“The Chair proposes now to take and subscribe this oath, in
pursuance of the law of 2d July last, and, that being done,
the Chair will administer the oath _to such members as will
voluntarily take it_.”
The oath was then administered to Mr. Foot by Mr. Foster.
Resuming the chair, the President _pro tempore_ then said:--
“The Chair will now direct the Clerk to call, in
alphabetical order, the names of all Senators who have been
elected or reëlected since the 2d July, 1862, that being
the day of the approval of the Act; and _such Senators
present_, whose names shall be called, _as choose to do
so_, will come forward to the Secretary’s desk and receive
the oath of office administered by the Chair, _after which
they will have an opportunity to subscribe the oath_.”
The Senators present, whose names were called, some of them
after delay, came forward and took the oath; and then, at the
suggestion of the Chair, Mr. Sumner withdrew the resolution.
The Senator from Delaware [Mr. BAYARD] was not then present.
Before withdrawing the resolution, Mr. Sumner, in reply to Mr.
Reverdy Johnson, of Maryland, again vindicated the proposed
rule, insisting that the statute was applicable to Senators as
“civil officers,” concluding as follows.
It is our duty to guard the loyalty of this Chamber. In requiring that
a person shall purge himself with regard to the past, we simply take
a new assurance of fidelity for the present. Others may think that
Jefferson Davis, Robert Toombs, or Judah Benjamin may resume his seat
in this body, on taking a simple oath to support the Constitution. I
do not think so; and I gladly seize the earliest opportunity, since
the commentary of the Senator from Maryland, to declare my conviction
that no person, whose loyalty is not manifest to the Senate, can be
allowed to approach your desk and take the oath of a Senator. The
Senate must shut the door upon him. This is not the first time that I
have made this declaration: nor have I contented myself with making
the declaration; I have argued it. Nothing is clearer than this: a
traitor cannot be a member of the Senate. But a person who cannot take
this oath, retroactive though it be, must have been a traitor. Once a
traitor, always a traitor, unless where changed by pardon or amnesty.
I know not what changes may be required by changing events. For myself,
I shall always welcome every act of just clemency or condonation. But
for the present the statute is wise and conservative. It only remains
that we should stand by it.
At the next session of Congress Mr. Sumner returned to this
question. December 17, 1863, he submitted a resolution
proposing a new rule.
“_Resolved_, That the following be added to the rules of
the Senate:--
“The oath or affirmation prescribed by Act of Congress of
July 2, 1862, to be taken and subscribed before entering
upon the duties of office, shall be taken and subscribed
by every Senator in open Senate before entering upon his
duties. It shall also be taken and subscribed in the same
way by the Secretary of the Senate; but the other officers
of the Senate may take and subscribe it in the office of
the Secretary.”
December 18th, the resolution came up for consideration, when
Mr. Saulsbury, of Delaware, moved as a substitute that the
Judiciary Committee be directed to inquire whether Senators and
Representatives are included within the provisions of the Act
prescribing the oath, and whether the Act is constitutional.
Subsequently, he moved that the whole subject, including the
resolution and the substitute, be referred to the Judiciary
Committee, which, after debate, was rejected,--Yeas 15, Nays
26. The debate was continued, in the course of which Mr.
Bayard, of Delaware, Mr. Reverdy Johnson, of Maryland, and Mr.
Collamer, of Vermont, spoke at length.
January 25, 1864, Mr. Sumner spoke as follows.
MR. PRESIDENT,--There is a time for all things; but there are times
when certain things are out of place; and this principle is especially
applicable to the present debate. The question is on the adoption of a
rule of the Senate to carry out an existing statute. It is not on the
passage of the statute, or on its proposed repeal, but it is simply
on its recognition as an existing statute, and the enforcement of its
plain requirement. Considering the simplicity of the question, well may
we be astonished at much that has been intruded into this debate.
The Senate is a branch of the legislative power, in conjunction with
the House of Representatives and the President. Neither alone can
make or unmake a law. The concurrence of all three is essential,
whether in making or unmaking. So long as the law exists, there is no
difference between the obligations of the Senate and the obligations of
the humblest citizen, except, perhaps, that the Senate, which helped
to make the law, is bound to set an example of obedience beyond any
citizen.
Therefore I put aside, as entirely irrelevant, much that we have
heard against the proposed rule. This is not the time to say that the
oath is unconstitutional, or that it is _ex post facto_. These are
considerations properly arising on the passage of the statute, or on
a proposition for its repeal. The Senator from Delaware [Mr. BAYARD]
and the Senator from Maryland [Mr. JOHNSON], who have argued these
topics so exhaustively, were either too late or too early. The statute
is already the law of the land, and there is no bill pending for its
repeal.
