Part 6

MR. PRESIDENT,--I wish to remind the Senator from Maryland of the exact words of the Constitution, which were not, it seems to me, in his mind when he spoke. An Amendment, when proposed, “shall be valid to all intents and purposes as part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” It does not say, “when ratified by three fourths of the several States,” but “by the ‘Legislatures’ of three fourths of the several States.” Now, if there are States without Legislatures, they can have no voice in the ratification. Apply this practically. Three fourths of the actual Legislatures of this Union have ratified the proposed Amendment, and I insist, on the text of the Constitution, and also on the reason of the case, that such ratification is complete. But I am unwilling that this argument should stand merely on my words. I introduce here the authority of the best living text-writer on the jurisprudence of our country, who has treated this very point in a manner which leaves no opportunity for reply. I refer to the book of Mr. Bishop on the Criminal Law, who, in one of his notes,[81] considers whether the Amendment of the Constitution abolishing Slavery had been at the time he wrote adopted in a constitutional manner. Of course the very question which we are now discussing with reference to the Fourteenth Amendment arises also on the Amendment prohibiting Slavery. They are both in the same predicament. If the Fourteenth Amendment is not now a part of the Constitution of the United States, then the Amendment prohibiting Slavery is not a part of the Constitution of the United States. They both stand on the same bottom; they were both proposed by Congress in the same way,--that is, by a vote of two thirds of the representatives of the Loyal States; and they have both been ratified by the votes of three fourths of the States having Legislatures. I send to the Chair the work of Mr. Bishop, and I ask the Secretary to be good enough to read what I have marked.

The Secretary read the note above cited.

LOYALTY IN THE SENATE: ADMISSION OF A SENATOR.

REMARKS IN THE SENATE, ON THE RESOLUTION TO ADMIT PHILIP F. THOMAS AS SENATOR FROM MARYLAND, FEBRUARY 13, 1868.

February 13th, the question of the admission of Hon. Philip F. Thomas, Senator-elect from Maryland, charged with disloyalty, coming up for consideration, on a resolution of Hon. Reverdy Johnson, of that State, that said Thomas “be admitted to his seat on his taking the oaths prescribed by the Constitution and laws of the United States,” Mr. Sumner moved the following substitute:--

“That Philip F. Thomas, Senator-elect from Maryland, cannot be admitted to take the oaths of office required by the Constitution and laws, inasmuch as he allowed his minor son to leave the paternal house to serve as a Rebel soldier, and gave him at the time one hundred dollars in money, all of which was ‘aid,’ ‘countenance,’ or ‘encouragement’ to the Rebellion, which he was forbidden to give; and further, inasmuch as in forbearing to disclose and make known the treason of his son to the President, or other proper authorities, according to the requirement of the statute in such cases, he was guilty of misprision of treason as defined by existing law.”

Mr. Sumner said:--

A great debate on the question how loyalty shall be secured in the Rebel States is for the time silenced in order to consider how loyalty shall be secured in this Chamber. Everywhere in the Rebel States disloyal persons are struggling for power; and now at the door of the Senate we witness a similar struggle. If disloyalty cannot be shut out of this Chamber, how can we hope to overcome it elsewhere?

More than once at other times I have discussed the question of loyalty in the Senate. But this was anterior to the adoption of the Fourteenth Constitutional Amendment. The case is plainer now than then, inasmuch as there is now an explicit text requiring loyalty as a “qualification.” Formerly we were left to something in the nature of inference; now the requirement is plain as language can make it.

By the new Amendment it is provided that “no person shall be a Senator or Representative in Congress, … who, having previously taken an oath, as a member of Congress, or as an officer of the United States, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

These words are precisely applicable to the present case. They lay down a rule from which there is no appeal; and this rule is not merely in the statutes, but in the Constitution. It is the plain declaration that loyalty is a requirement in a Senator and Representative. If we do not apply it to ourselves now, it is difficult to see with what consistency we can apply it to others. Your course here will affect the meaning of this Constitutional Amendment, if not its validity for the future.

I do not stop to argue the question if that Amendment is now a part of the Constitution; for I would not unnecessarily occupy your time, nor direct attention from the case which you are to decide. For the present I content myself with two remarks: first, the Amendment has already been adopted by three fourths of the States that took part in proposing it, and this is enough, for the spirit of the Constitution is thus satisfied; and, secondly, it has already been adopted by “the _Legislatures_ of three fourths of the several States” which have Legislatures, thus complying with the letter of the Constitution. Therefore, by the spirit of the Constitution, and also by its letter, this Amendment is now a part of the Constitution, binding on all of us. As such I invoke its application to this case. In face of this positive, peremptory requirement, it is impossible to see how loyalty can be other than a “qualification.” In denying it, you practically set aside this Amendment.

