Part 22

Not content with the dictionary, I call attention to the use of the word in other authoritative places,--and pardon me, if I begin with the Constitution of Massachusetts, written originally by John Adams.

In the Bill of Rights of this Constitution it is declared:--

“All power residing originally in the people, and being derived from them, the several magistrates and _officers_ of government, vested with authority, whether _legislative_, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.”[292]

Members of the _Legislature_ are classed among _officers_, and thus this word received its interpretation.

In another part of the same Constitution it is provided:--

“Any person chosen Governor, Lieutenant-Governor, Councillor, _Senator_, or _Representative_, and accepting the _trust_, shall, before he proceed to execute the duties of his _place_ or _office_, make and subscribe the following declaration.”[293]

Here the _place_ or _trust_ of a _Senator_ or _Representative_ is called an _office_. And this same use of these terms, as synonymous, and applicable to the post of _Senator_ or _Representative_, is continued:--

“Every person chosen to either of the places or _offices_ aforesaid [meaning the _offices_ of Governor, Lieutenant-Governor, Councillor, _Senator_, or _Representative_] … shall, before he enters on the discharge of the business of his place or _office_, take and subscribe,”[294] &c.

The authority of New Hampshire is like that of Massachusetts. Her Constitution declares:--

“All power residing originally in, and being derived from, the people, all the magistrates and _officers_ of government are their substitutes and agents, and at all times accountable to them.”[295]

Here the word “officers” obviously means the _substitutes_ and _agents_ of the people. But who are substitutes and agents of the people more than _Senators_?

Then again, in the same Constitution, it is declared:--

“No _office_ or place whatsoever in government shall be hereditary.”[296]

Here the word “office” is made synonymous with “place.”

The Constitution of Vermont testifies:--

“All power being originally inherent in, and consequently derived from, the people, therefore all _officers_ of government, whether _legislative_ or executive, are their trustees and servants.”[297]

Thus, in Vermont, members of the Legislature are “officers.”

The old Constitution of New Jersey testifies also, in the clause prescribing the qualifications entitling a person to vote:--

“For representatives in Council and Assembly, and also for all _other_ public _officers_ that shall be elected by the people of the county at large.”[298]

Here again members of the _Legislature_ are treated as “public _officers_.”

The Constitution of Pennsylvania testifies:--

“Members of the General Assembly, and _all officers_, executive and judicial, shall be bound by oath or affirmation to support the Constitution of this Commonwealth, and to perform the duties of their respective _offices_ with fidelity.”[299]

Here members of the General Assembly are classed with those holding “offices.”

The original Constitution of New York is more positive:--

“The chancellor and judges of the Supreme Court shall not at the same time hold _any other office_, excepting that of Delegate to the General Congress upon special occasions; and the first judges of the county courts in the several counties shall not at the same time hold any other _office_, excepting that of _Senator_ or Delegate to the General Congress.”[300]

Here the post of Delegate to the General Congress, and also of “Senator,” is treated as an “office.”

Surely this is enough. The post of Senator is an office of honor or profit, and a “Senator” is an “officer.”

* * * * *

2. But, assuming that the post of Senator is an “office,” and that a Senator is an “officer,” the question occurs, To what “department of the public service” does he belong?

Clearly he is not of the “military” or “naval” department. But if not “military” or “naval,” he must be “civil.” Here again consult the dictionary. I cite Webster.

“_Civil._ It is distinguished from _ecclesiastical_, which respects the Church, and from _military_, which respects the army and navy.--This term is often employed in contrast with _military_: as, a _civil_ hospital, the _civil_ service, &c.”

“_Civil List._ In England, formerly, a list of the entire expenses of the _civil_ government; hence the officers of _civil_ government, who are paid from the public treasury; also, the revenue appropriated to support the _civil_ government.”

“_Civil State._ The whole body of the laity or citizens, not included under the military, maritime, and ecclesiastical states.”

To say that a Senator is not included under this comprehensive, but distinctive term, is simply an absurdity.

It is evident that Congress adopted the words of the statute because they were comprehensive and distinctive. They obviously comprehended all “officers” in the “public service,” whether “elected,” like a Senator, or “appointed,” like a judge. But, beyond their plainness, these words had this added advantage, that already for more than a generation they had received a practical interpretation from Congress.

Here is the familiar Blue Book. Its title-page begins:--

“Register of _officers and agents_, _civil_, military, and naval, _in the service of the United States_.”

Turning to the contents, we find in this list Members of Congress, including Senators and Representatives, with the “officers and agents” of the two Houses.

