Chapter VIII: Part 8

“Your Lordship was asked, on the last day, whether it would not
be possible in a great degree to mitigate such difficulties as
I have endeavored to portray, by having two sorts of notes, one
of them payable in bullion, but the other, if I may use the
expression, a sort of I O U note between the Government and the
public; whether, inasmuch as the Government owes £6,000,000
or £7,000,000 every quarter, in the shape of dividends or
expenses, and the country owes £6,000,000 or £7,000,000 of
taxes, it would not be possible to arrange that there should
be two sorts of currency afloat,--one the common banking note,
payable in bullion, and applicable for all general purposes,
and the other a note applicable in the more limited sense?--Our
affairs would then go on very much in the way that a man would
walk with one of his legs six inches shorter than the other.
One set of notes would circulate at a depreciation, compared
with the other set of notes; hence great inconvenience and
confusion would arise.”[191]

“Do you believe, that, if any person had notes which insured
to him the payment of all the Government demands upon himself,
though he had no demands upon him directly, he would not find
numbers of persons who would exchange those notes for him
at a premium or a discount?--Then you would have a certain
proportion of the monetary system of the country circulating
at a discount. I cannot conceive a greater state of monetary
disorganization than that.”[192]

But the testimony of Lord Overstone, strong as it was, against an inconvertible currency, still admitted a possible occasion for departure from it; and here his testimony bears directly on the pending proposition. Alluding to the well-known suspension of specie payments by the Bank of England in 1797, he says:--

“I am bound to say that with regard to that period of 1797
there are circumstances which may make it doubtful whether the
Suspension Act was not a justifiable measure. The pressure in
1797 was undoubtedly, to a considerable extent, _connected
with political alarm, with the fear of foreign invasion_,
causing an internal demand for the exchange of notes into coin.
_Under such circumstances, there is no measure founded upon
principle which can pretend to afford an adequate protection.
If, for instance, at this moment, this country were suddenly
exposed to the calamity of a very large foreign force occupying
its soil, or if it were exposed to the calamity of a very
formidable and serious civil insurrection_, no doubt a state of
panic alarm with regard to the paper money might arise, against
which no provisions of the Act of 1844, nor any provisions
founded upon principle, could possibly afford an adequate
protection. But from that view of the subject, again, there
is an inference to be drawn of a very instructive and warning
character, namely,--to make this Committee very cautious how
they extend the issues upon securities. The only protection
against such contingencies is the existence of a large amount
of coin, or of bullion, in the country; and therefore, when
we are looking to contingencies of that nature, we may very
properly pause at the questionable recommendation of increasing
our issues upon securities, which is, in other words,
diminishing our issues upon bullion.”[193]

If this authoritative testimony be accepted in favor of a constant specie currency, it is unquestionably important as recognizing grounds of exception,--as, according to the language of the witness, if the country were “suddenly exposed to the calamity of a very large foreign force occupying its soil, or to the calamity of a very formidable and serious civil insurrection.” In these exceptions there is matter for much reflection. Strong as we may be against any questionable currency, we must not be insensible to a possible limitation even of this just principle. In short, we must be content with the best we can command. And here history affords valuable illustrations in conformity with this testimony.

In 1745, the alarm occasioned by the advance of the Highlanders, under the Pretender, as far as Derby, led to a run upon the Bank of England; and in order to gain time, the directors, while continuing to pay in specie, adopted the device of paying in shillings and sixpences. But, next to the retreat of the enemy, their best relief was found in a resolution by the merchants and traders of the city, declaring their willingness to receive bank-notes in payment of any sum due, and pledging their utmost endeavors to make all payments in these bank-notes. This proceeding, it is perceived, was prompted by the pressure of civil disturbance. But the most authentic case is that of 1797, when the Bank, under pressure of political events, was prohibited, by Order in Council, _issued on Sunday_, the 26th of February, from paying their notes in cash, until the sense of Parliament should be taken on the subject. At the meeting of Parliament, after much discussion, it was agreed to continue the suspension till six months after the signature of a definitive treaty of peace, _thus positively recognizing the existence of war as a reason for this departure from principle_. A recent English writer vindicates this act as follows.