But, even without this Amendment, I cannot doubt that the original text is sufficiently clear and explicit. It is nowhere said in the Constitution that certain specified requirements, and none others, shall be “qualifications” of Senators. This word “qualifications,” which plays such a part in this case, occurs in another connection, where it is provided that “each House shall be the judge of the elections, returns, and _qualifications_ of its own members.” What these “qualifications” may be is to be found elsewhere. Searching the Constitution from beginning to end, we find three “qualifications,” which come under the head of _form_, being (1.) age, (2.) citizenship, and (3.) inhabitancy in the State. But behind and above these is another “qualification,” which is of _substance_, in contradiction to _form_ only. So supreme is this, that it is placed under the safeguard of an oath. This is loyalty. It is easy to see how infinitely more important is this than either of the others,--than age, than citizenship, or than inhabitancy in the State. A Senator failing in either of these would be incompetent by the letter of the Constitution; but the Republic might not suffer from his presence. On the other hand, a Senator failing in loyalty is a public enemy, whose presence in this council-chamber would be a certain peril to the Republic.

It is vain to say that loyalty is not declared to be a “qualification.” I deny it. Loyalty is made a “qualification” in the Amendment to the Constitution; and then again in the original text, when, in the most solemn way possible, it is distinguished and guarded by an oath. Men are familiarly said to “qualify,” when they take the oath of office; and thus the language of common life furnishes an authentic interpretation of the Constitution.

But no man can be allowed to take the oath as Senator, when, on the evidence before the Senate, he is not competent. If it appear that he is not of sufficient age, or of the required citizenship or inhabitancy, he cannot be allowed to go to that desk. Especially if it appear that he fails in the all-important “qualification” of loyalty, he cannot be allowed to go to that desk. A false oath, taken with our knowledge, would compromise the Senate. We who consent will become parties to the falsehood; we shall be parties in the offence. It is futile to say that the oath is one of purgation only, and that it is for him who takes it to determine on his conscience if he can take it. The Senate cannot forget the evidence; nor can its responsibility in the case be swallowed up in any process of individual purgation. On the evidence we must judge, and act accordingly. The “open sesame” of this Chamber must be something more than the oath of a suspected applicant.

According to Lord Coke, “an infidel cannot be sworn” as a witness. This was an early rule, which has since been softened in our courts. But, under the Constitution of the United States and existing statutes, a _political infidel_ cannot be sworn as a Senator. Whatever may be his inclination or motive, he must not be allowed to approach your desk. The country has a right to expect that all who enter here shall have a sure and well-founded loyalty, above all question or suspicion. And such, I insist, is the rule of the Constitution and of Congress.

As if to place the question beyond all doubt, Congress by positive enactment requires that every Senator, before admission to his seat, shall swear that he has “voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility” to the United States.[82] Here is little more than an interpretation of the Constitution. The conclusion is plain. No person who has voluntarily given even “countenance” or “encouragement” to another engaged in the Rebellion can be allowed to take that oath.

After this statement of the rule, the question arises, if Philip F. Thomas can be permitted to take the oath at your desk, or, in other words, to “qualify” as a Senator of the United States. Is he competent? This is a question of evidence.

The ample discussion of the facts in this case, and their singular plainness, supersede the necessity of all details. The atmosphere about Mr. Thomas and his acts are harmonious. From the beginning we find him enveloped in coldness and indifference while his country was in peril. Observing him more closely, we are shocked by two acts of positive disloyalty, one of which is the natural prelude of the other. The first muttering of the Rebellion found him a member of the Cabinet of Mr. Buchanan; but when this uncertain President proposed the succor of our troops at Charleston, already menaced with war, Mr. Thomas withdrew from the patriotic service. He resigned his seat, following the lead of Cobb, Thompson, and Floyd. A man is known by the company he keeps. His company at this time were traitors, and the act they united in doing was essentially disloyal. As the Rebellion assumed the front of war, they all abandoned their posts: some to join the Rebellion and mingle with its armies; Mr. Thomas, more prudently, to watch the course of events in Maryland, ready to lift his arm also, if his State pronounced the word. This concerted desertion was in itself a conspiracy against the Government; and in the case of Mr. Thomas, who was Secretary of the Treasury, it was a blow at the national credit, which it was his special duty to guard. It was an act of disloyalty to be blasted by indignant history, even if your judgment fails now. And this was the first stage in this record.

