REMARKS IN THE SENATE, ON THE CASE OF GENERAL LANE, OF KANSAS, JANUARY
13, 1862.
The question of the seat of Hon. James H. Lane, of Kansas, was
referred to the Judiciary Committee of the Senate, at the extra
session of July, 1861, when the Committee reported that he was
not entitled to his seat. The consideration of the resolution
was postponed to the present session.
It appeared, that, previously to the extra session, and
before Mr. Lane had taken his seat as Senator from Kansas, he
was designated by President Lincoln as Brigadier-General of
Volunteers, and entered upon his public duties as such, but
without any actual commission or formal appointment according
to law. Afterwards, when informed that he could not be
Brigadier-General and at the same time Senator, he abandoned
the former post and was duly qualified as Senator. Meanwhile
Governor Robinson of Kansas, assuming that Mr. Lane had so far
accepted another office as to vacate his seat in the Senate,
appointed Hon. Frederic P. Stanton in his place, and the
Judiciary Committee affirmed the title of the latter.
January 13th, Mr. Sumner spoke against the report.
MR. PRESIDENT,--The Senator from Connecticut [Mr. FOSTER] has presented
the objections to the seat of General Lane ingeniously and ably; but I
must frankly confess that he fails to satisfy me. I could not resist
the brief, but decisive, statement of the Senator from New York [Mr.
HARRIS], to which we listened the other day; and the ampler argument of
the Senator from New Hampshire [Mr. CLARK], to which we have listened
to-day, seems to leave little more to be said. I shall follow the
latter without adding to the argument.
The language of the Constitution applicable to the case is explicit:
“No person holding any office under the United States shall be a member
of either House of Congress during his continuance in office.” But the
question arises, Did General Lane hold any such office after he became
Senator?
Not considering the case minutely, I content myself with briefly
touching two points, either of which will be sufficient to secure his
seat to General Lane.
1. At the time when the military appointment was received from the
President, General Lane was simply Senator elect from Kansas, and not
actually Senator. This cannot be questioned. Until he took the oath at
your chair, Sir, he was Senator in title only, not in function. It is
true, he already exercised the franking privilege; but this he will
also exercise months after his term expires. The franking privilege
was all that he possessed of Senatorial functions. On this point I
read what is said by Mr. Cushing, in his elaborate work on the Law and
Practice of Legislative Assemblies.
“SEC. 2. _Refusal to qualify._ One who is returned a member of
a legislative assembly, and assumes a seat as such, is bound
to take the oaths required of him, and perform such other acts
as may be necessary to qualify him, if any, to discharge the
duties of his office. If a member elect refuses to qualify,
he will be discharged from being a member, with more or less
of obloquy, or none at all, according to the circumstances of
his case; but he cannot be expelled, because he cannot as yet
discharge the duties of a member.”[122]
It is clear that the member elect is not invested with the office
until qualified by taking the oath. If illustration of this rule be
needed, it will be found in the Parliamentary History of Great Britain.
Soon after the Revolution of 1688, two persons returned as members
refused to take the oaths and were discharged. But there is an historic
precedent almost of our own day. As the long contest for Catholic
Emancipation in Great Britain was drawing to a close, Mr. O’Connell
was elected by the County of Clare to a seat in Parliament. Presenting
himself at the bar of the House of Commons, he refused to take the
Oath of Supremacy, then required of all members, and was heard at the
bar in support of his claim; but the House resolved that he was not
entitled to sit or vote, unless he took this oath; and as he persisted
in refusal, a writ was issued for a new election. Still later, the same
question arose in the case of Baron Rothschild, the eminent banker of
the Jewish persuasion, who, when elected as representative for the city
of London, refused to take the oaths required, and on this account was
kept out of his seat, until what is known as the Jews’ Relief Bill
became a law. The conclusion is irresistible, that, until the oath was
taken, General Lane had not entered upon his functions as Senator; and
here the argument of the Senator from Connecticut, with regard to the
effect of the oath, is strictly applicable. An oath in public, at your
chair, Sir, being at once of record and sealing the acceptance of an
office, is very different from the informal oath taken in private, at
a distance, before a local magistrate, which is in the nature of an
escrow, until recorded in the proper department.
2. Even if General Lane had been Senator, invested with the functions
of the office, and completely qualified by taking the necessary oath,
it is still clear that the military duties he had undertaken did not
operate as a resignation. And here I remark, that, when it is proposed
to unseat a Senator, to deprive him of a place in this body,--I might
almost say to deprive him of his rank,--the evidence must be complete.
It must be, according to that old phrase of the Common Law, “certainty
to a certain intent in every particular.” If there be doubt, either
in law or fact, the interpretation should be in his favor. But this
case requires no such interpretation. It is true that General Lane had
entered upon certain military duties, but he had assumed no military
office under the Constitution of the United States. Colonel Baker, a
late lamented member of this body, had assumed military duties also.
Like General Lane, he, too, had come forward at the summons of the
President. It is true that Colonel Baker acted professedly under a
commission from a State. General Lane has latterly acted under a
similar commission; but at the moment in question he was acting under
certain informal and extra-constitutional proceedings of the President,
rendered necessary by the exigencies of the hour. The President, by
proclamation, undertook to organize an army. He called for volunteers,
and also for additions to the regular army. All approved the patriotic
act. But I am at a loss to understand how it is supposed that this
proceeding can be made effective to oust a Senator of his seat. The
act of the President was proper, just, and patriotic; but clearly,
and beyond all question, it needed the sanction of Congress to be
completely legal. Without such sanction, the army must have drawn its
breath from the proclamation alone, and every commission would have
been merely a token of Presidential confidence, liable to be defeated,
first, by the failure of Congress to sanction the proclamation, and,
secondly, by refusal of the Senate to advise and consent to the
nomination. It was only when the Act of July 22d was passed, that the
President was authorized to appoint new Brigadier-Generals. Then it
was, for the first time, that a legal addition was made to the national
army, and that this very office was legally created which General Lane
was charged with accepting some time in June.
