January 6, 1862, the credentials of Hon. Benjamin Stark as
Senator of Oregon were presented, when Mr. Fessenden, of Maine,
moved that the oath be not administered at present, and that
the credentials, together with certain papers which he offered,
be referred to the Committee on the Judiciary. These papers,
according to him, stated that Mr. Stark was understood by
everybody in his vicinity to be an open and avowed supporter of
Secession,--that he had openly defended the course of the South
in seceding, and given utterance to sentiments totally at war
with the institutions and the preservation of our country, such
as approving the attack on Fort Sumter, making declarations
to the effect, that, in the event of civil war, which, in
fact, had already commenced, he would sell his property in
Oregon and go South and join the Rebels,--that the Rebels
were right,--that the Davis Government was, in fact, the only
Government left,--that there was, in fact, no Government of the
Union at all. Mr. Fessenden added, that numerous declarations
of this kind were sworn to by persons certified and proved to
his satisfaction to be perfectly reliable. In the course of
the debate, Mr. Fessenden further remarked: “Now, Sir, I do
not hesitate to say, that, if a part only of what is stated
in these papers is true, I presume the Senator from Indiana
[Mr. BRIGHT] himself would vote upon the instant to expel this
gentleman from the body, if he had taken the oath.”[195]
The motion of Mr. Fessenden was opposed by Mr. Bayard, of
Delaware, and Mr. Bright, of Indiana, the latter objecting
especially that the motion was without precedent. Here Mr.
Sumner spoke briefly, presenting the point on which he
subsequently enlarged.
I desire, Mr. President, to make one single remark. It is said that
the proposition before the Senate is without precedent. New occasions
teach new duties; precedents are made when the occasion requires.
Never before has any person appeared to take a seat in this body whose
previous conduct and declarations, as disclosed to the Senate, gave
reasonable ground to distrust his loyalty. That case, Sir, is without
precedent. It behooves the Senate to make a precedent in such an
unprecedented case. At this very moment we are engaged in considering
if certain Senators shall not be expelled for disloyalty; and it seems
to me we shall do our duty poorly, if we receive a new comer with
regard to whose loyalty there is reasonable suspicion.
January 10, the credentials of Mr. Stark and the accompanying
motion were taken up for consideration again, when Mr. Bayard
made an elaborate speech against the motion. Mr. Sumner
replied in remarks which will be found in the _Congressional
Globe_,[196] adducing the case of Philip Barton Key, a sitting
member from Maryland, against whom it was alleged, that he
“either now was or had been a British pensioner,” and that
“an inquiry ought to be had in this matter, as, were it
true, it would certainly be a disqualification.”[197] After
further debate, the motion of Mr. Fessenden prevailed, and the
credentials, with the papers, were referred to the Committee.
February 7th, Mr. Harris, of New York, reported from the
Committee, that, “without expressing any opinion as to
the effect of the papers before them upon any subsequent
proceeding in the case,” Mr. Stark was “entitled to take the
constitutional oath of office.” Mr. Trumbull, Chairman of the
Committee, dissented from the report, thinking it “the duty of
the Committee to pass upon the testimony before it in regard to
the loyalty of the Senator from Oregon.”[198]
February 18th, the Senate resumed the consideration of this
case, when Mr. Harris spoke in favor of the report, and Mr.
Hale, of New Hampshire, against it. The latter moved that the
report be recommitted, with instructions to inquire whether
the evidence so far impeached Mr. Stark’s loyalty as to
disqualify him from holding a seat in the Senate. This motion
presented the very point raised by Mr. Sumner at the beginning,
and he spoke upon it as follows.
MR. PRESIDENT,--Over each House of Congress, while in session, floats
the flag of the Union. So long as that flag ripples above our end of
the Capitol, the passing stranger knows that the Senate is engaged in
loyal service to the Republic. In no other country is the national
flag thus employed; and I remember to have heard a distinguished
artist[199]--who, unhappily, no longer lives except in his works, some
of which are near us--remark that this custom was to him the most
original and picturesque feature of Washington. The national flag,
symbolizing the labors of Congress, seemed to have a double beauty,
reminding him not only of country, but also of the patriotic service in
which those the people trusted were then engaged.
