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.