I do not forget the retroactive statute passed on the last day of the
session, declaring that all the acts, proclamations, and orders of the
President respecting the army and navy, and calling out or relating to
the militia or volunteers, are approved, and in all respects legalized
and made valid, to the same intent and with the same effect as if they
had been issued and done under the previous express authority and
direction of Congress. The clause in the Constitution against _ex post
facto_ laws has been restricted by judicial interpretation to criminal
matters; but I doubt if even this much questioned interpretation would
sanction such a retroactive effect as is now proposed. So much, at
least, I do know: the Senate is judge, without appeal, with regard to
the seats of its members; and I am sure it will not unseat a Senator by
a strained application of an _ex post facto_ statute.
The conclusion is twofold: first, that at the time in question General
Lane was not a Senator; and, secondly, that at the time in question
he was not a Brigadier. The whole case is unreal. It is a question
between an imaginary Senator and an impossible Brigadier; or rather,
it is a question whether an imagined seat in this body was lost by
alleged acts under an impossible military commission. The seat of the
Senator did not become a reality until some days after General Lane is
supposed to have vacated it; and the military commission did not become
a possibility until several weeks after General Lane had abandoned it.
Of course, with this view of the law on these two decisive points,
it becomes entirely unnecessary to consider the multifarious and
indefinite evidence with regard to what General Lane did in the way
of accepting his military commission; because nothing that he did,
and nothing that he could do, under that impossible commission, would
operate legally in the present case.
In reply to Mr. Davis, of Kentucky, Mr. Sumner spoke further.
I have no desire to follow at length the Senator from Kentucky, but
I venture to ask the attention of the Senate simply to one of the
points he has presented. According to him, General Lane, when elected
as Senator, by the mere fact of his election became Senator, so that
the Constitution operated to create an incompatibility between the
function of Senator and the new office which it is said he accepted.
The Senator from Kentucky, as I understood, argued that the function of
the Senator, at least for the purpose of this case, commences with his
election.
MR. DAVIS. Will the Senator from Massachusetts permit me to ask
him a question?
MR. SUMNER. Certainly, if the Senator will allow me just to make
my statement. The Senator, I say, assumes that the function of the
Senator, at least for the purposes of this case, commences with his
election; and in support of that assumption he quotes the Constitution
of the United States, as follows:--
“No Senator or Representative shall, during the time for which
he was elected, be appointed to any civil office, under the
authority of the United States, which shall have been created,
or the emoluments whereof shall have been increased, during
such time.”
Now, Mr. President, I most humbly submit that the clause of the
Constitution just quoted is entirely inapplicable. It has nothing to do
with the question. I say, with all respect to the Senator, he might as
well have quoted anything else in the Constitution. It does not bear on
the case. It relates to an entirely different matter. There is another
associate clause which does directly bear on this question. It is as
follows:--
“And no person holding any office under the United States shall
be a member of either House during his continuance in office.”
Those are the words, Sir, governing this case, and they conduct us
directly to the question, when and at what time a person becomes a
member of either House. That is the simple question.
MR. DAVIS. Will the Senator now permit me?
MR. SUMNER. I will finish in one moment. Clearly he becomes a member of
this body, so as to discharge his duties as Senator, and to be affected
with the responsibilities of Senator, only when he has taken his oath
at your desk, Sir,--not one minute before. There is nothing in the
Constitution, there is nothing in the practice of any parliamentary
body in this country, or in any other country, I think, pointing
to any different conclusion. Here I cannot err. The language of the
Constitution is sufficiently precise, and I feel confident that the
practice of Congress and of other parliamentary bodies is sufficiently
authoritative. Therefore the conclusion is inevitable, that, until the
4th of July, last summer, General Lane, chosen Senator by the people
of Kansas, was simply Senator elect, possessed through courtesy of the
franking privilege, but enjoying no other Senatorial function.
Now I am ready to answer any question of the Senator.
MR. DAVIS. I would ask the Senator from Massachusetts if the
office of Senator from the State of Kansas was vacant until
General Lane qualified as a member of this body?
MR. SUMNER. In a certain sense I should say it was.
MR. DAVIS. When he qualified, did or did not his office have
reference to the time of his election, and take its date from
the date of his election?
MR. SUMNER. I should say in a certain sense it did. I have already
said that he had the franking privilege, and I presume he was entitled
to the emoluments of the place, such as they are; but had he not been
qualified, he could not have drawn pay. It was only by taking the oath
that he was entitled to pay from the Secretary of the Senate.
MR. DAVIS. The Senator knows well, that, assuming his premises
to be true, whenever the Senator from Kansas consummated his
election by taking his seat and taking the oath of office, his
term dated back to the date of his election.
MR. SUMNER. The Senator must pardon me, if I cannot assent to his
conclusion. He may have been a Senator to a certain extent, but not so
as to create incompatibility with another office under the Constitution.
January 15, Mr. Sumner cited two precedents,--the case of
Hammond _v._ Herrick,[123] and that of Elias Earle of South
Carolina.[124]