“Much difference of opinion has existed with respect to
the policy of the restriction in 1797; but, considering
the peculiar circumstances under which it took place, its
expediency seems abundantly obvious. The run did not originate
in any over-issue of bank paper, _but grew entirely out of
political causes. So long as the alarms of invasion continued,
it was clear that no bank paper immediately convertible into
gold would remain in circulation._ And as the Bank, though
possessed of ample funds, was without the means of instantly
retiring her notes, she might, but for the interference of
Government, have been obliged to stop payments,--an event,
which, had it occurred, might have produced consequences fatal
to the public interests. The error of the Government did not
consist in their coming to the assistance of the Bank, _but
in continuing the restriction after the alarm of invasion had
ceased_, and there was nothing to hinder the Bank from safely
reverting to specie payments.”[194]

Unhappily, the definitive treaty of peace, on which the restoration of specie payments depended, was not consummated till 1815, so that throughout this long period there was an inconvertible currency, which even the sanction of Parliament did not save, in 1814, from a discount of twenty-five per cent. But peace did not bring specie at once. The routine of paper had become too strongly fixed, and it was only through the remarkable efforts of Sir Robert Peel, in 1819, that an Act of Parliament was passed requiring the payment of specie at the Bank in 1823. Such is the practical testimony of British experience.

The experience of France is similar. I do not now refer to the old _assignats_, but to a modern instance. Beyond question, the Bank of France is conducted with caution and skill; but no caution and skill are adequate to counteract the influence of a sudden revolution, especially like that of 1848, when the Republic was declared. The Bank made large advances to the Provisional Government. This obligation, combined with distrust universally prevalent, occasioned so severe a drain of gold, that, to prevent the total exhaustion of its vaults, the Bank was authorized by Government decree of 16th March, 1848,--just three weeks after the Revolution,--to suspend specie payments, while its notes were at the same time made a legal tender. To prevent abuse, possible in such a condition of things, a maximum of issues was fixed at three hundred and fifty million francs. Such precautions were proper; but the fact of the authorized suspension remains an example of history. The prompt return to the true system is not without encouragement.

* * * * *

If these instances are entitled to consideration, they seem to show, that, according to the experience of other countries, Government may be compelled at times to relax the rigor of its requirements with regard to convertible paper. But they do not fix the limitation to the exercise of this extraordinary discretion. That the discretion exists is important in the present debate.

It is a discretion kindred to that under which the _Habeas Corpus_ is suspended, so that citizens are arrested without the forms of law,--kindred to that under which an extensive territory is declared to be in a condition of insurrection, so that all business with its inhabitants is suspended,--kindred to that which unquestionably exists, to obtain soldiers, if necessary, by draft or conscription instead of the free offering of volunteers,--kindred to that under which private property is taken for public uses,--and kindred, also, to that undoubted discretion which sanctions the completest exercise of the transcendent right of self-defence.

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.

MR. SUMNER. The Senator says, that, if the same language had been used while he was a Senator, it might justify expulsion. That is enough, Sir; and yet the Senator argues that it will not justify the Senate in refusing to open its doors, when he presents himself for admission. In plain terms, the Senate may pronounce the stigma of expulsion, but not the judgment of exclusion. A similar absurdity would be to say, that in private life an offence would justify kicking an intruder down stairs, but would not justify refusing him admission to our house. It is enough to state this case. Nothing can be clearer in the light of reason--and I say also of the Constitution--than that it is the duty of the Senate to meet disloyalty on the threshold,--to say to it, wherever it first shows itself, that this Chamber is no place for it. The English orator pictured his desolation, when he said that he was alone, and had none to meet his enemies in the gate.[204] Desolate will be the Senate, when it cannot meet disloyalty in the gate.

