Part 21

Now, Sir, the rich man is under no such obligation. If he be drafted under existing laws, he finds his substitute, or he tosses into the Treasury the required amount; he draws his check, and it is all over. Sir, there is no equity in the law as it stands. The proposition I present has in it two elements: the first is that it seeks justice; the second is that it provides a fund out of which bounties may be distributed by the Secretary of War among the men drafted and mustered into service. Here is another attraction to the service,--or, if it be not another attraction, it is something which will mitigate its hardships. The soldier, while on the field of battle, or on his weary march, will bear in mind, that, when the time of honorable discharge at last arrives, or should he be taken away by death, then, for the benefit of his wife and minor children, he may look to the fund from these contributions for a bounty which shall be to him or to them something in the way of support. Therefore in the pending amendment is an inducement which all confess is needed to carry forward our enrolments, and also something more to mitigate them.

On motion of Mr. Grimes, of Iowa, the bill was recommitted to the Committee on Military Affairs, who reported it without amendment.

* * * * *

February 7, 1865, the Senate having under consideration another bill in addition to the several acts for enrolling and calling out the national forces and for other purposes, Mr. Sumner seized the occasion to renew his amendment, and again vindicated it. In reply to Mr. Cowan, of Pennsylvania, he said:--

The Senator from Pennsylvania opposes my proposition, and treats the Senate to a very elaborate disquisition on political economy in general, on the depreciation of the currency in particular, also on taxation, and still further on salaries.

Now, Sir, admitting all the honorable Senator has so ably said as perfectly true, that it is according to just principles of political economy and the experience of the world (for I am not disposed to go at this moment into that discussion with the learned Senator), the proposition that I have the honor to make is not touched by a hair’s breadth. My proposition involves no question of political economy, no question of the currency, or of taxation, or of salaries. It has nothing to do with any of these matters. Its single and exclusive object is to equalize the burden of the draft. There is no political economy in it. There is nothing but justice. Therefore I propose that every drafted person, before discharge from the draft, shall be held to contribute not merely a substitute, but a certain tithe of his annual gains.

I am not tenacious with regard to the percentage. If Senators suggest a different rate, I shall be perfectly willing to yield. The proposition is the best that, under the circumstances, I can devise. Other Senators may improve it; it is open to improvement; but I submit that the criticism of the Senator from Pennsylvania does not touch it in the least. The proposition still stands, in its original character, as a measure which, if adopted, would equalize this burden of the draft. It would, if I may so express myself, temper this terrible draft to the poor of the country. It would make them see that legislators here, while imposing it, thought of the poor, and took such steps as they could to the end that this burden should not press upon them with undue severity,--so that it might, to a certain extent, be equalized upon them and upon the rich. I know full well that this cannot be accomplished completely; but, Sir, an endeavor in such direction is something. I think that the Senate must make the endeavor. In the name of the poor, who are liable to be enrolled, I ask it. Let it appear to the country, that, while requiring this draft, we recognize inequalities of condition,--that some are poor and some rich, and that the same sum ought not to be exacted from all alike.

The proposition was again lost,--Yeas 8, Nays 30. The war was near its close, and the Senate was not disposed at that late day to enter upon a change.

SPECIAL COMMITTEE ON SLAVERY AND FREEDMEN.

RESOLUTION IN THE SENATE, JANUARY 13, 1864.

Mr. Sumner submitted the following resolution, which was considered by unanimous consent and adopted.

RESOLVED, That a Special Committee of seven be appointed by the Chair to take into consideration all propositions and papers concerning Slavery and the treatment of Freedmen, with leave to report by bill or otherwise.

January 14th, the Vice-President appointed on this Special Committee, Mr. Sumner, Mr. Howard of Michigan, Mr. Carlile of Virginia, Mr. Pomeroy of Kansas, Mr. Buckalew of Pennsylvania, Mr. Brown of Missouri, and Mr. Conness of California. Reports from this Committee will appear in subsequent pages.

FOUNDATION OF THE FREE PUBLIC LIBRARY IN BOSTON.

LETTER TO A COMMITTEE IN BOSTON, JANUARY 20, 1864.

In 1850, Hon. John P. Bigelow, Mayor of Boston, declined to receive a costly vase as a tribute to the faithful discharge of official duty, and suggested that the funds obtained for that purpose be devoted to founding a Free Public Library in Boston. Accordingly, one thousand dollars was paid to the city in the name of Mr. Bigelow, and this was the first contribution to this important object. There was a dinner at the Tremont House to commemorate this benefaction, with speeches and letters. Among the latter was the following.

