--than age, than
citizenship, or than inhabitancy in the State. A Senator failing in
either of these would be incompetent by the letter of the Constitution;
but the Republic might not suffer from his presence. On the other
hand, a Senator failing in loyalty is a public enemy, whose presence in
this council-chamber would be a certain peril to the Republic.
It is vain to say that loyalty is not declared to be a “qualification.”
I deny it. Loyalty is made a “qualification” in the Amendment to the
Constitution; and then again in the original text, when, in the most
solemn way possible, it is distinguished and guarded by an oath.
Men are familiarly said to “qualify,” when they take the oath of
office; and thus the language of common life furnishes an authentic
interpretation of the Constitution.
But no man can be allowed to take the oath as Senator, when, on
the evidence before the Senate, he is not competent. If it appear
that he is not of sufficient age, or of the required citizenship or
inhabitancy, he cannot be allowed to go to that desk. Especially if it
appear that he fails in the all-important “qualification” of loyalty,
he cannot be allowed to go to that desk. A false oath, taken with our
knowledge, would compromise the Senate. We who consent will become
parties to the falsehood; we shall be parties in the offence. It is
futile to say that the oath is one of purgation only, and that it is
for him who takes it to determine on his conscience if he can take it.
The Senate cannot forget the evidence; nor can its responsibility in
the case be swallowed up in any process of individual purgation. On the
evidence we must judge, and act accordingly. The “open sesame” of this
Chamber must be something more than the oath of a suspected applicant.
According to Lord Coke, “an infidel cannot be sworn” as a witness. This
was an early rule, which has since been softened in our courts. But,
under the Constitution of the United States and existing statutes, a
_political infidel_ cannot be sworn as a Senator. Whatever may be his
inclination or motive, he must not be allowed to approach your desk.
The country has a right to expect that all who enter here shall have
a sure and well-founded loyalty, above all question or suspicion. And
such, I insist, is the rule of the Constitution and of Congress.
As if to place the question beyond all doubt, Congress by positive
enactment requires that every Senator, before admission to his seat,
shall swear that he has “voluntarily given no aid, countenance,
counsel, or encouragement to persons engaged in armed hostility” to the
United States.[82] Here is little more than an interpretation of the
Constitution. The conclusion is plain. No person who has voluntarily
given even “countenance” or “encouragement” to another engaged in the
Rebellion can be allowed to take that oath.
After this statement of the rule, the question arises, if Philip F.
Thomas can be permitted to take the oath at your desk, or, in other
words, to “qualify” as a Senator of the United States. Is he competent?
This is a question of evidence.
The ample discussion of the facts in this case, and their singular
plainness, supersede the necessity of all details. The atmosphere about
Mr. Thomas and his acts are harmonious. From the beginning we find him
enveloped in coldness and indifference while his country was in peril.
Observing him more closely, we are shocked by two acts of positive
disloyalty, one of which is the natural prelude of the other. The
first muttering of the Rebellion found him a member of the Cabinet of
Mr. Buchanan; but when this uncertain President proposed the succor of
our troops at Charleston, already menaced with war, Mr. Thomas withdrew
from the patriotic service. He resigned his seat, following the lead of
Cobb, Thompson, and Floyd. A man is known by the company he keeps. His
company at this time were traitors, and the act they united in doing
was essentially disloyal. As the Rebellion assumed the front of war,
they all abandoned their posts: some to join the Rebellion and mingle
with its armies; Mr. Thomas, more prudently, to watch the course of
events in Maryland, ready to lift his arm also, if his State pronounced
the word. This concerted desertion was in itself a conspiracy against
the Government; and in the case of Mr. Thomas, who was Secretary of
the Treasury, it was a blow at the national credit, which it was his
special duty to guard. It was an act of disloyalty to be blasted by
indignant history, even if your judgment fails now. And this was the
first stage in this record.
Meanwhile the war rages. Armies are marshalled; battles ensue;
Washington itself is beleaguered; the Republic trembles with peril.
But Mr. Thomas continues in the seclusion of his home, enveloped
in the same disloyal atmosphere, and refusing always the oath of
allegiance. At last, in 1863, an only son arrives at the age of
eighteen. Though still a minor, he is already of the military age.
Naturally filled with the sentiments of his father’s fireside, he
seeks to maintain them by military service. He is like his father, but
with the ardor of youth instead of the caution of years. He avows
his purpose to enlist in the Rebel army, thus to levy war against his
country, and adhere to its enemies. All this was treason,--plain,
palpable, unquestionable, downright treason. Instead of detaining his
son,--instead of keeping him back,--instead of interposing a paternal
veto,--instead of laying hands gently upon him,--instead of denouncing
him to the magistrate,--all of which the father might have done,--he
deliberately lets him go, and then, to cap the climax of criminal
complicity, furnishes the means for his journey and his equipment. He
gives one hundred dollars. The father is not rich, and yet he gives
this considerable sum. Few soldiers started with such ample allowance.