Meanwhile the war rages. Armies are marshalled; battles ensue; Washington itself is beleaguered; the Republic trembles with peril. But Mr. Thomas continues in the seclusion of his home, enveloped in the same disloyal atmosphere, and refusing always the oath of allegiance. At last, in 1863, an only son arrives at the age of eighteen. Though still a minor, he is already of the military age. Naturally filled with the sentiments of his father’s fireside, he seeks to maintain them by military service. He is like his father, but with the ardor of youth instead of the caution of years. He avows his purpose to enlist in the Rebel army, thus to levy war against his country, and adhere to its enemies. All this was treason,--plain, palpable, unquestionable, downright treason. Instead of detaining his son,--instead of keeping him back,--instead of interposing a paternal veto,--instead of laying hands gently upon him,--instead of denouncing him to the magistrate,--all of which the father might have done,--he deliberately lets him go, and then, to cap the climax of criminal complicity, furnishes the means for his journey and his equipment. He gives one hundred dollars. The father is not rich, and yet he gives this considerable sum. Few soldiers started with such ample allowance. Thus it stands: the father, who has already deserted his post in the Cabinet, and has refused to take the oath of allegiance to his country, contributes a soldier to the Rebellion, and that soldier is his only son; to complete and assure the great contribution, he contributes a sum of money also. If all this accumulated disloyalty, beginning in a total renunciation of every patriotic duty, and finally consummated by an act of flagrant, unblushing enormity, is not “aid and comfort” or “countenance” or “encouragement” to the Rebellion, it is difficult to say what can be. There must be new dictionaries for these familiar words, and they must receive a definition down to this day unknown. They must be treated as thread or gossamer, when they should be links of iron.

On an occasion like the present, where the moral guilt is so patent, I hesitate to employ technical language. The simplest phrase is the best. But the law supplies language of its own. Regarding the act of Mr. Thomas in the mildest light, it was “misprision of treason,” according to every definition of that crime which can be found in the books. Lord Hale, whose authority, in stating the rules of Criminal Law, is of the highest character, says, under this head: “Every man is bound to use all possible lawful means to prevent a felony, as well as to take the felon; and if he doth not, he is liable to a fine and imprisonment.”[83] Lord Coke, another eminent authority, says: “If any be present when a man is slain, and omit to apprehend the slayer, it is a misprision.”[84] The same rule is, of course, applicable to treason. Mr. Bishop, who in his remarkable work on the Criminal Law has compressed the result of all the authorities, says: “Misprision of felony is a criminal neglect, either to prevent a felony from being committed by another, or to bring to justice a person known to be guilty of felony. Misprision of treason is the same of treason.”[85] Then again he says, citing Hawkins, Blackstone, East, and Russell, all familiar names in our courts, each an oracle:--

“The doctrine of misprision, as now understood, may be stated as follows: To make a man liable for a crime committed through the physical volition of another, his own will must in some degree concur in or contribute to the crime. _But when it is treason or felony, and he stands by while it is done, without using the means in his power to prevent it, though his will concurs not in it,--or when he knows of its having been in his absence committed, but neither makes disclosure of it to the authorities nor does anything to bring the offender to punishment_,--the law holds him guilty of a breach of the duty due from every man to the community wherein he dwells and the government which protects him.”[86]

I adduce these authorities in order to show, that, by the Common Law, as illustrated by some of its best names, Mr. Thomas is beyond all question an offender. Clearly he did not use “the means in his power” to prevent the treason of his son, nor did he “make disclosure of it to the authorities,” according to the received rule of law.

But the statutes of the United States leave us no room for doubt or indulgence. According to the precise text, the present case is anticipated and provided for. The Statute of Crimes, adopted in 1790, at the beginning of the National Government, after declaring the punishment of treason, proceeds to declare the punishment of “misprision of treason,” as follows:--

“That, if _any person or persons, having knowledge of the commission of any of the treasons aforesaid, shall conceal and not as soon as may be disclose and make known the same_ to the President of the United States or some one of the Judges thereof, or to the President or Governor of a particular State or some one of the Judges or Justices thereof, _such person or persons, on conviction, shall be adjudged guilty of misprision of treason_, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars.”[87]

Apply these plain words to the present case. Nobody can doubt that Mr. Thomas had “knowledge” of the treason of his son, and, having this knowledge, failed to “disclose and make known the same” to the President of the United States or the other proper authorities. Abraham Lincoln was at the time President. There is no pretence that the father communicated the crime of the son to this patriot magistrate, or to any other loyal officer by whom he could have been arrested. Therefore, beyond all question, on the facts of the case, the father is guilty under the statute, and liable to seven years of imprisonment and a fine of one thousand dollars. And now, instead of seven years of imprisonment and a fine of one thousand dollars, it is proposed to give him six years of trust and honor as a Senator of the United States, with an annual allowance of five thousand dollars.