If we go back to the Blue Book for 1820, which is now in my hands, we find the same title, and the same enumeration of Senators and Representatives.

This Blue Book is still published, in pursuance of a joint resolution by Congress, originally adopted as long ago as 27th April, 1816, with the following title:--

“Resolution requiring the Secretary of State to compile and print, once in every two years, _a register of all officers and agents_, _civil_, military, and naval, in the service of the United States.”

If Senators are properly included in such a register, it is only as belonging to the “_civil_ department of the public service,” which is precisely where they have been placed by the recent Act of Congress.

The only apology for the objection urged from the beginning of this debate with so much pertinacity is founded on the case of Mr. Blount, the Senator expelled and afterwards impeached, at the close of the last century. I shall not take time to consider this case. It has been amply done by others. On former occasions I have done it at length. And yet I will not leave it without protesting again that it is absolutely inapplicable to the present occasion. If that case were out of the way, nobody would have suggested that a “Senator” was not an “_officer_ in the _civil_ department of the public service.” Now what did this case decide? Let another give the summary. I quote the words of Mr. Wharton, in the notes to his edition of the State Trials.

“_In a legal point of view_, all that this case decides is, that a Senator of the United States, who has been expelled from his seat, is not, after such expulsion, subject to impeachment; and _perhaps_ from this the broader proposition may be drawn, that none are liable to impeachment except officers of the government, in the technical sense, excluding thereby members of the National Legislature.”[301]

The case of Mr. Blount has no application to the present question. It is not an interpretation of the statute, and so far as it illustrates the Constitution it simply concerns the liability to impeachment. But even this case has often been drawn into doubt. And if we look into the proceedings of the time, we find that the decision, such as it was, encountered an able and earnest opposition.

Among those who took a distinguished part on that occasion was James A. Bayard,[302] of Delaware, the eminent Representative who conducted the impeachment as Manager on the part of the House of Representatives. In his effective argument he has set forth the true signification of the Constitution. From the argument of the Senator from Delaware [Mr. BAYARD] in the present debate I confidently appeal to that of the earlier Mr. Bayard. Here is a passage.

“I have submitted, in the course of my argument, that the sound principle of construction to be adopted, in relation to the construction of an instrument having in view the vast object of settling the powers of the Government and the rights of the people, is to give it such an interpretation as is best calculated to give effect generally to all its parts according to its true design. If I am supported in this principle, I shall be able to show, by strong cases under the Constitution, that its undeniable intention must be frustrated, if a Senator be not considered an officer of the United States.

“I find it provided in the seventh clause of the third section of the first article, that conviction on impeachment disqualifies the party convicted from holding any _office_ of honor, trust, or profit under the United States. If a seat in the Senate be not an office, the disqualification does not extend to it. And yet can it reasonably be contended that the policy which incapacitates a citizen, if convicted on impeachment, from holding an office the most mean and humble, does not apply to the case of a Senator? The wisdom of the Constitution, Sir, has considered a conviction as an evidence of moral unfitness for public trust. It never can happen but in the case of a great national offence. And shall such an offender, degraded from the capacity of even being doorkeeper of this Chamber, yet retain the capacity of being a member of a body of the most dignity, trust, and power in the country? This is a solecism in politics, an absurdity in reason, which I trust this honorable court will not willingly by their act attach to an instrument so highly and justly revered as the Constitution of our Government.

“I find also a provision in the seventh [eighth] clause of the ninth section of the first article, that ‘no person holding any office of profit or trust under the United States shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.’ If a Senator holds no office of profit or trust under the United States, it is _lawful_ for him to accept a present, title, or office from any king or foreign state. Can it be possible that a public functionary, of all others the peculiar object of this jealous restriction, is, in fact, the sole object of exemption from its operation? Can it be imagined that a Senator, upon whom the Constitution has heaped the powers and trusts of legislator, judge, and executive magistrate, is the only person who is left exposed to the seductions of foreign influence? It can never be admitted that a situation which from its trust and importance most invites corruption is the only one which the Constitution has not guarded against. If, Sir, a Senator be not an officer under this clause, it might happen that the Senate of the United States might become a House of Lords. It would be in the power of any king in Europe to change our free government, and to convert one branch, at least, from a republican into an aristocratic form. You will not suffer an ensign in your army to accept the humble title of Chevalier, and yet you will allow an integral part of the Government to be composed of earls and dukes. And let me pray the honorable Court to remember, at the same time, that the Constitution has provided that a member of either House shall not be allowed to retain his seat and hold any commission, civil or military, under the United States. The President has no titles to grant, nor offices of great emolument to confer; and yet the chaste republicanism of the Constitution will not allow a Senator to feel the influence of his patronage; and yet, at the same time, he may _lawfully_ be the pensioner or the titular noble of a foreign power. Such a doctrine is not simply absurd, but infinitely dangerous.”[303]