Thus it stands: the father, who has already deserted his post in the
Cabinet, and has refused to take the oath of allegiance to his country,
contributes a soldier to the Rebellion, and that soldier is his only
son; to complete and assure the great contribution, he contributes a
sum of money also. If all this accumulated disloyalty, beginning in a
total renunciation of every patriotic duty, and finally consummated
by an act of flagrant, unblushing enormity, is not “aid and comfort”
or “countenance” or “encouragement” to the Rebellion, it is difficult
to say what can be. There must be new dictionaries for these familiar
words, and they must receive a definition down to this day unknown.
They must be treated as thread or gossamer, when they should be links
of iron.
On an occasion like the present, where the moral guilt is so patent,
I hesitate to employ technical language. The simplest phrase is the
best. But the law supplies language of its own. Regarding the act of
Mr. Thomas in the mildest light, it was “misprision of treason,”
according to every definition of that crime which can be found in the
books. Lord Hale, whose authority, in stating the rules of Criminal
Law, is of the highest character, says, under this head: “Every man is
bound to use all possible lawful means to prevent a felony, as well
as to take the felon; and if he doth not, he is liable to a fine and
imprisonment.”[83] Lord Coke, another eminent authority, says: “If
any be present when a man is slain, and omit to apprehend the slayer,
it is a misprision.”[84] The same rule is, of course, applicable to
treason. Mr. Bishop, who in his remarkable work on the Criminal Law
has compressed the result of all the authorities, says: “Misprision of
felony is a criminal neglect, either to prevent a felony from being
committed by another, or to bring to justice a person known to be
guilty of felony. Misprision of treason is the same of treason.”[85]
Then again he says, citing Hawkins, Blackstone, East, and Russell, all
familiar names in our courts, each an oracle:--
“The doctrine of misprision, as now understood, may be stated
as follows: To make a man liable for a crime committed through
the physical volition of another, his own will must in some
degree concur in or contribute to the crime. _But when it is
treason or felony, and he stands by while it is done, without
using the means in his power to prevent it, though his will
concurs not in it,--or when he knows of its having been in
his absence committed, but neither makes disclosure of it to
the authorities nor does anything to bring the offender to
punishment_,--the law holds him guilty of a breach of the duty
due from every man to the community wherein he dwells and the
government which protects him.”[86]
I adduce these authorities in order to show, that, by the Common Law,
as illustrated by some of its best names, Mr. Thomas is beyond all
question an offender. Clearly he did not use “the means in his power”
to prevent the treason of his son, nor did he “make disclosure of it to
the authorities,” according to the received rule of law.
But the statutes of the United States leave us no room for doubt
or indulgence. According to the precise text, the present case is
anticipated and provided for. The Statute of Crimes, adopted in
1790, at the beginning of the National Government, after declaring
the punishment of treason, proceeds to declare the punishment of
“misprision of treason,” as follows:--
“That, if _any person or persons, having knowledge of the
commission of any of the treasons aforesaid, shall conceal and
not as soon as may be disclose and make known the same_ to
the President of the United States or some one of the Judges
thereof, or to the President or Governor of a particular State
or some one of the Judges or Justices thereof, _such person or
persons, on conviction, shall be adjudged guilty of misprision
of treason_, and shall be imprisoned not exceeding seven years,
and fined not exceeding one thousand dollars.”[87]
Apply these plain words to the present case. Nobody can doubt that
Mr. Thomas had “knowledge” of the treason of his son, and, having
this knowledge, failed to “disclose and make known the same” to the
President of the United States or the other proper authorities. Abraham
Lincoln was at the time President. There is no pretence that the
father communicated the crime of the son to this patriot magistrate,
or to any other loyal officer by whom he could have been arrested.
Therefore, beyond all question, on the facts of the case, the father
is guilty under the statute, and liable to seven years of imprisonment
and a fine of one thousand dollars. And now, instead of seven years of
imprisonment and a fine of one thousand dollars, it is proposed to give
him six years of trust and honor as a Senator of the United States,
with an annual allowance of five thousand dollars.
According to the old law, the indictment against Mr. Thomas would
allege, that, “not having the fear of God before his eyes, but being
moved and seduced by the instigation of the Devil,” he perpetrated his
crime. And now, with this crime unatoned for, he comes here to ask your
support and countenance. We are to forget all that he did, “moved and
seduced” by evil instigation, and welcome him to this Chamber, instead
of handing him over to judgment.
