Here Mr. Sumner remarked:--

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.”

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