The Senate is now in session, performing its allotted duties, and
the national flag is over it. I need not enlarge on these duties,
legislative, diplomatic, and executive. They are present to your minds.
Suffice it to say, that not a law can be passed, not a treaty can be
ratified, not a nomination to office can be confirmed, without the
action of the Senate. And now you are to determine the plain question,
if this body, with these exalted, various, and most confidential
trusts, and actually sitting beneath the flag of the Union, is so
utterly powerless and abject, that, before admitting a person to
participation in these trusts, it can make no inquiry with regard to
his loyalty, and cannot even consider evidence tending to show that
he is false to the flag now waving over us. Sir, if this be so, if the
Senate is really in this condition of imbecility, if its doors must
necessarily swing open to any traitor, even, presenting himself with a
certificate in his pocket, let the flag drop, and no longer symbolize
the loyal service in which we are engaged. The Report of the Committee,
expressed in simple English, without circumlocution or equivocation,
is, “Free admission to traitors here, and no questions asked.” In
other words, the claimant of a seat in the Senate can enter and take
it without question with regard to loyalty. He can freely participate
in these most important trusts, with the flag of the Union waving over
him, and nobody shall ask in advance whether he is true to that flag.
But it is argued by the Senator of New York [Mr. HARRIS], that the
Constitution having provided for the expulsion of a Senator by a vote
of two thirds, there can be no inquiry on the threshold, except with
regard to the qualifications of age, citizenship, and inhabitancy of
the State whose certificate he bears. If this be true, then open,
flaunting treason is not a disqualification, and the traitor, if
allowed to go at large, may present his certificate and proceed to
occupy a seat among us. A proposition is sometimes answered simply by
stating it; and it seems to me that this is done in the present case.
The Constitution was the work of wise and practical men, and they were
not guilty of the absurdity which such an interpretation attributes
to them. They did not announce that a disloyal man, or, it may be, a
traitor, may enter this Chamber without opposition, and then intrench
himself securely behind the provision requiring a vote of two thirds
for his expulsion; they did not declare that the mere certificate of a
Senator is an all-sufficient passport to shield a hateful crime itself
from every inquiry; nor did they insist that disloyalty in this high
place is to be treated so tenderly as not even to be touched, until,
perhaps, it is too late. This whole argument, that the claimant must
be admitted to the Senate and then judged afterwards, is more generous
to the claimant than just to the Senate; it is more considerate of
personal pretensions than of public interests. To admit a claimant
charged with disloyalty, in the hope of expelling him afterwards, is a
voluntary abandonment of the right of self-defence, which belongs to
the Senate as much as to any individual. The irrational character of
such abandonment is aptly pictured in a Parliamentary speech reproduced
in curious verses, more expressive than poetical, and once quoted by
Mr. Webster:--
“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?”[200]
But the Senate is asked to do this very thing. Instead of shutting the
door and keeping disloyalty out, we are asked to let it in and see if
we can get it out again.
If we look closely at the Constitution, we cannot hesitate. It is
assumed by the Committee that there are but three qualifications for a
Senator, and these words are quoted:--
“No person shall be a Senator who shall not have attained
to the age of thirty years, and been nine years a citizen of
the United States, and who shall not, when elected, be an
inhabitant of that State for which he shall be chosen.”
According to these words, the three qualifications are (1) age, (2)
citizenship, and (3) inhabitancy of the State he assumes to represent.
These qualifications are not questioned, because they are grouped in a
special clause of the Constitution; and every applicant, on presenting
himself here, is subjected at once to these tests. But it is a mistake
to suppose that these are the only qualifications imposed. There is
another, mentioned in a later part of the Constitution, more important
than either of the others; so that, though last in place, it is first
in consequence. It is _loyalty_, which I affirm is made a qualification
under the Constitution; and we have already seen, that, even if the
organic law were silent, it is so essential to the fitness of a Senator
for his trusts, that the Senate, in the exercise of its discretion,
ought to require it. But the language of the Constitution leaves no
room for doubt.