SENATE CHAMBER, January 20, 1864.

MY DEAR SIR,--It is too late for me to send anything for your meeting to-morrow evening; but it is not too late for me to express the gratitude and admiration with which at the time I witnessed the appropriation of that first thousand dollars to a Free Public Library in Boston. The money collected as a testimony to a favorite mayor became the corner-stone of a favorite institution, destined to be cherished with pride so long as our beloved city endures.

Believe me, dear Sir, faithfully yours,

CHARLES SUMNER.

DR. DAVID K. HITCHCOCK.

LOYALTY IN THE SENATE: THE IRON-CLAD OATH FOR SENATORS.

SPEECH IN THE SENATE, ON A NEW RULE REQUIRING THE OATH OF LOYALTY FOR SENATORS, JANUARY 25, 1864.

By an Act of Congress of July 2, 1862, a new oath of office was prescribed in the following terms:--

“That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation.”

Then follows the oath or affirmation, as follows:--

“I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution, within the United States, hostile or inimical thereto. And I do further swear (or affirm) that to the best of my knowledge and ability I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

The Act then provides:--

“Which said oath, so taken and signed, shall be preserved among the files of the Court, House of Congress, or Department to which the said office may appertain.”[289]

This oath was popularly known as “the Iron-Clad Oath.”

* * * * *

On the organization of the Senate, March 4, 1863, being the first organization after the statute requiring the oath, it became necessary to consider its applicability to the Senate. Debate ensued, which can be understood only by a preliminary explanation.

The Senate was organized, in the absence of the Vice-President, by the choice of Hon. Solomon Foot, of Vermont, as President _pro tempore_. The oath to support the Constitution was administered to him by Mr. Foster, of Connecticut, but the additional oath was omitted. The President _pro tempore_ then proceeded to say:--

“Senators elect and Senators whose term commences under a reëlection at this time _will receive the oath of office in the order in which their names will be called by the Secretary_.”

The Secretary then called the names of a long list of Senators, who came forward and took the customary oath. But the President _pro tempore_ did not offer to administer the additional oath; nor, at the time of qualification, was anything said with regard to it. After the conclusion of the ceremony, Mr. Trumbull, of Illinois, said:--

“I desire to call the attention of the President of the Senate, and of the Senate itself, to an Act of Congress approved 2d July, 1862.”

Then, reading the Act, he added:--

“I do not know that any motion in regard to it is necessary, further than calling the attention of the presiding officer and of the Senate to the law.”

The President _pro tempore_ said:--

“The Chair presumes it is sufficient to call the attention of Senators to that duty, and that that duty will be performed as required by law.”

Nothing, however, was done by the Chair or by Senators.

The next day, 5th March, two other Senators, Mr. Hendricks and Mr. Sprague, came forward to be qualified. The Chair proceeded to administer to these Senators the usual oath to support the Constitution, but did not administer the additional oath, and these Senators took their seats. Shortly afterwards, during the session of that day, on a call of the yeas and nays, all these Senators were called, and answered to their names.

Immediately after this call, Mr. Sumner moved an additional rule of the Senate, requiring that the oath or affirmation prescribed by Act of Congress of July 2, 1862, should be taken and subscribed by every Senator in open Senate before entering upon his duties.

On the next day, 6th of March, Mr. Bayard, of Delaware, who had been absent before, came forward to be qualified. The Chair, as in the other cases, administered the oath to support the Constitution, but omitted the additional oath, and Mr. Bayard took his seat. Afterwards, on this day, Mr. Sumner called up the proposed rule for consideration, and objected to an executive session until the question of the rule was settled, as follows.

“Here is a statute of Congress, and the question is, whether the Senate is going to set an example of obedience to it or of disobedience; that is all.… If the Senate now choose to go into executive session, they choose to enter upon most important duties in disregard of an Act of Congress which they have assisted in putting upon the statute-book.”

On coming out of executive session, which was ordered, the Senate proceeded with the consideration of the proposed rule, when Mr. Sumner spoke in vindication of it, concluding as follows.

“And now, Sir, as I conclude, let me say that I desire to take and subscribe the new oath in open Senate, that I may in all respects qualify myself for the discharge of my duties as a Senator. Others will do as they please, or as the Senate shall require. But I hope that I may appeal to the Chair to administer that oath to myself, or to direct that it shall be administered. With the expression of this desire I take my seat.”