But the Senator from Maine complains, and the Senator from Vermont [Mr. COLLAMER] joins in the complaint, that the claimant is not allowed to _purge_ himself by his oath,--thus using a technical phrase of the law, applicable chiefly to suspected persons. Not allowed to _purge_ himself! Rather say, Sir, not allowed to _perjure_ himself. For, in view of the testimony on your table, the inference is, unhappily, too strong, that in any oath to support the Constitution he must perjure himself. I say this with pain, and anxious not to prejudge the case, but simply because the facts, as they stand without contradiction, leave no opportunity for any other conclusion.

Since complaint is made by learned lawyers that the claimant is not allowed to purge himself, I desire to adduce a legal analogy on this question. It is well known that by the Common Law a person is not permitted to take an oath who does not believe in God. This is the general principle; but when we look at the application, we see how completely it illustrates the present case. If a person is known to have openly and recently declared disbelief, he will not be permitted to purge himself by his oath, for the reason that his own declarations are decisive.

Here Mr. Sumner read from Greenleaf’s _Law of Evidence_, § 370,
and the note to that section, and then proceeded.

Here again is additional illustration from the annotations to the great work of Phillipps on the Law of Evidence.

“After the incompetency of the witness from defect of
religious belief is satisfactorily established by proof of
his declarations out of court, he will not be permitted to
deny or explain such declarations or his opinions, or to
state his recantation of them, when called to be sworn. But
he may be restored to his competency on giving satisfactory
proof of a change of opinion before the trial, so as to repel
any presumption arising from his previous declarations of
infidelity.”[205]

I would not press this illustration too far. But it seems to me clear, that, if you accept the declarations of a person as decisive against his religious belief, they must be accepted as equally decisive with regard to his political belief. An oath to support the Constitution presupposes political belief, as much as the oath itself presupposes religious belief.

Pardon me, Sir, but I cannot refrain from astonishment that Senators, learned lawyers, should be willing to treat the oath to support the Constitution as an oath of _purgation_, an oath of _defecation_, an oath of _purification_,--by which a suspected person may cleanse himself, by which an evil spirit may be cast out. Sir, it is no such thing. Such is not the oath of the Constitution. By that oath the accepted Senator dedicates himself solemnly to the Constitution. It is not an oath of purgation, as Senators insist, but an oath of consecration. To such an oath may be fitly applied the words of the ancients, when they spoke of the oath as “the greatest pledge of faith among men.”

I would not be carried into technicalities; but, since Senators insist that this oath is merely of purgation, I venture to add, that, according to early writers, there were two forms of oaths,--one technically styled “the oath of expurgation,” sometimes the _ex officio_ oath, by which persons were bound to answer all questions, even to the extent of accusing themselves or intimate friends. This oath was much used and abused in the days of Queen Elizabeth. At an earlier day it was administered to an Archbishop of York charged with murder, and no less than one hundred compurgators were sworn with him. The other is what is called “the promissory oath,” which is the oath of the sovereign, the magistrate, the judge, the senator. Obviously this is widely different from the oath by which a person clears himself from suspicion, or cleanses his name.

There is another oath, with a peculiar title: I mean the _custom-house oath_. You all know something of this oath, which is taken hastily, without solemnity or question, and is now an acknowledged nuisance and mockery, against which people petition Congress. By such oaths, “sworn is the tongue, but unsworn is the mind.” With such oaths for seed, perjury is the natural harvest. If Senators who have spoken in this debate can have their own way, you will degrade the solemn oath of the Constitution to the same class, and make it the seed of similar harvest.