On a former occasion I vindicated the constitutionality of the statute,
and I now willingly leave that topic to the judgment of Senators,
enlightened by the wisdom of the Senator from Vermont [Mr. COLLAMER],
whose argument has not been answered. But I repeat that this objection
is utterly out of place at this moment.
A Senator over the way [Mr. HENDRICKS] has gone so far as to introduce
my course on a former occasion as an apology for not taking the
oath.[290] Because I denounced an infamous statute, which was a
scandal to civilization, as unconstitutional and utterly unworthy the
support of virtuous citizens, it is argued that the Slave-Drivers, then
in power, were more lenient to me than we are now to them. In other
words, the Slave-Drivers required of me an oath to support a statute
which I abhorred, and therefore we are wrong in requiring the proposed
oath. But this argument confounds two cases which are wide apart as the
poles. While denouncing an outrageous statute, and refusing to play the
part of slave-hunter, I never joined in rebellion against my country,
or uttered one word except in loyalty. But here are persons with bloody
hands, in battle array, striking at all we hold dear,--or others who
have acted with them. Such persons will be justly brought to the test
of an oath, and they can claim no immunity from the example of those
patriot citizens who, recognizing the crime of Slavery, refused to
become in any way its tools.
And another Senator [Mr. JOHNSON] has taken this occasion to arraign
me for certain opinions on another question, and he complained that I
place them under the protection of a judgment of the Supreme Court.
This is not the time for the discussion of “Reconstruction.” It has
nothing to do with the matter before the Senate. I may think that the
Government of the United States has _belligerent rights_, as well
as _the right of sovereignty_, over the Rebel States,--that it is
especially the duty of Congress to take care that these rights are so
exercised as to crush the Rebellion, and to prevent its breaking out
again,--and that, to this end, Congress must take all possible bonds
for the future. These opinions, which the Senator chose to characterize
harshly, may be wrong, but they have nothing to do with the business in
hand. At a proper time I shall be ready to defend them. At present I
choose not to be diverted from the issue before us.
Putting aside irrelevant questions, and presenting the single point
in issue, the case becomes too plain for argument. It is simply this:
Will the Senate obey an existing statute? But here we must consider the
meaning of the statute.
That the Senate will openly refuse obedience to an existing statute,
recently enacted, in support of loyalty, is not to be supposed without
impeachment of the loyalty of the Senate. Only because the question of
obedience has been complicated with other questions has there been for
a moment any doubt on this head. Clearly, the Senate will not disobey
an existing statute. It is, then, on the statute alone, and nothing
else, that any question can arise.
And here I ask leave to recall the Senate from the learned commentary
and elaborate diversion of the Senator from Delaware. The actual
question is one which may be treated without learning and without
effort. It arises on the following words of the statute:--
“Hereafter every person _elected_ or appointed to any
_office_ of honor or profit under the Government of the
United States, _either in the civil_, _military_, _or naval
departments of the public service_, excepting the President of
the United States, shall, before entering upon the duties of
_such office_, and before being entitled to any of the salary
or other emoluments thereof, take and subscribe the following
oath or affirmation [_here follows the oath_]; which said oath,
so taken and signed, shall be preserved among the files of the
Court, _House of Congress_, or Department to which the said
office may appertain.”[291]
It cannot fail to be observed here that the language is plain rather
than technical. Every person “elected” or “appointed” to any “office”
in the “_civil_, military, or naval departments of the public service”
must take the oath. What words could be broader than “departments” and
“public service”?
Obviously, and beyond all question, a Senator is “elected.” Therefore
on this point there is no question.
The inquiry recurs, Is a Senator an “officer” in the “civil department
of the public service”?
Is he an “officer”?
Is he in the “civil department”?
To raise these questions seems absurd. But I have not raised them. This
is done by others. You might as well raise the question, if a man is a
creature, and belongs to the human family.
Look now at these questions in their order.
* * * * *
1. Is a Senator an “officer”? Here please to consult the dictionary. I
turn to Webster.
“OFFICE.--_Offices_ are civil, judicial, ministerial,
executive, _legislative_, political, municipal, diplomatic,
military, ecclesiastical, &c.”
Thus, plainly, offices are _legislative_. But why summon the
dictionary? And yet the zeal of the other side leaves no alternative.
Not content with the dictionary, I call attention to the use of the
word in other authoritative places,--and pardon me, if I begin with the
Constitution of Massachusetts, written originally by John Adams.