“Register of _officers and agents_, _civil_, military, and
naval, _in the service of the United States_.”
Turning to the contents, we find in this list Members of Congress,
including Senators and Representatives, with the “officers and agents”
of the two Houses.
If we go back to the Blue Book for 1820, which is now in my hands,
we find the same title, and the same enumeration of Senators and
Representatives.
This Blue Book is still published, in pursuance of a joint resolution
by Congress, originally adopted as long ago as 27th April, 1816, with
the following title:--
“Resolution requiring the Secretary of State to compile and
print, once in every two years, _a register of all officers and
agents_, _civil_, military, and naval, in the service of the
United States.”
If Senators are properly included in such a register, it is only as
belonging to the “_civil_ department of the public service,” which is
precisely where they have been placed by the recent Act of Congress.
The only apology for the objection urged from the beginning of this
debate with so much pertinacity is founded on the case of Mr. Blount,
the Senator expelled and afterwards impeached, at the close of the
last century. I shall not take time to consider this case. It has been
amply done by others. On former occasions I have done it at length. And
yet I will not leave it without protesting again that it is absolutely
inapplicable to the present occasion. If that case were out of the way,
nobody would have suggested that a “Senator” was not an “_officer_ in
the _civil_ department of the public service.” Now what did this case
decide? Let another give the summary. I quote the words of Mr. Wharton,
in the notes to his edition of the State Trials.
“_In a legal point of view_, all that this case decides is,
that a Senator of the United States, who has been expelled from
his seat, is not, after such expulsion, subject to impeachment;
and _perhaps_ from this the broader proposition may be drawn,
that none are liable to impeachment except officers of the
government, in the technical sense, excluding thereby members
of the National Legislature.”[301]
The case of Mr. Blount has no application to the present question. It
is not an interpretation of the statute, and so far as it illustrates
the Constitution it simply concerns the liability to impeachment. But
even this case has often been drawn into doubt. And if we look into the
proceedings of the time, we find that the decision, such as it was,
encountered an able and earnest opposition.
Among those who took a distinguished part on that occasion was James
A. Bayard,[302] of Delaware, the eminent Representative who conducted
the impeachment as Manager on the part of the House of Representatives.
In his effective argument he has set forth the true signification of
the Constitution. From the argument of the Senator from Delaware [Mr.
BAYARD] in the present debate I confidently appeal to that of the
earlier Mr. Bayard. Here is a passage.
“I have submitted, in the course of my argument, that the sound
principle of construction to be adopted, in relation to the
construction of an instrument having in view the vast object
of settling the powers of the Government and the rights of
the people, is to give it such an interpretation as is best
calculated to give effect generally to all its parts according
to its true design. If I am supported in this principle, I
shall be able to show, by strong cases under the Constitution,
that its undeniable intention must be frustrated, if a Senator
be not considered an officer of the United States.
“I find it provided in the seventh clause of the third
section of the first article, that conviction on impeachment
disqualifies the party convicted from holding any _office_ of
honor, trust, or profit under the United States. If a seat in
the Senate be not an office, the disqualification does not
extend to it. And yet can it reasonably be contended that
the policy which incapacitates a citizen, if convicted on
impeachment, from holding an office the most mean and humble,
does not apply to the case of a Senator? The wisdom of the
Constitution, Sir, has considered a conviction as an evidence
of moral unfitness for public trust. It never can happen but
in the case of a great national offence. And shall such an
offender, degraded from the capacity of even being doorkeeper
of this Chamber, yet retain the capacity of being a member of
a body of the most dignity, trust, and power in the country?
This is a solecism in politics, an absurdity in reason, which
I trust this honorable court will not willingly by their act
attach to an instrument so highly and justly revered as the
Constitution of our Government.
“I find also a provision in the seventh [eighth] clause of the
ninth section of the first article, that ‘no person holding
any office of profit or trust under the United States shall,
without the consent of the Congress, accept of any present,
emolument, office, or title, of any kind whatever, from any
king, prince, or foreign state.’ If a Senator holds no office
of profit or trust under the United States, it is _lawful_ for
him to accept a present, title, or office from any king or
foreign state. Can it be possible that a public functionary,
of all others the peculiar object of this jealous restriction,
is, in fact, the sole object of exemption from its operation?
Can it be imagined that a Senator, upon whom the Constitution
has heaped the powers and trusts of legislator, judge, and
executive magistrate, is the only person who is left exposed to
the seductions of foreign influence? It can never be admitted
that a situation which from its trust and importance most
invites corruption is the only one which the Constitution has
not guarded against. If, Sir, a Senator be not an officer
under this clause, it might happen that the Senate of the
United States might become a House of Lords. It would be in
the power of any king in Europe to change our free government,
and to convert one branch, at least, from a republican into an
aristocratic form. You will not suffer an ensign in your army
to accept the humble title of Chevalier, and yet you will allow
an integral part of the Government to be composed of earls and
dukes. And let me pray the honorable Court to remember, at the
same time, that the Constitution has provided that a member of
either House shall not be allowed to retain his seat and hold
any commission, civil or military, under the United States.
