Chapter XI: Appendix (5)

This intelligent constituent of the Senator objects to his whole theory as a tax upon honest poverty and a premium upon wealth. The Senator opposes my amendment as a tax upon wealth. Call it, if you please, a tax upon wealth. The time has come when it should be levied. But I put aside such language. I put aside the idea, except in the general sense, that the draft itself is a tax, and the amendment simply aims to equalize that tax.

The amendment was lost,--Yeas 15, Nays 25.

* * * * *

January 15th, Mr. Sumner moved his amendment as an additional
section. Again it was lost,--Yeas 16, Nays 28.

* * * * *

June 20th, the Senate having under consideration a bill to
prohibit the discharge of persons from liability to military
duty by reason of the payment of money, Mr. Sumner moved again
the former amendment, with the further proviso:--

“That the contributions thus made shall be employed by the
Secretary of War as a fund for bounties to be paid to the
men actually drafted and mustered into the service under
any call subsequent to the date of this Act, whenever they
shall be honorably discharged, or, in the case of death, to
the widow and minor children of any such man, according to
rules and regulations established by the War Department.”

Mr. Sumner again vindicated his amendment. In the course of his
remarks, he said:--

When a citizen is drafted as a soldier, and the question arises of his ransom by a pecuniary contribution, there is no element of equity which is not shocked, so my conscience tells me, if you fail to regulate the requirement of money according to the wealth of the individual. What is there which a man will not give for his life? What is there which a man, having the means, and indisposed to military exposure, will not pay for his exemption? And yet, Sir, by the law as it now stands, you compel the poor to pay the same as the rich. The rich man is drafted, and he pays three hundred dollars, which to him is nothing; he puts his hand into his purse, as you put yours into your pocket to find the change for a newspaper; whereas the poor man, perhaps, is driven to sell all that he has to save himself for his family. Sir, is that just? To my mind it is not.

…

Suppose the Senator himself were drafted; indisposed, as he probably would be, to the toils of war, what is there that he would not consent to pay for exemption? To him, under such circumstances, the required amount would be nothing; and yet to the poor man it is everything. In short, there are many who have it not; and there are many, who, by calling upon their friends, and exhausting every resource within their reach, are not able to command that small sum; others, perhaps, just able to command it, are compelled to burden their families and deny comfort to wife and child.

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

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

* * * * *

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

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

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

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

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

SPECIAL COMMITTEE ON SLAVERY AND FREEDMEN.

RESOLUTION IN THE SENATE, JANUARY 13, 1864.

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

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

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

FOUNDATION OF THE FREE PUBLIC LIBRARY IN BOSTON.

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

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

SENATE CHAMBER, January 20, 1864.

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

Believe me, dear Sir, faithfully yours,

CHARLES SUMNER.

DR. DAVID K. HITCHCOCK.

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

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

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

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

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

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

The Act then provides:--

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

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

* * * * *

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

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

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

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

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

Then, reading the Act, he added:--

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

The President _pro tempore_ said:--

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

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

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

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

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

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

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

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

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

“The subject is under debate.”

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

Shortly afterwards the President _pro tempore_ said:--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is he an “officer”?

Is he in the “civil department”?

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

Look now at these questions in their order.

* * * * *

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

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

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

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.

3. That, in dealing with the Rebel War, the National Government is invested with two classes of rights,--one the _Rights of Sovereignty_, inherent and indefeasible everywhere within the national limits, and the other the _Rights of War_, or belligerent rights, superinduced by the nature and extent of the contest; that, by virtue of the Rights of Sovereignty, the Rebel and belligerent region is now subject to the nation as its only rightful government, bound under the Constitution to all the duties of sovereignty, and by special mandate bound also to guaranty to every State a republican form of government, and to protect it against invasion; that, by virtue of the Rights of War, this same region is subject to all the conditions and incidents of war, according to the established usages of Christian nations, out of which is derived the familiar maxim of public duty, “Indemnity for the past and security for the future.”

4. That, in seeking restoration of the States to their proper places as members of the Republic, so that every State shall enjoy again its constitutional functions, and every star on the national flag shall represent a State in reality as well as in name, care must be taken that the Rebellion is not allowed, through any negligence or mistaken concession, to retain the least foothold for future activity, or the least germ of future life; that, whether proceeding by the exercise of sovereign rights or of belligerent rights, the same precautions must be exacted against future peril; that, therefore, any system of “Reconstruction” must be rejected which does not provide by irreversible guaranties against the continued existence or possible revival of Slavery, and that such guaranties can be primarily obtained only through the agency of the National Government, which to this end must assert a temporary supremacy, military or civil, throughout the Rebel and belligerent region, of sufficient duration to stamp upon this region the character of Freedom.

5. That, in the exercise of this essential supremacy of the nation, a solemn duty is cast upon Congress to see that no Rebel State is prematurely restored to its constitutional functions until within its borders all proper safeguards are established, so that loyal citizens, including the new-made freedmen, cannot at any time be molested by evil-disposed persons, and especially that no man there may be made a slave; that this solemn duty belongs to Congress under the Constitution, whether in the exercise of Rights of Sovereignty or Rights of War, and that in its performance that system of “Reconstruction” will be best, howsoever named, which promises most surely to accomplish the desired end, so that Slavery, which is the synonym of the Rebellion, shall absolutely cease throughout the whole Rebel and belligerent region, and the land it has maddened, impoverished, and degraded shall become safe, fertile, and glorious from assured Emancipation.