For myself, I am determined, so far as my vote or voice can go, that the oath shall mean something, and that it shall be kept solemn and above suspicion. It shall not be degraded to be an oath of purgation or a custom-house oath, but shall be in all simplicity what is regarded by the Constitution an oath of office, in itself the pure and truthful expression of assured loyalty,--not of loyalty still in question, still doubtful, so that people openly testify against it. And where there is evidence seriously impeaching the loyalty of a claimant, he shall not take that oath, with my consent, until the impeachment is removed. Sir, I am not insensible to the attractions of comedy, when well performed on the stage; but there is a place for everything, and I am unwilling to sit in my seat here and witness the comedy proposed. The Senate is to resolve itself into a theatre, under the management of grave Senators,--the Senator from New York, the Senator from Maine, and other Senators,--and we are to see the play proceed. The claimant from Oregon crosses the floor, and, under honorable escort, approaches the desk, takes the oath, and kisses the book. The title of the play is borrowed from a forgotten old English drama: “Treason made Easy; or, An Oath no Great Thing.”

It ill becomes the Senate at this moment to do or to forbear anything by which the standard of loyalty can be lowered. If it justly expects loyalty from others, if it requires loyalty in its soldiers and officers, surely it ought to set an example in its own members. Toward itself, at least, it cannot be too austere in requirement. Wherever about us disloyalty shows itself, whether in the Senate or in its lobby, whether already intrenched in this Chamber or struggling to enter in, whether planted at these desks or still standing in the gate, we have one and the same duty to perform. We must inquire into its character, and if it be found unworthy of trust, we must chastise it or exclude it. This is the least we can do.

Mr. Sumner was followed the same day by Mr. McDougall, Mr.
Davis, Mr. Cowan, Mr. Carlile, Mr. Sherman, Mr. Harris, all in
favor of admission, and by Mr. Wilmot, Mr. Trumbull, Mr. Dixon,
against it.

February 27th, Mr. Browning spoke in favor of admission, Mr.
Howard against it.

The vote was then taken on the amendment of Mr. Sumner, and it
was lost,--yeas 18, nays 26.

The question recurred on the resolution of the Committee, which
was adopted, yeas 26, nays 19; and Mr. Stark was admitted to
take the oath.

* * * * *

The same question came up again in another form.

April 22d, the Committee to whom were referred the papers
touching the disloyalty of Mr. Stark reported that “the Senator
from Oregon is disloyal to the Government of the United States.”

May 7th, Mr. Sumner introduced the following resolution:--

“_Resolved_, That Benjamin Stark, a Senator from Oregon,
who has been found by a committee of this body to be
disloyal to the Government of the United States, be, and
the same is hereby, expelled from the Senate.”

June 5th, Mr. Sumner moved that the Senate proceed with the
consideration of this resolution, and explained it briefly.

MR. PRESIDENT,--The Senate will observe that the resolution declares that the Senator from Oregon has been found by a Committee of the Senate to be disloyal. Now, Sir, I have no desire to discuss the facts of this case. But, in order to exhibit the urgency of this question, it is my duty to exhibit the conclusions of the Committee, set forth in their Report, as follows.

“1st. That for many months prior to the 21st November, 1861,
and up to that time, the said Stark was an ardent advocate of
the cause of the rebellious States.

“2d. That, after the formation of the Constitution of the
Confederate States, he openly declared his admiration for it,
and advocated the absorption of the loyal States of the Union
into the Southern Confederacy, under that Constitution, as the
only means of peace, warmly avowing his sympathies with the
South.

“3d. That the Senator from Oregon is disloyal to the Government
of the United States.”

Of these propositions the first two had the sanction of the Senator from Virginia [Mr. WILLEY], while all three had the sanction of the rest of the Committee, being the Senator from New Hampshire [Mr. CLARK], the Senator from Indiana [Mr. WRIGHT], the Senator from Michigan [Mr. HOWARD], and the Senator from Ohio [Mr. SHERMAN]. Thus, in a Special Committee of five, raised expressly to consider this case, raised, too, after protracted discussion in the Senate, four of the Committee united in all the conclusions of the Report, and the dissenting member united in the first two conclusions. And this Report is, if possible, entitled to additional consideration, when it is known that the Senator from Oregon himself appeared before the Committee. On these accounts I accept the Report, and do not wish to go into it or behind it. It is with me the solemn verdict of a jury duly impanelled for the trial of a cause.