In view of these emphatic words, it is difficult to see how any person can insist that a “Senator” is not a “civil officer,” even according to the text of the Constitution. Conceding to the judgment on the trial of impeachment all the authority which can belong to it, you cannot properly deduce from it any conclusion, except that a Senator already expelled is not a “civil officer” liable to impeachment: nothing beyond this.

But whatever the signification of this word in the Constitution, even conceding all that is claimed for it there, the instance is entirely inapplicable to the interpretation of the statute in question. If there be doubt on the Constitution, there is none on the statute. The latter is plain, and there are no associate words to interfere with its natural and unequivocal signification.

I conclude this branch of the subject as I began, by putting aside all irrelevant matter, all superfluous questions, all surplusage, all topics not properly germane to the debate. There is no question of the Constitution, no question of _ex post facto_, but a simple question on the meaning of a statute.

The oath is prescribed by Congress. It is too late to debate its constitutionality thus incidentally. It only remains for us to take it, promptly, patriotically. The procrastination of this debate is of evil example. How can we expect the alacrity of loyalty among the people, if the Senate hesitates?

* * * * *

Another objection to the proposed rule has been brought forward by the Senator from Vermont [Mr. FOOT]. According to him, the statute is obligatory, and the oath must be taken by Senators, but a rule requiring the oath is superfluous and without precedent. The argument of the Senator is plausible, but it is answered by a simple statement of facts, in which, as presiding officer of the Senate, he bore a conspicuous part.

From this statement it will appear that the rule, or some equivalent action of the Senate, is not superfluous.

Here Mr. Sumner set forth the facts substantially as presented in the Introduction, showing the necessity of the proposed rule, and then proceeded.

The language of the Chair, when inviting Senators to take the oath, left a loophole through which they might avoid the oath. It was, “Such Senators present _as choose to do so_ will come forward,” and then “they will have _an opportunity to subscribe the oath_.” In such terms Senators were invited to do as they pleased, thus making a discrimination between the earlier oath, which they were obliged to take in order to be qualified, and the additional oath, which they were free to neglect.

Such is a plain statement of facts, which I make in no spirit of personal criticism, but simply that you may see the occasion for the proposed rule.

Had the Chair at the beginning proceeded to administer the additional oath, as the earlier oath, there would have been no occasion for a rule. Or had the Chair afterwards, when attention was called to the omission, administered the additional oath according to the requirement of the statute, there would have been no occasion for a rule.

The Chair did no such thing, but left the taking of the oath to the conscience or will of each Senator. And though the statute solemnly declares that “every person _elected_ or appointed to any office of honor or profit under the Government 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 oath in question, yet the Senator from Delaware [Mr. BAYARD] has not only “entered upon the duties” of his office as Senator, but he has continued to discharge these duties, and to draw his salary, although he has never taken and subscribed the oath.

Evidently something must be done to correct this incongruity, and to rehabilitate, if I may so say, the Act of Congress. I know no better way than by the proposed rule. But I have no partiality for this mode. I am ready for any other proposition which will lift the statute from the desuetude and neglect into which it was allowed to fall, and will secure its enforcement. In the events at hand this statute will be a safeguard of the Republic, and its enforcement here will secure its enforcement everywhere. To the traitor seeking office it will be a touchstone, while, with guardian force, it thrusts away from these Chambers all those brutal enemies, who, for the sake of Slavery, have helped to fill our land with mourning.

On the Yeas and Nays, the vote stood, Yeas 28, Nays 11. So the resolution was adopted.

* * * * *

January 26th Mr. Bayard took the prescribed oath, and on the 29th resigned his seat in the Senate.

January 25th, Mr. Sumner asked, and by unanimous consent obtained, leave to bring in a bill supplementary to an Act entitled “An Act to prescribe an oath of office and for other purposes,” approved July 2, 1862, which was read the first and second times by unanimous consent, and referred to the Committee on the Judiciary. It provided that no person should be admitted to the bar of the Supreme Court of the United States, or of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counsellor of such court, or should be allowed to appear and be heard in any such court, by virtue of any previous admission or any special power of attorney, unless he should have first taken the oath prescribed by the Act of July 2, 1862.