It is treating this case with a levity which it is hard to pardon,
when Senators argue that the father was not under obligations to
exercise all the paternal power in restraint of his son, or at least
in denouncing him to the proper authorities. What is patriotism, what
is the sacred comprehensive charity of country, if a father can be
blameless after such a license to his son? The country was another
mother to this son, and he went away to strike this mother on the
bosom. There is a case in antiquity which illustrates the solemn duty
of the father at least to detain the son. I quote from Sallust. This
remarkable writer, in his history of the Catilinarian conspiracy,
tells us that there were many not enlisted in the conspiracy who went
out to join Catiline; that among these was Aulus Fulvius, the son of
a Senator; and the historian adds, without comment, that the father,
when his son was brought back, ordered him to be slain: “_Fuere tamen
extra conjurationem complures, qui ad Catilinam profecti sunt: in his
A. Fulvius, Senatoris filius; quem retractum ex itinere parens necari
jussit_.”[88] Humanity rejects the barbarous exercise of the paternal
power according to the Roman Law; but patriotism may find even in this
example a lesson of paternal duty. The American father should not have
slain his son, but he should have kept him from joining the enemies of
his country. This requirement of duty was none the less strong because
not enforced by death. I utter not only the rule of patriotism, but the
rule of law, when I say that it was positive and peremptory. I will not
admit that an American citizen can be blameless who dismisses a son
from the paternal roof with money in his purse, to make war upon his
country. All that the son did afterward, all that the son sought to
do, became the act of the father who sent him forth on his parricidal
errand. The father’s treason was continued and protracted in the
treason of the son.
In making this contribution to the Rebellion, the act of the father
was enhanced by his eminent position. He had held a seat in the
Cabinet, binding him more than any common citizen to the most watchful
allegiance, and giving to what he did peculiar importance. A soldier
contributed to the Rebellion by such a person was a startling event.
It was aid and comfort, countenance and encouragement, of far-reaching
significance. It was a hostile act, directly injurious to his country,
and of evil example, the influence of which no man can measure. How
many others were weakened in loyalty by this parricidal act who can
tell? When the citizen who has enjoyed public trust and been a “pillar
of State” gives way, others about him must fall likewise. So great a
parricide must cause other parricides.
And now this father, who gave a son to the Rebellion, comes into this
sanctuary of the Constitution, where loyalty is the first condition of
admission, and asks for a seat. _Immo in Senatum venit._ Is there not
hardihood in the application? Of course, he cannot be admitted without
your act having an influence proportioned to the importance of the
position. It will be felt everywhere throughout the country. Admit him,
and you will unloose the bonds of loyalty and give a new license to the
Rebellion in its protracted struggle. On the contrary, if you send him
away, you will furnish a warning to the disloyal, and teach a lesson of
patriotism which will thrill the hearts of good citizens now anxiously
watching for peace and reconciliation through the triumph of loyalty.
I speak this positively, because on this case I see no doubt. The facts
are indisputable, and over all towers one supreme act of parricide,
for which there can be no excuse or apology. A soldier was contributed
to the enemies of his country. There is no question of motive. The
parricidal act was complete, and it explains itself. There is no
doubt that it was done. In the presence of such an act, so absolutely
criminal, there can be no room for inquiry as to the motive. All this I
put aside and look only at the transcendent fact, in which all pretence
of innocence is so entirely lost and absorbed that it cannot be seen.
As well seek to find a motive, if a son struck at the bosom of his
mother. The law supplies the motive, when it says, in its ancient
phrase, “moved and seduced by the instigation of the Devil.”
Some there are who doubt the motive of the father, and claim for him
now the benefit of that doubt. Even if the motive of this criminal act
were in question, as I insist that it cannot be, then do I say, that,
in a case like this, when disloyalty is to be shut out of this Chamber,
I give the benefit of doubt to my country.
There is another voice which sometimes reaches me. We are told, that,
if the applicant be disloyal, then we may expel him. For myself, I
prefer to take no such risk. Viewing the case as I do, I have no right
to take any such risk. Disloyalty must be met at the door, and not
allowed to enter in. The old verses, more than once repeated in our
public discussions, are applicable now,--never more so:--
“I hear a lion in the lobby roar:
Say, Mr. Speaker, shall we shut the door,
And keep him there? or shall we let him in,
To try if we can turn him out again?”[89]
February 19th, after a debate of several days, Mr. Thomas was
declared “not entitled to take the oath of office, or to hold a
seat, as a Senator of the United States,”--Yeas 27, Nays 20.