According to the old law, the indictment against Mr. Thomas would allege, that, “not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil,” he perpetrated his crime. And now, with this crime unatoned for, he comes here to ask your support and countenance. We are to forget all that he did, “moved and seduced” by evil instigation, and welcome him to this Chamber, instead of handing him over to judgment.

It is treating this case with a levity which it is hard to pardon, when Senators argue that the father was not under obligations to exercise all the paternal power in restraint of his son, or at least in denouncing him to the proper authorities. What is patriotism, what is the sacred comprehensive charity of country, if a father can be blameless after such a license to his son? The country was another mother to this son, and he went away to strike this mother on the bosom. There is a case in antiquity which illustrates the solemn duty of the father at least to detain the son. I quote from Sallust. This remarkable writer, in his history of the Catilinarian conspiracy, tells us that there were many not enlisted in the conspiracy who went out to join Catiline; that among these was Aulus Fulvius, the son of a Senator; and the historian adds, without comment, that the father, when his son was brought back, ordered him to be slain: “_Fuere tamen extra conjurationem complures, qui ad Catilinam profecti sunt: in his A. Fulvius, Senatoris filius; quem retractum ex itinere parens necari jussit_.”[88] Humanity rejects the barbarous exercise of the paternal power according to the Roman Law; but patriotism may find even in this example a lesson of paternal duty. The American father should not have slain his son, but he should have kept him from joining the enemies of his country. This requirement of duty was none the less strong because not enforced by death. I utter not only the rule of patriotism, but the rule of law, when I say that it was positive and peremptory. I will not admit that an American citizen can be blameless who dismisses a son from the paternal roof with money in his purse, to make war upon his country. All that the son did afterward, all that the son sought to do, became the act of the father who sent him forth on his parricidal errand. The father’s treason was continued and protracted in the treason of the son.

In making this contribution to the Rebellion, the act of the father was enhanced by his eminent position. He had held a seat in the Cabinet, binding him more than any common citizen to the most watchful allegiance, and giving to what he did peculiar importance. A soldier contributed to the Rebellion by such a person was a startling event. It was aid and comfort, countenance and encouragement, of far-reaching significance. It was a hostile act, directly injurious to his country, and of evil example, the influence of which no man can measure. How many others were weakened in loyalty by this parricidal act who can tell? When the citizen who has enjoyed public trust and been a “pillar of State” gives way, others about him must fall likewise. So great a parricide must cause other parricides.

And now this father, who gave a son to the Rebellion, comes into this sanctuary of the Constitution, where loyalty is the first condition of admission, and asks for a seat. _Immo in Senatum venit._ Is there not hardihood in the application? Of course, he cannot be admitted without your act having an influence proportioned to the importance of the position. It will be felt everywhere throughout the country. Admit him, and you will unloose the bonds of loyalty and give a new license to the Rebellion in its protracted struggle. On the contrary, if you send him away, you will furnish a warning to the disloyal, and teach a lesson of patriotism which will thrill the hearts of good citizens now anxiously watching for peace and reconciliation through the triumph of loyalty.

I speak this positively, because on this case I see no doubt. The facts are indisputable, and over all towers one supreme act of parricide, for which there can be no excuse or apology. A soldier was contributed to the enemies of his country. There is no question of motive. The parricidal act was complete, and it explains itself. There is no doubt that it was done. In the presence of such an act, so absolutely criminal, there can be no room for inquiry as to the motive. All this I put aside and look only at the transcendent fact, in which all pretence of innocence is so entirely lost and absorbed that it cannot be seen. As well seek to find a motive, if a son struck at the bosom of his mother. The law supplies the motive, when it says, in its ancient phrase, “moved and seduced by the instigation of the Devil.”

Some there are who doubt the motive of the father, and claim for him now the benefit of that doubt. Even if the motive of this criminal act were in question, as I insist that it cannot be, then do I say, that, in a case like this, when disloyalty is to be shut out of this Chamber, I give the benefit of doubt to my country.

There is another voice which sometimes reaches me. We are told, that, if the applicant be disloyal, then we may expel him. For myself, I prefer to take no such risk. Viewing the case as I do, I have no right to take any such risk. Disloyalty must be met at the door, and not allowed to enter in. The old verses, more than once repeated in our public discussions, are applicable now,--never more so:--

“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?”[89]

February 19th, after a debate of several days, Mr. Thomas was declared “not entitled to take the oath of office, or to hold a seat, as a Senator of the United States,”--Yeas 27, Nays 20.

INTERNATIONAL COPYRIGHT.

LETTER TO A COMMITTEE IN NEW YORK, ON THIS SUBJECT, FEBRUARY 17, 1868.