The President _pro tempore_ made no offer to administer the oath, but said simply:--

“The subject is under debate.”

The debate was continued until the Senator from Illinois [Mr. TRUMBULL] proposed that the Chair should proceed to administer the oath, while Mr. Sumner expressed a hope that the Chair would consent to administer the oath to him.

Shortly afterwards the President _pro tempore_ said:--

“The Chair proposes now to take and subscribe this oath, in pursuance of the law of 2d July last, and, that being done, the Chair will administer the oath _to such members as will voluntarily take it_.”

The oath was then administered to Mr. Foot by Mr. Foster. Resuming the chair, the President _pro tempore_ then said:--

“The Chair will now direct the Clerk to call, in alphabetical order, the names of all Senators who have been elected or reëlected since the 2d July, 1862, that being the day of the approval of the Act; and _such Senators present_, whose names shall be called, _as choose to do so_, will come forward to the Secretary’s desk and receive the oath of office administered by the Chair, _after which they will have an opportunity to subscribe the oath_.”

The Senators present, whose names were called, some of them after delay, came forward and took the oath; and then, at the suggestion of the Chair, Mr. Sumner withdrew the resolution. The Senator from Delaware [Mr. BAYARD] was not then present.

Before withdrawing the resolution, Mr. Sumner, in reply to Mr. Reverdy Johnson, of Maryland, again vindicated the proposed rule, insisting that the statute was applicable to Senators as “civil officers,” concluding as follows.

It is our duty to guard the loyalty of this Chamber. In requiring that a person shall purge himself with regard to the past, we simply take a new assurance of fidelity for the present. Others may think that Jefferson Davis, Robert Toombs, or Judah Benjamin may resume his seat in this body, on taking a simple oath to support the Constitution. I do not think so; and I gladly seize the earliest opportunity, since the commentary of the Senator from Maryland, to declare my conviction that no person, whose loyalty is not manifest to the Senate, can be allowed to approach your desk and take the oath of a Senator. The Senate must shut the door upon him. This is not the first time that I have made this declaration: nor have I contented myself with making the declaration; I have argued it. Nothing is clearer than this: a traitor cannot be a member of the Senate. But a person who cannot take this oath, retroactive though it be, must have been a traitor. Once a traitor, always a traitor, unless where changed by pardon or amnesty.

I know not what changes may be required by changing events. For myself, I shall always welcome every act of just clemency or condonation. But for the present the statute is wise and conservative. It only remains that we should stand by it.

At the next session of Congress Mr. Sumner returned to this question. December 17, 1863, he submitted a resolution proposing a new rule.

“_Resolved_, That the following be added to the rules of the Senate:--

“The oath or affirmation prescribed by Act of Congress of July 2, 1862, to be taken and subscribed before entering upon the duties of office, shall be taken and subscribed by every Senator in open Senate before entering upon his duties. It shall also be taken and subscribed in the same way by the Secretary of the Senate; but the other officers of the Senate may take and subscribe it in the office of the Secretary.”

December 18th, the resolution came up for consideration, when Mr. Saulsbury, of Delaware, moved as a substitute that the Judiciary Committee be directed to inquire whether Senators and Representatives are included within the provisions of the Act prescribing the oath, and whether the Act is constitutional. Subsequently, he moved that the whole subject, including the resolution and the substitute, be referred to the Judiciary Committee, which, after debate, was rejected,--Yeas 15, Nays 26. The debate was continued, in the course of which Mr. Bayard, of Delaware, Mr. Reverdy Johnson, of Maryland, and Mr. Collamer, of Vermont, spoke at length.

January 25, 1864, Mr. Sumner spoke as follows.

MR. PRESIDENT,--There is a time for all things; but there are times when certain things are out of place; and this principle is especially applicable to the present debate. The question is on the adoption of a rule of the Senate to carry out an existing statute. It is not on the passage of the statute, or on its proposed repeal, but it is simply on its recognition as an existing statute, and the enforcement of its plain requirement. Considering the simplicity of the question, well may we be astonished at much that has been intruded into this debate.

The Senate is a branch of the legislative power, in conjunction with the House of Representatives and the President. Neither alone can make or unmake a law. The concurrence of all three is essential, whether in making or unmaking. So long as the law exists, there is no difference between the obligations of the Senate and the obligations of the humblest citizen, except, perhaps, that the Senate, which helped to make the law, is bound to set an example of obedience beyond any citizen.