The President has no titles to grant, nor offices of great
emolument to confer; and yet the chaste republicanism of the
Constitution will not allow a Senator to feel the influence of
his patronage; and yet, at the same time, he may _lawfully_ be
the pensioner or the titular noble of a foreign power. Such a
doctrine is not simply absurd, but infinitely dangerous.”[303]
In view of these emphatic words, it is difficult to see how any person
can insist that a “Senator” is not a “civil officer,” even according to
the text of the Constitution. Conceding to the judgment on the trial
of impeachment all the authority which can belong to it, you cannot
properly deduce from it any conclusion, except that a Senator already
expelled is not a “civil officer” liable to impeachment: nothing beyond
this.
But whatever the signification of this word in the Constitution, even
conceding all that is claimed for it there, the instance is entirely
inapplicable to the interpretation of the statute in question. If
there be doubt on the Constitution, there is none on the statute. The
latter is plain, and there are no associate words to interfere with its
natural and unequivocal signification.
I conclude this branch of the subject as I began, by putting aside
all irrelevant matter, all superfluous questions, all surplusage, all
topics not properly germane to the debate. There is no question of the
Constitution, no question of _ex post facto_, but a simple question on
the meaning of a statute.
The oath is prescribed by Congress. It is too late to debate its
constitutionality thus incidentally. It only remains for us to take it,
promptly, patriotically. The procrastination of this debate is of evil
example. How can we expect the alacrity of loyalty among the people, if
the Senate hesitates?
* * * * *
Another objection to the proposed rule has been brought forward by
the Senator from Vermont [Mr. FOOT]. According to him, the statute
is obligatory, and the oath must be taken by Senators, but a rule
requiring the oath is superfluous and without precedent. The argument
of the Senator is plausible, but it is answered by a simple statement
of facts, in which, as presiding officer of the Senate, he bore a
conspicuous part.
From this statement it will appear that the rule, or some equivalent
action of the Senate, is not superfluous.
Here Mr. Sumner set forth the facts substantially as presented
in the Introduction, showing the necessity of the proposed
rule, and then proceeded.
The language of the Chair, when inviting Senators to take the oath,
left a loophole through which they might avoid the oath. It was,
“Such Senators present _as choose to do so_ will come forward,” and
then “they will have _an opportunity to subscribe the oath_.” In such
terms Senators were invited to do as they pleased, thus making a
discrimination between the earlier oath, which they were obliged to
take in order to be qualified, and the additional oath, which they were
free to neglect.
Such is a plain statement of facts, which I make in no spirit of
personal criticism, but simply that you may see the occasion for the
proposed rule.
Had the Chair at the beginning proceeded to administer the additional
oath, as the earlier oath, there would have been no occasion for a
rule. Or had the Chair afterwards, when attention was called to the
omission, administered the additional oath according to the requirement
of the statute, there would have been no occasion for a rule.
The Chair did no such thing, but left the taking of the oath to the
conscience or will of each Senator. And though the statute solemnly
declares that “every person _elected_ or appointed to any office of
honor or profit under the Government 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 oath in question, yet the Senator from Delaware
[Mr. BAYARD] has not only “entered upon the duties” of his office as
Senator, but he has continued to discharge these duties, and to draw
his salary, although he has never taken and subscribed the oath.
Evidently something must be done to correct this incongruity, and to
rehabilitate, if I may so say, the Act of Congress. I know no better
way than by the proposed rule. But I have no partiality for this mode.
I am ready for any other proposition which will lift the statute from
the desuetude and neglect into which it was allowed to fall, and will
secure its enforcement. In the events at hand this statute will be a
safeguard of the Republic, and its enforcement here will secure its
enforcement everywhere. To the traitor seeking office it will be a
touchstone, while, with guardian force, it thrusts away from these
Chambers all those brutal enemies, who, for the sake of Slavery, have
helped to fill our land with mourning.
On the Yeas and Nays, the vote stood, Yeas 28, Nays 11. So the
resolution was adopted.
* * * * *
January 26th Mr. Bayard took the prescribed oath, and on the
29th resigned his seat in the Senate.
January 25th, Mr. Sumner asked, and by unanimous consent
obtained, leave to bring in a bill supplementary to an Act
entitled “An Act to prescribe an oath of office and for other
purposes,” approved July 2, 1862, which was read the first
and second times by unanimous consent, and referred to the
Committee on the Judiciary. It provided that no person should
be admitted to the bar of the Supreme Court of the United
States, or of any Circuit or District Court of the United
States, or of the Court of Claims, as an attorney or counsellor
of such court, or should be allowed to appear and be heard in
any such court, by virtue of any previous admission or any
special power of attorney, unless he should have first taken
the oath prescribed by the Act of July 2, 1862.
June 28th, Mr. Trumbull, from the Judiciary Committee, reported
adversely on this bill.
December 22d, on motion of Mr. Sumner, the Senate proceeded
to consider this bill, and it was passed,--Yeas 27, Nays 4.
January 23, 1865, it passed the House of Representatives, and
January 24th was approved by the President.