Part 18

But, while recognizing the existence of the discretion in the last resort, under the law of necessity, the question still remains if this necessity actually exists. And now, as I close, I shall not cease to be frank. Is it necessary to incur all the unquestionable evils of inconvertible paper, forced into circulation by Act of Congress,--to suffer the stain upon our national faith, to bear the stigma of a seeming repudiation, to lose for the present that credit which in itself is a treasury, and to teach debtors everywhere that contracts may be varied at the will of the stronger? Surely there is much in these inquiries to make us pause. If our country were poor or feeble, without population and without resources, if it were already drained by a long war, if the enemy had succeeded in depriving us of the means of livelihood, then we should not even pause. But our country is rich and powerful, with a numerous population, busy, honest, and determined, abounding in unparalleled resources of all kinds, agricultural, mineral, industrial, and commercial; it is yet undrained by the war in which we are engaged, nor has the enemy succeeded in depriving us of any means of livelihood. It is hard, very hard, to think that such a country, so powerful, so rich, and so beloved, should be compelled to adopt a policy of even questionable propriety.

If I mention these things, if I make these inquiries, it is because of the unfeigned solicitude which I feel with regard to this measure, and not with the view of arguing against the exercise of a constitutional power, when, in the opinion of the Government to which I give my confidence, the necessity for its exercise has arrived. Surely we must all be against paper money, we must all insist upon maintaining the integrity of the Government, and we must all set our faces against any proposition like the present, except as a temporary expedient, rendered imperative by the exigency of the hour. If it has my vote, it will be only because I am unwilling to refuse the Government especially charged with this responsibility that confidence which is hardly less important to the public interests than the money itself. Others may doubt if the exigency is sufficiently imperative; but the Secretary of the Treasury, whose duty it is to understand the occasion, does not doubt. In his opinion the war requires this sacrifice. Uncontrollable passions are let loose to overturn the tranquil conditions of peace. Meanwhile your soldiers in the field must be paid and fed. There can be no failure or postponement. A remedy is proposed which at another moment you would reject. Whatever the national resources, they are not now within reach, except by summary process. Reluctantly, painfully, I consent that the process shall issue.

And yet I cannot give such a vote without warning the Government against the dangers from such an experiment. The medicine of the Constitution must not become its daily bread. Nor can I disguise the conviction that better than any device of legal tender will be vigorous, earnest efforts for the suppression of the Rebellion, and the establishment of the Constitution in its true principles over the territory which the Rebellion has usurped.

LOYALTY A QUALIFICATION REQUIRED IN A SENATOR.

SPEECHES IN THE SENATE, FEBRUARY 18 AND 26, 1862.

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.

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.”

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.