But if the Committee is the jury, the Senate is the court; and it remains that judgment should be entered.

I hear a voice saying that we must not take time for this question. Pray, Sir, what time is needed? The time has been already taken. The hearing has been had, the verdict is rendered.

Pray, why not take time? We are engaged in war to put down disloyalty. For this we set armies in the field, and contend in battle with our own fellow-citizens. For this we incur untold debts. For this we are preparing to incur untold taxation. Sir, all this is simply to put down disloyalty. And yet, when a committee of this body, after careful inquiry, solemnly declares a Senator disloyal to the National Government, we are told that there is no time to consider the question. Sir, I am against disloyalty, wherever it shows itself, whether in belligerent States, sheltered and strengthened by numbers, or sitting here, with all the privileges of this Chamber. Others will do as they please; but I cannot remain silent, while disloyalty, already exposed by our own Committee, is allowed a seat in our councils, open and secret. In not acting, you will discredit the Report of the Committee, or show that the Senate is indifferent to the character of its members. I will have no part in any such thing.

The Senate refused to consider the resolution.

June 6th, Mr. Sumner again moved to proceed with the
resolution, urging, that, with the Report of the Committee on
the table affirming his disloyalty, it was the duty of the
Senate to act promptly.

The question, being taken by yeas and nays, resulted, yeas 16,
nays 21. So the motion was not agreed to.

HELP FOR MEXICO AGAINST FOREIGN INTERVENTION.

REPORT FROM THE COMMITTEE OF FOREIGN RELATIONS UPON THE DRAUGHT OF A CONVENTION WITH MEXICO, FEBRUARY 19, 1862.

A convention was made at London, October 31, 1861, between
Great Britain, France, and Spain, professedly to obtain redress
and security from Mexico for citizens of the three contracting
powers. Provision was made for the accession of the United
States as a fourth party; but the note inviting us to join
was dated a month after the Convention. The invitation was
declined. But, anxious to help Mexico, Mr. Seward proposed
pecuniary aid, in the hope of enabling our neighbor republic to
satisfy the demands of the invading allies, so far at least as
to make them withdraw. The draught of such a Convention with
Mexico was transmitted to the Senate, who were asked to give
their advice with regard to it.

A few passages of a letter from Mr. Corwin to Mr. Sumner, dated
at Mexico, April 14, 1862, will show the condition of things
there.

“The general and leading objects of my mission to Mexico
were, first, to prevent the Southern Confederacy from
obtaining any recognition here, and thus cut off the hope
of augmenting the power of the South by acquisition,
accompanied with Slavery, in Mexico, or any of the Southern
Spanish-American republics; secondly, to use every proper
means to prevent European power from gaining a permanent
hold upon this part of the American Continent.

“In the first object I have fully succeeded. The Southern
Commissioner, after employing persuasion and threats,
finally took his leave of the city, sending back from Vera
Cruz, as I am informed, a very offensive letter to the
Government here. In obtaining the second end I have had
more difficulty.…

“If the French attempt to conquer this country, it is
certain to bring on a war of two or three years’ duration.
The gorges of the mountains, so frequent here, afford
to small detachments stronger holds than any position
fortified by art; and the Mexicans have a strong hatred of
foreign rule, which animates the whole body of the people.
I trust our Government will remonstrate firmly against all
idea of European conquest on this continent, and in such
time as to have its due influence on the present position
of France in Mexico.…

“But I am satisfied this danger may be avoided by the
pecuniary aid proposed by the present treaty with us, and
the united diplomacy of England, Spain, and the United
States. If these means are not promptly and energetically
applied, a European power may fasten itself upon Mexico,
which it will become a necessity with us, at no distant
day, to dislodge. To do this, in the supposed event, would
cost us millions twenty times told more than we now propose
to lend upon undoubted security.”