June 28th, Mr. Trumbull, from the Judiciary Committee, reported adversely on this bill.

December 22d, on motion of Mr. Sumner, the Senate proceeded to consider this bill, and it was passed,--Yeas 27, Nays 4. January 23, 1865, it passed the House of Representatives, and January 24th was approved by the President.

THE LATE HON. JOHN W. NOELL, REPRESENTATIVE OF MISSOURI.

REMARKS IN THE SENATE, ON HIS DEATH, FEBRUARY 1, 1864.

MR. PRESIDENT,--The personal acquaintance which I had with Mr. Noell was very slight; but I honored him much, as a public servant who at a critical moment discerned clearly the path of duty and had the courage to tread it.

Born among slaves and living always under the shadow of Slavery, his character was not corrupted, nor was his judgment obscured. All of us, although born among freemen, and living far away from that influence so unhappily disturbing our country, might take counsel from his intelligent alacrity. While others hesitated, he was prompt. While others surrendered to procrastination, he grappled at once with the giant evil. Such a man was exceptional, and now that he is dead he deserves exceptional honors.

There are men in history who by a single effort fix public attention. A member of Parliament in the last century was known as “Single-Speech Hamilton.” Others have become famous from the support of a single measure. Perhaps Mr. Noell may find place in this class. But no “Single-Speech Hamilton” could claim the homage which belongs to him.

There have been many in Congress from the Slave States, but he was the first in our history inspired to bring in a bill for the abolition of Slavery in a State. Rejecting the palpable sophistries by which it was sought to postpone an act of unquestionable justice, and discarding the idea that wrong was to be dealt with tardily, gradually, or prospectively, he proposed Immediate Emancipation. Let it be spoken in his praise. Let it be carved on his tombstone. His bill passed the House. It was lost in the Senate.[304] But it was not lost to his fame. He died without beholding the fulfilment of his desires, but the cause with which his name is associated cannot die.

Among the human benefactors of Missouri, so rich in natural resources, he must always be numbered; and his memory will be appreciated there just in proportion as men discern what contributes most to the wealth, the character, and the true nobility of a State. Hereafter, when the present conflict is ended and peace once more blesses our wide-spread land, he will be mentioned gratefully with those who saw truly how this blessing was to be secured, and bravely strove for it. Better in that day to have been a doorkeeper in the house of Freedom than a dweller in the tents of the ungodly: and what ungodliness can compare with the ungodliness of Slavery, whether in the lash of the taskmaster or in the speech of its apologist?

RECONSTRUCTION AGAIN: GUARANTIES AND SAFEGUARDS AGAINST SLAVERY AND FOR PROTECTION OF FREEDMEN.

RESOLUTIONS IN THE SENATE, FEBRUARY 8, 1864.

In the Senate, February 8, 1864, the following resolutions, submitted by Mr. Sumner, were read and ordered to be printed.

Resolutions defining the character of the national contest, and protesting against any premature restoration of Rebel States, without proper guaranties and safeguards against Slavery and for the protection of Freedmen.

RESOLVED, That, in determining the duties of the National Government, it is of first importance that we should see and understand the real character of the contest forced upon the United States, for failure to appreciate this contest must end in failure of those proper efforts essential to the reëstablishment of unity and concord; that, recognizing the contest in its real character, as it must be recorded by history, it is apparent that it is not an ordinary rebellion or an ordinary war, but that it is absolutely without precedent, differing from every other rebellion and every other war, inasmuch as it is an audacious attempt, for the first time in history, to found a wicked power on the corner-stone of Slavery; and that such an attempt, having this single object,--whether regarded as rebellion or war,--is so completely penetrated and absorbed, so entirely filled and possessed by Slavery, that it can be regarded as nothing else than the huge impersonation of this crime, at once rebel and belligerent, or, in other words, as _Slavery in arms_.

2. That, recognizing the identity of the Rebellion and Slavery, so that each is to the other as another self, it becomes plain that the Rebellion cannot be crushed without crushing Slavery, as Slavery cannot be crushed without crushing the Rebellion; that every forbearance to the one is forbearance to the other, and every blow at the one is a blow at the other; that all who tolerate Slavery tolerate the Rebellion, and all who strike at Slavery strike at the Rebellion; and that, therefore, it is our supreme duty, in which all other present duties are contained, to take care that the barbarism of Slavery, in which alone the Rebellion has its origin and life, is so utterly trampled out that it can never spring up again anywhere in the Rebel and belligerent region; for, leaving this duty undone, nothing is done, and all our blood and treasure are lavished in vain.