It is my earnest hope that the claimant will be able to purge himself,
and show that he is a loyal citizen. Meanwhile I do not wish to
prejudge him; I have not prejudged him; I have come to no conclusion
on the facts; but I have come to a perfect, fixed, and irreversible
conclusion on the duty of the Senate at this time to enter into this
inquiry, and to ascertain from the evidence whether he is loyal or not.
Mr. Fessenden followed, withdrawing his opposition, and
concluded by avowing his purpose: “When the question appears
before me in a shape that I can vote directly upon it, to vote
that the gentleman who presents his credentials be permitted to
take the oath and become a member of the Senate.”
February 24th, the debate was resumed, when Mr. Howe, of
Wisconsin, spoke in favor of the admission, and Mr. Doolittle
against it.
February 26th, Mr. Hale withdrew his proposition, so that the
amendment of Mr. Sumner was in order. He then spoke as follows.
MR. PRESIDENT,--I am unwilling to speak again in this debate. Nothing
but a sense of duty makes me break silence. But I am determined that
this Chamber of high trust, so carefully guarded by the Constitution,
shall not be opened to disloyalty, if any argument, any persuasion, or
any effort of mine can prevent it.
Of course, in this debate something is assumed. It is simply this: that
the evidence touching the loyalty of the claimant is not valueless;
that it merits attention; that it affords _probable cause_, if I may
adopt the phrase of the Roman Law, for distrust; that it is enough
to put a party on the defensive. If this be the case, if all these
affidavits, verified by the certificate so numerously signed, are not
put aside as baseless, then the Senate must inquire into the charge.
The result of the inquiry may be one way or another; but the inquiry
must be made. Not to make it is abandonment of present duty; and not to
assert the power is abandonment of an essential right of self-defence.
I have listened to the various arguments pressing the Senate to disarm
itself, as they have been presented by able Senators, especially by
the Senator from Maine [Mr. FESSENDEN] and the Senator from Wisconsin
[Mr. HOWE]; and I have felt, as I listened, new confidence in the
constitutional power of the Senate to protect itself at all times
against disloyalty, and in the duty to exercise this constitutional
power at any time, early or late, in its completest discretion.
But it is said,--and I believe the Senator from Maine first presented
this argument, which has been urged so strongly by the Senator from
Wisconsin,--that, if we reject the present claimant, Oregon will be
without a representative. And if we expel him, will not Oregon be
without a representative? Surely this is no reason for hesitation in
either case. I, too, desire a representative for Oregon; but I know
full well that a disloyal representative is no representative,--or
rather, Sir, is worse than no representative. In sustaining such a
representative, you sacrifice substance to form,--you abandon the
living principle, content with the dead letter,--you “keep the word of
promise to the ear, and break it to the hope,”--you offer to the people
of Oregon a stone, when they demand bread. In the name of the people of
Oregon, whose wishes are manifest in the papers before us, I protest
against the pretension that they can be represented by a disloyal
person. Misrepresentation is not and never can be representation.
But it is said,--and I believe the Senator from Maine made the
argument,--that the evidence against the claimant, if sustained, might
justify expulsion, but will not justify refusal of admission to take
the oath.
MR. FESSENDEN. The Senator will state my position as I put it,
and that was, if the same language and declarations were proved
as coming from Mr. Stark while a Senator, I thought they might
justify his expulsion.
MR. SUMNER. The Senator says, that, if the same language had been used
while he was a Senator, it might justify expulsion. That is enough,
Sir; and yet the Senator argues that it will not justify the Senate in
refusing to open its doors, when he presents himself for admission. In
plain terms, the Senate may pronounce the stigma of expulsion, but not
the judgment of exclusion. A similar absurdity would be to say, that in
private life an offence would justify kicking an intruder down stairs,
but would not justify refusing him admission to our house. It is enough
to state this case. Nothing can be clearer in the light of reason--and
I say also of the Constitution--than that it is the duty of the Senate
to meet disloyalty on the threshold,--to say to it, wherever it first
shows itself, that this Chamber is no place for it. The English orator
pictured his desolation, when he said that he was alone, and had none
to meet his enemies in the gate.[204] Desolate will be the Senate, when
it cannot meet disloyalty in the gate.
But the Senator from Maine complains, and the Senator from Vermont [Mr.
COLLAMER] joins in the complaint, that the claimant is not allowed to
_purge_ himself by his oath,--thus using a technical phrase of the
law, applicable chiefly to suspected persons. Not allowed to _purge_
himself! Rather say, Sir, not allowed to _perjure_ himself. For, in
view of the testimony on your table, the inference is, unhappily, too
strong, that in any oath to support the Constitution he must perjure
himself. I say this with pain, and anxious not to prejudge the case,
but simply because the facts, as they stand without contradiction,
leave no opportunity for any other conclusion.
Since complaint is made by learned lawyers that the claimant is not
allowed to purge himself, I desire to adduce a legal analogy on this
question. It is well known that by the Common Law a person is not
permitted to take an oath who does not believe in God. This is the
general principle; but when we look at the application, we see how
completely it illustrates the present case. If a person is known to
have openly and recently declared disbelief, he will not be permitted
to purge himself by his oath, for the reason that his own declarations
are decisive.
