The words establishing loyalty as a qualification are as follows:--

“_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.”

Charles Sumner: his complete works, volume 08 (of 20) · 第 79 / 125 题