Therefore I put aside, as entirely irrelevant, much that we have heard against the proposed rule. This is not the time to say that the oath is unconstitutional, or that it is _ex post facto_. These are considerations properly arising on the passage of the statute, or on a proposition for its repeal. The Senator from Delaware [Mr. BAYARD] and the Senator from Maryland [Mr. JOHNSON], who have argued these topics so exhaustively, were either too late or too early. The statute is already the law of the land, and there is no bill pending for its repeal.

On a former occasion I vindicated the constitutionality of the statute, and I now willingly leave that topic to the judgment of Senators, enlightened by the wisdom of the Senator from Vermont [Mr. COLLAMER], whose argument has not been answered. But I repeat that this objection is utterly out of place at this moment.

A Senator over the way [Mr. HENDRICKS] has gone so far as to introduce my course on a former occasion as an apology for not taking the oath.[290] Because I denounced an infamous statute, which was a scandal to civilization, as unconstitutional and utterly unworthy the support of virtuous citizens, it is argued that the Slave-Drivers, then in power, were more lenient to me than we are now to them. In other words, the Slave-Drivers required of me an oath to support a statute which I abhorred, and therefore we are wrong in requiring the proposed oath. But this argument confounds two cases which are wide apart as the poles. While denouncing an outrageous statute, and refusing to play the part of slave-hunter, I never joined in rebellion against my country, or uttered one word except in loyalty. But here are persons with bloody hands, in battle array, striking at all we hold dear,--or others who have acted with them. Such persons will be justly brought to the test of an oath, and they can claim no immunity from the example of those patriot citizens who, recognizing the crime of Slavery, refused to become in any way its tools.

And another Senator [Mr. JOHNSON] has taken this occasion to arraign me for certain opinions on another question, and he complained that I place them under the protection of a judgment of the Supreme Court. This is not the time for the discussion of “Reconstruction.” It has nothing to do with the matter before the Senate. I may think that the Government of the United States has _belligerent rights_, as well as _the right of sovereignty_, over the Rebel States,--that it is especially the duty of Congress to take care that these rights are so exercised as to crush the Rebellion, and to prevent its breaking out again,--and that, to this end, Congress must take all possible bonds for the future. These opinions, which the Senator chose to characterize harshly, may be wrong, but they have nothing to do with the business in hand. At a proper time I shall be ready to defend them. At present I choose not to be diverted from the issue before us.

Putting aside irrelevant questions, and presenting the single point in issue, the case becomes too plain for argument. It is simply this: Will the Senate obey an existing statute? But here we must consider the meaning of the statute.

That the Senate will openly refuse obedience to an existing statute, recently enacted, in support of loyalty, is not to be supposed without impeachment of the loyalty of the Senate. Only because the question of obedience has been complicated with other questions has there been for a moment any doubt on this head. Clearly, the Senate will not disobey an existing statute. It is, then, on the statute alone, and nothing else, that any question can arise.

And here I ask leave to recall the Senate from the learned commentary and elaborate diversion of the Senator from Delaware. The actual question is one which may be treated without learning and without effort. It arises on the following words of the statute:--

“Hereafter every person _elected_ or appointed to any _office_ of honor or profit under the Government of the United States, _either in the civil_, _military_, _or naval departments of the public service_, excepting the President of the United States, shall, before entering upon the duties of _such office_, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation [_here follows the oath_]; which said oath, so taken and signed, shall be preserved among the files of the Court, _House of Congress_, or Department to which the said office may appertain.”[291]

It cannot fail to be observed here that the language is plain rather than technical. Every person “elected” or “appointed” to any “office” in the “_civil_, military, or naval departments of the public service” must take the oath. What words could be broader than “departments” and “public service”?

Obviously, and beyond all question, a Senator is “elected.” Therefore on this point there is no question.

The inquiry recurs, Is a Senator an “officer” in the “civil department of the public service”?

Is he an “officer”?

Is he in the “civil department”?

To raise these questions seems absurd. But I have not raised them. This is done by others. You might as well raise the question, if a man is a creature, and belongs to the human family.

Look now at these questions in their order.

* * * * *

1. Is a Senator an “officer”? Here please to consult the dictionary. I turn to Webster.

“OFFICE.--_Offices_ are civil, judicial, ministerial, executive, _legislative_, political, municipal, diplomatic, military, ecclesiastical, &c.”

Thus, plainly, offices are _legislative_. But why summon the dictionary? And yet the zeal of the other side leaves no alternative.