Here Mr. Sumner read from Greenleaf’s _Law of Evidence_, § 370,
and the note to that section, and then proceeded.
Here again is additional illustration from the annotations to the great
work of Phillipps on the Law of Evidence.
“After the incompetency of the witness from defect of
religious belief is satisfactorily established by proof of
his declarations out of court, he will not be permitted to
deny or explain such declarations or his opinions, or to
state his recantation of them, when called to be sworn. But
he may be restored to his competency on giving satisfactory
proof of a change of opinion before the trial, so as to repel
any presumption arising from his previous declarations of
infidelity.”[205]
I would not press this illustration too far. But it seems to me clear,
that, if you accept the declarations of a person as decisive against
his religious belief, they must be accepted as equally decisive with
regard to his political belief. An oath to support the Constitution
presupposes political belief, as much as the oath itself presupposes
religious belief.
Pardon me, Sir, but I cannot refrain from astonishment that Senators,
learned lawyers, should be willing to treat the oath to support the
Constitution as an oath of _purgation_, an oath of _defecation_, an
oath of _purification_,--by which a suspected person may cleanse
himself, by which an evil spirit may be cast out. Sir, it is no such
thing. Such is not the oath of the Constitution. By that oath the
accepted Senator dedicates himself solemnly to the Constitution.
It is not an oath of purgation, as Senators insist, but an oath of
consecration. To such an oath may be fitly applied the words of the
ancients, when they spoke of the oath as “the greatest pledge of faith
among men.”
I would not be carried into technicalities; but, since Senators
insist that this oath is merely of purgation, I venture to add, that,
according to early writers, there were two forms of oaths,--one
technically styled “the oath of expurgation,” sometimes the _ex
officio_ oath, by which persons were bound to answer all questions,
even to the extent of accusing themselves or intimate friends. This
oath was much used and abused in the days of Queen Elizabeth. At an
earlier day it was administered to an Archbishop of York charged with
murder, and no less than one hundred compurgators were sworn with him.
The other is what is called “the promissory oath,” which is the oath of
the sovereign, the magistrate, the judge, the senator. Obviously this
is widely different from the oath by which a person clears himself from
suspicion, or cleanses his name.
There is another oath, with a peculiar title: I mean the _custom-house
oath_. You all know something of this oath, which is taken hastily,
without solemnity or question, and is now an acknowledged nuisance and
mockery, against which people petition Congress. By such oaths, “sworn
is the tongue, but unsworn is the mind.” With such oaths for seed,
perjury is the natural harvest. If Senators who have spoken in this
debate can have their own way, you will degrade the solemn oath of the
Constitution to the same class, and make it the seed of similar harvest.
For myself, I am determined, so far as my vote or voice can go, that
the oath shall mean something, and that it shall be kept solemn and
above suspicion. It shall not be degraded to be an oath of purgation or
a custom-house oath, but shall be in all simplicity what is regarded by
the Constitution an oath of office, in itself the pure and truthful
expression of assured loyalty,--not of loyalty still in question, still
doubtful, so that people openly testify against it. And where there is
evidence seriously impeaching the loyalty of a claimant, he shall not
take that oath, with my consent, until the impeachment is removed. Sir,
I am not insensible to the attractions of comedy, when well performed
on the stage; but there is a place for everything, and I am unwilling
to sit in my seat here and witness the comedy proposed. The Senate
is to resolve itself into a theatre, under the management of grave
Senators,--the Senator from New York, the Senator from Maine, and other
Senators,--and we are to see the play proceed. The claimant from Oregon
crosses the floor, and, under honorable escort, approaches the desk,
takes the oath, and kisses the book. The title of the play is borrowed
from a forgotten old English drama: “Treason made Easy; or, An Oath no
Great Thing.”
It ill becomes the Senate at this moment to do or to forbear anything
by which the standard of loyalty can be lowered. If it justly expects
loyalty from others, if it requires loyalty in its soldiers and
officers, surely it ought to set an example in its own members. Toward
itself, at least, it cannot be too austere in requirement. Wherever
about us disloyalty shows itself, whether in the Senate or in its
lobby, whether already intrenched in this Chamber or struggling to
enter in, whether planted at these desks or still standing in the gate,
we have one and the same duty to perform. We must inquire into its
character, and if it be found unworthy of trust, we must chastise it or
exclude it. This is the least we can do.
Mr. Sumner was followed the same day by Mr. McDougall, Mr.
Davis, Mr. Cowan, Mr. Carlile, Mr. Sherman, Mr. Harris, all in
favor of admission, and by Mr. Wilmot, Mr. Trumbull, Mr. Dixon,
against it.
February 27th, Mr. Browning spoke in favor of admission, Mr.
Howard against it.
The vote was then taken on the amendment of Mr. Sumner, and it
was lost,--yeas 18, nays 26.
The question recurred on the resolution of the Committee, which
was adopted, yeas 26, nays 19; and Mr. Stark was admitted to
take the oath.
* * * * *
The same question came up again in another form.
April 22d, the Committee to whom were referred the papers
touching the disloyalty of Mr. Stark reported that “the Senator
from Oregon is disloyal to the Government of the United States.”