“_The Senators and Representatives before mentioned …
shall be bound by oath or affirmation to support this
Constitution._”[201]
These words are explicit in requiring the oath to support the
Constitution. And the first statute of the First Congress, approved
June 1, 1789, and standing at the head of our statute-book, provides
for the administration of the oath as follows:--
“The oath or affirmation required by the sixth article of
the Constitution of the United States shall be administered
in the form following, to wit: ‘I, A. B., do solemnly swear,
or affirm, (as the case may be,) that I will support the
Constitution of the United States.’ …
“The President of the Senate for the time being shall also
administer the said oath or affirmation to each Senator who
shall hereafter be elected, _previous to his taking his
seat_.”[202]
Thus by the Constitution, explained by the earliest statutes, must the
oath to support the Constitution be administered to a Senator _previous
to his taking his seat_. But the oath is simply evidence and pledge of
loyalty; and this evidence and pledge constitute a condition precedent
to admission. As loyalty is more important than age or citizenship or
inhabitancy, it has been put under the solemn safeguard of an oath. So
far from agreeing with the Committee, or with the Senator from New York
[Mr. HARRIS], that it is not named among “qualifications,” it seems
to me that it stands first among them. Of course, it is vain to say
that it is not expressly called a “qualification.” Let us ascend from
words to things. It is made a qualification in fact, call it by what
name you will. Men are familiarly said to “qualify” for an office, when
they take the necessary oath of office; so that the language of common
life becomes an interpreter of the Constitution. Sir, loyalty is among
constitutional “qualifications” of a Senator.
Resting on this conclusion, and assuming that disloyalty is a
constitutional disqualification, the single question remains as to
the time when evidence with regard to it may be considered. Now,
as the Senate, under the Constitution, is exclusive judge of the
qualifications of its members, the time when it shall consider a case
is obviously within its own discretion, according to the exigency. It
may take up the case early or late, before or after the administration
of the oath. Under ordinary circumstances, where the case turned upon a
question of age or citizenship or inhabitancy, it would be reasonable,
and according to usage, that the claimant should be admitted under
his certificate, which is _prima facie_ evidence of the requisite
qualifications. In such a case the public interests would not suffer,
for the disqualification is rather of _form_ than of _substance_. But
where the disqualification is founded on disloyalty, it is obvious that
the public interests might be seriously compromised, if the claimant
were allowed any such privilege,--for the disqualification is of
_substance_, and not of _form_. Disloyalty must not find a seat in the
Senate, even for a day; nor can any claimant charged with disloyalty
complain that the Senate refuses welcome to its trusts.
The oath required to support the Constitution is on its face _an oath
of loyalty_, and nothing else. The claimant may declare willingness
to take it; but such declaration is not an answer to evidence showing
disloyalty, unless you are ready to admit present professions to be a
sufficient cloak for disloyalty, or, it may be, treason, in the past.
On a question of such importance, with positive evidence against his
loyalty, the claimant cannot expect permission to purge himself on
his oath. The issue is distinctly presented, if he has not already
committed himself, so that his oath to support the Constitution is
entitled to no consideration. Sir Edward Coke pronounces generally,
that “an infidel cannot be sworn,”--a doctrine which has been since
mitigated in our courts. But whatever the rule on this subject in
our courts, it is reasonable that an _infidel_ to our Government, an
infidel to our Constitution, should not be permitted by the Senate to
go through the mockery of swearing to support the Constitution; nor
should a person charged with such _infidelity_ be permitted to take
the oath, unless able to remove the grounds of the charge. The oath
is administered by the President of the Senate at your desk, Sir, in
the presence of the Senators; and the solemnity of the occasion is
an additional argument against administering it to any person whose
loyalty is not above suspicion. There is a German treatise entitled,
“_On the Lubricity and Slippery Uncertainty of the Suppletory
Oath_,”--being the oath of a litigant party in his own case. But an
oath to support the Constitution by a claimant charged with disloyalty
would be open to suspicion, at least, of lubricity and slippery
uncertainty not creditable to the Senate.
We are told in the Epistle to the Hebrews that an oath is “the end
of the whole dispute”;[203] but this of course assumes that the oath
is above question. If not above question, it is wrong to allow the
oath,--at least in the Senate of the United States, which is the
exclusive judge of its own proceedings.
I say nothing of the facts in the present case; nor do I venture to
suggest any judgment on the final weight to which they may be entitled.
I confine myself to the simple question as to the duty of inquiry at
the present stage of proceedings.
Mr. Trumbull of Illinois, Mr. Dixon of Connecticut, Mr. Davis
of Kentucky, Mr. Clark of New Hampshire, and Mr. Morrill of
Maine followed against the Report, which was sustained by Mr.
Carlile of West Virginia, Mr. McDougall of California, Mr. Ten
Eyck of New Jersey, and Mr. Foster of Connecticut. Mr. Sumner
moved that the resolution of the Committee be amended so as to
read:--
“_Resolved_, That Benjamin Stark, of Oregon, appointed
a Senator of that State by the Governor thereof, and
now charged by affidavits with disloyalty to the
Government of the United States, is not entitled to take
the constitutional oath of office without a previous
investigation into the truth of the charge.”