Spain and England soon withdrew from coöperation, leaving the
French Emperor alone to pursue the unhappy enterprise, which
ended in the sacrifice of Maximilian, whom he had placed on the
Mexican throne.

The Committee on Foreign Relations, to whom was referred
a Message from the President, of December 17, 1861,
transmitting a Draught for a Convention with the Republic
of Mexico, with accompanying papers, and a Message from the
President, of January 24, 1862, transmitting a Despatch
from Mr. Corwin, Minister at Mexico, have had the same
under consideration, and report.

On the 2d of September, 1861, Mr. Seward, in a despatch to Mr. Corwin, at Mexico, announced that the President greatly desired the political status of Mexico as an independent nation to be permanently maintained; that the events communicated by Mr. Corwin alarmed him, and he conceived that the people of the United States would scarcely justify him, were he to make no effort for preventing so great a calamity on this continent as would be the extinction of that neighbor republic; that he had therefore empowered Mr. Corwin to negotiate a treaty with Mexico for the assumption by the United States of the interest, at three per cent, upon the funded debt of that country, the principal of which was understood to be about sixty-two millions of dollars, for the term of five years from the date of the decree recently issued by Mexico suspending such payment, provided that Mexico could pledge to the United States its faith for the reimbursement of the money, with six per cent interest, to be secured by special lien upon all the public lands and mineral rights in the several Mexican States of Lower California, Chihuahua, Sonora, and Cinaloa, the property so pledged to become absolute in the United States at the expiration of the term of six years from the time when the treaty went into effect, if such reimbursement were not made before that time. The President felt that this course was rendered necessary by circumstances as new as they are eventful, and seeming to admit of no delay.

Mr. Seward proceeds to say, that his instructions are conditional upon the consent of the British and French Governments to forbear action against Mexico, on account of failure or refusal to pay the interest in question, until after the treaty had been submitted to the Senate, and, if ratified, then so long thereafter as the interest is paid by the United States.

Mr. Seward adds, that his instructions are not to be considered as specific, but general, subject to modification as to sums, terms, securities, and other points.

Mr. Corwin, in an earlier despatch, dated at Mexico, 29th July, 1861, and addressed to Mr. Seward, had already suggested the policy he was now authorized to pursue, and proposed a lien on the public lands and mineral rights in the provinces mentioned by Mr. Seward. From such arrangement, in his opinion, two consequences would follow: first, all hope of extending the domain of a separate Southern republic in this quarter or in Central America would be extinguished; and, secondly, any further attempt to establish European power on this continent would cease to occupy either England or Continental Europe.

Afterwards, in a despatch, dated at Mexico, November 29, 1861, Mr. Corwin enclosed to Mr. Seward the project of a treaty between the United States and Mexico, by which the United States were to lend Mexico five millions of dollars, payable in monthly instalments of one half million a month,--also the further sum of four millions of dollars, payable in sums of one half million every six months; the whole to be secured by mortgage on the public lands, mineral rights, and Church property of Mexico, for the realization of which a board of five commissioners was to be organized, three to be appointed by Mexico and two by the United States, holding sessions in the city of Mexico until the debt and interest were fully discharged. No reference was made in the proposed treaty to the consent of the British and French Governments, mentioned by Mr. Seward as a condition, nor to the application of the money, when received by Mexico; nor does anything on this subject appear in the accompanying despatch.

The President, by his Message of December 17, 1861, submitted the draught of this treaty to the Senate for their advice. Afterwards, by another Message, of January 24, 1862, he called their attention to it again, in the following language.

“I have heretofore submitted to the Senate a request for its
advice upon the question pending by treaty for making a loan to
Mexico, which Mr. Corwin thinks will in any case be expedient.
It seems to me to be my duty now to solicit an early action of
the Senate upon the subject, to the end that I may cause such
instructions to be given to Mr. Corwin as will enable him to
act in the manner which, while it will most carefully guard
the interests of our country, will at the same time be most
beneficial to Mexico.”